Tuesday, 12 November 2013

Judicial Review of office to residential changes


The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

2 comments:

jc said...

Yet another query on B1 to C3! We successfully obtained permitted development for change of use of an office building of c1,700 sqm to provide 26 one & two bed flats. We have subsequently applied for outline consent to demolish the office building and replace it with 20 houses.The Borough's policies require a 30% affordable housing contribution on developments of 15 or more net dwellings. Does the permitted development establish an effective basis for calculation of net increase in dwellings and therefore mean that in this case there is no "net increase" and therefore no affordable housing contribution?

Martin H Goodall LARTPI said...

The answer to jc’s question is – “It depends”. This would require careful consideration based on the precise facts. It is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.