Tuesday, 10 December 2013

Offices to residential – an update

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As readers of this blog will be aware, the legal challenge brought by the London Boroughs of Islington, Richmond, Camden and Lambeth against the amendment to the GPDO last May allowing change of use from office to residential use (subject to a prior approval process) was due to take place on Wednesday 4 December, and Mr Justice Collins duly presided at the hearing on that day.

What I had not appreciated until now was the very narrow scope of the challenge mounted by these four authorities. They confined themselves to challenging the process that De-CLoG adopted in deciding whether, and if so which, parts of the areas of these authorities should be exempted from the new rules. They have not sought to challenge the amendment order itself by which the new PD rights were inserted in the GPDO. All they are asking for, it seems, is a re-run of the consultation process in their areas. Their complaint is that outside consultants were brought in by De-CLoG to carry out this exercise and applied a points system to score each LPA’s area, using criteria of which the councils were unaware. If the councils had known how the assessment was to be carried out, they might (they say) have presented the case for exemption in a way that could have produced a different result. I must say that this seems to me to be a rather weak argument, but it is up to Mr Justice Collins to make of it what he will.

The consequence of the current High Court action being narrowly confined to the way in which these four authorities’ applications for exemption were dealt with, and the fact that they have not sought to challenge the actual amendment order to the GPDO, is that this new legislation cannot now be struck down by the court, and so even if these four London Boroughs win their case, it will not affect the operation of the new rules in any other area. Even in the areas of the four boroughs concerned, there must be considerable doubt as to how the court could deal with the position in the interim while any re-consultation takes place. This makes it all the more likely, in my view, that the court may not in practice feel able to grant the relief that the four boroughs are seeking.

This was clearly a point that troubled Collins J in the course of the hearing, and he queried whether these four councils could legitimately refrain from determining applications for prior approval until any re-consultation process has been completed. However, there would appear to be no legal basis for doing this. Failure to determine pending prior approval applications could lead to approval by default under the 56-day rule, and counsel for Lambeth did in fact make this point.

As I predicted, judgment has been reserved. It is just possible that judgment could be delivered shortly before the Christmas vacation, but it is more likely to be handed down early in the New Year.

Meanwhile, some observers have recently noted a trend among certain LPAs to refuse prior approval for office to residential conversions on grounds not confined to transport and highway impacts, on-site contamination risks or flooding risks. For example, in a particularly controversial case that had received some attention in the press, Camden LBC recently refused prior approval for reasons that included issues such as lack of affordable housing, lack of a financial contribution towards educational provision or public open space, no ecology and habitat plan, and no means (by way of a planning obligation under section 106) of securing the achievement of level 3 of the Code for Sustainable Homes. This council seems to be spoiling for a fight, and it will be interesting to see the outcome of any resulting appeal, and the possible High Court proceedings that might follow.

Clearly Camden are seeking to rely on the drafting in the amended GPDO to which I have previously drawn attention in this Blog (see “Offices to residential – a further thought” posted on Wednesday, 22 May 2013) that the LPA should “have regard to the NPPF as if the application were a planning application”. I wrote that one might read this phrase as though it is applicable only insofar as the NPPF is relevant to the consideration of transport and highways impacts, contamination risks and flooding risks, but I was not confident that such a narrow interpretation would necessarily be placed on the requirement to have regard to the NPPF, and this recent decision by Camden appears to confirm my fears on this score.

There is no specific requirement in the GPDO amendment to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act (which provides that where the development plan is required to be taken into account in the determination of any application under the planning legislation, the application must be determined in accordance with the development plan unless material considerations indicate otherwise) does not apply. However, the NPPF does refer to the development plan in such a way as to bring its provisions into consideration, even though section 38(6) may not apply as such. In practice, it seems that Camden are seeking to bring their local policies into the equation in reliance on the NPPF in just this way.

Writing in May, I observed that if such considerations were to be taken into account, this would appear to defeat the whole object of this amendment to the GPDO in removing obstacles to development (at least for a three-year period). And yet I had a nagging suspicion that there has been some legislative sleight of hand here, which takes away with one hand what appears to have been given by the other. I speculated as to whether this issue might become the subject of dispute, appeals and even litigation, and now it appears that it will.

At the time of writing, I am not aware of any appeals against the refusal of prior approval of office to residential conversions that have yet been determined, and I would be very grateful if any reader is able to alert me to any such decisions as and when they are issued.



Anonymous said...

Just seen the Camden case, and the15 reasons for refusal. Also interesting to see the delgated report and a reference to counsels advice “Following consideration of counsel’s opinion the Council has considered the proposal against the criteria and conditions set out by Class J and in interpreting the intent of the class in the context of the NPPF it is understood that the representations of the community should be taken into account in its consideration.”

One point I had not thought about was whether a S106 obligation could be entered into on these cases, but I assume there is no reason why not?

Chris Weetman said...

On the RTPI Independent Consultants Network Forum a practioner based in Portsmouth was having problems with a LPA. He asked DCLG to comment on which parts of the NPPF they felt were applicable to this prior approval format and they responded by identifying only contaminated land, highways and flooding and not the rest as Camden have done.

Anonymous said...

Pity the poor Inspector/Judge that will have to look at the Camden case. Can't wait to see what happens though

RichardW said...

A minor point perhaps but while S70 TCPA 1990 applies only "Where an application is made to a local planning authority for planning permission" S38 PCPA 2004 applies "for the purpose of any determination to be made under the planning Acts". This presumably must include determination of prior approval cases - assuming you agree that a determination under secondary legislation is equally a determinaition under the Act?

Martin H Goodall LARTPI said...

Just to respond briefly to Richard W, the key words in s.38(6) are “ If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts...........”. The relevant provision in Part 3 of the Second Schedule to the GPDO does not require that regard is to be had to the development plan, and so the consequential requirement that the determination must be made in accordance with the development plan unless material considerations indicate otherwise does not apply.

In any event a determination of any application made under subordinate legislation (such as a prior approval application under the GPDO) is NOT “a determination made under the planning Acts” (see section 117(4) of the 2004 Act, which defines this term). So this is a second and overriding reason why s.38(6) does not apply in this case.

A good example of a determination made under one of the planning Acts themselves where s.38(6) does not apply is an application for Listed Building Consent. The application has to be determined in accordance with section 16(2) of the Listed Buildings Act, which does not include a requirement to have regard to the development plan. On the other hand, if the development plan contains provisions that are relevant to listed building control as such, which many do, then these will be a material consideration in the determination of the LBC application – but, because s.38(6) does not apply, there is no requirement that this determination should be made in accordance with the development plan.

Anonymous said...

It would appear that Camden are ignoring their Development Plan as well in seeking these contributions. They have set an arbitrary target of 5 dwellings for affordable provision and have already begun refusing prior approval applications on that basis.

Officers are said to be downbeat about being the bearers for their members political demands

Anonymous said...

Richmond are now seeking highways contributions from prior approval, even though Reg 122 limits 'relevant determinations' to those determined pursuant to S70 of the 1990 Act.

They are also adding conditions, but not relying upon S72 of the 1990 Act as the legal basis to do so

Martin H Goodall LARTPI said...

I think Richmond may well find that they have exceeded their powers. I hope someone challenges this. A simple section 78 appeal, accompanied by an application for costs, ought to sort it out.

Anonymous said...

i have had a application refused with the council stating under class J the primary use of the land has to be B1(a) although the building in question and identified is B1A although the rest of the site is B8 storage.

Martin H Goodall LARTPI said...

My apologies for the delay in moderating the Anonymous comment submitted on 31/01/14. The precise identification of the existing planning unit and its current use is crucial to this question. A building or part of a building used as an office only comes within Use Class B1(a) if it is in itself a separate planning unit used exclusively for that purpose, i.e. if it is both physically and functionally separate from the farm (to use the example given) or other premises.

If, as seems very likely, the office is simply an ancillary part of a larger use – as a farm or for some other industrial or commercial purpose, then the use of the office will either be a part of that larger use (e.g. an agricultural use, a B2 use or a use falling within other parts of Class B1, or quite possibly a sui generis mixed use). In any of these cases, the PD right enabling a change of use from Class B1(a) (office) to C3 (residential) does not apply.