Friday, 14 February 2014
Office to residential - a ministerial warning
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.
Last week, in a written ministerial statement to the Commons on Thursday 6 February, Planning Minister Nick Boles fired a warning shot across the bows of councils seeking to resist or frustrate office to residential conversions as PD under the new rules introduced last May.
A number of points about which there had previously been some uncertainty were clarified. First, it is clear that the government did envisage multiple conversions in large office buildings; Boles mentioned the potential of some buildings to provide more than 100 homes. A number of such schemes have already achieved prior approval.
Boles criticised the disproportionate use of Article 4 Directions by some councils. He made it clear that the Secretary of State, whilst he no longer has to approve Article 4 Directions, is still prepared to use his reserve power to cancel Directions that are not justified, and several such Directions are currently under review in De-CLoG, and may either be cut down in their geographical scope or cancelled altogether. At the time of Boles’ statement, 8 authorities had made directions preventing office to home conversions under the GPDO. Islington and Broxbourne were singled out as authorities that had applied these directions disproportionately.
De-CLoG is also aware that some LPAs are still unclear on the correct intention of the detailed provisions in the GPDO amendment, and do not appear to have correctly applied the intended tests to determine applications for prior approval, or have sought to levy developer contributions where they are not appropriate (on matters unrelated to the prior approval process). To ensure the permitted development rights are utilised fairly across England, De-CLoG intends to update their planning practice guidance to councils to provide greater clarity on these points. Unjustified financial levies should not be applied in an attempt to frustrate the creation of new homes, Boles said.
The government is clearly determined to ensure that the PD rights for office to residential conversion granted last May are not frustrated by a small minority of councils who are trying to undermine these changes. This can be taken as a clear steer to the Planning Inspectorate as to the way in which any unjustified refusal of prior approval should be dealt with on appeal. Clearly any refusal based on criteria other than the three narrowly defined topics listed in the GPDO are liable to be overturned. I drew attention a short time ago to a decision in Camden which cited every conceivable objection under the sun. It seems very unlikely that Camden stands much chance of defending that refusal on appeal, and an award of costs against the council looks almost inevitable.
Boles’ Commons statement serves not only as a warning to LPAs who may have been seeking to prevent or frustrate office to residential conversions, but should encourage developers to take a robust stance in appealing any refusal of prior approval, especially if it cites spurious reasons for refusal. There would seem to be no legal basis on which affordable housing provision or contributions can be demanded, or any other financial contributions from developers under section 106. There may, on the other hand, be a potential liability to pay CIL (although I don’t pretend to be an expert on that topic). So far as I can see, no conditions can lawfully be imposed on a prior approval of such development, bearing in mind that (subject only to the prior approval process) such developments are Permitted Development, so that the only applicable conditions can be those actually imposed by the GPDO itself.
UPDATE: In case any readers have not noticed, power to impose conditions on a prior approval was given by the 2014 amendment to the GPDO, but they must be strictly confined to the limited matters that are the subject of the prior approval application. The scope for imposing conditions is therefore much more limited than it would be in the case of a planning permission.
© MARTIN H GOODALL