Thursday, 8 January 2015

Further planning changes put off until after the General Election

In the interval between Christmas and the New Year, De-CLoG sneaked out its “Ninth Statement of New Regulation: January to June 2015”, which (if what it says on the tin is to be believed) lists all the subordinate legislation that De-CLoG ministers intend to bring into force between 1 January and 30 June 2015. The word “all” is not actually used in the document, but it is reasonable to assume that if the government had a firm intention to introduce any other measures before the General Election they would have been included in this document.

The statement is therefore unintentionally revealing in having omitted a number of significant planning changes which were loudly trumpeted by ministers last year, and which would certainly have been included in the list of forthcoming measures if the government still intended to bring them forward before the General Election.

Among the previously proposed changes about which the document is deafeningly silent are further amendments to the GPDO to enable more changes of use in addition to those previously introduced within the past two years. These were expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

There is no mention, either, of the government’s intention to make permanent those permitted development rights which currently expire in May 2016. We had been promised that the existing time limit for completing office to residential conversions would be extended from 30 May 2016 to 30 May 2019. It doesn’t look as this is going to happen this side of the General Election. The same applies to the right to build larger domestic extensions (under Part 1), currently expiring in May 2016.

Another measure that it seems will not be coming forward is the right to make alterations to shops, so as to allow retailers to alter their premises, plus additional PD rights covering (among other things) further extensions to houses and business premises, over and above existing permitted extensions.

Turning to the Use Classes Order, there is no mention of the proposed merger of Use Classes A1 and A2 in a single new ‘town centre’ use class. This was expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). Similarly there is no mention of the intended restriction of the scope of the current A2 use class, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses.

Another measure of which no mention is made is the suggested increase in floorspace in a building in retail use (including the introduction of mezzanine floors), currently limited to 200 sq m, that can be made without its coming within the definition of development under section 55 (and therefore requiring planning permission). [I thought the original provision in the 2004 Act had been brought into force with effect from 10 May 2006, but I haven’t been able to put my finger on the SI which confirmed this limit, and have begun to wonder whether this provision in the 2004 Act is actually in force. Perhaps someone can enlighten me.]

There is one measure (relating to a proposed reduction in qualifying time for the Right to Buy scheme) which has been pencilled in for April 2015, but is flagged up as being “dependent on the Deregulation Bill”. The same would apply to the previously announced intention to relax section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. But in this case, there is no mention of the proposed measure in the De-CLoG statement. Is this another measure that has bitten the dust?

Perhaps it was the realisation that these various measures could not now be brought forward before the General Election that led to George Osborne refraining from re-announcing them yet again in his Autumn Statement.

In Cloud-cuckoo-land, where Tory members of our coalition government seem to live, it is confidently expected that the government will be able to introduce these various measures after the General Election, and in the meantime they will no doubt feature as commitments in the Tory Party election manifesto. In the real world, where the rest of us live, the survival of the present government after May seems a little less than probable. An incoming government of a different political composition may not wish to continue with these proposals, and so this may be the end of the road for the present government’s planning ‘reform’ agenda.

UPDATE: I am grateful to Sally Davis of G L Hearn and to Ray Tutty of Savills, both of whom kindly emailed me with a note of the provision that I had been unable to find, which specifies the limit for internal enlargements of retail floorspace. This was Article 4 of the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006, which inserted Article 2A in the original DMPO stating that the amount specified under section 55(2A) of the Act is 200 square metres. Any change in this floorspace limit would therefore be by means of a further amendment of the DMPO. It would still be possible for this change to be made in the time available, but its omission from the statement of forthcoming subordinate legislation suggests that the government may not see it as a priority.

NOTE: As readers are no doubt well aware, the coalition government did manage at the last minute to make the promised changes to the GPDO. 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.



  1. LPA have stated I do not have PD rights to change B1(a) to C3 as the office is 'ancillary development to farm, does not constitute and office under GPDO'. Small Office is physically + functionally separate, substantially different business run from it by a family member. I believe I have PD rights; do I appeal to inspectorate? is the 56 day clock still ticking? Realising that May 2016 will come around quickly and LPA may just be wasting time to prevent the conversion being completed. Next coalition lot may withdraw the new PD rights... Any help or info from any experience of this will be much appreciated. Thank you in anticipation - Chris

  2. In answer to Chris (18 January), it is possible that the LPA may have got it wrong in this case, although the ultimate outcome will depend on the building in question genuinely being a separate planning unit (in accordance with the rule in Burdle) and being in use (or last in use) before 30 May 2013 for an entirely separate use falling exclusively within Class B1(a). The use of the office must also be a lawful use (i.e. it must have had planning permission for use as an entirely separate and independent office, or this use would have had to become lawful under the 10-year rule by 30 May 2013), because PD rights cannot arise in respect of a use which is unlawful. If the building really does qualify under Class J, then the 56-day period is still running until or unless the LPA makes a determination as to whether or not their prior approval of the change of use is required, and (if so) whether such approval is granted.

    If this development really does qualify under the terms of Class J, and no proper determination of the prior approval application is made by the LPA within the 56-day time limit, the right to carry out the development then ‘crystallises’ and the developer is free to go ahead with it. However, if there is a remaining element of doubt or dispute, this could be resolved by an application for a CLOPUD under section 192. A bolder (and more risky) tactic would just be to get on with it and dare the council to take enforcement action, which they might be reluctant to do if they are presented with evidence that the building was being lawfully used for an independent use within Class B1(a) immediately prior to 30 May 2013, and does genuinely qualify under the criteria laid down in Class J.

    As Chris notes, under the present rules the change of use (i.e. residential occupation) must take place by 30 May 2016 at the latest, and there can be no guarantee that this period will be extended (as the present government would like to do if they are still in power after the General Election). So any delay on the part of the LPA in dealing with a CLOPUD application should be appealed under section 195 if they haven’t determine that application by the end of 8 weeks after it is made. This should still allow time to complete the development before 30 May 2016 (still 16 months away at the time of writing).

    The usual disclaimer applies to this answer, bearing in mind that I am not in possession of the full facts, and am not formally instructed in the matter.