Tuesday, 17 March 2015

Further protection for pubs (1)


NOTE: 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.

Ministers stated their intention on 26 January this year to strengthen the protection of pubs identified as assets of community value, by bringing forward “at the earliest opportunity” amendments to the Second Schedule to the General Permitted Development Order so that in England the listing of a pub as an asset of community value would trigger a removal of the permitted development rights, under Part 3 for change of use, and under Part 31 for demolition, of those pubs that have been designated as ACVs.

The promised changes to the GPDO have now been made, by an amendment order laid before parliament last week. With effect from 6 April 2015, there is a restriction on the changes of use permitted by Part 3, Classes A, AA and C, in respect of a building used within Class A4 (drinking establishments), where that building has been either nominated or designated as an “asset of community value”. Furthermore, even where the developer is not aware of the building having been either nominated or designated as an asset of community value, the permitted development under Class 3 is subject to the prior condition mentioned below.

A public house (as well as other land and buildings) may be designated by the LPA as an asset of community value, on the application of the parish council or a recognised community interest group under Part 5, Chapter 3 of the Localism Act 2011, as supplemented by the Assets of Community Value (England) Regulations 2012 (SI 2012 No.2421) (which came into effect on 21 September 2012). Public houses seem to be the type of property most commonly designated under the Act, representing slightly more than one-third of designated ACVs, with a very high proportion of nominations (not far short of 90%) having led successfully to the designation of pubs as assets of community value.

The primary effect of an ACV designation is a moratorium on the disposal of the property. However, in addition, there is now a restriction on the changes of use that are permitted by Part 3, Class A (change of use to a use within Use Class A1 – shop or other retail use), Class AA (change of use to a use within Use Class A3 – for the sale of food and drink for consumption on the premises, i.e. a restaurant or cafĂ©) and Class C (change of use to a use within Use Class A2 – financial or professional services).

The restriction applies where the building is used for a purpose falling within Class A4 (drinking establishments) and either it has been designated as an ACV, or the LPA has notified the developer that it has been nominated as an ACV (i.e. proposed for designation as such) under section 89(2) of the Localism Act 2011.

In the case of a building which is already a designated ACV, the restriction lasts for the period of 5 years beginning with the date on which the building was entered on the list of assets of community value. The restriction no longer applies where the building has been removed from that list under regulation 2(c) of the Assets of Community Value (England) Regulations 2012 following a successful appeal against listing, or because the local authority no longer considers the land to be land of community value, or where the building has been removed from that list under section 92(4)(a) of the Localism Act 2011 following the local authority’s decision on a review that the land concerned should not have been included in the local authority’s list of assets of community value. In those cases, the restriction applies during the period from the date on which the building was entered on the list of assets of community value to the date on which it was removed from that list.

In the case of a building that has been nominated as an ACV, but which has not yet been designated as such, the restriction lasts from the date on which the LPA notifies the developer of the nomination, to the date on which the building is entered on the list of assets of community value, or a list of land nominated by unsuccessful community nominations under section 93 of the Localism Act 2011. It follows that if the nomination results in the designation of the building as an ACV, the 5-year restriction mentioned above will then apply immediately, so that the restriction on the change of use will continue without a break, subject only to its possible termination by the removal of the building from the list of ACVs in the meantime.

In the case of a building which is not an asset of community value but which is used for a purpose falling within Class A4 (drinking establishments) it is a condition that, before beginning the development, the developer must send a written request to the LPA as to whether the building has been nominated for designation as an ACV. This request must include the address of the building, the developer’s contact address and the developer’s email address if the developer is content to receive communications electronically.

If the building is nominated for designation, whether before or after the date of the developer’s request, the LPA must notify the developer as soon as is reasonably practicable after it is aware of the nomination, and upon that notification development is not permitted for the specified period mentioned above. Development under Classes A, AA or C must not begin before the expiry of a period of 56 days following the date of the developer’s request as to whether the building has been nominated for designation as an ACV and must be completed within a period of 1 year of the date of that request.

I will deal with the changes to temporary uses under Part 4 and demolition under Part 31 in a later post.

© MARTIN H GOODALL

2 comments:

Steve Edgeller said...

I understand that if a developer notifies the LPA of his intention to change use (e.g. to A1) in accord with A.2(2), he must wait 56 days, and in the absence of Nomination etc. he may commence works and the CoU must be completed within the year.
What if no Nomination is received in the 56 days, but one IS received prior to the CoU taking place?
As drafted, it would seem that the developer could be fatally caught-out right up to the day before opening a shop, having spent substantial sums in acquisition/fit-out etc.
Do you concur?

Martin H Goodall LARTPI said...

For some strange reason I seem previously to have missed Steve Edgeller’s query of 23 May. Sorry about that.

I agree with him that in the circumstances he mentions, the change of use could not go ahead.