Wednesday, 23 March 2016

Demolition and reconstruction of offices under the GPDO

Having fired off my last blog post in a great hurry at the end of a hectic week, I have now had the chance to look a little more carefully at the recent GPDO amendments (which come into force on 6 April).

I am grateful to readers for pointing out a couple of matters that I missed or misinterpreted in my haste. I have already corrected the references to the new Class PA in my original post, and so readers who have not already seen these corrections should perhaps revisit that blog post, where they will see the corrected text.

I promised that I would look at Class PA in more detail in a future blog post, but in view of the fact that it will not take effect for another 18 months, I think further discussion of Class PA might as well await the second edition of my book (“A Practical Guide to Permitted Changes of Use”). In the meantime, anyone eager to carry out a residential conversion of a light industrial building is just going to have to be patient for the next a year and half.

Turning back to the residential conversion of office buildings, and the strange omission of demolition and rebuilding from the amendments to Class O, I am grateful to Jennie Baker and her colleagues at Nathaniel Lichfield & Partners for doing a bit of sleuthing to reveal the real reason behind this glaring omission, following the very definite announcement by ministers last October that demolition and reconstruction of office buildings was to be included in the GPDO.

As readers are well aware, the Housing & Planning Bill is slowly wending its way through parliament, and is currently at its committee stage in the House of Lords. I have deliberately refrained from commenting on the Bill up to now, because it has (as I predicted) been subject to numerous government amendments during its passage, and we may see yet more amendments to the Bill before it finally reaches Royal Assent.

However, one clause which Nathaniel Lichfield & Partners have drawn to my attention is Clause 138 (as currently numbered), which will amend section 60 of the 1990 Act. Section 60 allows the inclusion in a development order of certain specific provisions. It is, of course, purely an enabling power, and it is the actual provisions of the development order that govern the relevant permitted development itself. As currently drafted, section 60(2) provides that where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.

As things stand at present, therefore, any inclusion in the GPDO of a permitted development right for the demolition and reconstruction of office buildings could only require prior approval of the design or external appearance of the building. The building operations, including limited demolition, permitted by certain other Classes in Part 3 (notably Class Q) were clearly felt not to present any problem, whereas ministers and their advisers have presumably concluded that the wholesale demolition and reconstruction of office buildings will necessitate the prior approval of a rather wider range of matters, such as the method of demolition among other things.

The new section 60(1A) in the 1990 Act will provide that where planning permission is granted by a development order for building operations in England, the order may require the approval of the local planning authority, or the Secretary of State, to be obtained for those operations, or with respect to any matters that relate to those operations, or to the use of the land in question following those operations, as specified in the order. This is a fairly subtle change, but it will give ministers power to include a requirement in the GPDO to obtain prior approval of a wider range of matters than they can at present.

Incidentally, this power relates to all those PD rights in the GPDO where prior approval is required in respect of building operations (including demolition), and so it would be open to ministers, if they were so minded, to require in any future amendment of the GPDO that prior approval of additional matters should be sought by applicants not only in respect of Class O but also in respect of other Classes in Part 3 that include building operations, and also under other parts of the Second Schedule (such as Part 1 – larger domestic extension, Part 11 – demolition, and Part 16 – telecoms developments).

With a following wind, the Housing & Planning Bill should receive Royal Assent within a few weeks, so that De-CLoG should be able to make a second amending order dealing with Class O in Part 3 of the Second Schedule to the GPDO (and perhaps one or two other things) by this Autumn, although it could just as easily be postponed until next Spring. The precise extent of this extended PD right still remains uncertain for the time being, and there must also remain some uncertainty as to its precise timing. But ministers have already indicated that the demolition and reconstruction of office buildings through the mechanism of the GPDO is still on the agenda, so we can expect these proposals to emerge in one form or another at some time within the next year or so.

UPDATE (31.3.16): Margaret Baddeley, Planning Director at Nathaniel Lichfield & Partners, has alerted me to the Impact Assessment that has just been published in respect of Clause 138 of the Housing and Planning Bill. This confirms what we had already deduced :

‘The first use of the new provision is likely to be in support of the Government’s intention, announced on 12 October 2015, to bring forward the proposal to allow the demolition of an office building and its replacement with a residential building on a like for like basis’. It adds: ‘The detail on the permitted development right for the demolition of an office building and its replacement with a residential building is being developed. It is therefore too early to estimate the impacts on business within this Impact Assessment.

This conveniently glosses over what we might euphemistically refer to as “an administrative oversight” in De-CLoG, which prevented the inclusion of demolition and reconstruction of office buildings in the recent amendment of the GPDO. (I used a slightly more colourful term when I first heard about it.)



Anonymous said...

Thanks for the very helpful information on this site. We have obtained 3 separate PA's for the largely unwanted office building we own and currently part occupy in a London suburb but we did not implement them due to the October announcement which we took to have extended time but are now planning to do so. We have however been approached by developers who seem to want to scare us into selling by intimating that our London Borough will issue an Article 4 direction the moment the Housing and Planning Bill becomes law. Should this occur what would be the effect on our current PA?

Martin H Goodall LARTPI said...

Article 4(2) of the GPDO provides that an Article 4 Direction does not affect the carrying out of development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval where, in relation to that development, the prior approval date occurs before the date on which the direction comes into force and the development is completed within a period of 3 years starting with the prior approval date. So if you already have prior approval, no Article 4 Direction made at any time since that approval can prevent the carrying out of the permitted development. The Housing & Planning Bill has nothing at all to do with this.

It was clearly the intention of ministers in amending the GPDO (with effect from 6 April) that the 31 May deadline for completing the residential conversion of offices should be replaced by a three-year completion condition, running from the prior approval date. However, just to throw another pebble into the pond, it has been suggested to me that the actual drafting of the amendment order may not have achieved this (!) I don’t happen to share this view (and would rely on the Interpretation Act 1978 in this context). In any event, I can’t see planning inspectors accepting an argument on appeal that the 31 May deadline has not in fact been lifted.

Anonymous said...

Hi Martin

We have just secured PD to convert an old office building constructed in the 70's into a private dwelling. That is the good news! The bad news is that during the process of having detailed layout plans drawn up, a structural engineer inspected and his findings were that the existing slab and foundations were not up to building regs standards. As it is a self build we need to pay a Warranty Provider to give us a warranty on the build. They have advised that they will not provide warranties where existing slabs/foundations are being utilised.

So my question is whether the slab and foundations can be replaced (which in turn I guess means the external walls and roof will need to be replaced on a like for like basis) under the PD we have already secured as the building isn't structurally sound for converting?

Many thanks and keep up the great work.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 3 November, permitted development under Class O does not include any element of operational development. In this case, it would appear that complete reconstruction is now proposed, and this is certainly not within the scope of the permitted development allowed by Class O. A planning permission would be required for these works.

As explained in this blog post, the government did canvass the possibility that Class O might be extended to permit the demolition and reconstruction of office buildings, but no such proposals have yet come forward.