Friday, 18 March 2016
The GPDO is amended at last
There seems to be an immutable Law of Nature that as soon as my back is turned something dramatic happens on the legal front. Over the past week I have been kept out of the office every day until today, at a series of meetings, site visits, etc., so that it was not until this afternoon that I had the chance to catch up on the legal news. Whereupon I discovered that at the end of last week, without any kind of fanfare or announcement, the government had made and laid before parliament the long-awaited Amendment Order to the GPDO. This is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (SI 2016 No. 332), which comes into force on 6 April.
I will look at the most important changes in today’s article, and will defer to a future post the other amendments to the GPDO that this new Order makes.
As expected, the wording of Class M has been amended to include launderettes among the types of building uses that may be converted to residential use under this Class. Paragraph M.2(1)(d)(i) has been amended to refer additionally to launderettes in relation to the test as to the impact of the change of use on adequate provision of services of the sort that may be provided by such a building.
However, the most eagerly awaited amendments are the changes in the rules relating to the residential conversion of offices under Class O.
The previous deadline for the completion of a residential conversion under Class O (31 May 2016) is entirely removed, by the deletion of paragraph O.1(c), which had imposed this deadline. However, there is now a condition (which is already found within a number of other Classes of permitted development in Part 3) that the development under Class O must be completed within a period of 3 years from the prior approval date. Where prior approval under Class O has already been given, this means that the three-year time limit for completion of the development is calculated from that date, which in some cases may not leave developers who got prior approval some time ago with too much extra time within which to complete their development. I have discussed the calculation of time limits and what constitutes “completion” in my book (A Practical Guide to Permitted Changes of Use), so I won’t repeat that material here.
One of the promised changes was the removal of the exclusion of permitted development under Class O in the ‘exempted areas’ (Article 2(5) Land). As previously announced, this exclusion of exempted areas is to be extended in order to give LPAs the opportunity to put Article 4 Directions in place in those areas. The government seems to have been in two minds as to how long should be allowed for this purpose, but they have now decided to extend this period for a further three years. A prior approval application in respect of the proposed residential conversion of offices in one of the exempted areas cannot therefore be made before 30 May 2019 (or, as the GPDO amendment puts it, the change of use will not be permitted development if the prior approval application is made before that date).
Article 2(5) will then disappear with effect from 31 May 2019, as will the list of exempted areas (currently in Part 3 of Schedule 1 to the GPDO). For the sake of good order, the prohibition on prior approval applications under Class O in exempted areas before 30 May 2019 will also disappear from the Order on that date.
Note also that the impact of noise from commercial premises on the intended occupiers of the development has now been added to the matters requiring prior approval in all cases under Class O (in addition to the existing requirement for prior approval in respect of transport and highways impacts, contamination risks on the site, and flooding risks). For this purpose, “commercial premises” means any premises normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application, and includes any premises licensed under the Licensing Act 2003 or any other place of public entertainment.
And now we come to the big surprise. Despite very clear ministerial promises, the revisions to Class O make no provision for any demolition or rebuilding of the office building. The position remains, therefore, that any building operations (whether for partial or more substantial demolition, or for any new build, even of quite a minor nature) will still require a separate planning permission. In principle, there is no reason why such a planning application for ‘associated works’ should not accompany (or follow shortly after) the prior approval application, and this has already been the practice for several years under the existing provisions. Any such planning application will have to be dealt with on its own merits, but the change of use itself will not be a material consideration in the determination of that application, because the change of use is in any event permitted development, subject only to the prior approval of the specified matters relating to that change of use.
It seems that ministers were advised that the enabling power in section 60 of the 1990 Act does not currently allow them to require prior approval of a wider range of matters beyond just the design or external appearance of the building in prior approval applications for building operations, and so demolition and reconstruction of offices under Class O will have to await the amendment of section 60, to enable this additional PD right under Class O to be added to the GPDO.
On the other hand, ministers have kept their promise to add a new Class of permitted development (Class PA) that will allow the residential conversion of premises that have been in light industrial use, although there will be only a limited window of opportunity within which this can be done.
Development is not permitted by Class PA if a prior approval application in respect of the development is received by the local planning authority before 1 October 2017. So contrary to what I originally wrote in this blog post, everyone one will have to wait for almost 18 months from now before the window of opportunity for the residential conversion of light industrial buildings will open. I am sorry if I caused some unnecessary excitement by suggesting the converse when I originally wrote this post.
This window of opportunity will nevertheless be of limited duration. Development is not permitted by Class PA if the prior approval date falls on or after 1st October 2020. (The ‘prior approval date’ is the date on which prior approval is actually given or the date on which the 56-day period expires without the LPA having notified the applicant of the determination of the application.). So there will be a three-year time slot (actually 8 weeks less than three years) in which prior approval can be sought under Class PA. To be on the safe side, a prior approval application under Class PA ought to be submitted no later than July 2020.
There is also the now standard proviso that development under Class PA is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date. As with the various other Classes of PD in Part 3, the provisions are quite detailed, and I will explain these in a future blog post.
[FOOTNOTE: When I originally wrote this blog post, I was focusing primarily on Class O, and only threw in a brief note on Class PA as an afterthought. In my haste (at the end of a very busy week), I misread the time limits applying to this new permitted development right, and I am grateful to Gary Mickelborough MRTPI for alerting me to the error in my original post, which I have now corrected.]
UPDATE (6.5.16): In case there are any readers who do not habitually look at the comments appended to blog posts, I would draw their attention to some important clarification from De-CLoG on the interpretation of the time limit under Class O that is set out in the latest comments posted below.
© MARTIN H GOODALL