This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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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
Martin, just to clarify an inaccuracy at the end of your blog before you get round to digging your teeth into this Order.
ReplyDeleteYou have said "there is only a limited window of opportunity within which this can be done. A prior approval application under Class PA must be made to the LPA no later than 30 September 2017". However, the new Class actually creates a temporary right to change a building in light industrial use to residential use, where an application for determination as to whether prior approval is required is made on or after 1 October 2017 and the prior approval date occurs on or before 30th September 2020.
So there actually appears to be an unprecedented requirement to delay the submission of an application later next year, despite the legislation coming into force this April. Your thoughts as to why this might be the case would be welcomed.
Otherwise thanks for another great blog entry.
Gary Mickelborough MRTPI
Nobody seems to be commenting on the issue of developments having to be COMPLETED by a certain deadline under the GPDO provisions. To me this has the makings of a hornet's nest as all sorts of factors can delay completion; running out of funds, losing a job, a bereavement, etc, etc. At Planning Aid England we recently had someone phoning v concerned that they had to complete their larger rear extn by May 2016 when trees and various other problems had held up the work. In that particular instance the lpa they had up to May 2019 to complete it now, but I am sure similar situations will arise around March 2019. Whilst I hope lpas will treat people sympathetically generally in such scenarios, it makes for uncertainty and that is not good.
ReplyDeleteAs John Harrison points out (19 March), the GPDO now contains a number of permitted development rights where the permitted development must be completed within a specified time limit. I agree with John that this could cause practical difficulties where the permitted development is well under way but has not been completed by the relevant deadline. I have discussed the point in my book “A Practical Guide to Permitted Changes of Use” but, as John points out, the same problem could arise in relation to larger domestic extensions under Part 1.
ReplyDeleteI have suggested in the book that in relation to a multiple residential conversion (such as an office building under Class O), it would be impracticable to revert to the previous use, and the LPA would necessarily have to take a practical and realistic view of the situation. In such cases, and also in the case of the Part 1 development to which John Harrison refers, the position could most effectively be dealt with by making a (partly retrospective) planning application at the point when the uncompleted development ceases to be permitted development by reason of the expiry of the time limit. Such an application ought realistically to be granted, and the fact that it was largely carried out as PD must be a material consideration leading in most cases to a grant of planning permission.
I will take a look at the point raised by Gary Mickelborough (19 March), and will deal with it in a separate blog post shortly. If my admittedly hurried glance at Class PA misled me as to its precise effect, I shall endeavour to correct any inaccuracy that may have crept into my initial summary as soon as possible.
ReplyDeleteThanks for the Blog and the promise of more to come. I'm trying to answer some questions that could flow from the changes to Class O.
ReplyDeleteIf a PA application under Class O is in now, but determined after 6 April, then presumably LPAs won't have to apply the 'noise from commercial premises' test, and applicants will not need to provide the statement of the net increase of dwellinghouses. But, presumably, the development will be subject to the completion within 3 years condition?
My immediate reaction to the question raised by today’s anonymous correspondent is that if the application under Class O is duly made before 6 April, then the LPA cannot reject it as invalid on the ground that it does not seek approval in respect of noise impacts. In fact, it seems to me that they must determine a valid application in the form in which it is submitted, even if it is not determined until after 5 April (except that they can ask for additional information, but only in respect of the matters in respect of which prior approval has been sought – so noise impacts cannot be brought into consideration in that way). If they fail or refuse to determine the aplication, whatever the excuse, the 56-day rule would come into operation.
ReplyDeleteThere does not seem to me to be any scope for an LPA to insist on noise impacts being considered in respect of any prior approval application under Class O that is received by them on or before 5 April. Only those prior approval applications received by an LPA on or after 6 April will have to seek approval additionally in respect of noise impacts. So the answer to my anonymous correspondent is that if the Class O application is ‘in the pipeline’ before 6 April, it must be determined without reference to noise impacts, even if the premises might arguably be affected by noise.
Dear Martin,
ReplyDeleteThank you for your advice. I am struggling to understand why prior approvals granted under the current Class O would benefit from the 3 year implementation deadline in the new Class O.
The new Class O has the additional requirement to apply to the LPA in respect of noise impacts and therefore so far as I can see no development could benefit from the rights in the new Class O (including the 3 year implementation period) unless such an application has been submitted.
It appears that all developments which are proposed to be implemented on or after the 6th of April will require a new application for prior approval to benefit from the rights in the new Class O?
Readers will note that, following Gary Mickelborough's helpful comment of 19 March, I have now amended the text of this blog post so as to summarise the time frame for permitted development under Class PA correctly.
ReplyDeleteTransitional situations are always a bit confusing, but I will try to summarise these briefly in light of Jonathan Puplett's comment.
ReplyDelete(1) The absolute deadline of 31 May 2016 for the completion of the residential conversion of offices under Class O has now been entirely lifted.
[Before we go on, it should be firmly borne in mind that Class O still authorises only a change of use, but not any building operations. A change of use is a single event, not a process. Thus the change of use is both commenced and also completed when it actually happens. Actual residential occupation is clear evidence of this, but in accordance with Impey (as conformed in Welwyn Hatfield) the change of use may actually occur when the dwelling is ready or available for imminent residential occupation. So beginning internal alterations to facilitate this change of use does not constitute the commencement of development under Class O.]
(2) Apart from the 31 May 2016 deadline (now removed), there has previously been no time limit for the completion of a residential conversion of offices under Class O.
(3) The provisions that apply to a particular development under the GPDO are those in force at the time when this development is actually commenced. However, as noted above, in the case of Class O this means when the change of use actually takes place. [However, as explained below, this rule must also apply to the date on which a prior approval application is made.]
(4) It follows that if the change of use permitted by Class O has not taken place before 6 April 2016 (irrespective of the prior approval date), it will then be subject to the three-year time limit that applies to development under Class O on and from 6 April. Bear in mind, however, that the original Class J in the 1995 Order only came into force on 30 May 2013 (a little less than three years ago), so this should not cause any difficulty in practice. The absolute deadline originally imposed has simply been replaced by a rolling 3-year time limit, starting from the prior approval date.
(5) We then come to the query raised by Jonathan Puplett. If a prior approval application under Class O is made on or after 6 April, noise impacts are one of the matters that will then require prior approval. However, if the prior approval application is made before 6 April, noise impacts do not require approval as part of that application. Assuming compliance with all the requirements of paragraph W(2) and payment of the correct application fee, the prior approval application is then complete and must be determined within 56 days. It would not be practicable, if that application has not been approved by 6 April, to then insist on the addition of an extra matter to a valid prior approval application duly made before 6 April (and I see nothing in the amended wording in Class O to suggest such a requirement).
Where a prior approval application under Class O is made before 6 April, noise impacts are clearly not one of the matters that will require approval and so, as explained in my reply to an earlier comment, noise impacts cannot be a factor is such a case, even if determination of the prior approval application does not occur until after 6 April. The requirement for prior approval in respect of noise impacts does not therefore apply to a valid prior approval application duly made before 6 April. This applies irrespective of whether the prior approval date falls before or after 6 April, and irrespective of the date of completion of the development.
ReplyDeleteA large office building on a large industrial estate (100000 sq ft) is the subject of a prior approval application. The notice states the intention is to turn the offices into 100 apartments. This is contrary to the development plan and also avoids the social housing requirements and CLS. If there are none of the 4 issues in the GDO relevant is the only way to avoid permitting this an Article 4 Direction?
If the application is completely in order, and the qualifying criteria are met, then only the three matters previously specified in Class O can be taken into account in determining whether prior approval is required and should be given – transport and highways impacts, contamination risks and flooding risks. As previously discussed, noise impacts can only be considered where a prior approval application is received on or after 6 April.
ReplyDeleteThe terms of the GPDO are deliberately framed so as to prevent LPAs from resisting this type of development on the grounds that the development is contrary to the development plan or that it avoids social housing requirements or a requirement for specific financial contributions.
If the prior approval application has already been received, then it seems very unlikely that there would be time to put an Article 4 Direction in place before the prior approval date (see Article 4(2)). The Direction would have to be made and be brought into immediate effect within the 56-day period.
Dear Martin,
ReplyDeleteWith regard to point (5) of your 12:32 post yesterday. Assuming prior approval is granted pre-6 April but the change of use takes place post 6 April, how can that change of use comply with the new O.2 (1) which requires that "Development under Class O is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—...(d) impacts of noise from commercial premises on the intended occupiers of the development.
Whilst the developer will have a prior approval they will not have one where the authority have determined whether prior approval of the authority will be required as to noise etc.
The point put forward by Mark Brown in his comment this morning is in principle arguable, but (as I shall explain below) there is judicial authority that supports the interpretation for which I would contend. Whilst a literal interpretation of the legislation might lead to the view expressed by Mark, in my view this would lead to the anomalous position that, having obtained prior approval on an application made before 6 April, the applicant would then have to apply for prior approval all over again after 6 April. I cannot accept that this is what the legislators intended.
ReplyDeleteI am grateful to my colleague Ben Garbett for reminding me of the decision of the Court of Appeal in R (Orange Personal Communications Services Ltd) – v - Islington LBC [2006] EWCA Civ 157 (in which Ben acted as the instructing solicitor on behalf of Orange) which in fact provides the key to answering this conundrum. In giving the Court’s judgment, Laws LJ made it clear that, where an application for prior approval is required, then once a prior approval is given, the extent of the permission granted by Article 3 is clearly crystallised or defined, and such permission is effective.
Laws LJ made the same point as I have made above. In a case where the planning authority grants prior approval, it would surely be unjust if the developers' inevitable reliance on the grant could be defeated by the adventitious fact of (in the Orange case) a conservation area designation. His Lordship considered that there is a strong parallel between the prior approval process and the process of the grant of planning permission by a local planning authority in the ordinary way. In that latter case, he said, it is beyond contest that the planning permission once granted cannot be undermined by a later change in the status of the land save, possibly, where there is expressly retrospective legislation or something of the kind. Prior approval fixes the particular location and details of the development and the time within which it may be carried out.
As Laws LJ put it, this produces, in the end, fairness and overall conformity with the scheme and the planning legislation.
...that's helpful thank you!
ReplyDeleteDear Martin
ReplyDeleteWe have a Prior Approval Office to residential application which was validated back in 2015 but we have signed extension of time whilst the LPA sort S106 matters, so the application is underway and valid prior to April 2016 - where noise was not a consideration under the process.
We received a 'refusal' for the Prior approval application last week on noise grounds, the LPA citing the new legilsation.
Given your comments above, we are of the thinking this has been refused incorrectly as noise factors cannot be a consideration as validated in 2015. [The noise implications also relate to noise that 'could potentially happen in the future' as currently land adjacent is a car-park for a dockyard that would be able to make as much noise as they wanted in years to come.]
Fortunately we already have a prior approval on the site for a smaller number of units that was approved last year so have this to fall back upon.
We would however like to appeal this decision and welcome your thoughts on the matter???
Thanks in advance...
Unfortunately, the amendment order that came into effect on 6 April is silent on the point that ‘Mr A Nonymous’ raises.
ReplyDeleteArticle 15(2) provides that another change made by this amendment order “does not apply to applications made on or before 5 April 2016 for determination as to whether the prior approval of the authority will be required under Part 3”. It might therefore be argued that because Art.15(2) refers specifically to that other provision, and only to that provision, the requirement (in relation to development under Class O) that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to (inter alia) impacts of noise from commercial premises on the intended occupiers of the development, does impliedly relate to prior approval applications that were not determined before 6 April.
However, I have already stated my view in an earlier comment that a prior approval application duly made before 6 April must be determined only in respect of the matters that were required to be the subject of such an application at the time it was made. Where an LPA purports to determine a pre-6 April prior approval application on grounds of alleged noise impact, the correctness or otherwise of such an approach will clearly be an issue for consideration in any appeal, and I would be interested to see which way an inspector might ‘jump’ in dealing with this issue. It could potentially end up in the High Court if there is enough money riding on such a development.
I and others have complained before of the failure of De-CLoG in drafting amending legislation of this sort to incorporate adequate transitional provisions in the amendment order. It leaves both developers and practitioners in a state of uncertainty as to the effect of such amendments on matters that are already in the pipeline. Ministers and their civil servants really do need to get to grips with this problem.
At least in relation to cases where prior approval had been granted under Class O before 6 April, a developer can rely on the decision in R (Orange Personal Communications Services Ltd) – v - Islington LBC referred to in an earlier comment above, in resisting any demand from the LPA of a fresh prior approval application to cover the issue of noise.
Martin,
ReplyDeleteFirstly, thank you for your response to my above query - we are considering an appeal and will keep you updated.
On another note, for the same site, the LPA have advised that the previous prior approval, which is underway must be completed/building in use as residential by the 30th May, 2016.
This is not as we had interpreted the GDPO as we had, along with many others concluded fro extant prior approvals, the change of use was to occur 3 years from the date of the prior approval - in this case, this would be October 2016.
This difference of 5 months is substantial for this scheme, especially where the LPA have contacted the applicant only this week to advise of this stance (there is little hope that the change of use can occur in the next 3 weeks).
I have looked at the legislation and indeed it could be another grey area - the LPA's legal team have also advised this is the case.
This could have implications to many schemes nationwide so any thoughts are welcome....
Following on from Mr A Nonymous's further note today, De-CLoG themselves point out that Section 17(2)(b) of the Interpretation Act 1978 provides that in so far as anything done (i.e. granting prior approval or changing use of the building) under Class O could have been done under Class O as re-enacted (with modifications) then that thing shall have effect as if done under Class O as re-enacted. I understand that it is therefore the Depertment's view that prior approval granted under Class O before 6 April will continue to have effect under Class O as re-enacted, and will be subject to the new requirement that change of use be completed within three years starting with the prior approval date.
ReplyDeleteIn other words, the 30 May deadline in respect of pre-6 April prior approvals does not apply, and that these cases are equally subject to the 3-year time limit that has replaced that deadline, calculating that time from the prior approval date.
I would therefore expect that Planning Inspctors will comply with this Departmental view in determining any appeals in which this point may arise.
In saying this, I appreciate (as I have pointed out before) that legislation does not necessarily mean what ministers say it means or intended it to mean, and I am aware that others (including one of my own colleagues) have expressed doubts about the interpretation set out above. Nevertheless, if inspectors do follow the Departmental view as to the meaning and intention of the amendment order, any LPA wishing to challenge this view may have to be prepared to take their case to the High Court.
Thank you for the prompt response, very useful information.
ReplyDeleteYou note that the change of use could now be done under Class O as re-anacted (with modifications), which is fine, but in this case the modifications include the assessment of noise which would result in a refusal of the application.
I would guess we will have wait and see how this particular LPA wish to pursue. I will keep the post updated...
De-CLoG have been asked if they could clarify their previous reply, in view of the fact that several LPAs (notably in Greater London) continue to take a dissenting view. After I wrote my comment yesterday, the Department has re-iterated their view that the amendment order that came into force on 6 April 2016 has amended the GPDO 2015 so as to make permanent the right for the change of use from office to residential, and allow three years for the change of use from the date of prior approval. Specifically, on 6 April the requirement that change of use be completed before 30 May 2016 falls away, and a new condition requires change of use to be completed within three years starting with the prior approval date. We consider that where a prior approval has been granted before 6 April 2016 (whether under the 1995 or 2015 GPDO), section 17(2)(b) of the Interpretation Act means that it will be treated as having been granted under Class O as amended, and change of use must be completed within three years of the prior approval date. Local planning authorities have no power to impose conditions as to when development should be completed, as this is governed by the GPDO.
ReplyDeleteUntil or unless a different view were to be taken by the High Court on a legal challenge by an LPA, it seems likely that any appeals in which this issue arises are likely to be determined in accordance with the ministerial view reported above.
So far as the issue of noise is concerned, I do not agree with Mr Anonymous that where a prior approval application under Class O was made before 6 April but not determined until after that date, the issue of noise must be considered in determining that application. For the reasons I explained earlier, I do not consider that section 17(2)(b) of the Interpretation Act applies in that case, because in the case of the prior approval application itself we are not looking at anything “done” within the meaning of that sub-section.
Mr Goodall,
DeleteThank you for your detailed analysis of this particular issue. I would be very grateful if you could provide the source of your De-CLoG comment (" We consider that where a prior approval has been granted before 6 April 2016..."), as it does not appear to be anywhere that I can find on the internet.
Many thanks and please keep up this great blog!
Many thanks!
In response to anonymous reply of 31 January, my summary of the view expressed by De-CLoG (as it then was) was derived from email correspondence between one of my colleagues in Keystone Law’s planning law team and the Department. I am not aware of this departmental view having been published on the internet as such, but I strongly suspect that guidance to this effect would have been issued to Planning Inspectors. In practice, it does not appear that any doubts about this point that local planning authorities may have had were subsequently borne out by appeal decisions, and the issue has not (so far as I am aware) come before the courts. With the passage of time, it seems extremely unlikely that this theoretical issue will have any more than academic interest in future.
DeleteIt seems this particular LPA are taking a dissenting view - we have just been advised there is to be a site visit on the 1st June to establish the facts regarding the occupation of the building.
ReplyDeleteIt may be possible for the applicant to complete 1 of the 36 units as this will then mean the change of use has occurred - but will this apply to the whole building?
I am naturally reluctant to reveal here large chunks of the text from my book “A Practical Guide to Permitted Changes of Use”, but the latest point raised by Mr A Nonymous (on 6 May) is covered in paragraph 7.5 of Chapter 7:
ReplyDelete“Some difficulty may arise where the change of use involves the creation of more than one dwelling, and where some of the dwellings created by that conversion are already in residential use when the three-year time limit for completion expires but others are not, so that the residential use of the whole building has not begun by that expiry date. It might be thought that the right to complete the conversion of any remaining residential units in the building would cease on the expiry of that three-year time limit, but this would undoubtedly produce an anomalous situation, since it is unlikely that it would be practicable for those parts of the building already in residential use by that date to revert to office use. At the very least, it would appear that the development should be considered complete so far as those units are concerned, bearing in mind that those dwellings already in separate use will thereby have become separate planning units, whose change of use has clearly met the deadline.
However, the position is far from certain with regard to any dwellings in the building whose conversion has not been completed within the three-year time limit and are not occupied or at least ready for immediate residential occupation by that date. Opinions differ on this point. It has variously been suggested that the completion and occupation of 15%, or alternatively 50%, of the dwelling units would suffice to secure the right to complete the residential conversion of the remaining units.”
Paragraph O(1)(c) (now repealed) stated that development was not permitted if the use of the building falling within Class C3 would begin after 30th May 2016. The argument referred to above appear to have been based on an assumption that the wording of paragraph O.1(c) was to be construed as referring to the residential use of any part of the building having been begun by that date, so that if some of the dwellings formed by the conversion of the building were already in residential use (or were ready for immediate residential occupation) by that date, it would be lawful to complete and occupy the remaining residential units in the building.
Paragraph O(1)(c) has now been replaced by paragraph O.2(2), which provides that development under Class O is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date. However, it is well settled law that development that does not comply with a condition subject to which permitted development is allowed does not qualify as permitted development at all. The effect of this would appear to be potentially more severe than the position under the repealed paragraph O(1)(c) (assuming that the argument rehearsed above could have been successfully deployed in that situation). However, taking a pragmatic view, I come back to the observation I originally made in the text of the book, namely that such an interpretation of what is now paragraph O.2(2) would produce an anomalous situation, because it is unlikely that it would be practicable for those parts of the building already in residential use by that date to revert to office use.
I ended paragraph 7.5 by suggesting that whilst it would appear that the residential conversion of the building would then require full planning permission in those circumstances, there would seem to be little excuse for an LPA to refuse planning permission if those works are well advanced by the time the 3-year time limit expires.
Again, many thanks - your blog is invaluable and we have today purchased a copy of your book which will no doubt be very useful...
ReplyDeleteWe will let you know the outcome on 1st June on what direction the LPA go on this particular case, which seems to be heading to appeal on the view the C.O.U should be complete by 30th May 2016.
Martin, I own a disused & derelict bakery building that is classed as light industrial by the L.P.A. I understand I cannot submit an application to convert to residential until October 2017 but would it cause a problem if I started removing the brick built oven & other fixtures prior to the application.
ReplyDeleteMy answer to Alan Day (25.5.16) is (as always) subject to the disclaimer that these remarks must not be treated as legal advice, and that no liability can be accepted for any loss or damage incurred as a result of reliance being placed on them.
ReplyDeleteI would be inclined to be cautious about removing the brick-built oven and other fixtures associated with the bakery use, as this might lead to the conclusion that the light industrial (bakery) use has been abandoned. Whilst that use has no doubt been suspended, the continued existence of the oven and other business fixtures would tend to indicate that the right, in planning terms, to use the building for a light industrial use still subsists, even though it is currently dormant. Removal of the oven, etc., however, might indicate an intention to abandon that use, in which case the permitted development rights under Class PA of Part 3 could not then be exercised.
I have discussed this in more detail in paragraphs A.2 and A.3 of Appendix A to my book “A Practical Guide to Permitted Changes of Use”.
Because the rules on office conversions under Class O are very specific with regard to what topics LPA's can consider, does that mean the Nationally Described Space Standards don't apply and a developer can convert premises into as many tiny boxes (sorry, flats) as he likes?
ReplyDeleteThe answer to my anonymous correspondent today is “Yes”.
ReplyDeleteIn my first book, A Practical Guide to Permitted Changes of Use, I gave two examples of appeals in the London Borough of Hounslow where very small dwellings of between 18 sq m and 24 sq m were proposed, and were allowed by the Inspector because there can be no control under Part 3 over the size of dwellings, amenity space and other considerations of the sort that would be taken into account in considering a planning application. (See page 64 in the Second Edition, if you have a copy to hand.)
I don’t see any problem with this from a planning point of view. The two examples quoted obviously involved innovative design, and provided small economical dwelling units that would no doubt appeal to a certain section of the housing market.
I am not sure whether there might conceivably be any problem with the Building Regulations in a case like this, but that is another issue altogether. This would not be a relevant consideration in relation to the determination of a prior approval application under the GPDO.
Dear Martin
ReplyDeletePlease tell me if there is any saving provision in GPDO 2015 for partially completed Order 1995 development which would be lawful under the old Order but not in GPDO 2015 ?
I read s.61D of Act 1990 , this was introduced by Govt. in the year 2004 which revokes partially complete developments but RJ Williams Re LOI v SSE from the year 1994 says changes in GPDO do not apply retrospectively which is also backed up by Interpretation Act 1978 s.16(1) & s.23(1)B together.
But then R oao Orange PCS Ltd Vs Islington BC [2006] EWCA Civ 157 supports RJ Williams, some clarity on this area by you will be much appreciated
The answer to Uzma’s question will be found in Chapter 1 (paragraph 1.6) in the Second Edition of A Practical Guide to Permitted Changes of Use, where I have discussed sections 16, 17 and 23 of the Interpretation Act 1978, and also the judgment in the Orange case.
ReplyDeleteDear Martin
ReplyDeleteHaving attended the RTPI South East conference today we were discussing the provision within Class PA under Condition 1(b)(iv), for LPAs to protect industrial premises they feel are important within their districts. The view of the legal contributor was that if the LPA already have a development plan policy protecting their industrial land (even if a generic one covering the whole district) they could (theoretically) use this to refuse the application. Your views on this would be appreciated.
And thanks for the thought-provoking, informative and useful blog!
Helen raises an interesting point. However, I would suggest that the relevant development plan policy is not enough by itself to defeat a prior approval application under Class PA.
ReplyDeleteThe adoption of a development plan policy would appear to address only the first limb of paragraph PA.2(b)(iv), i.e. “where the authority considers the building to which the development relates is within an area that is important for providing industrial services or storage or distribution services or a mix of those services (which includes, where the development relates to part of a building, services provided from any other part of the building)”.
Having reasonably reached that view (assisted perhaps by a relevant development plan policy, where such a policy has been adopted), the LPA must then go on to determine “whether the introduction of, or an increase in, a residential use of premises in the area would have an adverse impact on the sustainability of the provision of those services”. This does not automatically follow from the adoption of a relevant development plan policy (or the legitimate formation of such an opinion in the absence of such a policy) but must be a matter of ‘fact and degree’, that is to say a question of reasonably objective planning judgement based on the facts and circumstances of the particular case.
The question that must be addressed is whether claims of nuisance might realistically be made by residents of the new dwellings, which could limit or prevent the normal industrial activities that are currently being carried on on neighbouring sites, so as to “have an adverse impact on the sustainability of the provision of those services". However, if all the nearby uses fall within Use Class B1 (including light industrial), it must be doubtful whether putting housing near them would have the effect mentioned in the second limb of paragraph PA.2(b)(iv) bearing in mind that, by definition, a B1 use is one which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit. (This could even apply in the case of services provided from any other part of the building.)
Note that (in contrast to some of the other classes of PD in Part 3), the LPA is not entitled to take into account the actual loss of industrial floorspace resulting from the residential conversion of the light industrial building which is the subject of the prior approval application. In my view, the wording of paragraph PA.2(b)(iv) cannot be construed in that way.
Do offices, granted a Change of Use under Class O, have PD rights when it comes to television aerials?
ReplyDeleteDoes the building have to be occupied for PD rights to come into effect?
To answer Sharon Whittaker’s query - in contrast to the position where a residential conversion has been carried out under Classes M, N, P, PA or Q, permitted development under Part 1 (various developments within the curtilage of a dwellinghouse, as well as alteration or enlargement of the house itself) is not excluded following a residential conversion of an office building under Class O.
ReplyDeleteBUT, don’t forget that a building containing one or more flats, or a flat contained within such a building is not a “dwellinghouse” for this purpose, and so PD rights under Part 1 would be excluded if your office conversion comprises or includes any flats.
PD rights under Part 1 only come onto existence once a dwellinghouse exists. It may not need to be occupied as such, but must be ready and imminently available for occupation.
Class M query.
ReplyDeleteIt has been established that a shop (A1) can be divided into multiple shops and then Class G can be enjoyed above each shop.
However would Class M be valid?
Does the fact that a shop existed there prior to March 2013 suffice, or does the creation of new shops start the clock ticking again?
In other words could a shop be divided into three, and nine flats obtained via Class G and Class M.
I think Class M will not apply, but a colleague thinks it will. Help!! :)
In answer to Martin Bell (6 September), Class M permits development consisting of the residential conversion of a building from a use falling within Class A1 or Class A2, including building operations reasonably necessary to convert the building. Development is not permitted by Class M if the building was not used for either Class A1 or Class A2 on 20th March 2013 (or in the case of a building which was in use before that date but was not in use on that date, when it was last in use).
ReplyDeleteArticle 2(1) of the GPDO provides that (with certain exceptions that do not apply here) “Building” includes any part of a building. So any part or parts of the building that qualify can be converted. Furthermore, subject to the overall (cumulative) floorspace limit of 150 sq m, there does not appear to be any limit on the number of units within the building that can be converted, nor any limit on the number of residential units that can be created within the building.
The use qualification under Class M relates simply to a “building” whose use on or before 20 March 2013 fell within either Use Class A1 or A2. In principle, the subdivision of a planning unit does not represent a material change of use in itself (although there are certain well-known exceptions), so it should not alter the position if premises that had previously been a single shop were subsequently divided into two or more shops (even if the subdivision took place after 20 March 2013). There are no limits as to the number of residential units that can be created under Class M, in contrast to the conditions and restrictions under Class G. Beware of mixing up the two classes. Class M is clearly more liberal in what it permits.
I would just repeat the general disclaimer that is printed on the introductory page to this blog: - Nothing written here may be taken as constituting legal advice, and no liability can be accepted by the writer or publishers for any loss or damage resulting from reliance being placed on any of the opinions expressed here.