Thursday, 29 September 2016

Additional development in connection with PD

I have pointed out before that it is open to anyone who wishes to carry out development under Part 3 of the Second Schedule to the GPDO (involving various changes of use) also to make an application for planning permission for building works which do not fall within the scope of the development permitted by the GPDO. A planning application for other works can be made at the same time as or after a prior approval application in respect of the change of use of the same building. It has occurred most commonly in relation to the residential conversion of offices under Class O, but there is no reason why a similar planning application should not be made in connection with other changes of use, including the residential conversion of an agricultural building under Class Q.

The planning application could not practicably be determined before the determination of the prior approval application, but this is the only constraint so far as the timing of such a planning application is concerned. The principle of the residential conversion is established by the planning permission that is granted by Article 3 of the GPDO (and Class Q in Part 3), subject only to prior approval. So it is only the additional building operations themselves that would fall to be considered in any planning application for those additional works.

This does not seem to be fully understood by some councils. An appeal in Shropshire which was allowed earlier this month provides a clear example. Prior approval had been granted under Class Q to create three dwellings, and the residential conversion was proceeding. A planning application was then made for change of use of an adjoining area of agricultural land to residential use so as to provide private gardens for the new dwellings, and the construction of two car ports. (Fencing was also proposed, although this should surely have been permitted development under Part 2.) The LPA sought to resist this development on the grounds that the change of use in respect of which prior approval had been given had not yet taken place. However, works for the conversion of the building were proceeding apace, and the Inspector had no reason to consider that this would not be completed in a timely manner, leading to residential occupation.

A second ground on which the LPA sought to oppose this appeal was that there are specific limits in Class Q as to the extent of permitted development that is acceptable. The Inspector observed that this is so, but is solely in the context of what is permissible under the prior approval. It does not preclude further planning applications in connection with buildings converted under that procedure. It is reasonable for such applications to be considered in the context of the surroundings and nature of the site to which they relate, rather than to assume harm from the outset on the basis of the Class Q limits, which did not apply to the subsequent planning application.

The main issue was therefore the effect of the proposed development on the character and appearance of the host site and the surrounding countryside. The Inspector observed that it was a reasonable expectation for the individual residential dwellings to have the benefit of a decent-sized garden, storage/tool shed and appropriate car parking facilities, ideally covered, in this rural location. The proposed change of an area of land adjacent to the development to residential use would enable that provision whilst the further area to the north of the farmhouse would replace the car parking area that it was losing. The farmhouse, immediately to the west of the appeal site, was already a residential dwelling with a large domestic garden to the rear. There were a number of other residences in the surrounding area which also had defined garden areas similar in scale to the proposal. So it would not appear out of character in its size, and the proposed development was not into virgin countryside. The Inspector concluded that the proposal would not harm the character and appearance of the existing buildings at this farm or the surrounding countryside.

Incidentally, Regulation 14(1A) of the 2012 Fees Regulations provides that no application fee is required for the prior approval application where an application fee is paid for a planning application made in respect of proposals for development of a site which includes buildings or other land which are the subject of the prior approval application, provided that the application for planning permission is made on the same date and by or on behalf of the same applicant as the prior approval application.

These points, among many others, are discussed in detail in the new edition of my book, A Practical Guide to Permitted Changes of Use. This is just a taster of the mine of useful information and practical advice that the book contains. You can place an order by clicking on the red button on the sidebar on the left of this page. (And why not come along to our seminar as well?)



  1. Martin, would you mind pointing me to the appeal reference please? I can't find it! Much appreciated.

  2. In my (very limited) experience in these cases, the LPA has insisted that an undertaking be submitted confirming that the works approved under the planning application cannot commence until the works proposed under prior approval are 'complete' - although what 'completeness' means in the context of a change of use is something that still alludes me (and yes, I've read the book and attended the seminar ;-) )

  3. I understand the point.

    Presumably (if the prior approval works were not commenced - and even if they were) it would be wise to tie the commencement of the planning permission to the completion/1st occupation (or other suitable trigger) of the prior approval dwelling, lest one ends up with gardens etc. and no dwellings?

  4. AG JM asked for the appeal reference. It will be found in the Second Edition of A Practical Guide to Permitted Changes of Use, which can be pre-ordered by clicking on the red button on the sidebar of the main page.

    In answer to both Passer-by and Anonymous, I am not convinced that such a condition of this sort is necessary. Whilst I can well understand that an LPA would not wish to grant planning permission for the additional development until prior approval for the change of use has been given, it seems highly improbable that the applicant would want to carry out the other development without also carrying out the residential conversion of the building. I can see no justification whatsoever for imposing a condition that does not permit the other development to be carried out until the change of use has actually been made. Most developers will wish to do all the work simultaneously, so as to have the dwelling(s) ready for occupation complete with the additional development. It would be unreasonable in my view for an LPA to seek to prevent this.

  5. Hi Martin. This was our appeal and the only reason we included the fencing originally was to emphasise that the whole scheme was being designed carefully and sensitively. The fencing with the native species hedging and choosing to specify materials which match the existing or previous buildings on the site was all part of that. The council obviously didn't get it, but fortunately the Planning Inspector did! Thanks for all your work on this site - much appreciated.

  6. Here's an example - I've simplified the technical requirements a bit - but hopefully not to its detriment:

    The London Plan requires new residential developments to have a floor to ceiling height of 2.5m. Flats formed under Class O aren't bound by this requirement, so new accommodation (formed by extending the roof void, say) could be provided at 2.3m, so long as the Change of Use had been implemented.

    In this instance, it seems reasonable to me that the application be tied into the Change of Use by way of a unilateral undertaking. The part that seems unnecessary (to come back to your post) is that the works proposed under the Change of Use be 'completed' *before* the works proposed under the Planning Permission can commence. The fact that the two things are tied together by the unilateral undertaking would seem to be enough.

    Incidentally, I've not seen this kind of thing applied as a 'condition'. In fact I can't recall ever seeing a unilateral undertaking referenced in a planning permission. Instead, these sorts of things tend to arise as a result of 'pre-app' discussions.

  7. I am sorry that I seem previously to have missed Passer-by’s comment of 1 October.

    I am under the impression that opinions differ as to the need to ‘tie in’ the PP for the additional development with the PD. Some planning officers seem to be over-cautious in this regard. It is unlikely in most cases that the developer would wish to implement the planning permission for the extra development without also carrying out the PD under the prior approval. There is certainly no justification for insisting on the completion of the PD before the PP can be implemented.

    So I am not convinced of the need for conditions or planning obligations in this regard.

  8. In APGtPCoU, you mention the August 2015 decision, concerning the planning permission for the provision of 4 additional units on a Class O 'office to residential' conversion.

    While the application concerned the provision of 4 'additional' units, my understanding is the the Prior Approval would not have needed to specify how many units were being created to begin with, so am I correct threfore in thinking that the number of units created is irrelevant - the only material consideration being the external characteristics of the extension?

  9. Passer-by (9 August) has put his finger on a ‘grey’ area in Class O. It is true that Class O itself does not require the number of dwellings to be specified (and there is no limit to the number of dwellings that can be created under Class O). However, I have always taken the view, and still do, that the number of dwellings proposed ought to be stated in the prior approval application, although the precise internal divisions within the building, and details of the internal works that will be executed in order to carry out the conversion, are not required (bearing in mind that those works, being purely internal, do not constitute development by virtue of section 55(2)(a)). What Class O permits is purely the change of use itself.

    One should bear in mind that, under paragraph O.2, the LPA’s prior approval is likely to be required to transport and highways impacts of the development, and this issue can surely only be assessed by reference to the number of residential units that will be created. Paragraph W(2) requires that the application must be accompanied by a written description of the proposed development (although not, in the case of Class O, details of any [purely internal] building or other operations). [External building operations are, of course, not permitted by Class O.] It is in this written description that I suggest the number of dwellings to be created should be stated.

    Furthermore, under paragraph W(9), the LPA may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include assessments of impacts or risks [such as transport and highways impacts] and statements setting out how impacts or risks are to be mitigated. So even if the number of dwellings to be created is not stated in the prior approval application itself, the LPA is likely to ask for this information under paragraph W(9), and so it might as well be supplied by the applicant at the outset.

    The appeal decision to which Passer-by refers was an appeal against the refusal of planning permission for an extension of the building to provide additional dwellings, over and above those provided under Class O. What this appeal decision demonstrated is that such an application is not ruled out, although all the usual planning considerations would apply to such a planning application.

  10. I'm stepping outside my area of expertise, but to be fair I didn't have far to walk.

    The inference is that 6 (no.) 1-bed flats are somehow more impactful than 3 (no.) 2-bed flats. I don't agree with this. Instead, I think it reasonable for a Local Authority to infer occupancy from an area schedule without reference to the number of units; I would note that the standard form for this kind of Change of Use includes a section for areas, but not for number of units.

    Why does this matter?

    Well, while a developer will have a good idea of the area available, it seems to me that they're unlikely to know what the precise quantity and make-up of the units would be at the time of submitting the Change of Use application. This will be contingent on the market at the time the works to effect the Change of Use commences, as well as the funding model.

    Likewise, when it comes to additional development, the developer will be keen to provide as large an envelope as possible, without necessarily being overly concerned whether the increased volume comprises an additional unit (a penthouse, say), or an enlarged unit (a duplex).

    I concede that the Housing department might have a preference for one type of unit over another, but I'm not convinced that their input should be anything other than advisory.

  11. I note what Passer-by says (20 August), but certain impacts (such as transport and highways impacts) must be considered, and if so required by the LPA, approved by them. As I indicated before, it seems to me that these impacts cannot be properly considered without reliable information as to the number of units proposed. In the absence of such information accompanying the application, it seems to me that most LPAs are bound to request this information under paragraph W(9).

    As regards additional development, one must bear in mind, first, that a Class O prior approval application will be dealt with on its own facts as presented, and bearing in mind the matters that may (and probably will) require the LPA’s approval. The second point that must be borne in mind is that the rules that apply to the processing of the prior approval application do not constrain the LPA’s consideration of the planning application for additional development, by reference to adopted planning policies and all the other material considerations that can (and must) properly be taken into account in determining that application.

    The principle of the permitted change of use of the building is a given, and to this extent the PD right under Class O must be borne in mind when considering the extra development proposed. However, this does not in itself lead inevitably to the conclusion that permission must be granted for the additional development. As always, it will be a matter for planning judgement.

    Housing mix cannot be taken into account in the Class O prior approval, but it might conceivably be relevant in relation to the additional development proposed in the supplementary planning application.