Saturday 5 December 2020
UCO and GPDO – Some joined-up thinking
It was obvious to many of us that the changes to the Use Classes Order that came into effect on 1 September were only part of a more comprehensive suite of changes that would necessarily embrace the GPDO as well, in order to maintain consistency in the overall scheme of delegated legislation. Left to their own devices, MHCLG would no doubt have co-ordinated the changes to the UCO with relevant changes to the GPDO in a single set of amending regulations, which would probably have emerged in the course of 2021. It seems, however, that the Ministry came under insistent pressure from 10 Downing Street (lately under the management of D.Cunning-Plans, Esq.) to get something out immediately, in order to demonstrate the government’s dynamic determination [sic] to shake up the planning system. The immediate result, in the form of the recent changes to the UCO, bore all the hallmarks of a rushed job, and I have pointed out both in this blog and, in more detail, in the Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts some of the resulting anomalies and potential problems which the UCO changes have created.
The unfortunate decoupling of the UCO changes from co-ordinated amendments to the GPDO necessitated the rather clunky transitional provisions in the recent UCO amendment regulations, which preserve the old Use Classes for the purposes of permitted development under the GPDO until the end of next July, by which time the MHCLG no doubt hopes to be able to amend that Order, so that the UCO and the GPDO are once more brought into alignment.
Sooner, perhaps, than some may have expected, MHCLG has now published a consultation document outlining their initial proposals for changes to the GPDO. The consultation period has been nicely timed to start in the run-up to Christmas and to straddle the Christmas and New Year break, with a deadline for responses on 28 January. That ought to cut down somewhat on the stroppy reaction that can be expected from various planning professionals, and especially from planning officers in LPAs, whose dismay at the UCO changes will now be intensified by further blows in the GPDO to their fading hopes of preserving the vitality and viability of their town centres.
The scope of the proposed changes will occasion no great surprise, as they were perhaps predictable from the general thrust of the recent UCO amendments, particularly the creation of the very wide Commercial, Business and Service use class (Class E). It is now therefore proposed that the PD right for the residential conversion of certain commercial premises (originally from offices within Use Class B1(a) – under Class O, and then also from A1 shops, A2 financial and professional services, A5 hot food take-aways, Betting Offices, Pay day loan shops, and Launderettes – all under Class M, as well as from an Amusement Arcade or Casino – under Class N) should be expanded to enable the residential conversion of any Commercial, Business and Service premises now in Class E. [The consultation paper does not mention the existing and new sui generis uses that currently benefit from this PD right under Classes M and N, but these will presumably still be included in the new expanded PD right for residential conversions.]
It is not proposed that there should be any size limit on the buildings that can benefit from this PD right, which would allow for either the whole building or part of the building to be converted to residential use but, in order to qualify for this PD right, the premises must have been in use within Use Class E on 1 September 2020. As the consultation document points out, Use Class E applies everywhere in all cases, not just on the high street or in town centres. However, the disqualifications that currently apply would continue to apply in National Parks and AONBs, and World Heritage Sites, as well as to buildings in SSSIs, or which are listed buildings or within their curtilage, sites that are (or contain) scheduled monuments, or are in safety hazard areas or military explosives storage areas, as well as sites subject to an agricultural tenancy. On the other hand, this PD right would not be excluded (as it has been up to now) in conservation areas, although there would be a requirement in a conservation area for prior approval of the impact of the loss of the ground floor use to residential.
There would in any event be a widened range of matters requiring prior approval. In addition to flooding, transport impacts and contamination, these matters would include the impacts of noise from existing commercial premises on the intended occupiers of the development, the provision of adequate natural light in all habitable rooms, fire safety (to ensure consideration and plans to mitigate risk to residents from fire) and the impact on the intended occupiers from the introduction of residential use in an area the LPA considers is important for heavy industry and waste management. [The general prohibition on developments that do not comply with nationally prescribed space standards will also apply to the new PD right in any event.]
I don’t propose to comment on the merits or demerits of the proposals outlined above, but readers will recognise the potentially wide implications and possible impact of these changes in policy terms. If you feel strongly about this, then I recommend that you send in a robustly worded response to this consultation. You can draft it over the quiet Christmas holiday that we’re all going to have, instead of playing Monopoly or Cluedo (which Chris Whitty says you shouldn’t be doing anyway!).
So far as Part 3 of the Second Schedule is concerned, the consultation paper addresses only the residential conversion of Commercial, Business and Service premises now in Class E (previously covered, in part, by Classes M, N and O). However, it occurs to me that this change would also have the effect of reviving the lapsed Class PA, which allowed the residential conversion of light industrial premises. There will have to be other consequential changes to the GPDO to bring various PD rights into line with the new and revised Use Classes, but presumably those other changes would not involve the significant widening of those PD rights.
© MARTIN H GOODALL
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Hi Martin - thanks for the useful summary. Do we have any indication of what would be the impact where there is currently an Article 4 direction in place in respect of a change from (e.g.) B1(c) to C3? Is it proposed that these would continue to remain in place/there would be alternative provision allowing local authorities to opt-out? If not, is there any indication as to whether prior approval for these new changes would involve a requirement to take into account representations as to the impact on privacy to neighbours (as i believe is the case with the recent PD right to demolish industrial for commercial)? Many thanks.
ReplyDeleteAt present, there is no indication as to how (or whether) a pre-existing Article 4 Direction precluding residential conversion under the current Class O (from B1(a) to C3) or under the former Class PA (from B1(c) to C3) might continue to apply when the new PD right which is likely to be introduced next summer permits residential conversion from Class E to C3.
DeleteExisting (and new) Article 4 directions will continue in force until 31 July 2021 by reference to the previous Use Classes. The amendments to the GPDO (which will presumably take effect on 1 August) may well preserve the effect of pre-existing Article 4 Directions, at least in part, but we shall have to wait until the amending legislation is introduced next year before the future effect (if any) of such directions becomes clear.
I am particularly concerned about the inclusion of Fire Safety. Is this not new to planning? I wonder if this stems from Grenfell? One of the issues highlighted in the Grenfell enquiry is that Fire Regulations have been increasingly weakened by successive government 'red tape bonfires' and the Building Inspector responsible for the refurb had an unmanageable caseload. Is this part of a shift of this area of responsibility to planning (as has been suggested by some architects). Would the LPA (or indeed individual planning officers) be in the firing line in the event of injury or death from fire?
ReplyDeleteAs I understand the consultation document, there is proposed to be no change to Part 20 Class ZA (B1 to Resi) which, for example, does not apply in a Conservation Area.
ReplyDeleteBut the new Class E would run alongside this allowing, for example, B1 to Resi within a Conservation Area.
Am I missing something, or is the proposal to run these routes concurrently?
Just to clarify the current position, Class ZA in Part 20 of the Second Schedule to the GPDO now permits the demolition a single purpose-built detached block of flats, or alternatively the demolition of a single detached building which has been in use within the former Class B1 Use Class (or any of its sub-classes), and then permits the construction of a purpose-built detached block of flats, or a single purpose-built detached dwellinghouse.
DeleteThe proposed new PD right within Part 3 of the Second Schedule is solely for a change of use [not involving demolition and replacement of the building] from any of the wide range of Commercial, Business and Service uses within Use Class E (a use which must have been in existence on 1 September 2020) to residential use within Use Class C3.
Class ZA in Part 20 operates solely by reference to the former Use Class B1, whereas the proposed new PD right within Part 3 will operate solely by reference to the new Use Class E. Class ZA in Part 20 permits demolition and new build, whereas the new PD right within Part 3 will only permit a change of use of the existing building (or part of that building). So there is no connection or overlap between these two different PD rights.
It remains to be seen, however, whether the revision and updating of the GPDO to bring it into line with the revised Use Classes Order might possibly affect the position, but my current assumption is that there will still probably be no overlap, and that these two different PD rights will continue to exist completely separately.
As regards development in a conservation area, I would expect that demolition and new build would still be precluded in a conservation area (except with full planning permission) whereas a change of use of an existing building would arguably have much less potential impact on the character and appearance of a conservation area, and does not therefore need to be excluded from the PD right for change of use (although a change to, or loss of, a shop front might well be an issue for consideration).