Budget statement – more GPDO changes

As I have noted before, George Osborne loves to include planning announcements in his budget statements. Today’s written budget statement (published to coincide with the Chancellor’s budget speech in the Commons) promises a review of the General Permitted Development Order. After so many amendments over almost 20 years since it was first published in 1995 it certainly needs it. Dare one hope that some of the more opaque drafting to be found in parts of the Order might at last be clarified?

A number of us have noted that recent additions to the GPDO do not grant an automatic right to carry out permitted development, but involve a prior approval procedure which I described the other day as “planning permission-lite”. It seems that the government has recognised this, and intends to make what amounts to a three-tier system of planning consents a permanent feature of the planning system.

As the budget statement puts it, there are already and will continue to be, first, simple permitted development rights for small-scale changes, then prior approval rights for development requiring consideration of specific issues, and then planning permission for larger scale development. I am not convinced that there is likely in practice to be any significant difference between the second and third kind of consent so far as the applicant is concerned. There will still be hoops to jump through and the possibility of applications being turned down, with the consequent time and expense of going to appeal. I drew attention the other day to the wide discretion that LPAs would appear to have in practice to refuse prior approval of barn conversions, even though they now come (at least in theory) under the category of ‘permitted development’.

In addition, further extensions of permitted development rights are proposed. The government is going to consult on further changes of use to residential use, for example from warehouses (B8) and light industrial structures (B1(c)). They are also considering extra PD rights for commercial premises to allow the expansion of facilities such as car parks and loading bays within existing boundaries (although only “where there is little impact on local communities”, which suggests that this will be one of the changes that will be subject to a prior approval procedure).

One other idea that emerged from the Budget Statement was the suggestion that for people who want to build their own home, the government will consult on creating a new ‘Right to Build’, giving custom builders a right to a plot from councils, and a £150 million repayable fund to help provide up to 10,000 serviced plots for custom build. It will be interesting to see how what appears in effect to be a ‘reverse-compulsory purchase’ concept will work.

© MARTIN H GOODALL

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Subdividing a planning unit

Ben Wharfe recently raised a query with me as a comment on an early post I wrote on “curtilage confusion”. I thought that rather than shunting this, together with my reply, into the comments section of that post, it would justify a wider airing in the main part of the blog.

Ben drew my attention to the Court of Appeal’s judgment in Wakelin v. SSE 1978 JPL 769. His query actually related to the subdivision of a single dwellinghouse, but I don’t think that Wakelin is directly in point here, as the position is clearly governed now by section 55(3)(a) of the 1990 Act, which specifically declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part which is so used.. As the later decision of the Court of Appeal in Arun established, it is the 4-year rule that applies here, even if the breach of planning control is in fact and a breach of condition. To that extent, Wakelin has been superseded, because that case involved just such a breach of condition, and this point was lightly dismissed as a consideration by Lord Denning.

Thus section 55(2)(f) has no application so far as the subdivision of a house is concerned, because the position is entirely governed by section 55(3)(a). However, there is a slight doubt as to the precise effect of section 55(2)(f) in other cases. On one reading of the wording of this sub-paragraph, it may not necessarily apply to subdivision of a planning unit as such, although it certainly covers any change of use within the same use class. So for example, change of use from a butcher’s shop to use as a post office (both within Use Class A1) is not to be taken for the purposes of the Act to involve development of the land. But subdivision or amalgamation of planning units may nonetheless amount to a material change of use if it has the effect of changing the character of the use. The Court of Appeal’s judgment in Wakelin is one example, and the more recent High Court judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 (involving the amalgamation of seven dwellings so as to re-convert the building to use as a single dwelling) is another example, where the change in the size of the planning unit was held to affect the character of the use in planning terms (in a broad sense, not confined to its possible environmental effects) and was thus a material change of use amounting to development, notwithstanding the fact that the earlier and later uses were all within one and the same use class.

This may come as a surprise to many people, as there seems to be a general assumption that section 55(2)(f) covers subdivision of a planning unit, so long as the use of all of the new planning units created by this subdivision remains within one and the same use class. Richmond clearly established that this is not necessarily so with regard to the amalgamation of two or more planning units, but it seems that the same could equally apply to the sub-division of a planning unit. A material change of use does not necessarily occur upon the sub-division of a planning unit, but if this changes the character of the use (in planning terms) then this may amount to a material change of use, notwithstanding section 55(2)(f). It is quite frankly a ‘grey’ area, and I suppose that, as in so many other cases, it will be ‘a matter of fact and degree’, dependent of the precise circumstances of each such change to the planning unit.

© MARTIN H GOODALL

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Change of use of shops to residential use

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

As predicted in my post on 18 July (“And now – A1 to C3?”), De-CLoG has now published a consultation paper suggesting this and other changes to the GPDO which (among other things) would allow change of use of some shops to residential use. This consultation paper is only a week late, having been promised for “the end of July”.

These changes were foreshadowed in the 2013 Budget Statement. De-CLoG is proposing to create a permitted development right for change of use (together with the associated physical works – in contrast with the recent provisions for change of use from office to residential) from a small shop (Class A1) or from professional/financial services (Class A2) to residential use (Class C3). It also proposes to allow a change of use from retail (A1) to use as a bank or a building society branch (within Class A2) (but not to other uses within this use class) and from agricultural use to residential use. I will deal with these latter proposals in a separate post.

The department’s stated intention is to find new uses for shops that no longer have a future. The consultation paper gives a perfunctory nod towards the “town centre first” policy set out in the NPPF, but does not propose to restrict the new permitted development right to a particular type of retail unit or site (e.g. secondary retail frontage). The proposed amendment will allow for necessary works for the residential conversion, including a new frontage, windows and doors.

The developer will be required to apply to the LPA for prior approval in respect of design, the potential impact of the loss of the retail unit on the economic health of the town centre, the need to maintain an adequate provision of essential local services such as post offices, and the potential impact of the change of use on the character of the local area. This will allow the local authority to have regard to their local plan policies for the area. So LPAs will still have quite a wide discretion over the determination of these change of use applications. In practice, it looks as though this alone could largely negative the liberalisation that the government claims to be seeking. This point is impliedly recognised in the consultation paper, which points out that the refusal of prior approval will be subject to appeal if local authorities are found to be using it unreasonably to prevent these changes of use.

The proposed permitted development right will be limited to A1 and A2 premises of not more than 150 square metres floor area, and will allow conversion to a single dwelling house or a maximum of four flats (but not a small HMO). Premises in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage sites (“Article 1(5) land”) will be excluded.

The consultation paper recognises that local planning authorities can issue Article 4 Directions to prevent or restrict such changes of use, although it does include a reminder that compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

© MARTIN H GOODALL

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