Permitted Development Rights in the UK?Change of Use from Office to Residential?the next chapter

by K&L Gates LLP
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The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014

Some recent changes have been made to the prior approval procedures for these permitted development rights, introduced by Eric Pickles in May last year, to permit the change of use of a building from Class B1(a) office to Class C3 residential. These changes are contained within article 5 of the Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 and came into effect on 6 April 2014.

In summary these changes:

  • Require a flood risk assessment to be submitted for certain prior approval applications. For sites within Flood Zones 1 (in an area with critical drainage problems), 2 or 3 as these are the sites on which the local planning authority (“the LPA”) are required to consult with the Environment Agency and it wasn’t possible to effectively consult without a flood risk assessment.
  • Enable an LPA to refuse an application if, in their opinion, the proposed development is not permitted development or the developer has provided insufficient information to enable the LPA to determine if it qualifies as permitted development. This requirement clearly puts the onus on developers to supply all relevant information to an LPA in support of their application, to avoid the risk of a refusal. In some cases it may be prudent for developers to submit evidence, as to the existing Class B1(a) use on or before the qualifying date of 30 May 2013 if this is likely to be in dispute.
  • Enable an LPA to seek further information from developers in order to determine the application, including the provision of details of any proposed operational development. LPAs already have the power to seek additional information from developers in support of their application for prior approval, in the form of transport assessments, flood risk assessments and Phase 1 environmental desk top surveys. This new power enables them to obtain details of any operational development that may be required, to facilitate the change of use of the building to residential use, for example, to permit a new access or any alterations to windows. These consequential works are not authorised by the prior approval procedures and require the submission of a stand-alone planning application. The extent to which LPAs may use this power to delay the determination of prior approval applications is at present, unclear.
  • Enable an LPA to attach conditions to any prior approval provided such conditions relate to those matters on which prior approval is sought. This provides clarity on the issue of whether LPAs could attach conditions to prior approvals, as a number of LPAs had been using informatives as a means of control. These conditions must be limited to controlling transport and highway impacts and/or contamination and flooding risks associated with the proposed development and must not relate to other wider planning issues.
  • Enable an LPA in determining the application to have regard to the NPPF in so far as it relates to those matters on which prior approval is sought. This clarifies the extent to which LPAs can have regard to the National Planning Policy Framework (“the NPPF”), following the refusal of the Utopia Village application in December 2013 by the London Borough of Camden on a wide range of issues. It reflects current advice to LPAs from the Department for Communities & Local Government ("DCLG") to limit their consideration of the NPPF to the three matters on which prior approval is sought, namely, transport and highways, flooding and contamination risks. This advice was encapsulated in the Ministerial Statement issued by the Department for Communities and Local Government dated 6 February 2014 (see our previous alert February 2014).

It is clear these changes provide a greater level of certainty to developers and will ensure a more consistent approach by local planning authorities in the determination of these applications. However in our view, the simplicity and speed of these prior approval applications is gradually being eroded, not least by the increasing level of supporting information that is now required for these types of applications. Developers will need to continue to weigh up the advantages of using these permitted development rights, over the more traditional route of obtaining planning permissions for any proposed residential development, bearing in mind the 3 year window for the use of these powers expires in May 2016.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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