Permitted development rights


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On 30 May 2013, the government introduced changes to the planning system affecting permitted development rights. The reforms aim to boost economic recovery and ease the national housing shortage, by putting into productive use vacant or underused office space.

The most controversial aspect of the reforms is a change to permitted development rights to allow change of use, without the need for a planning application, from office to residential use, for a limited three year period.

Exemptions

When the government first announced the rules, it also announced that local authorities would be able to apply for exemptions from the new rules. Over half of local authorities applied (and nearly all London Boroughs did so) but very few – a total of only 17 – were awarded exemptions. Various London Boroughs won exemptions to some degree – including Islington, Lambeth, Hackney and Tower Hamlets, with City of London and Royal Borough of Kensington and Chelsea gaining full exemptions.

The new rules

The new rules are at first glance fairly simple. They allow development consisting of a change of use of a building and any land within its curtilage to a use class falling within Class C3 (residential) from one falling within Class B1(a) (office), provided that:

  • the building was used for a class falling within B1(a) immediately before 30 May 2013 or, if not in use at that time, when it was last in use; and
  • it is not a listed building or scheduled monument.

Note that the right only applies to change of use and not external changes or building works such as extensions.

There are also conditions that must be met prior to the right being exercised, that require the developer to apply to the local authority for determination of whether prior approval will be required as to:

  • transport and highway impacts;
  • contamination risks on site; and
  • flooding risks on site.

This allows local authorities to consider the impact of the development in these three areas, and nothing else.

You should then receive notice from the local authority, stating either that no prior approval is required, or that prior approval is granted; or that prior approval is refused, in which case there is a right of appeal. The notice should come within 56 days of the local authority receiving the application – and if there is no response, you can carry out the development.

You must carry out the change of use prior to 30 May 2016.

There are a few procedural rules – and again these seem short and simple, and allow the local authority to ask the developer for further information in order to assess the impacts if necessary. However, given the limited time frame the local authority has to deal with the applications, we would advise submitting information on the likely impacts relating to the above three areas along with the application, to reduce the risk of a refusal.

The main advantage of utilising the new rights is that the local authority is limited in what it can consider when assessing the development. Under the new rules you only have to think about the prior approval process, plus building regulations and Community Infrastructure Levy, if applicable. A whole host of considerations are irrelevant if utilising the new rules – such as affordable housing requirements, the local plan, design standards, proving lack of viability of the existing commercial space and section 106 contributions.

Reaction

Local authorities were hostile when the rules were announced – and that has not changed. A number of local authorities have brought in Article 4 Directions – whereby local authorities withdraw permitted development rights. However, given the one year notice period required to do this, no Article 4 Directions have come into force yet.

However, in the meantime the new rights provide property owners and developers with a rare opportunity to change the use of an office building to residential and potentially realise huge gains – so use them if you can, while you can!

Susanna Weatherstone, Solicitor, Fladgate LLP (sweatherstone@fladgate.com)

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