Office to Residential – permitted development made permanent

Under the Town and Country Planning Act 1990, planning permission is needed for the carrying out on land of any development.  Development is defined as including the carrying out of building operations on land or making any material change in the use of any buildings or other land.

The Secretary of State may, by development order, grant deemed planning permission for specified development or classes of development and this is known as “Permitted Development”.  Permitted Development is still development for which planning permission is required, but under the legislation no application for planning permission for change of use is required and planning permission is deemed to have been granted.  Accordingly, the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”) is effectively a national grant of planning permission.

A new General Permitted Development Order came into effect on 6 April 2016 and provided that the existing temporary right to change a building used as an office into residential use is now permanent.

The other headline changes are as follows:

• Any permitted development scheme must be completed within 3 years of the date of prior approval. The trigger is now “completed” rather than “begun”.

The reference to “prior approval” is to Condition 0.2 of the Order which provides that before the Permitted Development is allowed to proceed, the developer must apply to the Local Planning Authority for a determination as to whether the prior approval of the authority will be required as to transport and highways impacts of the development, contamination risks on the site, flooding risks on the site and as referred to below, noise impact.

Where the Local Planning Authority is of the opinion that prior approval is required, they will undertake a 21 day consultation with the relevant consultees.  The Local Planning Authority may require further information regarding these impacts/risks and propose mitigation measures.

Development can begin once the Local Planning Authority has confirmed in writing that prior approval has been granted or prior approval is not required.  This must be provided within 56 days of submission of an application, otherwise there is deemed consent for the development.

• A new condition in the extended right allows the local planning authority to consider noise impacts on the intended occupants of the development from premises in commercial use. This will be in addition to transport and highway impacts and flooding and contamination risks which previously were the issues to be considered.
• The new Order also creates a temporary right to change a building in light industrial use to residential use. This right is for three years only, applying where an application for determination as to whether prior approval is required is made on or after 1 October 2017 and the prior approval date occurs on or before 30 September 2020.  As with office to residential, development must be completed within three years of the prior approval date.  The gross floor area of the existing building must be 500 square metres or less.
• The areas which are currently exempt from the Permitted Development Rights will continue to benefit from the exemption.

In London, the Central Activities Zone and Tech City have been granted exemption from the Permitted Development Rights together with areas of Westminster, Islington, Hackney, Tower Hamlets, Southwark, Lambeth, Wandsworth and Camden.  The whole of Kensington and Chelsea and the City of London is exempt.  The Government has also granted exemption for the Royal Docks Enterprise Zone in Newham and areas of the Isle of Dogs including Canary Wharf in Tower Hamlets.

Outside of London, parts of Vale of White Horse, Manchester, Stevenage, Sevenoaks, Ashford and East Hampshire District Council have been granted exemption.

The exempt commercial areas will be exempt until 30 May 2019.  It is likely that the City of London, Westminster and other inner London boroughs will apply for Article 4 Directions to remove the right.  (Under Article 4(1) of the General Permitted Development Order 2015 a local planning authority can, in exceptional circumstances, make an Article 4 Direction that will restrict permitted development rights within a limited area.  The direction can cover a single building, street or a neighbourhood).

• The new Order requires a developer changing a building to residential use to submit to the Local Planning Authority a statement specifying the net increase in the number of dwelling houses proposed by the development, alongside its application for determination as to whether prior development is required. This will not apply to applications made on or before 5 April 2016.
• There is a requirement for the legislation to be reviewed a minimum of every five years.

General

As before, the Permitted Development Rights will only cover change of use and do not alter any requirement under existing planning law to seek planning permission for associated physical development that may be required to bring a residential development into use.  Similarly, these provisions do not change any requirement for conservation area consent nor any approval that may be required under other regulatory regimes.

Listed buildings are exempt from Permitted Development Rights and planning permission remains a requirement for the change of use from office to residential in these cases.

By making the office to residential change of use permanent, the Government continues to back the delivery of housing on brownfield land.  However, an effect of these changes is that, especially in some areas of Inner London, there is now a scarcity of office space with the result that office rents are rising to new levels.