The rights to convert a building from office use to residential without needing to submit a planning application are not new, although a recent decision from the Planning Court have brought them back to the headlines and suggest that they may be more flexible than anticipated.

By way of recap, the permitted development rights – found in Class O, Sch 2, Part 3 of the Town and Country Planning (General Permitted Development) Order 2015 - allow such a conversion where the building was in office use on 29th May 2013, or in the case of a building which was in use before that date but was not in use on that date, when it was last in use. The rights do not apply to listed buildings or in certain other limited cases.

This development is only permitted subject to the condition that before beginning the development, 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 a limited number of issues, namely transport and highways impacts of the development, contamination risks on the site, flooding risks on the site, and impacts of noise from commercial premises on the intended occupiers of the development. The authority is entitled to impose conditions on any prior approval consent granted. The development must then be completed within a period of 3 years starting with the prior approval date, although it is still somewhat unclear about what 'completed' means in this context.

The Planning Court has held in Justin Edward Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin) that the s73 procedure for varying or discharging planning conditions can be used to vary or discharge a condition imposed on a prior approval notice. In this case, prior approval had been granted for the conversion of part of a building into three residential flats, subject to fourteen conditions, many of which required the submission and approval of further details and schemes. The Claimant sought to remove eight of those conditions. The Court found that "any conditions subject to which prior approval is granted by virtue of paragraph W(13) are conditions subject to which the relevant Class O planning permission is granted".

Whilst the planning permission was granted by the development order rather than the prior approval process, a s73 application could still be made. Whilst local planning authorities are still able to remove these permitted development rights by way of condition or article 4 direction, the above decision seems to add some flexibility into the system, which could be welcomed by those seeking to promote residential development.

We are awaiting further legislation to bring forward anticipated new permitted development rights to permit the demolition of office buildings and construction of residential units. Little is currently known about the detail likely to apply to these rights (including when they will come forward), and how issues such as affordable housing will be dealt with, but we will be keeping our eyes out for them.