Permitted development (PD) rights have since 30 May 2013 enabled a change of use from B1(a) office class to class C3 residential without planning permission. They are contained in Class J Part 3 of Schedule 2 to the Town & Country Planning (General Permitted Development) Order 1995.
We have seen a sharp increase in instructions to take advantage of this new law, which is due to end on 30 May 2016.
But how easy is it to do this and are there any pitfalls?
- The deadline
What has to happen by when? Government guidance states that the development must be completed by 30 May 2016 to avoid an enforcement action. Given this is new law no real clarity exists as to the completion standard required during the PD window.
- Does the building qualify
- It must have been used as B1(a) offices on 30 May 2013 or, if it was not in use at that date, that office use was its last lawful use . For new acquisitions, this means that the evidence gathered in the purchase process can be critical to ensure the PD rights are available.
- Be careful first to check the list of 17 local authorities that are exempt as a building within these areas, or parts of them, will not be able to use these rights.
- Be careful to check the local search you do before buying for any Article 4 direction withdrawing PD rights.
- Be careful also to check for any existing planning conditions that would restrict such changes of use.
- CPSEs (commercial property standard enquiries) that are routinely raised together with tenancy details may give the evidence you need of past uses, otherwise specific enquiries may be needed to establish use and you should ask for a statutory declaration from occupiers (where possible) if the situation is unclear – often sellers are remote investors and don’t have the knowledge of past uses.
- What part of the building qualifies?
If there is an integral car park would that be included, for example? The answer is to look at the office planning consent as if the car parking use was ancillary (rather than having its own consent) then it could be included in the PD application. Note, however, that the PD rights only allow a change of use – they do not permit building works to be carried out without planning permission. The same logic would apply for a plant room.
- Could a building not yet built qualify if it had office consent?
No, given the user test as at 30 May 2013.
- Is there any process to follow?
Before carrying out the permitted change of use, you must ask the planning authority to decide whether prior approval is required to the transport and highways impact, contamination and flood risks at the site. You can go ahead with the change of use once you receive prior approval or you receive confirmation that prior approval is not needed or if a period of 56 days passes from receipt of your application and the authority has not notified you one way or another.
- What about parts of the building that have different users on 30 May 2013?
The PD exemption will apply only to those parts that qualify. A residential development of a whole building of which only part has been in office use would therefore require planning permission for the other part (and hence potentially conditions or s106 obligations would apply to that part).
- What about Community Infrastructure Levy?
Don’t forget that developments carried out under PD rights are still subject to the CIL legislation
If there are any tenancies, affecting the timing of getting them out is key – if they are not secure business tenants then the date may well be certain – secure tenancies are more difficult as a buyer would need to consider a notice to end the tenancy for redevelopment purposes. Those timescales could in the worse case be a year or two if contested and given the PD deadline which its only two years away, this doesn’t give much scope for completing the works in time. So unless the government extends the PD rights window (which is a possibility) it would seem logical to look for buildings where either vacant possession can be delivered or you have non-secure tenants with certain end dates that fit in with your development programme.