In the Written Ministerial Statement accompanying the latest changes to the Permitted Development regime (The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013, effective from 30th May 2013, Eric Pickles, the Communities Secretary is quoted as saying: “These changes will bring empty and underused buildings back into productive use; make it easier to bring forward suitable buildings for state-funded schools; allow business and families to extend and improve their premises and homes without the expense of moving; and facilitate delivery of superfast broadband. These measures also implement recommendations from Mary Portas’ review to reduce restrictive ‘change of use’ red tape.” Noble sentiments and intentions but will they work, and in time for the Coalition Government to have delivered the level of growth required to win at the polls in May 2015?
Like the Growth & Infrastructure Act 2013 provisions under section 7, in relation to modifying or discharging unviable affordable housing planning obligations (the new Sections 106 BA to 106BC of the TCPA 1990, effective from 25th June 2013 until 30th April 2016), the changes to the GPDO also focus on a time horizon three years ahead (30th May 2016). Both time horizons are based on the belief that the English economy will be back in equilibrium. This belief underpins the controversial proposal to allow existing office buildings (B1(a)), outwith one of the 17 exempted areas (known as ”article 1(6A) land”), to be converted to homes (C3) without the need for planning permission (new Class J). The GPDO amendments also allow larger household extensions under permitted development rights (current Class A), make it easier for new and startup businesses to use retail and commercial buildings for a continuous period of up to two years from the start of the “flexible use” (new Class D), and, for academy and free schools to open in existing B1 business premises, hotels (C1), care homes (C2), secure residential institutions (C2A) and D2 (assembly and leisure) buildings, and, to revert back (new Classes K and L). To accelerate the delivery of the Free School programme, the use of any buildings or land as a state-funded school for a single year (new Class C) is also permitted along with the permitted height of fencing or other means of enclosure for a school adjoining a highway as a “minor operation” under Part 2 of the current GPDO 1995. There are also increased thresholds for business change of use from B1 or B2 to B8 and from B2 or B8 to B1 (now 500 sq,m), and, to extend or alter B1, B2 and B8 buildings from 25% of gross floor space or 50 sq.m (whichever is the lesser) to 50% or 100 sq.m. These changes are operative only until 30th May 2016. For the provision of fixed-line broadband services, the PD period extends to 30th May 2018; and for the change of use of an existing agricultural building (the sole use of which pre-dated 3rd July 2012, or, if a new use, until 30th July 2022) the change appears to be on an unlimited basis. This new Class M allows a change of use from agriculture to a flexible use falling within either Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes), Class B1 (business), Class B8 (storage and distribution), Class C1 (hotels) or Class D2 (assembly and leisure). No more than 500 sq.m of floor space can be converted to a new use under the new right; and if the area is more than 150 sq.m of floorspace then the prior approval of the local planning authority (LPA) will be required. Buildings that are listed, or a scheduled monument, are excluded from these relaxations.
The essential procedural requirement of the “prior approval” process specifically applies in cases where the PD change concerns office conversions (Class J), state-funded schools (Class K) and agricultural buildings (Class M) under the amended Part 3 of Schedule 2 to the GPDO 1995. The process is intended to screen out buildings and land where such uses would be unacceptable in terms of transport impact, contamination risk or flooding risk; and the new Section N (together with its interpretation provisions within Section O) requires that a prior approval application be accompanied by a written description of the proposed development, a plan indicating the site and the proposed development.
The LPA will then consult certain statutory consultees and immediate neighbours, and may require information to enable it to assess impacts and risks. Taking into account those representations, the NPPF and any contamination risk it can either approve (with details) or refuse the application, which can be appealed to the Secretary of State as though it were a refusal of planning permission. Commencement can still not take place until either written notice has been received that prior approval is not required or notice is given of that LPA’s approval. If the LPA does neither within 56 days (though this period may be extended by agreement), the developer may then proceed.
However, these new PD rights only apply to the principle of use. Therefore, if there is any doubt about whether the PD measure applies to a particular building, an intending developer may well need to apply for a Lawful Development Certificate. There may also be existing section 106 obligations that may require discharge or modification.
If the scheme requires material external physical alterations, then these will need to be the subject of a planning application. It also needs to be remembered that where the PD right is subject to the three year limitation period that use must commence no later than 30 May 2016, this could mean that the necessary conversion work has to start at a much earlier date. Building Regulations approval will be required in the usual way.
Even allowing for under-staffed and overworked planning departments the necessary consents to deliver the permitted change of use could take far longer than the Coalition Government is anticipating; and all the above is without regard to the degree of controversy that may arise from a particular proposal. Indeed, the 2013 GPDO amendments have also arrive at a time when the new judicial review reforms (The Civil Procedure (Amendment No.4) Rules 2013), effective from 1st July 2013, will limit the right of challenge of planning decisions to six weeks under “the planning acts” (the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990 and the Planning (Consequential Provisions) Act 1990). However, is the reduction in the time period really going to make that much of a difference once objectors realise that they have to act more swiftly? Will they not just begin the process at an earlier stage: in other words frontload the judicial review challenge? Are judges going to be comfortable denying justice on the basis that they consider a case to be hopeless? Is the Judicial Review Pre-Action Protocol, and, its encouragement to explore alternative dispute resolution methods now going to be honoured only by way of lip-service or too frequently dispensed of due to urgency?
Indeed, in its ongoing rush to “streamline” the planning system, and, to remove politically perceived impediments to economic growth, one can only wonder whether this is yet another example of a lack of “joined up” thinking. Time will quickly tell; but certainly all that glitters may not have turned to gold by the next election in May 2015!