Permitted development rights for change of use from commercial to residential

Permitted development rights for change of use from B1(a) office to C3 residential purposes, came into force on 31 May 2013.

The permitted development rights only cover change of use: any associated physical development which currently requires a planning application will continue to need one.

The new rights are time-limited for a period of three years. The government will consider towards the end of that period whether they should be extended for a further period or indefinitely.

The rights are accompanied by a tightly drawn prior approval process which covers significant transport and highway impacts, and development in areas of high flood risk, land contamination and safety hazard zones. A proposed change from commercial to residential use that does not benefit from the new permitted development rights (e.g. where it cannot satisfy the prior approval requirements) will continue to require a planning application, which should be determined in the light of paragraph 51 of the National Planning Policy Framework. However the impact on utilities is also not considered e.g. demand for water and sewerage services.

The prior approval process may be intended to address the concern that much B1(a) development is in locations that are not normally considered suitable for residential uses. The detail of the proposed process is not yet known but could give local authorities the discretion to approve or reject proposals - rather like the prior approval procedure for telecommunication developments such as mobile telephone masts.

However, local authorities were given an opportunity to seek an exemption for specific parts of their locality where the authority can demonstrate that the introduction of these new permitted development rights in a particular area will lead to:

  • A) the loss of a nationally significant area of economic activity or
  • B) substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring.

 

A list of the areas which are exempt from the new rights can be found here.

A number of issues in addition to those  highlighted in the 2011 consultation paper do not appear to have been addressed by the proposals. Perhaps the most important of these is the fact  that the government has  failed to make clear  that Article 3(1) of the General Permitted Development Order 1995 (GDPO) provides that all  permitted development rights (including the most recent) are subject to the requirements of regulations 73 to 76 of The Conservation of Habitats and Species Regulations 2010 (as amended) (2010 regulations).

The 2010 Regulations expressly provide that development under a permitted development right which is likely to have significant effect on a European site may not begin unless the local planning authority consider and approve the proposed development. Inevitably this means a planning application will be required.

The Regulations also set out the test a local planning authority must use in considering whether to approve a proposed development in a European site and species could be affected by the proposals. The introduction of residential development into such areas will result in greatest noise and light pollution in the evenings causing disturbance to protected species.

There are restrictions on residential developments in proximity to special protection areas (e.g. the Thames Basin Heaths SPA affecting much of western Surrey, parts of Berkshire and Hampshire) so we must assume that these will be dealt with and presumably refused under the prior approvals process otherwise it is difficult to avoid the conclusion that judicial challenges may ensue.

The measure is seen by government as an important contribution to assisting the economic well-being of the country, on the basis that any loss of commercial premises will be accompanied by benefits in terms of new housing units, additional construction output and jobs. There certainly seems to be considerable enthusiasm for the scheme amongst developers. It remains to be seen whether the new proposals will have the desired effect.

It appears  that many applicants (and some advisors) are unaware of the restrictions contained in the GDPO and the 2010 regulations and are understandably frustrated when they discover that because of a site's proximity to an SPA the permitted development rights for change of use from commercial to residential are not available to them.

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