Re: TCP GPDO Amendments Definition of dwellinghouse and interpretation of ' - Public forum - Planning Advisory Service (PAS)

Hi Nick, Your first question is something that I'm also unsure about. For reference, the first paragraph of Part 3 Class J states the following: "Permitted development J. Development consisting of a change of use of a building and any land within its curtilage to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order from a use falling within Class B1(a) (offices) of that Schedule". As you say, one argument would be that the definition of a "dwellinghouse" in Article 1(2) of the GPDO specifically states that it "does not include a building containing one or more flats, or a flat contained within such a building". However, a counter-argument would be that the reference in Part 3 Class J is primarily a reference to "Class C3" of the UCO 1987, which does include a flat, and that the term "dwellinghouses" is simply used to show the heading of Use Class C3. The other issue is that the definition of a "building" in Article 1(2) of the GPDO includes "any part of a building". So, if you have a large office of (say) 1000m2, does this mean that you could take one small part (e.g. 50m2) and say that the small part constitutes “a building … [within] a use falling within Class B1(a)” (i.e. as required by the first paragraph of Part 3 Class J), or would only be possible for this phrase to be applied to the whole office. It's also worth noting that you can subdivide a large office into multiple small offices without requiring planning permission. The answers to the above would significantly affect the scope of Part 3 Class J, from allowing a large office to be converted into a single house, to allowing it to be converted into multiple flats (albeit all subject to prior approval with respect to transport and highways, contamination, and flooding). Thanks, Steve

Hi I would tend to believe that it is primarily a reference to "Class C3" of the UCO 1987, which does include a flat and so buildings could be converted to flats. On a seperate note has any tried to work out the procedure for the prior approval system for this (or is there guidance somewhere) because it is confusing me. As I see it: 1. The applicant has to apply to the LPA for prior approval. This should include a written description of the works, contact details and also indicating the site and the proposed development. Does this just mean a site plan or are floor plans going to need to be provided to show the layout of buildings (i.e. the proposed development)? (say this takes you to end of day 3) 2. Next the LPA considers whether prior approval is required consulting the neighbours, EA and highways if considered necessary. This has to give at least 21 days. (this takes you to end of day 24 - not allowing for postage times for neighbours). If no issues then the LPA can confirm no prior approval required and developer can undertake works. 3. If the local authority consider prior approval is required then they can ask for details relating to the impacts and risks posed by the development in regard to flood risk, contamination or highways issues and how they are going to be mitigated. (give the developer 7 days to provide this - takes you to day 31) 4. The LPA then has to determine the application. I assume if further information as above is provided then the LPA would need to give a further 21 days notice to consultees to provide comments (takes you to day 52). The legislation states that In determining the application the LPA must consider the representation received and: 'have regard to the National Planning Policy Framework issued by the Department for Communities and Local Government in March 2012 as if the application were a planning application;' (N. 8 (b)) Does this then mean the application should be assessed against all criteria of sustainable development contained in the NPPF (e.g. economic, future occupants amenity, ecology etc) or would it just be limited to flood risk, contamination or highways issues? Finally it appears that it is going to be virtually impossible for a busy planning department to deal with these notifications in the prescribed period (allowing applicants some time to provide additional info). Surely this is just going lead to refusals of prior approval on the basis of inadequate information? Thanks for any help that can be provided. James

Interpretation of paragraph N is absolutely essential to all of this. My reading is that once prior approval has been asked for it is treated as a planning application and we consider all of the issues therein "have regard to the NPPF...as if the application were a planning application". Given that there is a requirement to consult and to post a site notice, it is not a reasonable interpretation to then say that we can only take into account the three "impacts and risks". The idea with this part is to reduce the information burden - not to restrict an assessment to these factors. Put a different way, if there are 20 letters of objection to a site notice highlighting a specific concern that is not related to transport / noise / contamination do we then ignore the consultation excercise?

Hi Kevin I totally agree that interpretation of paragraph N is essential to all this. It reads as though all issues should be considered having regard to the NPPF as if a planning application. However if this is the case then why have specific reference to transport, flooding and contamination within the legislation if all issues are assessed?

The direction of Government thinking is towards reducing the burden of information required with applications. I think they have realised that they cannot easily do this with full applications taking into account European legislation in relation to protected species, the political importance of flood risk information etc. The NOI procedure, if used in this way, allows the information burden to be dramatically reduced but allows a full assessment (if prior approval is requested) to be carried out. As I've said above, imagine a scenario where we ask for prior approval, site notice, consultatuions etc etc. Through consultation we here from 20 residents on an issue which is backed up in the NPPF. Given that the order specifically states we take account of the NPPF and consultation responses, would it then be reasonable to ignore this issue?

Please remember that all applications and notifications must be screened under the EIA. Please also note that if it is screened in... it cannot be permitted development, even prior notifications fall into this catch-all. Please ensure you screen under the Hab Regs as on brown field sites you are likely to find invertebrates and other protected species. Derelict barns are a particular problem. We have been challenged on a number of occasions (being in the Cotswolds AONB) and find that the only way to prove you have screened is to provide a screening opinion. This need not be long, but it must exist and be robust. Adding a bit on your acknowledgement letter to say it's screened out is not sufficient, according to the High Court. Rule of unforeseen consequences.

Martin Goodall makes some interesting points in his blog (http://planninglawblog.blogspot.co.uk/2013/05/office-to-residential-new-right-to.html ) . He appears to support the view that all planning considerations in the NPPF should be considered as part of the process but only further info can be requested with regards to flood risk, contamination and highways. Also of interest is the point he makes regarding whether the reference to C3 allows for multiple dwellings or flats in an office building: 'The next question relates to an office building which, whilst it is a single planning unit as it stands, could reasonably be converted into a number of separate dwellings. Does the amendment order allow such a conversion? The order permits a change of use “to a use falling within Class C3”. The reference is to ‘a use’ in the singular, which suggests that the conversion of an office building to flats would not come within the scope of this provision. But this is no more than a tentative view on my part, and I would be interested to hear other views on this point.' It appears to ambiguity in this legislation just keeps being discovered!

I don't think those who constructed the GDPO amendments intended that all the usual planning matters raised by the NPPF can also be addrressed in the application for prior approval. The latter procedure relates to just a few "important" matters selected for scrutiny in the amendment order. Indeed I am sure they would be horrified if anyone thought that was their intention. The reference in N in the amendement order to the NPPF must logically be in respect of the matters requiring prior approval only. It may well be that objections on other matters are ruled "out of court" because they relate to matters for which prior approval is not required. Interestingly N makes no reference to the development plan. Which leads me to ask which is the starting point for an assessment of the proposal ? Is it the NPPF (as referred to in the order) or the development plan ? After all for a planning application the starting point is the development plan (see section 70 of the 1990 Act and section 38(6) of the 2004 Act ). Whilst the NPPF refers in its wording to the development plan, this omission could indicate that those who constructed the amendment order see the NPPF as the important policy. And so it does appear that the development plan is no longer considered to be very important by those who drafted the order since otherwise they would have included a reference to it..

David has just raised my question - does the Development Plan (DP) have a part to play in assessment here? I wonder how comfortably (or not) this fits with the primary legislation in the 2004 Act?

Can I just throw something else in.....does the building have to have been in use recently as B1(a) if not what would be considered as a resonsible length of time to not have been used....I ask as I have recieved such a notification on a building which I think would have a strong case of abandonment and recent planning approvals all sought to demolish the building to make way for new units. Does anyone know what the fee is for these types of applications ?

Hi Denise, With regards to your second question, the DRAFT 2013 amendment to the Fees Regulations 2012 indicates that the fee for any application under Part 3 of the GPDO will be £80: http://www.legislation.gov.uk/ukdsi/2013/9780111539293/regulation/6 However, the above SI is still a DRAFT SI, and strangely it currently states that it's due to come into force on "1st October 2013". Thanks, Steve

Slightly bemused by the issue of flats raised above as the GPDO provides the following definition at 1. Citation, commencement and interpretation:- “dwellinghouse” does not include a building containing one or more flats, or a flat contained within such a building."

It appears that there are lots of questions still outstanding with many LPA’s now considering prior approval applications for changes of use from B1(a) to C3. The two key questions I would appreciate any new views on are as follows: Class J relates to: ‘Development consisting of a change of use of a building and any land within its curtilage to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order from a use falling within Class B1(a) (offices) of that Schedule.’ ‘A building and any land within its use falling within Class B1(a) (offices)’: Does this mean that the entire building and its site would need to be in B1(a) use to be eligible for a Class J change? E.g. if a large office building had a retail unit at ground floor level and thus the building and site as a whole a mixed use (A1 and B1(a)), would this mean that Class J would not apply? ‘a change to a use falling within Class C3 (dwellinghouses)’ As has been raised above, as the definition of a ‘dwellinghouse’ specifically rules out flats, does the wording of the legislation allow a change of a building to flats?

While government should have had the brains to address and clarify the issue my thinking is a follows The GPDO makes it clear that a flat is not a dwelinghouse and such cannot benefit from permitted development rights However the amendment to the GDO nukes it clear that the appropriate definition is that contained within the use classes’ order which states a flat is a dwelling house. If this is not case it would appear to be nonsense that you can only convert offices to houses.

Not aware of any such definition in the Use Classes Order and significantly on appeal Inspectors have referred to flats as having a sui generis use.

Hi Michael, A typical flat would be Use Class C3 - for example paragraph 69 of Circular 03/2005 states the following: 'The term ‘dwelling house’ is not defined in the Use Classes Order. Nor is its definition limited, as in the GPDO 1995, so as to exclude flats. The question of whether a particular building is a dwelling house is therefore one of fact'. Thanks, Steve

OK - so the GPDO has its own definition, so for matters therein you follow that definition. The UCO has no such definition, so you look back to primary legislation, which again has no definition. However, there has been case law on the matter. The Gravesham case tried to identify the distinctive characteristics of a dwellinghouse, while in Van Dyck v SoSE and Southend BC the Court of Appeal looked at the matter of subdivision from the points of view of s.55(3) and (now) s.171B(2) and concluded that a flat was a dwellinghouse (at least for the purposes of s.171B). It is clear that this was not the intention of the legislators. One wonders whether they will ever learn from their mistakes. For my part, my first enquiry concerns a building that is let out in suites of offices, each with a degree of self containment. It is proposed to convert the first floor suite to a flat. PD or Not PD? I am coming round to the view that it would be, having regard to the part of a building definition and to the research I have done above. Dean

Does the legislation facilitate conversions to residential where external alterations are required (e.g. alterations to windows, the formation of balconies etc?). As far as I can see such works could not be considered under the prior approval process as this relates to a change of use only. Therefore the drawings submitted would need to show a conversion which did not include any external works. The legislation then requires that the change of use be carried out in accordance with these details unless the local planning authority and the developer agree otherwise in writing: (10) The development shall be carried out— (a) where prior approval is required, in accordance with the details approved by the local planning authority; (b) where prior approval is not required, or where paragraph (9)(c) applies, in accordance with the details provided in the application referred to in paragraph (1), unless the local planning authority and the developer agree otherwise in writing. If prior approval were determined as not required / approved, it is not clear how the developer would then seek approval for external works. Could the developer apply for planning permission for the external works as pure operational development and cite the prior approval in relation to the proposed residential layouts they show on the plans? If this application were approved could this approval then be considered a revision to the prior approval scheme which the LPA had agreed in writing for the purposes of section 10 above? It does seem at the moment that the legislation is quite restrictive in that is does not / may not facilitate a conversion in the following cases: 1. Where a new office building was constructed, has been vacant for a number of years and never occupied (hence no current or previous B1 use has been activated). 2. Where any part of the application site is in a non-office use (e.g. the building in question has a ground floor retail unit within it). 3. Where a conversion would require external alterations to the office building. 4. Where a conversion to flats is proposed (although this interpretation would render the legislation close to nonsensical).

Have been advised by my legal dept that the developer can notify us of a use and make a planning application for the external alts. Obviously a matter of tying the application to the notification by condition(?)

One other case to add where the legislation would not facilitate a conversion: 5. Where a condition was applied to the original planning permission restricting to B1(a) only and no other use.

Does anyone know what the fee is for Class J (office to Res) application as noted in the regs? In addition, if there has not been a fee produced yet, can a Class J (office to Res) application be valid or not and on what basis? Thanks

Hi Katie, The following DRAFT Statutory Instrument, which would amend the Fees Regulations 2012, indicates that there will be a fee of £80 for an application for prior approval under Schedule 2 Part 3 of the GPDO (i.e. "changes of use"): - DRAFT: The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 http://www.legislation.gov.uk/ukdsi/2013/9780111539293/contents However, please note the following: 1) At present, the front page of the above amendment SI indicates that it will come into force on "1st October 2013", which means that any application for prior approval under Schedule 2 Part 3 of the GPDO made during the 4-month period from 30/05/2013 to 01/10/2013 would not be subject to a fee. 2) At present, the above amendment SI indicates that the above fee (i.e. £80) will NOT be payable where the same applicant on the same day makes an application for planning permission (for which a fee is payable) for a site that includes buildings or land that are the subject of the application for prior approval Thanks, Steve

Thank you Steve, very helpful. Katie

To implement class J - what would be a reasonable time gap for the last use as B1(a)?. In my previous post I raised the issue of abandonment. the building in question has the appearance of a dwelling sitting within a former MOD site but has the benefit of a CLU in the 80's allowing all buildings on site to have a B1/B8 use. The building in questions is in an unsustainable location, delapitated, needs extensive repairs and sits within the confines of an existing business park. Any thoughts?

Denise At the risk of upsetting you (and others) I would suggest that the first issue is whether abandonment has taken place and the four tests therefore apply. If abandonment has taken place they cannot implement Class J. If not , then the only issues you can consider are those laid down by the GPDO amendment (transport, contamination and flooding) and issues you refer to such as unsustainable location, dilapidation, repairs and location in the business park are not relevant. They are material planning considerations, Class J is permited devleopment via a prior notification system that does not allow the LPA to consider the above material planning considerations......so as they say LPA`s need to `let it go` . Repairs and external appearance may well be something you can control after Class J is implemented if they apply for PP specifically for those matters. I am also scratching my head as to why the site is `unsustainable` if its in a business park? Surely locational `unsustainability ` applies to all types of use not just housing? There is a very succinct and logical recent appeal decision in Mendip where the Inspector addresses this very issue and should be a real eye opener to all LPA`s who still say (despite PPS7 being rescinded) that an isolated building cannot be converted to residential because it is unsustainable in locational terms but its re-use for economic purposes is sustainable in locational terms!

Thanks for your comment Chris, I agree first there is the principle to establish if abandonment has taken place and whilst the building sits within an established rural industrial site it is outside of the settlement where housing would not be supported- it was a former MOD site and obtained a certificate of Lawful use some time ago. Having done a bit more research on this matter it appeas that LPA's are to have regards to Class N when considering these types of applications. Class N 8(b) states that LPA's are to have regard to the NPPF as if the application was a planning application. I assume that para. 55 would be applicable in making sure housing is in sustainable locations. I would be interested in others views on this.

Mmmm! Be very careful here! i`m paraphrasing Martin Goodall here ( Renowned Planning Lawyer) `The change of use cannot take place until the completion of a prior notification procedure. 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) transport and highways impacts of the development, (b) contamination risks on the site and (c) flooding risks on the site. There are detailed rules relating to this procedure, which are set out in paragraph N. The application must be accompanied by a written description of the proposed development, a plan indicating the site and showing the proposed development [again, as with domestic extensions, this is ‘a plan’ in the singular, so it does not include elevations], the developer’s contact address or email address and, in this case, any fee required to be paid. Where the application relates to prior approval as to transport and highways impacts of the development, where in the opinion of the local planning authority the development is likely to result in a material increase or a material change in the character of traffic in the vicinity of the site, the council must consult the relevant statutory consultees (highway authority, rail operators, etc.), and the same applies where the application relates to prior approval as to the flooding risks on the site (in this case the Environment Agency). In addition, the LPA must display a site notice for at least 21 days, and must serve a notice on any adjoining owner or occupier. However, there is no requirement in this case for the developer to supply the LPA with the addresses of any adjoining premises. The LPA may require the developer to submit such information regarding the impacts and risks referred to above as they may reasonably require in order to determine the application, which may include assessments of impacts or risks and statements setting out how impacts or risks are to be mitigated. However, there is no power for the LPA to request additional information outside this fairly narrow subject matter, even if there are objections from neighbouring owners or occupiers; a request for additional information cannot extend beyond material relating to transport and highways impacts, contamination risks and flooding risks. When determining the application, the LPA must take into account any representations made to them as a result of any consultation; they must have regard to the National Planning Policy Framework as if the application were a planning application and (in relation to the contamination risks on the site) they must determine whether, as a result of the proposed change of use, taking into account any proposed mitigation, the site will be contaminated land (as described in Part 2A of the Environmental Protection Act 1990), and in doing so they must have regard to the Contaminated Land Statutory Guidance issued by DEFRA in April 2012 (and if they determine that the site will be contaminated land, they must refuse to give prior approval.) There is no specific requirement here to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act would not appear to be engaged, but the stipulation that the LPA must “have regard to the NPPF as if the application were a planning application” might be thought to bring this in by the back door. Paragraph 196 of the NPPF notes that planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise, but this paragraph does not in itself bring section 38(6) into play. The intention of this paragraph in the NPPF is simply to stress that the Framework is a material consideration in planning decisions. Paragraph 197 also mentions that in assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development. There is also some ambiguity in the requirement to “take into account any representations made to them as a result of any consultation”, bearing in mind that this consultation includes the notification of neighbours. If a neighbour objection is received that is based on some issue other than transport and highways impacts, contamination risks or flooding risks, should those representations be taken into account or not? One is certainly left with the impression that these prior notification applications for change of use from office to residential are likely to be dealt with as if they were planning applications, which could effectively frustrate the government’s purported intentions in promulgating this change to the GPDO.` The second issue is how you interpret para 55 ! Although you don`t say it, I get the strong impression that you think that para 55 prohibits the re-use of isolated buildings for residential purposes. It does not! It specifically says that new residential dwellings in isolated locations should be avoided except in specific circumstances and re-use is identified as one of those specific circumstances subject to it enhancing the physical environment. Again read the Mendip appeela case and I have a string of others where Inspectors take the same line.