B1 to C3 permitted development - Public forum - Planning Advisory Service (PAS)
B1 to C3 permitted development
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Hi Nigel. You've not missed anything, as far as I know - we're all still eagerly awaiting the Statutory Instrument which will contain the extended and new PD rights. The delay has caused lots of confusion and uncertaintly amongst planners, particularly for authorities that are mulling Article 4 directions, and rumours are swirling about whether CLG are under pressure to introduce additional considerations beyond the flooding/parking/contamination issues that the current rights consider. Presumably staff at CLG have also had to prioritise the Housing and Planning Bill work, particularly as there have been so many changes to the bill during the course of its passage. It seems obvious that they will be published before the current deadline in May.
Thanks Rob
As you say we have to assume that it will be publiished by end of May. However, there must be a lot of developers and potential developers who are being held up by the uncertainty.
I think I've read that this could be linked to the enactment of the Housing and Planning Bill. I think that's in the House of Lords now. I have no idea how long it will taken in there!
Nigel
Yes - all this uncertainty is good for no-one. I would love to see DCLG publish a programme of intended legislative changes (as LPAs have to with their LDS) so that we can all plan our work better.
It wouldn't surprise me at all if this was linked to the H&PB - with the Statutory Instrument for this released at the same time as the SI for the Bill. The timing then depends on how much the Lords changes the Bill.
Nigel Hartley:In October last year the minister announced that prior notification procedure for conversion of offices to residential which will expire in May this year, would be made permanent. Also that change from light industrial would be made pd with the same procedure. However, I have not seen any evidence that this has been implemented. Have I missed it or does anyone know when these are to be introduced?
New legislation published last week:
http://www.legislation.gov.uk/uksi/2016/332/pdfs/uksi_20160332_en.pdf
The new legislation is not quite as simple as making the current B1(a) office to residential PD right permanent. The legislation in effect appears to replace the current Class O with a new amended Class O. The new Class O includes a requirement to consider 'impacts of noise from commercial premises on the intended occupiers of the development' and includes a new deadline to complete development 'within a period of 3 years starting with the prior approval date'.
I may be wrong but it appears that this new legislation coming in to force on the 6th of April will mean that any unimplemented PAs issued prior to the 6th of April will cease to be relevant as the current Class O will no longer exist. To utilise the rights set out in the new Class O it will be necessary to go through the new prior approval process on or after the 6th of April, a process which includes the consideration of noise impact upon future occupants. Without going through the new prior approval process it does not appear that any development with a pre 6th of April PA could benefit from the rights set out in the new Class O, as the PA process set out in the new Class O (including the new noise consideration) would not have been carried out.
This interpretation, if correct, will leave a grey area for any development which are currently underway, which are not completed before the 6th of April, as from the 6th of April the PD rights set out in the current Class O will no longer exist.
I would be interested to hear any other interpretations of the new legislation.
The legislation also includes a permitted change from B1(c) light industrial to residential to take effect 30 September 2017, and a permitted change from launderette to residential which will take effect 6th April 2016. The September 2017 date will mean that any LPA which wishes to consult on, publish and provide 12 months notice on an Article 4 in respect of the B1(c) PD rights, will need to take action immediately.
In case it helps to clarify here is the wording from the legislation:
(c) for paragraph O.2 substitute— “O.2.—
(1) Development under Class O is 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) transport and highways impacts of the development,
(b) contamination risks on the site,
(c) flooding risks on the site, and
(d) impacts of noise from commercial premises on the intended occupiers of the development, and the provisions of paragraph W (prior approval) apply in relation to that application.
(2) Development under Class O is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date.”;
So, to benefit from the rights in the amended Class O (including the three year completion deadline), the developer MUST apply to the LPA for a determination in respect of noise impacts. Therefore, to benefit from the rights in the amended Class O, it appears that a new PA application will have to be submitted on or after the 6th of April.
So it was goodbye to the old Class O yesterday, and hello to the new Class O today.
I would be interested to know what other LPAs are going to do with any current applications which were submitted when the old Class O was in force, which will now need to be determined while the new Class O is in force.
Will LPAs now in respect of any current applications need to address O.2 (1) (d), i.e. whether the prior approval of the LPA is required in respect of impacts of noise from commercial premises on the intended occupiers of the development ?
Steve Speed (Planning Jungle) has cited a large number of appeal decisions where Inspectors have determined prior approval appeals based upon the current legislation in force at the time of the Inspector’s decision, rather than the legislation which was in force when the application was submitted.
It would therefore appear reasonable to conclude that Government considers this to be the correct legal position, and would expect LPAs to follow a similar approach in respect of their determination of prior approval applications.
If the Inspectors' approach is correct, it would appear that LPA's should be considering whether prior approval is required in respect of impacts of noise from commercial premises on the intended occupiers of the development in respect of any current prior approval applications received prior to today?
I agree - any applications currently under consideration should be assessed against the regulations in force at the time of decision, rather than application.
I think the more difficult scenario is where prior approval under the old class O has been given (or was not required) but the development has not been implemented yet. If they implement, and they haven't secured prior approval regarding the new noise clause, then this surely isn't permitted development. I can't see any transitional arrangements or explanatory text that covers this, though I could have missed something. Practically speaking, in most situations this probably wouldn't be significant as there are likely to be only a few situations where neighbouring commercial uses might impact on the future residents, but I would suggest that any sensible developer where this could be the case should re-apply for prior approval, or they could be challenged at a later date.