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Permitted Development

Former Member, modified 10 Years ago.

Permitted Development

Could anyone advise me as to whether the change of use of a B1 Office building under PD to an HMO would be limited to six units? ... and if Planning permission is not required?

Put another way, could one change the use of a B1 office building to an HMO providing circa. 20 units via permitted development rights? ... thereby avoiding social housing contributions and attracting only building regs requirements??

How does this work in the context of the six people living as a family rule please? ... remembering it's PD. 

Any advice would be greatly appreciated. 

Kind Regards,

J.Coleman. MRTPI.

permitted development gpdo.
Former Member, modified 10 Years ago.

Permitted Development

Class J allows the change of use of a building to a single dwelling house, and our LPA solicitor advises this means the change of use of a building (e.g. an office block) to more than one dwelling house is not permitted. I'd be interested in hearing others' views on that.

He also advises that dwelling house is clearly defined in the GPDO and excludes flats, but we are less convinced by that, since we feel it is more likely that 'dwellinghouse' in this case is taken from the heading to Class C3. Annex A to Circular 08/2010 sets out the government's view on what falls within C3.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/5678/1759707.pdf

 

Nigel Hancock, modified 10 Years ago.

Permitted Development

New Member Posts: 14 Join Date: 19/10/11 Recent Posts

John, where does it say that Class J restricts the change of use to a single dwelling house?

pd
Former Member, modified 10 Years ago.

Permitted Development

Hi Nigel,

Class J permits "Development consisting of the 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."

The thinking is that 'a use' is singular.

Funnily enough a colleague has spotted that Martin Goodall has looked at this issue from a different perspective in responding to comments at the bottom of this blog post:

http://planninglawblog.blogspot.co.uk/2013/06/yet-more-gpdo-amendments.html

In summary Martin suggests that it may be possible to convert an office building to multiple C3 units but thinks that a separate Prior Approval application would be required for each unit.

We already have a couple of these applications in for conversion to multiple units and currently don't have a clue what to do with them!

Steve Speed - The Planning Jungle website, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 70 Join Date: 12/08/13 Recent Posts

Hi all,

For info, the question of whether or not Part 3 Class J allows an office to be converted into (multiple) flats was also discussed in the following thread, although there were also different opinions:

https://khub.net/group/planningadvisoryservicepas/forum/-/message_boards/message/10967535

Thanks,

Steve

gpdo
Former Member, modified 10 Years ago.

Permitted Development

An application for prior approval of a change from B1(a) to multiple c3 units has just beendeclared invalid and forms and fee returned on the basis of the interpretation in my previous post, i.e that conversion to multiple units is not PD. I would say I'll let you know what happens next, but short of carrying out the change of use and then appealing an enforcement notice under ground A there doesn't seem to be an opportunity to take this to PINS, unfortunately.

Steve Speed - The Planning Jungle website, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 70 Join Date: 12/08/13 Recent Posts
Hi John,
 
In my opinion, the approach taken by the LPA in this particular case (i.e. to decide that the application for prior approval is "invalid") is a relatively risky approach.  In short, if the LPA's interpretation of the legislation is incorrect (which in my opinion is the case), then after 8 weeks the developer will be able to lawfully start works, and the LPA would have lost its opportunity to assess the transport impacts, contamination risks, and flooding risks, of the proposed development.
 
As you say, from a procedural point of view the developer has relatively limited options, other than (say) waiting 8 weeks, then starting works, then receiving an enforcement notice, and then appealing the enforcement notice.  Alternatively, if at some point in the future the government issues guidance that Part 3 Class J allows an office to be converted into multiple flats, then the developer would be able to start works with the knowledge that the combination of the government guidance plus the "invalid" letter from the LPA demonstrates that they submitted a valid application for prior approval, for which the LPA failed to issue a decision within 8 weeks.
 
A good example of the risks for an LPA if it decides that an application for prior approval is "invalid" is provided by the Court of Appeal judgement "Murrell & Anor v Secretary of State for Communities and Local Government & Anor [2010] EWCA Civ 1367", which is available on the following webpage of the Bailii website:
 
 
In the above case, the developer submitted an application for prior approval (under Part 6 of the GPDO) on 01/12/2008, which the LPA then decided was invalid for several reasons, including the fact that the developer had not used the standard application form provided by the government.
 
The developer then submitted this additional information (which was received by the LPA on 09/12/2008), and the LPA then issued a decision on 31/12/2008 stating that prior approval was required and that such approval was refused.  It should be noted that this decision date was less than 28 days after the date that the additional information was submitted, but more than 28 days after the date that the application (without the additional information) was submitted.
 
The Court of Appeal concluded that the information received by the LPA on 01/12/2008 complied with the requirements of the GPDO and was a valid application, and that the GPDO does not require any of the additional information requested by the LPA. This meant that the 28 day period started on 01/12/2008 and expired on 28/12/2008. As such, the LPA failed to issue a decision within the 28 day period, and therefore permission for the development accrued under the GPDO.
 
Although the questions on this forum about whether Part 3 Class J allows an office to be converted into multiple flats have received relatively few responses (and a fairly mixed response), it does appear to be clear that a significant number of LPAs have taken the interpretation that Part 3 Class J does allow this.  For example, the following article on the Planning Resource website contains a lot of references to applications to convert offices into multiple flats, without any references to LPAs deciding that the legislation wouldn't allow this:
 
 
For example, within the above article, one agent states that "applicants are looking to convert smaller properties, typically with five units, though with some up to 20", and the head of planning at an LPA states that the offices subject of these applications "are typically on the edge of town centres and usually propose ten to 12 flats".  There are also references to applications to convert very large office blocks into multiple flats, including the following:
 
- An application to convert an office into 120 flats, for which Birmingham City Council issued a decision stating that prior approval was not required:
 
[If necessary, search for the application reference 2013/04621/PA].
 
- An application to convert an office into 139 flats, for which the London Borough of Hounslow issued a decision stating that prior approval was not required:
 
[If necessary, search for the application reference PA/2013/2769 or 00996/50/PA1].
 
In addition, I would also question the practicality of the interpretation (which has been mentioned above) that Part 3 Class J allows an office to be converted into multiple flats, BUT that each flat would need to be the subject of a SEPARATE application for prior approval.  Such an interpretation would imply that, in the second of the above examples, the LPA should have required the developer to submit a total of 139 separate applications (!), each of which would have required a separate application number, a separate set of paperwork, a separate decision notice, etc.  In my opinion, if it's accepted that Part 3 Class J allows an office to be converted into multiple flats (which in my opinion is the case), then the only practical way that LPAs can deal with these types of applications is to allow the multiple flats to be the subject of a single application.
 
Thanks,
Steve
Former Member, modified 10 Years ago.

Permitted Development

Hi Steve, a typically thorough piece of advice, thank you! We had, fortunately, considered everything you have raised, particularly the risk of failing to determine, and clearly there are several ways of interpreting the Order. But if we stick to the interpretation we have then we have very few options available to us. It is tempting to say, "We don't believe this is Permitted Development, but just in case it is we are refusing to grant prior approval." However, if we are of the opinion that what is proposed is not PD then we cannot grant or refuse prior approval because the prior approval process does not kick in. We also cannot purport to refuse an LDC, because again that is not the question being asked by the applicant. Yes, there is the risk of being later proved wrong, but that works both ways; if we simply accepted that creating multiple units is PD and the developer proceeded on the strength of us granting prior approval (at his/her considerable cost and possibly causing significant planning harm, for example to residential amenity) we would also be in a pickle if it was later determined by PINS or by the courts that it is not PD. A prior approval determination is not an LDC so presumably it would be open to the LPA to take enforcement action at that point, and it may come under significant pressure to do so. It might be argued that that risk is the greater. Basically, we are between a rock and a hard place and the decision to invalidate was not taken lightly. 

Steve Speed - The Planning Jungle website, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 70 Join Date: 12/08/13 Recent Posts
Hi John,
 
Thanks very much for your reply.  As you say, the legislation puts LPAs in a very difficult position.  Unfortunately, it appears to be very common nowadays for central government to release unclear legislation without (decent) guidance, which then means that every LPA has to work out its own set of interpretations.  It strikes me as a very inefficient system, because whatever money is saved when central government chooses not to produce guidance, is then spent several hundred times over when every LPA has to work out its own set of interpretations.  And, of course, it's also very inefficient for planning consultants and developers to have to deal with multiple LPAs each (potentially) applying a different set of interpretations.
 
One of the key issues that you've highlighted is the question of how an LPA should deal with an application for prior approval if it believes that the works wouldn't fall within that particular Class of permitted development rights.  This is an issue that I've discussed within the "Part 1 of the GPDO - 2013 Amendments - Guide" document on my website, as this same situation arises when an LPA receives an application for prior approval under Part 1 Class A condition A.4 and it appears to the LPA (without necessarily being 100% clear) that the works wouldn't fall within Part 1 Class A.  For example, this situation arises for such an application when the LPA suspects that the use of the property might fall within Use Class C4, etc.
 
When I first looked into the above issue, I assumed that a clear answer would be available, particularly as this same issue has existed for many years for applications under Parts 6, 7, 24, and 31 of the GPDO.  However, out of the 7 appeal decisions that I found that dealt with this issue, although 5 supported the approach that the LPA should process the application regardless (albeit perhaps with the use of informatives, etc), the other 2 supported the opposite approach that the LPA should invalidate the application.  I guess nothing better demonstrates that a piece of legislation is unclear and lacks (decent) guidance than when government Inspectors are unable to interpret it consistently.  What's most frustrating is that even though the above issue has existed for many years for applications under Parts 6, 7, 24, and 31 of the GPDO, when central government recently released the new legislation for Parts 1 and 3 of the GPDO it completely missed the opportunity to clarify this issue.
 
Anyway, in case it helps, I've just sent an email to DCLG to ask them whether Part 3 Class J would only allow an office to be converted into a single house, or whether it would also allow an office to be converted into multiple flats.
 
Thanks,
Steve
Steve Speed - The Planning Jungle website, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 70 Join Date: 12/08/13 Recent Posts
Hi all,
 
Further to my posts above, I’ve received a reply from DCLG which states that, although only the Courts can ultimately give a definitive interpretation of legislation, the intention of Part 3 Class J was to allow an office to be converted into (multiple) flats (i.e. as well as the option of it being converted into a single house).
 
Furthermore, the reply stated that, other than the guidance on the NPPG beta site (which will take into account comments received on the site), no further guidance is planned in relation to the changes to the GPDO that were introduced in May 2013.
 
Thanks,
Steve
Former Member, modified 10 Years ago.

Permitted Development

Hi Steve, a typically thorough piece of advice, thank you! We had, fortunately, considered everything you have raised, particularly the risk of failing to determine, and clearly there are several ways of interpreting the Order. But if we stick to the interpretation we have then we have very few options available to us. It is tempting to say, "We don't believe this is Permitted Development, but just in case it is we are refusing to grant prior approval." However, if we are of the opinion that what is proposed is not PD then we cannot grant or refuse prior approval because the prior approval process does not kick in. We also cannot purport to refuse an LDC, because again that is not the question being asked by the applicant. Yes, there is the risk of being later proved wrong, but that works both ways; if we simply accepted that creating multiple units is PD and the developer proceeded on the strength of us granting prior approval (at his/her considerable cost and possibly causing significant planning harm, for example to residential amenity) we would also be in a pickle if it was later determined by PINS or by the courts that it is not PD. A prior approval determination is not an LDC so presumably it would be open to the LPA to take enforcement action at that point, and it may come under significant pressure to do so. It might be argued that that risk is the greater. Basically, we are between a rock and a hard place and the decision to invalidate was not taken lightly. 

Former Member, modified 10 Years ago.

Permitted Development

Thanks Steve, that will be interesting but I think I can guess what the response will be! Problem is, it's not about what DCLG want it to say, it's about what it does say.  Bit like the Householder PD Technical Guidance telling us how to measure eaves and then being proved wrong. :-)

Our thinking this morning is that actually it should technically be possible for an LDC for the change of use under Class J to be refused on the ground that it would not fall within Class J, thus allowing an appeal.

Just on your comment about the missed opportunity to clarify prior approval, I think actually even more frustrating is that anyone thought it would be a good idea to widen the use of a procedure that has never worked, not to mention using it so blatantly to introduce policy changes by the back door.

Eben van der Westhuizen, modified 10 Years ago.

Permitted Development

New Member Posts: 5 Join Date: 21/01/12 Recent Posts

Steve,

I suspect the planners at the DCLG, who probably keep an eye on the PAS forum, consider a response to you as a cost effective way of publishing 'guidance' on permitted development ;-)

Keep up the good work

Eben

nicholas waring, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 29 Join Date: 21/01/12 Recent Posts

Could anyone advise me how to challenge the local authoritiy's incorrect application of GPDO B2a.conditions =

"(a) the materials used in any exterior work shall be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse".

Local authority =

"the roof extension will be built in slate roof tiles that match the original slate tiled roof slope (rather than the existing concrete roof tiles).

I note DCLG Technical Guidance = the condition is intended to ensure that any addition or alteration to a roof for a loft conversion results in an appearance that minimises visual impact and is sympathetic to the existing house. This means that the materials used should be of similar visual appearance to those in the existing house, but does not mean that they need to be the same materials or match exactly.

Is it therefore entirely at the local authority's whim whether to apply the conditons of the GPDO?

Any case law on this and means of challenging?

 

Former Member, modified 10 Years ago.

Permitted Development

Hello,

I think you have made a mistake by adding this to an existing thread and probably won't get much help. I suggest you start it as a new thread.

This is certainly a subject I am interested in at the moment as I am preparing papers to submit an appeal about the same subject. If your LA have not yet made a decision on a PD application and they are disputing what you think is correct then, I suggest that you get in touch with them, prferably in writing, to ask that you have sufficient time to argue your case fully with them. This is particularly important if the application is anywhere near the eight week deadline as the LA's like to make a decision in that time, but often don't seem to really look at the proposals throughly until week six. It is always best to try and convince the LA before a decision. It can save a lot of time and possibly money than having to go to appeal. There are lots of appeal decisions that you can draw on that may support you particular situation.

Are you aware of a website PlanningJungle.com. It only deals with permitted development and may be more appropriate than this one in your situation. There is a lot of free information on Planning Jungle but you can also be a paid member. A year costs about £50 for an individual and it could prove to be very worthwhile. I found it very difficult to find my way around it at first, and sometimes still do, but you will get expert advice and access to previous appeal decisions that are searchable by subject. Through some other sites it can cost £65 just to print out an appeal decision. There is also a document "Permitted Development for Householders – Technical Guidance" published by the Dept Communities & Local Govt. I suggest you look at that (pages 35-36). If you repost on here or PlanningJungle or anywhere else, I suggest you give a bit more detail of your position to get better advice, otherwise there are too many uncertainties.

Best wishes, Brian

nicholas waring, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 29 Join Date: 21/01/12 Recent Posts

 

Dear Brian

 

Thank you for your comments and advice.

I am not familiar with PAS etiquette but may try to start a new thread as suggested.

 

In my case the time has passed to make an appeal, and I am quite incensed that my efforts to engage with the Council’s complaints procedure and the Ombudsman have proved fruitless.

The latest response from the Council is :

“I am afraid I cannot confirm that grey synthetic slate is similar in appearance to red concrete tile. There have been an extensive number of appeal decisions in relation to what constitutes a similar appearance and there are at least two specific cases where grey slate has not been considered to be similar to red tile on a roof extension.”

 

I have researched this with the help of Steve Speed/Planning Jungle, but this only serves to show the apparent inconsistency in decisions.

 

I consider that if indeed “....there are at least two specific cases where grey slate has not been considered to be similar to red tile on a roof extension” , then that should be taken as a given.

I cannot understand how the Council is able to say “.............I cannot confirm that grey synthetic slate is similar in appearance to red concrete tile”, where I consider it is their duty to do so.

The Ombudsman sees no maladministration in this and considers I have not suffered significant harm.

The DCLG tells me my only recourse is the Appeals process, but of course the time has passed in my case.

 

Irrespective of this, I also I cannot understand how the Council is able to apparently ignore the requirements of the GPDO and apply its own reasoning that the proposed materials need not be similar in appearance to the existing, but instead the original.

I did get in touch with the Council as you suggest, but the officers report dismissed my comments. These details refer to my neighbour so I have no right of appeal and apparently no avenue of redress, apart from venting my spleen here.

 

Best Regards

 

Nicholas

 


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Former Member, modified 10 Years ago.

Permitted Development

 

Perhaps you could describe what has happened in a bit more detail. What is the development/works? What are the materials in the existing house (before the works)? What are the materials for the proposed works? Has the development been carried out? If so, was it carried out before you applied, during or after? Did you submit an application for a lawful development certificate or for planning permission?

If you could provide a link to the application file on the Council's website that might also help.

nicholas waring, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 29 Join Date: 21/01/12 Recent Posts

Dear John

I am trying to resist making this a personal plea and more a matter of principle. I have therefore deliberately left out much of the details, but as I said to Brian...............................................

the proposals involve planning permission for a rear roof extension and Cert Law Dev for adjacent rear roof extension.

materials existing before the works = red conrete tiles.

materials for the proposed works = grey synthetic slates.

my development not carried out yet, particularly as I have been seeking clarification from the Council since Feb 2013 and do not wish to risk enforcement action.

am reluctant to send a link to neighbour's application file (implemented) on the Council's website as I don't wish create difficulties for them. But this is the one where the Council =

"the roof extension will be built in slate roof tiles that match the original slate tiled roof slope (rather than the existing concrete roof tiles).

Former Member, modified 10 Years ago.

Permitted Development

I'm still not entirely clear, but I think you are saying that your existing house roof comprises red concrete tiles and you are proposing to extend that roof but use grey synthetic tiles. 

I'm not sure why you think it is unreasonable to say, "I am afraid I cannot confirm that grey synthetic slate is similar in appearance to red concrete tile." Apart from wondering why you want to do that to your house, it is pretty clear that red and grey are not 'of similar appearance', so for me that would not be permitted development and the Council's position seems logical.

On the other hand, on the face of it the condition for the neighbour's house is a bit odd. Specifically requiring a slate finish seems a bit over the top for a lawful development certificate. Or did the neighbour get planning permission?

I am still having trouble getting to grips with what you are trying to achieve. Are you complaining about the Council's handling of your application or that of your neighbour?

nicholas waring, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 29 Join Date: 21/01/12 Recent Posts

Dear John

what i am trying to achieve is 2 dormer roof extension (one PD, the other PP) to match the neighbours.

i am part of Victorian terrace of 6.

5 of the 6 have either implemented or have permission for roof extensions.

my PD extension is of course granted unde terms of the GPDO. indeed the officer's report notes: "The materials used in any exterior work shall be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse".

The roof finish of the existing dwellinghouse is red concrete tile.

My planning permission for the proposed adjacent roof extension is for grey synthetic slate, to match my immediate neighbours and the predomiant finish of the area. (i plan to renew the entire roof finish from red concrete tile to grey sunth slate)

i therefore wish to implement my PP and install grey synthetic slate. before doing so I wish to implement my PD, but not "as existing"/red tiles, rather as the neighbours ie grey synthetic slate.

the terms of the GPDO are quite clear. but the Council has issued a PD to my neighbour on the basis that "The roof extension will be built in slate roof tiles that match the original slate tiled roof slope (rather than the existing concrete roof tiles)".

This seems to me contrary to the GPDO terms.

I wonder why terefore the same logic has not been applied in my case and whether the Council will take enforcement action against me if I proceed with the PD and isue slate instead of what the Cert/GPDO requires.

I have sought clarification from the Council and their rely is  "I am afraid I cannot confirm that grey synthetic slate is similar in appearance to red concrete tile." 

This seems complete nonsense to me and an abrogation of duty (and ultra vires?!) I want to clarify things for myself, but not create probs for my neighbours.

I am pleased you state "....it is pretty clear that red and grey are not 'of similar appearance', and I agree with you that this would not be permitted development, but that is what the Council has done. 

As you say, the condition for the neighbour's house is a bit odd.  I understand PD Certs cannot be conditioned - it's either PD or it's not. So they haven't specifically required a slate finish, but the agent's letter and officer's report refer to this, and the approved drawing says "slates to match existing", even though they aren't, because existing is red concrete tiles.

I think the whole thing is a mess but the Council and Ombudsman don't agree.

 

Former Member, modified 10 Years ago.

Permitted Development

Ah I see now. Thanks for clarifying. I completely understand your frustration with the inconsistency.

I agree that on the basis of what you have said the condition on your neighbour's lawful development certificate is unenforceable and beyond the scope of that procedure. To my mind it would be ok for them to re-state the exact wording of condition B2a for information, or at a push to state a material considered to be similar (or not similar), but not to actually require use of a specific material. However, because the colours match your neighbour's development is likely to comply with the requirements of B2a anyway! He could have appealed if it was a problem. I'm not sure why it would be an ombudsman issue for you.

If you re-roof your house in grey at the same time as carrying out the roof extension in grey then in my opinion that would fall under permitted development. There doesn't appear to be anything in your lawful development certificate contradicting that. I cannot imagine that the council would consider it expedient to take enforcement action, and if they did you would win an appeal. 

It depends on the timing of your overall re-roofing I suppose. If you carry out the extensions in grey and leave the remainder of the roof red then it would be reasonable for the council to take enforcement action if they had no confidence that you were intending to do the rest of the roof in grey imminently.

 

 

 

nicholas waring, modified 10 Years ago.

Permitted Development

Enthusiast Posts: 29 Join Date: 21/01/12 Recent Posts

Dear John

Thanks for comments.

For your info I intend to :

1, strip the red concrete tiles on the main roof;

2. replace them with grey slates on the front;

3.complete the PD dormer roof extension to match "existing" slate;

4. complete the PP dormer roof extension to connect to the PD roof extension.

Getting the Council to this in writing has proven impossible so far. I complaned abot this to the Ombudsman because it seemd to me the Council's informative made it quite clear the burden of proof was on me, so I have been seeking agreement with the Council as to what proof they require exactly.

All this so I can clearly instruct a builder in how to proceed without risking enforcement and/or costly changes during works.

 

Former Member, modified 10 Years ago.

Permitted Development

Hi all

Can anyone advise whether the installation of electric fuelling points for battery powered cars at petrol filling stations is permitted development?