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Under the Spotlight: Change of Use & Permitted Development

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Under the Spotlight: Change of Use & Permitted Development

Under the Spotlight: Change of Use & Permitted Development

Marco Mauro, head of planning, gives us an overview of the 8 most common problem areas within change of use and permitted development.

Here are 8 straight talking answers which cover your initial questions on these topics.

When does a change of use qualify as development?

A material change in the use of any buildings or other land is development. There is no statutory definition to what is a material change of use. However, the starting point is to look at the planning unit and establish what the primary use is and then assessing the impact of the change in respect of the character of the use. If the change to the character of the use gives rise to planning considerations such as impact on highway safety, parking, traffic noise etc. then that change may well result in a material change of use.

So does this mean a material change of use will always require planning permission?

No.The General Permitted Development Order 2015 (“GPDO”) is effectively a national grant of planning permission. It operates by giving deemed planning permission for certain development without the operator having to make a formal application for planning permission. 

Great, so if the change of use is material but it qualifies as permitted development under the GPDO then I can just implement the change?

If only it was that simple! 

"Firstly, you have to carefully consider the relevant section that applies to the proposed change of use. You need to make sure that all of the qualification criteria and the conditions that apply to that section of the GPDO can be satisfied."

Secondly, you have to consider whether there are any conditions or planning obligations on the planning title which have the effect of withdrawing permitted development rights for the change of use. It will depend very much on the wording of the condition or obligation and this will need to be checked carefully. A Council can also withdraw permitted development rights by issuing an Article 4 Direction.  Again, this will need to be checked. 

Thirdly, you will need to make sure that the existing use is a lawful use in respect of planning. This is because the GPDO only applies to lawful planning uses. This sounds obvious but it is amazing how often people can get caught out by this.  Let’s take for example a property that has just secured planning permission for change of use to offices (B1). The owner wants to take advantage of the GPDO to change the use of the property from offices to a registered nursery under Class T. The property doesn’t have a lawful planning use as offices until the planning permission for the change of use to offices (B1) has been implemented. However, to rely on the permitted development right, the office use would also have to come into effect in accordance with the planning permission. If token steps are taken to introduce an office use before using the Property as a nursery, there is a risk that the permitted development right would not apply because the office use that it has change did not properly come into effect.

There are also a number of permitted changes of use that are conditional on the applicant making a prior approval application to the local planning authority.

Is a prior approval the same as a planning permission?

There is sometimes the misconception that a prior approval has the same status as a planning permission. This is not the case! If prior approval is granted but the qualification criteria is not met then it would not be possible to carry out the development that is the subject of that prior approval.

Let’s take the example of agricultural buildings converting to dwelling houses under Class Q. The qualification criteria for Class Q is set out Q.1 (a) – (h). If prior approval is granted but it is clear that one or more of the qualifications at Q.1 (a) – (h) is not met then proceeding on the basis of the prior approval would result in an unauthorised development. This is because prior approval does not confirm whether the development that is subject to that approval can be lawfully implemented. Unless you are confident that the qualification criteria is met, it would be prudent to obtain a certificate of lawfulness alongside the prior approval, particularly if you have to satisfy future purchasers and funders and there is some doubt over whether the qualification criteria has been satisfied.

Are there any other differences between a planning permission and a prior approval that I should be aware of?

We are unable to cover everything in this note but another important distinction is the life of a prior approval compared to the life of a planning permission. A planning permission will require development to be begun within a certain time period. The time period is usually 3 years from the date of the planning permission.  Subject to certain limited exceptions, provided the planning permission is lawfully implemented within that time period then this will preserve the life of the planning permission. 

Most prior approvals are subject to a condition that is set out in the relevant section of the regulations which require development to be completed within a certain time period.  Usually this period is 3 years from the date of the prior approval. You will need to make sure that the development in respect of the prior approval can be completed within that time period otherwise the approval will lapse and any work purportedly carried out in accordance with that prior approval would be unauthorised. It will be important to ensure that any express conditions attached to the prior approval, particularly any conditions which are required to be satisfied before occupation, are satisfied within the relevant time period. 

Can you talk to us a little more about conditions attached to prior approvals?
I didn’t think a local planning authority could impose conditions to permitted development.

A local planning authority cannot impose express conditions in respect of permitted development that doesn’t require prior approval. However, one still needs to check the relevant part of the GPDO to make sure that any conditions imposed by the order itself can be satisfied. 

For prior approvals, local planning authorities can attach conditions reasonably related to the subject matter of the prior approval. 

What about section 106 obligations and the Community Infrastructure Levy?

There is very limited scope for a local planning authority to require an applicant to enter into section 106 planning obligations in respect of prior approvals. The planning obligation would have to relate to the subject matter of the prior approval. This is why prior approvals for residential development do not have to provide affordable housing.

There is no exemption from CIL for permitted development and the usual rules apply. 

Finally, I have heard about the changes from business use (class E) to residential (class C3). Could you talk a little about this please?

Class MA is set out in The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2021 (SI 2021/428) (2021 Order), which came into force on 21 April 2021 (‘2021 Order’)

Class MA permits development consisting of a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) of Schedule 2 to the UCO 1987 to a use falling within Class C3 (dwellinghouses).

The permitted development right is subject to seven limitations which are set out in paragraphs MA.1. These include:

  • The building must have been vacant for a continuous period of at least three months immediately prior to the date of the prior approval application
  • The use of the building must have fallen within one or more of the following classes for a continuous period of at least two years prior to the date of the prior approval application:
    • Class A1;
    • Class A2;
    • Class A3;
    • Class B1;
    • Class D1(a);
    • Class D1(b);
    • Class D2(e) (other than use as an indoor swimming pool or skating rink); or
    • Class E (on or after 1 September 2020)

  • The cumulative floor space of the existing building changing use cannot exceed 1,500 square metres.
  • If the site is occupied under an agricultural tenancy, the express consent of both the landlord and the tenant are required.

The permitted development right is subject to five conditions which are set out in paragraph MA.2. These include:

  • The requirement to obtain prior approval. An application for prior approval cannot be made until 1 August 2021.
  • Development must be completed within a period of three years starting with the prior approval date.
  • Any building permitted to be used as a dwelling house by virtue of Class MA must remain as a dwelling house.

GET IN TOUCH

Marco Mauro is the head of planning within our real estate team. For any further information or advice on permitted development, or any other planning related matters, then please do not hesitate to contact Marco Mauro.