Changing from office to residential – the reality.

The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 was made on the 7th May and comes into force on the 30th May 2013.

This is the Order that provides for the ability to move from Class B1(a) office to Class C3 residential without the need to obtain planning permission.

I wrote about this proposal on 24th January 2013.

On that occasion I drew attention to the interesting point that only B1(a) was referred to. I pointed out that this class does not include an office in use within Class A2 (financial and professional services) and the other Class B1 uses, namely (b) use for research and development of products or processes or (c) any industrial purpose being a use which can satisfactorily be carried out in a residential area, were by definition excluded from the proposal.

That remains the position.

The building must therefore be or have been in use as a Class B1(a) office on 30th May 2013. If it is or was vacant on that date, its last use must have been for Class B1(a) purposes. That being the case developers will have to check the planning history of a building to ensure that the B1(a) use is lawful along with satisfying themselves that other restrictions do not apply e.g. planning condition(s) or s106 planning obligation(s) restricting use or lease user clauses or covenants restricting use. New build offices not previoulsy used as such do not therefore benefit from the new permitted development right so that it is not possible to circumvent affordable housing requirements arising from new build residential units. The change of use from office to residential will not attract an affordable housing provision. 

There are further restrictions which exempt the provisions namely:

• Listed buildings or Scheduled Monuments;
• Safety hazard areas (where notified to LPAs by the Health & Safety Executive);
• Military explosives areas (as licensed by the Secretary of State for Defence).

In addition certain areas have been exempted arising out of the provision for LPAs to seek exemption from the provisions of the order. Indeed it was widely reported that a number had done so although it would appear that not all exemption applications were sucessful. It is difficult to understand the rationale behind the exemptions granted and CLG has not confirmed how many applications were received or eventually rejected but in an impact assessment on the office conversion rules, the CLG said that areas had been exempted where the new rules would cause "either the loss of a nationally significant area of economic activity or a substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring".

I have subsequently found that Nick Boles confirmed in a written answer (at 424W) to the questions as to:

• what timescale he has put in place to assess the effect of the new office to residential permitted development right;
• what plans his Department has to consider further exemptions from the new office to residential permitted development right;
• what plans his Department has to review the areas excluded from the new office to residential permitted development right;
• for how long exemptions from the new office to residential permitted development right will remain in place;
• what criteria were used to decide which areas should be exempt from the new office to residential permitted development right;
• how many local authorities submitted a request for exemption, for all or part of their local authority area, from the new office to residential permitted development right.

that the Government’s approach to monitoring and review of the changes is set out in the Explanatory Memorandum to the 2013 Order.

He went onto to confirm that CLG received requests for exemption from the permitted development rights for change of use from office to residential uses from 165 local planning authorities and that a robust and thorough assessment of all requests was carried out against the criteria set out in the Chief Planner's letter of 24 January, taking into account the strength of the case and the robustness of the supporting evidence. He said that following this assessment process there will not be another opportunity to request an exemption during the three-year period that the new rights are in place.

The Order makes reference to areas exempt from the change of use permitted development right by reference to maps which can be found on the CLG website.

These exempt areas are:

• The Central Activities Zone and Tech City in London, which covers the whole of the City of London and parts of Islington, Hackney, Tower Hamlets, Southwark, Lambeth, Wandsworth, Westminster and Camden;
• The whole of Kensington and Chelsea;
• The Isle of Dogs (Canary Wharf);
• The Royal Docks Enterprise Zone in Newham;
• Manchester City Centre;
• Milton Park Enterprise Zone and Harwell Enterprise Zone in the Vale of White Horse; and
• Certain areas of Sevenoaks, Ashford and East Hampshire.

That said, even if an exemption applies, a developer can always apply for planning permission in the usual way and take advantage of the favourable advice given in paragraph 51 of the National Planning Policy Framework.

In order to rely on the new permitted development right it will, in all cases, be necessary to make a “prior approval” application to the LPA. The process is set out in paragraph N and it is intended to screen out buildings and land where residential use would be unacceptable in terms of transport impact, contamination risk or flooding risk. The LPA will then consult certain statutory consultees and immediate neighbours, and may require information to enable it to assess impacts and risks. The LPA can approve or refuse the application but if it does neither within 56 days, the developer may proceed (though this period may be extended by agreement). A refusal can be appealed as though it were a refusal of planning permission.

Any material external physical alterations will need to be the subject of a planning application given that the permitted development right only applies to the principle of use. In addition Building Regulations approval will be required in the usual way.

The provision only applies for a three year period and the use must commence no later than 30th May 2016. In reality this means that conversion works will have had to have started earlier.

If there is any doubt about whether the permitted development provisions apply to a particular building a developer can apply to the LPA for a Lawful Development Certificate.