We have all seen a lot of publicity on the government’s proposals to speed up and simplify the system for getting planning permission to kick start the economy. From 30 May 2013 various changes of use can be made without the need for a formal planning consent. How will this work in practice? Will the red tape and delays really be cut down? Are there still going to be issues that will make these developments difficult? I have been speaking to our planning expert Julia Berry. From her answers you can see that it is not all going to be entirely straight forward!

Can all offices be converted to residential or does the type or size of office make a difference?

In fact, it is only offices that were within use class B1(A) that can be converted to C3 residential. B1(A) means offices not generally used by visiting members of the public and the residential use they can be changed to is not any kind of institutional residential use – like student housing or nursing homes – but ordinary residential use. This means that buildings such as a high street estate agents office will not therefore be ripe for conversion under the new permitted development rights.

However there is no maximum to the size of any office building under the new permitted development rights but the right to make the change of use will only apply for three years (on the current drafting).

Since most conversions from office to residential will not be possible without external works (that normally require planning permission), do permitted development rights extend to works?

No. The rights only cover change of use, so there will still be requirements to obtain planning permission for any operational development to convert an office building into a residential building. This is probably the most limiting factor in the benefit the new rules bring.

In addition, where an existing planning consent or a section 106 planning agreement impose use restrictions, then planning consent will be needed for the change of use to residential.

Do the permitted development rights apply across the whole country or are they something which get adopted by each local authority?

A large number of local authorities applied to be exempted from the new regulations but in the end only 17 exemptions were granted and the majority of those were in inner London (the Central Activities Zone and Tech City including parts of Westminster, the City and the whole of Kensington and Chelsea). Outside London there are exemptions for just six authorities (The Vale of the White Horse, Manchester City Council, Stevenage Borough Council, Sevenoaks, Ashford and East Hampshire District Council). Apart from this the rights apply to the whole of England, although a number of authorities are considering using Article 4 Directions to remove some or all of the new permitted development rights.

If an office building is listed, can it still benefit from the right to change to residential?

No. Planning permission will be required for a listed building to change use as well as listed building consent and planning permission for any works, so there is really no advantage for listed-building owners.

We hear lots of developers talk about the fact that local planning authorities impose unaffordable obligations relating to social housing and infrastructure costs when granting permission for development, so will use of the permitted development rights avoid that?

If the only consent needed for the development is the change of use, then the local authority will not be able to require a section 106 planning agreement with affordable housing requirements and they will not be able to specify the size and mix of any residential units. The difficulty for any developer will come where planning permission is required for external works, because there may be some attempt by the authorities to impose requirements as part of that process.

As permitted development can still give rise to a Community Infrastructure Levy (CIL) liability, developers converting offices to residential will have to submit a Notice of Chargeable Development in the normal way. Some may avoid CIL where the building was occupied lawfully for at least six months in the 12 months period ending on the day the Notice of Chargeable Development is submitted.

If no external building works are needed for an office-to-residential conversion, can developers simply go ahead and change the use and carry out the internal works and then market their new residential properties?

Unlike other permitted development rights, the government decided that there would still need to be a prior approval process before these rights could be implemented, so the answer is, in fact, no. An application must be made to the local planning authority to decide whether or not its prior approval is required because of any potential transport or highways impact that could arise from the new residential use, or whether there are contamination or flooding risks on the site. We cannot yet tell how the authorities will use this or how much information they will require for the prior approval process but –

• The local authorities will get 21 days in which to consult with the relevant statutory consultees and they can request information about the impact of the development and risks, and any proposed mitigation.
• The local authorities do not have to take any of the local planning policies established under the local democratic process into account. They do have to take the national planning policy framework into account but there is little that really says that will influence a local development.

So how long will developers have to wait before they can start a development in this situation?

Development cannot start until the local authority has confirmed that its prior approval is not needed or it has granted approval. If this hasn’t been given within 56 days of submission of the relevant application, then consent will be deemed to have been granted and the change of use can proceed.

How will developers show whether or not a development was lawful when you are trying to raise finance or sell?

As is always the case with permitted development rights, it looks simple in theory and can be difficult in practice. Commercial developers are used to carrying out due diligence on planning issues but residential might not be quite so simple; and in the absence of a planning consent we will have to see if certificates of lawfulness will be needed to satisfy future funders and buyers.

What other changes of use have been permitted without the need for a planning consent?

First of all, there is a move to encourage new business and pop-up ventures because the legislation allows a temporary use (for just two years) for a range of retail and leisure uses. Anybody with an unused building within use classes A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes), A4 (drinking establishments), A5 (hot food takeaways), B1 (business), D1 (non-residential institution) or D2 (assembly and leisure) uses can change those to A1, A2, A3 or B1 uses as long as the floor area concerned is 150 square metres or less for each building.

What are the formalities for this temporary change of retail or leisure use?

In this case it is genuinely a permitted development right and all that happens is that the developer will need to notify the local planning authority of the date.

Are there more permitted development rights to cover converting buildings to schools and to allow larger household extensions?

Yes, there are now permitted development rights to convert existing buildings to the new state-funded schools and to give a fairly significant amount of additional flexibility for larger household extensions.

So assuming that some of our developer clients can take advantage of this, when can they start?

Right away. All of these new permitted development rights took effect in England from 30 May 2013 and as some authorities may try to limit the new rights, developers will need to keep up to date with the detail and, in some cases, be prepared to move quite promptly.

Client Alert 2013-152