Words That Strike Fear…

…into the hearts of men (and women, but ‘people’ just doesn’t finish the title properly).

The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 is a veritable feast of changes for the General Permitted Development Order 1995, itself now so heavily amended that it puts Michael Jackson’s transformation over the years into the shade.

Aside from the eye-watering number of brackets used in the title (a recurring theme of Parliamentary draftsmen in recent years, it seems) the 2013 Order introduces swathes of changes, such that I can’t hope to do them justice in one post.

First up – the new Class J appearing in Part 3 of the Second Schedule to General Permitted Development Order (I know, exciting as it is, please do try to control yourselves).  In English, office to residential conversions.

Class J is the change of use of a building and any land within its curtilage from a B1(a) (office) use to Class C3 (dwellinghouse).

Now at first blush it would appear that this change is permitted only in relation to whole buildings, right?  I don’t think so.  Article 1(2)(a) of the GPDO interprets the word “building” to mean “a building or any part of a building“.  So Class J would seem to apply to part of a building as much as it would apply to the whole building.

And what about the references in Class J to “buildings” and “curtilage” to limit the extent of such changes of use?  Fine in principle – after all, s171B talks about immunity with reference to uses of buildings, doesn’t it?  Well, yes.  But what of Class J permitted changes of use in locations where the planning unit does not readily align itself with the extent of the “building” or its curtilage?  Once the B1(a) use of the building and curtilage change to C3, what planning ‘use’ does the wider residual B1(a) planning unit have?

What if you want to convert your B1(a) offices into more than one dwelling?  As drafted, on a strict interpretation Class J permits a change of use of a building to a use within Class C3.  Singular.  Not plural.  And Class C3 is defined as “use as a dwellinghouse”.  Singular.  So as strictly drafted, a developer could only utilise Class J to convert to a single dwellinghouse.

Although to my mind that contradicts the spirit and intentions of Class J and I would hope that LPAs do not adopt such needlessly literal interpretations of the Order.  If needed however, one solution to this poor drafting may lie in the application of Article 1(2)(a) of the GPDO and that where a developer wishes to change B1(a) offices into a number of dwellings, each dwelling is a change of part of the B1(a) building.  It’s not ideal (and would carry problems of prior notification for each individual proposed application of Class J – see below) but if you’re having that argument with the LPA, it’s one you might try.

Importantly, you can’t exercise Class J changes of use where the site forms part of a safety hazard area, a military explosives storage area , is a listed building or scheduled monument, or is on land within the area of East Hampshire District Council.

Alright, you’ve got me on that last one.  Almost.  You can’t use Class J in “Article 1(6A) land” which comprises 33 specified areas, ten of which are in East Hampshire District Council.  Interestingly, Class J is permitted on Article 1(5) land (National Parks, AONB and conservation areas).  So you can use Class J in National Parks, AONB and conservation areas.

Which means that (for example) areas of East Hampshire District Council have significantly greater protection against such changes (i.e. an absolute bar on Class J) than the neighbouring South Downs National Park.  Top marks to Captain Pickles for that gem.  I love well thought-out and drafted legislation, don’t you?

The next condition?  The building must actually have been in a B1(a) use immediately before 30th May 2013 or, if it was not in use immediately before then, it must have last been used for a B1(a) use.  If it’s been used for anything other than B1(a) before 30th May 2013, even temporarily, then you don’t get to use Class J.  Woe betide any developer who let their empty B1(a) offices be used for something else to try and get some income from an otherwise empty asset (or used for something other than B1(a) by the community in some kind of ‘Big Society’ effort – well done, the Government now says that such generosity means you’ve just done yourself out of a permitted change to residential use).

Now the elephant in the room – prior notification.  Paragraph J2 imposes a condition that, prior to beginning the development, the developer shall apply to the LPA for a determination as to whether prior approval is required for:

• transport and highways impacts;
• contamination risks; and
• flood risks.

Paragraph N further provides that the developer shall supply:

• A written description of the proposed development;
• A plan indicating the site and showing the proposed development;
• The developer’s contact address;
• The developer’s email address (if content to receive electronic communications); and
• Any fee required.

A few points, in reverse order.

Fee?  What fee?  These prior notification procedures do not seem to me to fall within the application fee regulations.

A plan showing the site and proposed development – so no requirement to submit (or power on the part of the LPA to require) elevations, ground levels, landscaping etc.  Which perhaps is understandable if you consider the limits of Class J.  Class J permits only the change of use – it does not permit any other operational development required (such as changes affecting the external appearance of the building) which would require permission and are not included within Class J.

The LPA can require further information of the developer in relation to the areas of traffic/highways, contamination and flood risk (but no other areas).  And in addition to consultation requirements with the Secretary of State for Transport, the local highway authority and/or the Environment Agency (where required) the LPA must also give notice of the proposed development by serving a notice on any adjoining owner or occupier.  But of course, there’s no requirement on the developer (and no power to require the developer) to tell the LPA who the adjoining owners or occupiers might be.  And if the LPA fails to properly serve an adjoining owner or occupier?  Off to the High Court it seems.

Even better, the LPA is required to take into account any representations made as a result of any notice given to adjoining owners or occupiers and to have regard to the NPPF “as if the application were a planning application”.

How?  It seems to me that if the LPA were to seek to apply the NPPF in any way other than by strict and limited reference to issues of traffic/highways, contamination and flooding, then that LPA would find itself in the High Court fairly swiftly.  So what about if neighbours object on grounds that are not related to traffic, highways, contamination or flooding?  How does the LPA take their representations into account?

And neither Class J nor paragraph N make any reference to determining prior approval elements in accordance with the Development Plan.  I know it’s only adopted planning policy but hey, it’s the little details that count.  National Planning Policy gets a look in, but your local Core Strategy doesn’t.  Localism at its finest and another score for Captain Pickles.

Where required, development cannot begin without prior approval being granted.  Unless the LPA takes more than 56 days.  If there’s no answer from the LPA on day 57 then the developer is entitled to proceed.  So LPAs have a tight timescale to stick to.

So that’s a whistle-stop tour of Class J and there’s plenty more where that came from.  Stay tuned for the next gripping episode on planningblog.org.  Where will we go next?  Class M?  Class K?  Oh the possibilities…