Planning matters

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Against a background of legal challenges from Islington and Lambeth councils and a number of LPAs threatening to remove the new permitted development right (PDR) entitlement to change from B1(a) office to C3 residential, NLP has achieved one of the first approvals under the new measure. As soon as the new right was in force, NLP was asked to apply to a local planning authority (LPA) for confirmation as to whether prior approval was needed for change of use of a building from office to residential on a site in a central London borough outside the CAZ exemption zone. This type of location is one identified by NLP in our recent research as having a significant potential for residential conversion because of the relative difference in values between the two uses. As NLP Associate Director, Nicola Furlonger highlighted in her recent blog, the new mechanism is intended to be simple. With some defined exemptions, the change of use does not require planning permission, subject to a prior approval check by the LPA to ensure that the development will result in no adverse impacts on transport/highways, no flood risk and no contamination issues. However, what was envisaged by Central Government to be a relatively straightforward checking exercise, as part of its pro-growth drive to remove the ‘barriers’ of planning control and increase the supply of housing,  is proving, based on our experience, to throw up a number of complexities. Part of the problem has been how to interpret the new rules. In particular, the controls concerning what a LPA can take into account, when dealing with LPAs who are unhappy with the way this planning control has been removed. The prior notification process is meant to be straightforward: describe the proposed development, provide the developer’s contact details and submit a plan ‘indicating the site and showing the proposed development’. This material should be accompanied by ‘any fee required’. Our scheme was for a building that was in existing office use, it was already a car-free development, in a location with good public transport accessibility and had no issues in relation to flooding or contamination. How could the LPA refuse? First hurdle – there are no fee Regulations in place for this new type of application. The cash-strapped LPA initially wanted to charge a fee considerably in excess of other ‘prior approvals’ e.g. for agricultural development or telecommunications.  Luckily, NLP’s beady-eyed Law and Policy Expert Group spotted that an £80 charge will be introduced in October 2013 and until then there is no fee; hence seeking any charge, let alone a higher charge, in advance was not justified. Once this hurdle was cleared, requests for detailed information on the transport/highways’ impacts of the development and a detailed layout plan came in. The reason: the new rules require the LPA to have regard to the National Planning Policy Framework; i.e. as if it were a change of use planning application. This potentially allows the LPA to assess the proposals against more than just potential transport/highways, flooding and contamination impacts. Following a quick email to CLG, our interpretation was confirmed and we advised the LPA that there was no basis to assess the proposals against any other issues – or indeed the Mayor’s residential development standards. After clearing up this point and re-iterating that the development would not cause major traffic jams on local roads because no parking spaces were to be provided, what could now prevent an approval? The LPA insisted on a legal obligation to secure implementation in line with the details set out in the application.  The rules require only that development is carried out in accordance with approved details and are silent on the use of conditions/legal obligations, but with the 56 day deadline looming and a threat of refusal in the air, the decision was made to accede and agree to enter into a s106. So it is clear that the process has not been as straightforward as the Government intended.  Yet, other LPAs with a more pressing need for development may well be more positive and pragmatic.  As with many areas of law, the new rules are not entirely clear and open to interpretation – there is no accompanying guidance as yet.  It will be interesting to see over time if LPAs accept the Government’s proposals – or seek to find ways to resist the loss of office space. CLG predicted that 140 changes of use would come forward annually over the three years that the PDR is in operation.  Evidence to date suggests that this figure will be considerably exceeded. Queries from developers are coming into NLP almost daily, as the market starts to see the uplift in value that can be achieved. At NLP, our experience of dealing with this project and other on-going cases, means that we are well-equipped to help clients maximise opportunities to use this PDR and identify and resolve the challenges that are faced through the prior approval process to achieve a positive decision.  With some LPAs proposing to remove this PDR entitlement and the risk that, at the end of its 3-year life the entitlement will be removed, this window of opportunity should not be ignored.

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