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Article 4 Directions – Exemptions for the Exempt
This week, the City of London Corporation opened a consultation on a proposed non-immediate Article 4 Direction to remove the Class O permitted development right (change of use from office to residential) across the entire City. If approved, it will come into force on 31 May 2019, the day following the expiry of the City’s current exemption from the permitted development right by virtue of its status as Article 2(5) land – an ‘exempt’ status granted to only 17 local planning authorities. If approved by the City’s members and assuming the Direction avoids a Secretary of State veto, it will mean a smooth transition from exemption to removal of the right. The Article 4 Direction and its timing are no real surprise. Since the amendments to the 2015 General Permitted Development Order in April 2016 made the permitted development right permanent and signalled an end to the exemptions under Article 2(5) after 30 May 2019, it seemed obvious that local authorities would seek to replace the exemptions with Article 4 directions (see previous blog post for more details). Indeed the Mayor makes it clear that he supports Article 4 Directions in London ‘exempt areas’, noting: To ensure that London’s key business locations are safeguarded, the relevant boroughs are developing a co-ordinated approach to introducing Article 4 Directions. The Mayor is providing strategic support to help the boroughs achieve this.”[1] In fact this is one matter on which the current and previous administration share common ground - Boris Johnson having assisted the Boroughs in achieving exempt status previously. Of the 17 local authorities with an exemption for part of their jurisdiction (with the exception of the City and RB Kensington and Chelsea, which both received full coverage exemptions), 11 were in London. And the City is not the first to make a proposed Article 4 Direction to replace the exemption. As the table below shows, based on a review of the relevant authorities’ websites, a further six local authorities have pending Article 4s[2]. Of the above, with the exception of East Hampshire, the pending Article 4 Directions appear to cover, at a minimum, the same areas covered by the current exemptions. In East Hampshire’s case, probably the most peculiar of all of the areas granted the original exemptions having been given exemption for 10 parishes (including significant amounts of residential land), they have slimmed down the Article 4 Direction area to include key employment locations only. And based on the local authorities that have started the necessary consultation process, and on the dates of the Directions coming into force, it’s not clear that there has been any obvious ‘co-ordinated approach’ between the London Boroughs, as suggested by the Mayor. Of the local authority areas yet to formally begin the process, there is still plenty of time, with over 12 months left until the exemptions expire. This allows sufficient time to make a non-immediate Article 4 Direction and it still seems likely that the remaining 10 local authorities will shortly begin their own consultations (something my colleagues have written a useful guide about here). However, for landowners with B1(a) office space in those areas, it may be worth monitoring the local authorities’ activities now, if the potential of a change of use to C3 residential is of interest. If you have any questions in respect of the above, or require any advice or guidance on permitted development rights or Article 4 Directions, please do contact us. @OwainNedin   [1] https://www.london.gov.uk/what-we-do/planning/who-we-work/working-government/permitted-development-rights-changes-use[2] Westminster City Council are yet to begin their consultation but propose to introduce the Article 4 Direction http://westminster.moderngov.co.uk/mgIssueHistoryHome.aspx?IId=13158&Opt=0  

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Office to Residential Permitted Development Right Made Permanent.
On Friday the Secretary of State made good on the Housing and Planning Minster’s Statement of November last year, laying the Statutory Instrument to extend the permitted development right (PDR) for office to residential change of use. It will come into force of 6th April. Many of the changes ‘hinted’ at last year are included, and the surprises we might have expected are not. The headlines are as follows: The PDR will be permanent, with the 30 May 2016 deadline removed. Any PD scheme must be completed within three years of the date of prior approval. The trigger is now ‘completed’ rather than the use having to have been ‘begun’. The noise generated by commercial premises and its impact on intended occupiers of the residential units may now be considered (in addition to transport and highways impacts, and flooding and contamination risks). The areas which are currently exempt from the PDR will continue to benefit from their exemption until 30 May 2019. Beyond this date, an Article 4 Direction would be needed to remove the Right. All future applications must state the number of units proposed. There is a requirement for the legislation to be reviewed a minimum of every five years. And that’s it. No space standards. No requirement for starter homes. No real surprises. Allowing noise impacts to be considered seems a reasonable addition; in practice it may take a while for both applicants and local authorities to gain a fair understanding of how this can be applied or indeed mitigated for – but without an impending time limit, both parties can take a little longer to work this out without the risk of losing the Right. It also, of course, gives applicants more scope to appeal, without the fear of not having enough time to build out the scheme once they have gone through the appeal process.The removal of ‘the use of the building…was begun’ is a step forward for clarity. This wording in the 2015 and current General Permitted Development Order (GPDO) added unnecessary uncertainty into the process, having never been formally defined. It is replaced with the clearer condition that a developer can complete the development within three years of the date of prior approval. This also applies to existing prior approvals. Of course, if time is running out on some of those, the extended Right means that a prospective developer can now simply re-apply and gain another three years.The exempt commercial areas are still exempt, and will be until 30 May 2019. This gives the likes of the City of London, Westminster and other inner London Boroughs plenty of time to apply for Article 4 Directions to remove the Right; I would expect these to come forward in the next 12-18 months.All change of use to residential prior approval applications made after 6 April 2016 will have to state the net uplift in units proposed. The cynics in this office (no names mentioned) suggest this is simply a way for the Government to track the success of office to residential PD (although not delivery of course). I on the other hand am sure there is another perfectly rational reason for inclusion of this requirement … I will let you know when I work it out.No news yet of the right to knock down and rebuild under the offices to residential PDR. The main reason for this is a need first to facilitate the necessary GPDO changes via a technical clause in the Housing and Planning Bill 2015 - 16, which would allow for such works to be considered as permitted development (they currently cannot be). Once the Housing and Planning Act is passed (assuming it gains Royal Assent more or less in its current form) then I expect a PDR for the demolition of an office and its replacement with residential use to follow shortly thereafter.The new statutory Instrument also introduces a PDR for the change of use of light industrial B1(c) to residential – although this will not come into force until 30 September 2017 and will only run until 1 October 2020. This temporary right, much like the PDR for ‘Warehouse, Storage and Distribution to Residential’ is limited to 500sqm and must consider the impact on the industrial offer in that location. The amendment Order also introduces the change of use of laundrettes to residential (my colleagues have their own view on this)In making the office to residential change of use permanent, the Conservative Government continues to back the delivery of housing on brownfield land. There is no doubt it will impact on available office space (it already has) and in many Central London areas, the office values are making the PDR a less viable option. But outside Central London, I suspect the office to residential PDR will remain as popular as ever and the added certainty is likely to drive a spike in activity in the near future.NLP Planning will be hosting a breakfast event on office to residential PDRs in early April. Follow me on Twitter for more updates - @OwainNedin  

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