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Planning matters

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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][2] Westminster City Council are yet to begin their consultation but propose to introduce the Article 4 Direction  


GPDO – Light Industrial to Residential – Class PA
Sunday 1st October 2017, after 18 months, the world of permitted development rights waits no more: the temporary permitted development right for change of use from light industrial to residential becomes a reality. From Sunday, and for the next three years, changing the use of a light industrial building (or part of a building so used) that is use class B1(c)[1], to residential, use class C3, benefits from a new permitted development right, subject to a prior approval process and various limitations and conditions, of course.  Or more specifically: Class PA – premises in light industrial use to dwellinghouses Development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B1(c) (light industrial) of the Schedule to the Use Classes Order to a use falling within Class C3 (dwellinghouses) of that Schedule. Here are the exemptions and limitations: The building must have been used solely for light industrial on 19th March 2014 (or when last in use if not in use on or since that date), The prior approval date[2] must be before 1st October 2020; The gross floorspace of the existing building cannot exceed 500 sq.m; If occupied under an agricultural tenancy, express consent of both tenant and landlord is required, No development can begin within one year of terminating an agricultural tenancy if it was terminated for the purpose of changing the use by virtue of Class PA (unless both the tenant and landlord have agreed in writing that the site is no longer required for agricultural purposes), The site cannot be or form part of a site of special scientific interest; safety hazard zone or a military storage area, The building cannot be listed, or be within the curtilage of a listed building; and The site must not be or contain a scheduled monument. As for the application for a determination as to whether prior approval is required, the developer must submit (amongst other things) a statement proving the building was solely in light industrial (B1(c)) use on 19th March 2014 (or when last in use if not in use on that date, and not in use since) – i.e. the lawful use of the building is solely B1(c), and this was the case on 19th March 2014.  The developer must also state the net increase in the number of dwellinghouses proposed. And the local planning authority must consider whether its prior approval is required with regard to: Transport and highways impact on the development Contamination risks Flood risks; and Whether the change of use of the building to residential would have an adverse impact on the sustainability of the provision of industrial and/or storage or distribution services in that area - if the building (or part of a building, if only part is being converted) considered by the LPA as important for provision of those services. Development under class PA, if permitted, is subject to the condition that it be completed within a period of three years starting with the date of prior approval. Details of Class PA are in the April 2016 amendment to the GPDO[3] The Reaction Are we excited/worried about the changes…? Well, in respect of the latter,  LB Southwark clearly are - on Thursday 28th September 2017, they announced consultation on an immediate Article 4 direction[4] removing Class PA permitted development rights in specified locations (Local and Strategic Preferred Industrial Locations and existing and emerging site allocations for comprehensive mixed use development). An immediate Article 4 Direction would open the Council up to potential claims for compensation under the terms of  the Town and Country Planning Act 1990 (as amended) and the Town and Country Planning (Compensation) (England) Regulations 2015 (as amended). Not a decision taken lightly, I suspect. Others have already used Article 4 Directions, albeit a little while earlier, including LB Hounslow – where an Article 4 Direction comes into force in January 2018, and LB Islington, where it’s already in force, to name but a few. But are these councils right to be cautious, are we about to see a glut of changes of use removing light industrial space from our towns and cities? In my view, probably not. The combination of finding a building that is under 500sqm, that can be proved to be, or to have been solely in B1(c) use and that would not be deemed to impact on the sustainability of the provision of surrounding industrial and  storage uses may be tough. Particularly as the term ‘sustainability’ is not defined in the GPDO and is subject to interpretation (i.e. a matter of fact and degree that the decision-maker can decide). So I don’t imagine an office to residential-style (Class O) style rush. But I suspect a few will test the water early on, perhaps on a par with the right for change of use from retail to residential (Class M). Assuming the Government captures the statistics as they do with other permitted development rights, we’ll find out in the next few quarterly releases how popular it has been. Of course, if you do have a building you think may qualify for this permitted development right, and are interested in finding out more about how you may go about the prior approval process , please don’t hesitate to contact Lichfields. Download Lichfields Use Class Order @OwainNedin   [1] Use Class B1(c): use for any industrial process, being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit [2] “prior approval date” is defined in Paragraph X of Part 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and means the date on which— (a) prior approval is given; or (b) a determination that such approval is not required is given or the period for giving such a determination (in this case 56 days) has expired without the applicant being notified whether prior approval is required, given or refused. [3]  [4] Image credit: Arcaid Images / Alamy Stock Photo