Meanwhile uses in planning: money for nothing?

As dark clouds continue to gather on the horizon, and economic activity begins to falter, real estate can quickly slip from being an asset to being a significant financial burden. Landlords who once had tenants scrambling for their units suddenly find them empty, often in a row of similarly vacant units. Those embarking on new development projects may need to pause, as spiralling construction costs and the many implications of inflation risk eroding the viability of schemes. In this article, we highlight some of the ways the planning system can help bring these otherwise unused spaces back to economic life. We will also look at some of the key factors to ensure that the risks arising from temporary uses do not eclipse the rewards.  What are meanwhile uses? Of late we have seen a proliferation of temporary uses, from pop-up shops to summertime beaches and a whole host of others in between. While some spaces are specifically designated for these uses, in others they provide perfect “meanwhile” uses. These make use of a space while it is waiting for the next stage in its life – be that finding a new tenant or redevelopment. In many ways meanwhile uses are a win-win. Not only can landowners use them to generate income, but they can help minimise outgoings, such as empty building rates. From a planning and placemaking point of view, they can also bring much-needed local activity and vitality.  What are the planning considerations for meanwhile uses? Maximising use class flexibility  Any material change in use, even when temporary, requires planning permission, unless an exception applies.   The rules around the operation of the planning use classes mean that in many cases, what might look like a change of use doesn’t actually require planning permission, provided both uses are within the same use class. This is subject to any limitation on that flexibility, for example by way of a planning condition.  The introduction of use class E, encompassing a wide range of commercial uses, including retail, office and other uses, means that in many cases, a property (or even just parts of that property) can switch between a whole host of uses without needing permission.  Permitted development rights  In other cases, planning permission may be deemed to be granted by permitted development rights, set out in the Town and Country Planning (General Permitted Development) (England) Order 2015. These PDRs are often subject to conditions and need to be treated with care.  There is a particular group of PDRs useful for meanwhile uses. Part 4 of Schedule 2 of the GPDO grants permission for a variety of temporary uses, such as the right to use any land (but not buildings or land within the curtilage of a building) for any use for up to 28 days per year, provided no more than 14 days are for markets or motor racing.  Given the limited duration of these temporary PDRs, property owners may need to cast the net a little wider. Other PDRs specifically allow a change in use from one class to another, such as from office to residential.  However, it is important to remember that permanent PDRs only work one way. There is no automatic right to resume the previous use. If the intention is to revert, then there needs to be a specific PDR to change back, or express planning permission must be secured. Thought needs to be given to how easy it would be to obtain any necessary consents to resume the original use. Otherwise there is a risk that the short-term benefit of installing a meanwhile use is outweighed in the long term by the loss of the original, and often valuable, use.  Express permissions Sometimes the inherent flexibility around uses and PDRs simply isn’t enough. Where that is the case, express planning permission will be required.  One option is to treat the meanwhile use as a permanent one. However, when seeking a permanent planning permission, as for permanent PDRs, there is no automatic right to revert to an earlier use. Unless there is a PDR permitting the reversal, a second permission would be required to resume the original use. Further, the nature of the use may mean that mitigation is required. Where the new use is treated as permanent, this can result in potentially expensive mitigation being demanded by the local planning authority as if the new use would continue in perpetuity.  However, this isn’t the greatest risk when adopting this option in the context of a stalled development. The complications introduced by recent case law around overlapping permissions mean that the implementation of a permission changing use for one part of the site could potentially render the use of the remainder unlawful, as well as requiring a new permission for the part in the meanwhile use.  Instead, the starting point when seeking consent for a meanwhile use should be a temporary planning permission. This will set out the exact duration for the temporary use and any conditions which need to be complied with. This should help ensure that all appropriate mitigation is provided, but no more than is necessary for the relevant time period.  Crucially, where a temporary permission is granted, there is an express right to revert to the original use. This provides the greatest comfort for a landowner that they will be able to revert to the pre-existing use.  However, there are still issues to consider even with this option. The biggest concern is getting the duration right. While it is possible to extend the duration of a temporary permission through consecutive consents, national guidance is against this. Local planning authorities are often reluctant to extend as they don’t want the use to become permanent via the back door.  It’s not all about use  Many meanwhile uses require works or structures to facilitate that use. Sometimes the nature of those will mean that they don’t qualify as development, for example some marquees and purely internal alterations to existing buildings. In other cases, the works themselves benefit from the relevant PDRs needed. However, the position isn’t always clear, and structures which a landowner may intend to be temporary, such as converted shipping containers, are likely to require express planning permission. Here, the issues relating to use may equally apply to physical works. The benefit of a temporary permission, which provides for the removal of any structures and the restoration of the land and the prior use, is probably even more valuable in the context of physical works. There is otherwise a risk that planning permission will need to be secured to reinstate the land to its original condition.  Advertisements Another potential source of income is to use land or buildings for advertisements. This covers a wide range of things, such as billboards, posters and flag advertisements.  Unless special protections apply, for example in Areas of Special Control of Advertisements, adverts fall into three categories of whether consent is required: those excluded from advertisement control;  those where consent is deemed to be granted, provided specific conditions are complied with. These include, for example, the right to display adverts on the hoardings around building sites, for up to three years; and those where express consent is required. While planning permission may be required for any structures on which the advert is displayed, where adverts are displayed in accordance with the relevant regulations, planning permission is deemed to be granted for any development works required for those adverts, for example the erection of billboards. Care must, therefore, be taken to consider the nature of the advert and what consents, if any, are required.  There are clearly ways in which property owners can use their assets to mitigate the losses they might otherwise incur as a result of unexpected vacancies or delays.  Careful consideration must be given to what planning consents are required, and how to secure them, to ensure that any short-term gain is not eclipsed by long-term planning pain. Hannah Quarterman is a partner and head of planning at Hogan Lovells International LLP Photo © Werner Bachmeier/imageBROKER/Shutterstock