Opportunities will flow from the new GPDO, but they may come at a price

COMMENT “The government has listened” is not much of a news story, I know. But if you look at the final version of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, with its new class MA, some existing permitted development rights, particularly in relation to the conversion of office buildings to residential, are to be tightened, and changes more generally from the new commercial, business and service use class E to residential are to be more constrained than was the case under the draft proposals consulted on in December. The new regime comes in from 1 August 2021. After then, the office-to-residential permitted development route will be limited in the following ways: All changes from class E to residential will have a size limit of 1,500 sq m per building; The building must have been vacant for at least three months leading up to the prior approval application; A floor plan will be required indicating the total floorspace in each dwelling to be created; and Notices will need to be served on any adjoining owner or occupier, and where the conversion is of part, on any owner or occupier of the other parts of the building. We can therefore expect plenty of applications to be made before the cut-off date. Remember that the nationally described minimum space standard now applies in any event to dwellings created by way of permitted development rights, and adequate natural daylight is already now a prior approval requirement. The horse bolted long ago, of course, but the door is now much less open to the abuses of the planning system that brought the PD process into such disrepute. Contrary to what many of us had feared, the government has automatically extended, until 1 August 2022, existing Article 4 Directions. Opportunities abound… More widely, of course, the new GPDO class MA does open up greater opportunities for owners of buildings which fall within the new class E of the Use Classes Order, which includes, as well as offices, light industrial and R&D, retail, restaurant and services uses as well as indoor sports centres and medical centres. From 1 August 2021, applications for prior approval will be able to be made for conversion to residential (there was previously a 500 sq m floorspace cap for light industrial and a 150 sq m floorspace limit for retail). As well as the 1,500 sq m floorspace cap and the three months’ vacancy requirement (query how “vacant” will, in fact, be interpreted by authorities and on appeal), there will be the following further restrictions: The building must have been in commercial, business or service use for the two years leading up to the prior approval application; As previously consulted on, prior approval will be required as to the impact on the character or sustainability (what does sustainability mean in this context?) of a conservation area caused by the change of ground-floor use of a building within a conservation area; and Where relevant, prior approval will also be required as to the impact on the intended residential occupiers if the area is considered important for “general or heavy industry, waste management, storage and distribution, or a mix of such uses” and as to the impact on local provision if there is a loss of services provided by a registered nursery or health centre. … but aren’t without controversy The changes remain controversial. For instance, authorities will be powerless to prevent the conversion of high street frontages to residential (shops up to 150 sq m could previously have been converted, though few have been); development remains free of the requirements for affordable housing or other contributions to social infrastructure that are the case with traditional planning applications; and there is nothing to stop conversion of commercial buildings to residential use in even the most remote and unsustainable of locations. However, I do not think that we are going to see the same rush to take up these powers as we saw with the initial wave of office to residential. The 1,500 sq m floorspace cap rules out the largest, and most profitable, conversions. The prior approval requirements have increased over time and are now more onerous. Planning permission will separately be required for works that materially affect the external appearance of the building, with no guidance from the government that would make that a smooth process, faced with a recalcitrant local planning authority resistant to the principle of the change of use (however irrelevant that should be to the decision-making). Often, existing planning conditions will prevent the operation of the GPDO. And, in many areas, the economics will not work in any event. Whatever the likely take-up, the new right will undoubtedly have an effect on the market, potentially affecting the valuation of properties even if the right is not taken up, and influencing the benchmark land value in viability appraisals. Owners of businesses vulnerable to noise complaints from nearby residents will also need to be on their guard, ready to object or to insist on necessary “agent of change” protections. The new flexibilities will surely also limit the role of local planning authorities in formulating policies to protect retail and commercial uses within their town centres. What is the point of such a policy when uses can change without engaging the planning system? Simon Ricketts is a partner at Town Legal LLP