Permitted development rights introduced in May 2013 are creating quite a stir. These allow the change of use of buildings from B1(a) (offices) to C3 (dwelling houses), subject to a prior approval process by the local planning authority (LPA).
This avoids the need for an express planning permission, but there are a number of significant qualifications, including:
. the rights only apply to buildings used as an office immediately before 30 May 2013 or, if vacant, where its last use was as an office - as such vacant new offices are excluded
. only B1(a) offices can be converted, not office units within A2 financial or professional services nor B1(b) or (c) offices i.e research and development or light industry respectively
. listed buildings and scheduled ancient monuments are excluded
. associated external physical development may still require planning permission
Prior approval of the LPA is required in relation to flooding, highways and contamination matters only. The LPA has 56 days from receipt of the application to confirm whether further details in relation to these matters is required, failing which development may proceed.
Importantly, the rights do not apply to buildings located in an 'exemption area' and many LPAs have sought 'exemption' with varying degrees of success. Indeed, the London Boroughs of Lambeth and Islington have mounted legal challenges to the Government's refusal of their applications for exemption status.
Despite initial - and in some cases ongoing - reservations from LPAs that the new rights are a step too far, there are indications that these powers are now being used effectively by developers.
One of the largest schemes to be promoted resulted in Birmingham City Council approving, in August 2013, the conversion of 10 floors of an office building into 120 flats in the Jewellery Quarter conservation area.
In doing so, the council seems to have taken the view that it could not expressly require the developer to provide affordable housing or other section 106 obligations as part of the prior approval process.
The London Borough of Hounslow has also recently received an application to covert an 11 storey building in Hounslow into 139 flats, while the London Borough of Islington is considering proposals to convert a 16 storey Archway Tower into 118 flats.
Developers will welcome the new rights, and potential enhanced viability of schemes arising from them, but it is almost inevitable that the lack of any financial payments or other planning obligations - which offset the impact of new development - will be subject to some form of legal challenge in the future.
This is not least because of the tension between these new powers and the perceived further watering down of an LPA's and local community's own ability to control and direct housing development to the most appropriate locations in their district.