Media Briefing Note: New Rights to Change Use From Commercial to Residential

LONDON, 25 January 2013 - On 24 January the Secretary of State announced a further change to the planning system to allow changes of use from commercial to residential uses without the need for planning permission. The new permitted development rights will allow a change of use from B1(a) offices to C3 residential.

Michael Gallimore, head of planning at Hogan Lovells, commented:

"This is a radical change to the planning system in that the characteristics of residential use are entirely different from those of office use.  Some of the resistance to the proposed change was based upon concerns as to whether office buildings are always in the right location and whether there are the right facilities to support residential use.  An area which currently has a strong cluster of offices is not necessarily the right place for residential. 

This initiative is eminently suitable for some areas but a blanket approach raises some interesting challenges.  Local planning authorities will be looking very carefully at the prior approval process as a means of exerting some control over the ability to change use.  Some local authorities will be looking urgently at Exemption applications. 

A further issue which has not been mentioned in the announcement is the provision of affordable housing, which clearly will slip the net under the new permitted development rights.

A trial period of three years is a sensible way forward to assess the implications of the changes and the extent to which they are used.  Whilst the initiative should certainly help address the housing shortage, the Government could well see a mixed picture in terms of the quality of housing schemes delivered under the automatic right to change use."

A Government consultation on this initiative last year received mixed responses.  Whilst many welcomed a change which would facilitate the reuse of vacant commercial buildings others were concerned about potential conflict with existing policy aimed to protect commercial uses and the suitability from a locational standpoint of some commercial buildings for residential use.

The Government has decided that the need to ease the national housing shortage should take precedence and that there is a significant prospect of this relaxation creating jobs and further regeneration to assist the Growth Agenda. 

Local authorities will have to apply for exemptions by 22 February and exemptions will only be permitted where local authorities have clearly demonstrated that the introduction of the new rights in a particular local area will lead to (a) the loss of a nationally significant area of economic activity or (b) substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring.  It can be anticipated that the City of London will be one of the first to seek an exemption in view of its previous resistance to the introduction of these rights.

The ability to change use will not be entirely automatic.  Yesterday's announcement states that there will be a "tightly drawn prior approval process covering:

  • significant transport and highway impacts, and
  • development in safety hazard zones, areas of high flood risk and land contamination".

Any change of use which cannot satisfy the prior approval requirements will still need a planning application and one can anticipate local planning authorities relying on the prior approval notice to resist changes of use which it does not support.  In addition, any associated physical development to the relevant property will also still require a planning application, which again will give leverage to local planning authorities.

The proposals will come into force in spring 2013 and run for a trial period of three years.  The operation of the rights will be considered towards the end of that three-year period and the rights may potentially be extended for a further period or indefinitely.

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