Q & A 10.3/10
A client of mine wishes to use space above his shop as a flat for letting. The planning authority say that Part 3 Class F of the GPDO does not allow a flat if it is to be occupied by somebody not employed in the shop. Its argument is that there can only be a mixed use if there is a relationship between the two elements.
In Circular 9/95 accompanying the changes to the GPDO in 1995 it was stated that Class F permitted the change of use from accommodation over shops etc. to a flat provided that it was within the same planning unit, and the Order itself refers specifically to a mixed use being permitted development. This strongly points to the fact that any new flat created over a shop or A2 unit cannot be self contained if it is to be Class F permitted development. Therefore one would expect there to be a substantial amount of communality between the two uses in terms of access, use of services and ownership, but whether this extends to employment in the underneath use is debatable. Has any one had experience of a debate on this ill defined piece of planning law? Views invited.
We have applied to use a hotel as two small care homes with six residents. These would be achieved by horizontal sub-division. The development was registered as a change of use from C1 to C3. The local authority is now concerned that the proposed use would not be C3 as what would be produced is two flats. What is the correct approach?
Circular 13/87 at para.29 specifically states that for the purposes of the UCO interpretation of the term dwellinghouse is not limited so as to exclude flats. Flats are, however, excluded by the Scottish Order. Therefore, there is nothing in England and Wales to prevent a lawful "C3 care home" falling within Class C3(b) changing to a "flat" within the terms of Class C3(a). Of course, if the local authority does not want reversion to conventional flats it may apply an appropriate condition.
My authority is faced with an application for a LDC for use of a property as a C3 dwellinghouse. Planning permission was granted in 1986 for the use of this building as a C1 guest house with 5 let bedrooms with the owner occupying the sixth. The property changed hands in 1997 and an enforcement notice alleging change of use to a dwelling was upheld in 1999. At this time the inspector noted that the use was as seasonal self catering accommodation with shared facilities in the form of multiple occupation. Is there any level at which a house may be used for guest accommodation and still retain a primary dwellinghouse use?
For a Certificate to be granted it needs to be established that any use as a single dwellinghouse had been established for four years. Needless to say, the 1999 appeal decision does not help the applicant. However, if this matter went to appeal again, a new inspector would have to review all the evidence as to previous usage as then available. It may be argued that the use had been as a single unit let to groups of holidaymakers living together as a single household, and in this case the use would fall within Class C3. The only other mode of occupation argument available to the applicant would seem to be that there was a primary use as a private residence with ancillary bed and breakfast type letting of some bedrooms, but cases would suggest that there would be a material change of use if more than about 25% of available bedrooms were so used
Some councils have a policy to resist the loss of public houses, due to them being a valuable community facility. Given A3 use rights and GPDO rights how can these policies be supported?
In rural areas, it is nearly always residential conversion of a pub that is sought and therefore in such locations planning policy may be effective in preventing the loss of a pub if it can be argued that there would be harm to the local community and a reasonable likelihood of continued use being a viable proposition. In urban areas, as your question infers, the situation may be different in that the incoming use may well be a restaurant, take-away, A2 or retail use, and consequently there is no planning control available. If a planning application is required, it may be difficult to show that loss of a pub would cause any significant harm to the local community given the number of alternative watering holes that are likely to be available nearby. The extensive fall back available, as already noted, also serves to further undermine to case for preventing a new use replacing a pub. Therefore, planning policies in urban areas which seek to prevent loss of local pubs are, as you suggest, unlikely to have any significant impact
I applied for a Certificate of Lawful Development (LDC) on behalf of a client who converted a shop store into a small studio flat. To support a four year rule plea eight letters were produced from local people who had either stayed in the flat or had visited it. The council say this is not enough evidence as there is no record of separate council tax or electricity supply. Are you aware of any rules that state the requirements for evidence in a case like this?
Department of the Environment Circular 10/97 relating to the enforcement of planning control is quite useful in setting out the general position regarding evidence at appeal. At paragraph 8.15, which relates to LDCs, it is advised that the burden of proof is on the appellant, but that the relative test of evidence is the "balance of probability" rather than the stricter "beyond reasonable doubt" employed in the criminal courts. The circular adds that the appellant's own evidence does not have to be corroborated by "independent" evidence in order to be accepted, this ruling being derived from the court case FW Gabbitas v Secretary of State for the Environment and Newham London Borough Council . The circular continues that if the local planning authority have no evidence of their own, or from others, to contradict or otherwise make the appellant's version of events less that probable, there is no good reason to refuse the application. Applying this guidance to your case it is clear that if you do not have evidence, such as the rating or electricity bills required by the local authority, this need not necessarily be a problem, provided that the veracity of your witness statements is to be believed on the balance of probability when weighed against anything the council may produce to the contrary.
My client has a timber and general materials cash and carry business which has an office at first floor level. Could this type of business be considered a "shop" under the General Permitted Development Order 1995 (GPDO) whereby the office could be converted into living accommodation?
Part 3 Class F of the GPDO allows a change from a shop as defined by use Class A1 to a mixed use of a shop with a single flat over. If the office you mention is ancillary to the business, the primary use of the whole building could be considered to be an A1 shop if the trading pattern is of sales mainly to the public rather than on a wholesale basis. Whether this is so is a matter to be considered on the facts of each situation and there are no clear rules to be derived from cases. You need to establish whether your local authority is prepared to accept that the planning unit falls within Use Class A1, and if not apply for a Lawful Development Certificate and go to appeal if the decision remains adverse. However, I would not rule out the possibility that there might be no planning objection to the flat in the first place, given many local authority policies which seek to encourage residential uses in town centres.
I am confused by Part 3 class F of the General Permitted Development Order 1995. Does it permit a person to reduce the amount of retail floorspace on the ground floor in order to provide living accommodation at the back of a shop, provided that it is part of a flat on the first floor? If so it appears possible to end up with a ludicrously small retail floor area at the front. Am I interpreting this part of the Order correctly?
This section of the Order was intended to give a permitted development right for the creation of single flats over shops. It was introduced to facilitate the creation of additional housing in town centres using accommodation which would otherwise lie unoccupied, but has not been widely used. As is your experience the conditions accompanying Class F are exasperatingly difficult to interpret. It seems that F.1(a) requires the existing shop use to be wholly or partly below the flat created which would allow a ground floor flat where there is a basement shop. However, condition F.1(b) indicates that if there is a shop front none of the ground floor shall be used in whole or in part as the single flat. As conventionally there is likely to be a ground floor shop front, F.1(b) would seem to exclude the use of this level to accommodate the whole of a flat, but does not specifically exclude use for part of a flat. Therefore, I have to agree with your interpretation that provided part of a flat is above the shop there is nothing to prevent part of the ground floor being used in association. At a minimum this would allow a lobby/staircase to the upstairs flat, but could extend to several rooms. In the latter circumstance, as you envisage, the retail element could be reduced to little more than a kiosk.
Would the conversion of an army barracks to residential units for sale to the public require planning permission?
In a call-in case from 2000 the Secretary of State held that barracks at a former RAF airfield in Norfolk were a sui generis use. He also decided that their proposed conversion for residential purposes would involve a new, independent use that would not be related to the former military occupation of the airfield and could not therefore survive being severed from it (DCS No: 34261233). A similar approach was taken in two other decisions involving the same site where it was held that barrack blocks did not comprise a separate planning unit but had an ancillary function (DCS No: 35049009 and 50980982). The conversion of the barracks to residential use will therefore require permission.