Commercial and institutional building conversion Q & A DCP Section 10.3

This section covers proposals for the residential conversion of redundant warehouses, industrial buildings, churches and all other commercial and institutional premises. In country areas, isolated redundant buildings such as telephone exchanges, chapels, water towers/pump houses and railway stations may be put forward for residential conversions.

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 [1985]. 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.

Q & A    10.2/10

I am acting for the owner of a large house, in the grounds of which is a lodge occupied until recently by a handyman/gardener. It is wished to sell off the lodge on the open market but the local planning authority is insisting that planning permission is required. Can it be right in this assertion?

I assume that that there is no planning condition affecting the occupation of the lodge. In that case, and if the lodge already forms a self contained unit of living accommodation, one may use sec 55(2)(f) of the 1990 Act to argue that subdivision of a planning unit is not development. There is no material change of use and both parts of the land would remain within the same Use Class (C3). The situation would be different if the mode of occupation of the lodge did not make it functionally independent of the main house, as the act of severance would create a new separate single dwelling. In this respect the court case Whitehead v SOS & Mole Valley DC [1991] is of note. Here it was determined that semi-independent housekeeper’s accommodation located in large grounds could be an ancillary to the main house.

My authority wishes to argue that PPG7 Annex G, when it refers to circumstances in which rural buildings may be converted to other uses, does not apply to outbuildings within the curtilage of dwellings in the countryside.

Although the thrust of Annex G is clearly directed at agricultural buildings there is no definition of  "rural buildings" in PPG7,  and in practice proposals for the conversion of  substantial  buildings such as stables, coach houses etc. which lie in private gardens, are normally subject to the same five criteria as set out in paragraph 3.14.  However, the views of readers who have had experience of any conflict over this point will be welcomed.

When does a residential annexe become a single dwellinghouse? My authority is devising a supplementary policy on this issue. Where is the best place to look for examples and what is the generally accepted view on this matter?

Paragraph 2.81 of Circular 10/87 is a useful starting point as it explains the term ‘single dwellinghouse’ by reference to a number of criteria and is based largely on the judgment in Gravesham BC v SoS & O'Brien [1982]. In essence, an annexe will become a single dwellinghouse where it is self-contained with all the necessary living facilities and has resulted in the creation of a separate planning unit. Uttlesford DC v SoSE and White [1992], which considered a garage attached to a dwelling that had been converted to a ‘granny annexe’, is also of interest. An inspector had determined that where a domestic garage within a residential curtilage was used for living accommodation in connection with the dwelling, no material change of use had occurred. The court agreed, ruling that the fact that the elderly occupier of the annexe had living facilities that enabled her to live independently from the rest of the family did not amount to the creation of a separate planning unit that required permission. Related guidance is set out at 10.1511 of Development Control Practice while relevant cases may be viewed on the Planning Resource website or obtained from COMPASS.

I submitted an application for a certificate of lawfulness for the use of a curtilage building as a separate dwelling together with evidence that it has been occupied independently of the existing dwelling for 17 years. The new dwelling is self contained and has all normal facilities for day-to-day living. However, the local authority argues that it is ancillary accommodation and is likely to refuse the application. While family members of the main dwelling have historically occupied the building, I consider that the authority's approach is incorrect and that the dwelling constitutes a separate planning use. What is your advice?.

In Uttlesford District Council v Secretary of State for the Environment and White [1992], it was held that the use of an outbuilding in the curtilage of an existing dwellinghouse for primary residential purposes does not involve a material change of use where it is used in conjunction with the dwelling. The essential question is whether the use of the curtilage building has created a separate planning unit. Where such a building is occupied by someone unconnected with the original dwelling or has been severed from it and has its own curtilage, a separate dwelling will have been created. But the line taken in the Uttlesford case and later appeal decisions suggests that use by family members does not constitute a sufficient degree of "separateness", even where such a person lives independently from those occupying the main dwelling. The local authority’s approach therefore appears to be correct.

My authority has received an application to install two dormer windows at a detached domestic garage and convert it into a self-contained granny annexe. The applicants state that it will be occupied by a relative and will be strictly incidental to the principal dwelling. They argue that since the proposal comprises operations in the curtilage of an existing dwellinghouse for purposes ancillary to its enjoyment, the application fee should be £135. However, as the proposal is in effect a free-standing building capable of being occupied as a dwelling, I believe that the fee should be £265. What is your view?

The judgment in Uttlesford District Council v Secretary of State for the Environment and White [1991] established that permission is not required to convert a garage in a residential curtilage to an annexe capable of independent accommodation, provided both it and the existing dwelling remain in the same planning unit. The dormer windows may not require permission if they meet the requirements of Class E, Part 1, Schedule 2 of the General Permitted Development Order 1995. So I would first question the need for express permission. Should this be required, the application fee should be £135, in accordance with category 7a, Part 2, Schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended.

An outbuilding erected within the curtilage of a dwelling was occupied continuously as an independent dwelling for four years, in breach of planning control.  An application for a certificate of lawfulness (LDC) was applied for some years later.  During the intervening period there was a significant break (over a year) when the building was still equipped for independent occupation but was vacant.  The planning authority refuses to issue an LDC for use as an independent dwelling because occupation was not continuous during the prior four years.  But I think the use has accrued planning rights which thereafter could only be lost through abandonment.  I would be interested in your thoughts. MT

In the case you describe it does not seem to be in contention that, at sometime in the past, residential use of this building had taken place on a sufficiently continuous basis to ensure that an LDC would have been granted had it been applied for shortly after four years had elapsed

However, where an LDC is requested some years later, where within the strict  four years prior to the date of application the premises had been vacant for a period, the judgment in Panton & Farmer v Secretary of State for the Environment and Vale of White Horse District Council [1999] comes into play. Here, it was held that lawful use rights notionally obtained in the past could only be lost by evidence of abandonment, the formation of a new planning unit or where a further change of use had occurred. The case introduced the concept of dormancy. Applying this test it seems unlikely that the period of vacancy you describe would be critical, provided the premises remained suitable for and was intended to become available again for separate residential use.  A good appeal case parallel worth referring to is (DCS No. 049-804-684). GH

If someone wishes to convert stables within the curtilage of a listed house to a dwelling for staff, would that require planning permission or would the works be covered by class E of part 1 of schedule 2 of the General Permitted Development Order 1995 as amended? SO.

Provided it does not have its own curtilage and therefore a separate planning unit is created, a dwelling for staff would normally be classed as being ancillary to the main house and the conversion would not be a material change of use. Section 10.211 of Development Control Practice considers this issue in more detail. Whilst Class E allows the "improvement or other alteration" of outbuildings, this right does not apply to outbuildings within the curtilage of a listed building. Thus, to assess if planning permission is required you would need to decide whether the dwelling would be ancillary to the main house. Even if it would be, planning permission would still be required if the proposal resulted in material alterations to the external appearance of the building. It is possible that listed building consent would be required for the conversion works in any event. JH.


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