Comment - Paragraph problem over prior approval

Eighteen months on, inspectors are still grappling with arguments over the scope of matters that parties can raise on prior approval applications from property owners seeking to assert permitted development rights to convert offices into homes.

The confusion has been fuelled by paragraph N of part 3, schedule 2 of the General Permitted Development Order (GPDO) 1995, introduced via an amendment order in May 2013. This stated that when determining prior approval applications under part 3, local planning authorities should have regard to the National Planning Policy Framework (NPPF) so far as it is relevant to the subject matter. Some councils saw this as a loophole to widen the range of matters open for consideration to encompass the entire NPPF, rather than being restricted to those specified in each of the new classes of permitted development.

Two cases reported this week (see Framework held no basis to block office change & Flat conversion blocked by limited on-site parking) show how inspectors are dealing with this issue. In a case from Leicestershire involving plans to convert a former barn used as offices into residential accommodation under class J of part 3, the council relied on paragraph N in seeking to argue that the rural location was unsustainable and thus contrary to paragraph 55 of the NPPF.

The inspector found the question of whether the location was sustainable irrelevant. He found that the council should only have considered parts of the framework relevant to class J rights - highways impact, contamination and flood risk. "To allow consideration of the whole framework as if the prior approval was a planning application would defeat the point of the GPDO and introduce uncertainty and delay," he concluded.

In a case from west London centring on the adequacy of parking provision for an office to residential conversion, the appellant cited paragraph 32 of the NPPF, which states that development "should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe". The inspector did not dispute the appellant's entitlement to raise this point. However, given the site's location in a densely populated urban area under significant parking stress, he found that the cumulative additional demand for spaces would indeed be severe, meriting refusal.

The explanatory memorandum to the General Permitted Development (Amendment and Consequential Provisions) Order 2014, which came into force in April, is clear that authorities considering prior approval applications must only consider the NPPF "to the extent that it is relevant to the matter on which prior approval is sought". In the Leicestershire case, costs were awarded against the council on its attempt to argue the sustainability point. Others run the same risk.

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