Making a Material Change of Use

June 11, 2020

By Peter Dixon

The decision has been issued in a redetermined lawful development certificate appeal concerning development carried out under Class O of the General Permitted Development Order – the ‘office to residential’ class – in which the key issue was when the change of use occurred.

In 2013 the London Borough of Bromley gave prior approval for the change of use of a building on land at the ‘Bronze Works’ previously used for offices to 8 residential flats under the provisions in Class O of the Town and Country Planning (General Permitted Development) Order 1995 as it then was. Among the provisions was that the change of use was not permitted development if the use for residential purposes was begun after 30 May 2016. The limitation was repeated in the equivalent provisions in the 2015 Order but subsequently omitted following the coming into effect of the 2016 Amendment Order which substituted a different limitation, requiring development to be carried out within 3 years of the prior approval date.

Work then started on the conversion, then was suspended for a time while the local planning authority (‘LPA’) disputed whether the building had been in office use at the relevant times, and then started again such that by the end of May 2016  one flat had been completed and occupied and work on the others was well advanced, although they were not fully completed and occupied until later.   The developer then applied for a certificate confirming that the change of use had been lawfully undertaken.

The LPA refused the application. The developer appealed. The appeal was dismissed, but the decision was then quashed in the High Court on the grounds that the Inspector had applied the wrong test to determine whether, and if so when, the material change of use in the process of the conversion from office to residential use had taken place (the correct test being held to be that in SSCLG v Welwyn Hatfield Borough Council [2011] UKSC 15, approving Impey v SoSE & Lake District Special Planning Board [1981] JPL 363)).

In redetermining the appeal, the new Inspector was first required to decide which time limit was engaged – that in the 1995 or 2015 Orders or in the 2016 Amendment Order – and then when as a matter of fact and degree the change of use had taken place.

The Inspector found that the effect of the 2016 Amendment Order was to allow the change of use to be implemented within 3 years of the prior approval decision (i.e. up until December 2016) and that by that time, whilst only one flat was complete and occupied and the others were not properly habitable “they had reached a stage where they were recognisably flats rather than offices” and that taking into account the advanced state of the works and the investment made by the developer to reach that point which demonstrated a clear intention to bring the whole of the building into residential use “the use of the building had irreversibly changed from office use to use as 8 flats” and duly allowed the appeal.

 

Appeal Reference: APP/G5180/X/18/3200876

Inspector: Stephen Brown