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Permitted development rights grant planning permission without the need to go through a full planning application. They offer flexibility and certainty. As such, they are an attractive tool for developers.
There has recently been a significant expansion in the permitted development rights allowing conversion from non-residential uses to dwellinghouses. These are subject to a number of conditions, including the need to provide minimum space and natural light standards, and the need to secure prior approval from the local planning authority before initiating the change of use.
Prior approval allows the local planning authority to consider the proposal against a restricted set of planning criteria.
Prior approval can also be an opportunity for the planning authority to consider whether the permitted development is applicable on the facts of the development proposed. Fundamentally the permitted development rights require that, on the facts, the descriptive elements of the permitted development rights apply to the change of use. So where a permitted development right permits the change of use from a hot food takeaway (class A5) to dwellinghouses (class C3) the starting use must be a hot food takeaway and the new use must be a dwellinghouse.
The term dwellinghouse appears frequently in planning law despite having no statutory definition.
Earlier this month, in the context of an appeal against the refusal of prior approval for a conversion from a hot food takeaway (class A5) to residential use (class C3), the Planning Inspectorate had to consider whether the changed use would actually amount to a dwellinghouse.
The appeal development was proposing to create three flats. Each was to consist of a single room with an en-suite shower and toilet separated from the rest of the room by a curtain. In order to maximise the available space, an elevated bed was to be provided allowing sufficient space beneath for dining.
The Inspector turned to the case law definition/description of dwellinghouse. Case law confirmed that the distinctive characteristic of a dwelllinghouse is its ability to afford those who use it the facilities required for day to day private domestic existence.
The Inspector found that the appeal development could not achieve these characteristics based on the size, layout and functional provisions in the flat. In particular the proposed kitchen area was insufficiently large to accommodate a sink, cooking facilities and an area for food preparation. Consequently the proposed flats did not amount to dwellinghouses and therefore the permitted development rights were not applicable in the first instance. The planning authority was therefore right not to give the requested prior approval.
There are two considerations from this decision. Firstly developers may fair better sacrificing a unit at the expense of providing the occupants of the remaining units with the necessary facilities required for day to day private domestic existence. The minimum space requirements introduced last year should help deliver on this outcome.
Secondly, this is an instance of the planning authority looking beyond the strict prior approval requirements and considering the wider applicability of the permitted development rights. It should not be assumed that they will always do this, consequently a prior approval should not be taken as a confirmation that the conditions of the prior approval have been/will be met by the proposed development.
25 February 2021
Insights 28 NOVEMBER 2022