Montagu Evans has recently secured an appeal that sheds light on the application of the General Permitted Development Order (GPDO) relating to the change of use of light industrial uses (Class B1(c)) to residential use. This provides critical clarity on how applications and appeals should be handled before the right expires in October 2020.
The amendment has always been a strange one, introducing a significant element of subjectivity into whether such a change of use is acceptable or not. Where the building falls within an area that the local authority considers ‘is important for providing industrial services’, the applicant must apply for a determination as to whether an increase in residential use ‘would have an adverse impact on the sustainability of the provision of those services’ (condition (b) (iv)).
But assuming that the site is located within such an ‘important’ area, how does one assess whether the introduction of a residential use affects the ‘sustainability’ of the provision of those wider services? There has been considerable uncertainty among planning authorities and at the Inspectorate about what this actually means.
This is in addition to applying for a determination on transport, contamination and flooding risks, in the same way that one would under Class O – office to residential.
The eagle-eyed will have spotted that under Class O, an assessment of the impact of noise from surrounding premises is also required. This is notably absent from the requirements in relation to light industrial, replaced instead with the aforementioned requirements in connection with ‘sustainability’. The locations of premises in light industrial use are likely to be more vulnerable to amenity effects than a typical office.
This strongly suggests that Parliament intended ((b) (iv)) to assess not only noise but also other sources of amenity impact such as vibration, odour and air quality – all factors that might affect the amenity of an occupier leading to complaints that could impact on the operation of existing nearby industrial premises.
A Planning Inspector agreed with this interpretation stating in relation to an appeal in LB Lewisham that the aim of the order was to avoid creating a situation that might lead to a complaint about a statutory nuisance:
…this relates to the amenities of residential occupiers in industrial areas, whereby such a location might provide less than ideal living conditions, due to matters such as air quality and noise. I agree and consider the condition [(b) (iv)] seeks to ensure the permitted development right does not lead to residential occupiers resisting industrial proposals, in areas important for providing these, on amenity grounds.
Interestingly, as an aside, such a determination is not required at all in areas which are not considered to be important for provision of wider services meaning that such residential developments will not be assessed at all in terms of potential impact from commercial properties.
The decision provides important clarity on the scope of applications for prior approval for changes of use from light industrial to residential use and the manner that the apparently subjective condition ((b) (iv)) should be considered. This is important for any proposals that might currently be under consideration, given the expiry of the right in October 2020. There may only be time for one appeal, if needed, and hopefully avoided!