Article 4 Directions: office to residential permitted development rights
RICS research published earlier this year highlighted a number of concerns local authorities have over the use of office to residential permitted development rights. These include the loss of office floorspace, poor quality residential accommodation, a lack of section 106 contributions and lower planning fees. It is therefore not surprising that a number of local authorities are looking to make Article 4 Directions to remove office to residential permitted development rights. However, a recent High Court case has highlighted the importance of the exact wording of the Article 4 Direction for both local authorities and developers.
The GPDO and Article 4 Directions
The Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO") grants planning permission for a number of classes of development. The relevant class is Schedule 2 Part 3 Class O which permits a change of use: "… from a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order, to a use falling within Class 3 (dwellinghouse) of that Schedule", subject to an application for prior approval being made.
However, a local planning authority can make a Direction under Article 4 of the GPDO to remove the ability to rely upon a particular permitted development right. Article 4(2) provides that “a direction under paragraph (1) does not affect the carrying out of…(a) development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval where…the prior approval date occurs before the date on which the direction comes into force” (emphasis added).
The Case
In July 2014 the Secretary of State amended wording in Article 4 Directions applied for by the London Boroughs of Merton and Sutton. The Directions, rather than using the wording in Article 4(2), were expressly stated to not apply to any building or land in relation to which prior approval had been granted before the date the Directions were confirmed.
On 5 January 2017, Hounslow Council made a non-immediate Article 4 Direction that contained the same wording the Secretary of State had imposed on Merton and Sutton. The Claimant obtained prior approval for the large scale conversion of offices to residential use on 27 October 2017. They subsequently made three further prior approval applications in respect of the same property on 22 December 2017.
Hounslow’s Article 4 Direction came into effect on 11 January 2018, following which the three applications for prior approval made by the Developer were refused on 11 March 2018 on the basis the rights which the Claimant sought to rely upon were no longer available. The Claimant argued that the reference to “building or land” in the Direction meant that its effect did not apply to sites with extant prior approval. The Council argued that the wording of the Direction only sought to protect specific development (rather than sites) that already benefitted from grants of prior approval. This was the Council’s clear intention when making the Article 4 Direction.
The Court ultimately decided on a literal interpretation of the Article 4 Direction made by the Council and found in favour of the Claimant. The Direction did not apply to "any building or land in relation to which prior approval has been granted or under the terms of those paragraphs is treated as granted before the date this Direction is confirmed." Without considering the intention of the Council, this meant that the Direction did not apply to the property in question, and the refusal notices should be quashed.
This followed the approach taken in Lambeth v Secretary of State [2018], that interpreting public documents should be based on "what a reasonable reader would understand by the language [the Council] in fact used", not on what the Council intended to do in making the Direction. By using the words "building and land" rather than "development", it broadened the scope of what was excluded from the Article 4 Direction.
Conclusion
Close attention should be paid to the exact wording of Article 4 Directions, especially with regard to exclusions. The High Court, despite being sympathetic to the Council's situation, especially given they were using the Secretary of State’s wording from previous Article 4 Directions, were rigid in applying a plain meaning interpretation to the wording.
Victoria Du Croz is a partner in our Planning team. Roland is a trainee solicitor currently seated in the Planning team.