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Crescent Rd and permitted development

LATEST NEWS: we are pleased to learn that JUST DEVELOPMENTS most recent application BH2014/00841 for PRIOR APPROVAL has been REFUSED (December 2014)

See Brighton and Hove City Council's Decision:

The applicant has failed to demonstrate that the application site was used for a use(s) falling within Class B1(a) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 either immediately before the 30 May 2013 or when last in use and that such a use(s) were lawful. Accordingly, the proposed development is not permitted under Class J, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 ("the 1995 Order") and the application is refused pursuant to paragraph N. (2A) of the aforesaid Part 3.

Permitted (over)development - don't let it happen.

JUST DEVELOPMENTS submitted statutory declarations from the Managing Directors of Service Twenty Four and The Sugar Hill Boutique to say that they were in the building (or that Geo Environmental were) and their lease was for B1(a) class use.

See our letters of objection which successfully countered this evidence.

1. Crescent Road BH2014/03343 - covering letter

2. sample objections: ONE and TWO feel free to use/adapt

3. Crescent Road BH2014/03343 - detailed objection

The developer's hope was that their two bits of evidence, which [i] did not add up to the amount of development they were trying to justify and [ii] made the assumption that B1(a) was the same as B1, would force Brighton and Hove City Council to grant "Prior Approval for change of use for conversion of office buildings on their site to 5 residential flats".

However, the buildings concerned started life as parts of a laundry. As offices on a very narrow strip of land, they were very poorly located in relation to households in the immediate vicinity. Converted to residential homes to be occupied 24/7, overlooking and loss of privacy become major issues.  While the latter are not counted as valid grounds for objection in relation to Prior Approval for change of use under "permitted development", conversion of these worn out cheaply constructed buildings to decent residential accommodation could not be performed without a considerable amount of external physical alteration, making demolition or semi-demolition a necessary part of the process. In these circumstances application BH2014/03343 would constitute development, would not be the circumstance which the permitted development rule was intended to cover, and would need a full planning application if immediate neighbours' democratic rights are to be honoured.

The most recent application BH2014/03343

Application number: BH2014/03343 NOW REFUSED

This developer is determined to overdevelop the narrow strip of land between Crescent Road and Belton Road without giving immediate residents a chance to voice reasonable planning concerns. which number far more than i,ii & iii (above).

Overdevelopment in a style totally out of keeping with the character & appearance of the period properties in the surrounding streets would negate the amenity-value of the Round Hill conservation area for a large number of households. The planning inspector who dismissed the Richmond House appeal clearly recognised the importance of green space and the distinctive character of this architecture to local residents.

Review above application

Note that in relation to Prior Approval for change of use from B1(a) to C3 residential, the Council can only take three grounds for objection into account:
i. transport & highways impacts ,
ii. contamination risk (see critique) and
iii. flood risk.

Limiting immediate residents to the above three grounds and consulting o few of them is an affront to local democracy.

I very much doubt that any objection on transport & highways impacts would weigh heavily with Brighton and Hove City Council in preventing Prior Approval, apart from one relating to access to the application site, especially refuse storage (located too far from the street collection point to allow servicing for all the proposed flats). The developer's report on contamination risk leaves much to be desired (see critique).

Our objections:

1. Crescent Road BH2014/03343 - covering letter

2. sample objections: ONE and TWO feel free to use/adapt

3. Crescent Road BH2014/03343 - detailed objection
[please add your signature, but post your own comment on The Council's website too so that more than ONE representation is counted!]

Ideas for effective comments

Other observations RE BH2014/03343:

  • the buildings are far from suitable for conversion to residential homes without significant external alteration, which is likely to fall outside of the government's grant of permitted development regardless of the outcome of BH2014/03343 'prior approval for change of use'.
  • not feasible to ceate new homes through straight conversion on the existing footprints of very poorly located offices without additional development on the adjoining land (new refuse stores etc.)

    Therefore, a full planning application for the associated physical development is required to implement the change of use: see Do permitted development rights for change of use also allow for physical development?

    Development includes:
    • building operations (e.g. structural alterations, construction, rebuilding, most demolition);
    • subdivision of a building (including any part it) used as a dwellinghouse for use as two or more separate dwellinghouses
  • we query the amount of office space identified as B1(a) during the qualifying period (leading up to 30th May 2013) for the grant of permitted development. Partial evidence may have been obtained relating to a proportion of the office floorspace, but it is far from clear that the full 313 sq metres needed for as many as 5 flats qualified as B1(a) in the lead-up to May 2013. Details of the layout and specifics on the area of occupied B1(a) office workspace in each building remain confusing.


application

 

 

 

 

 

 

 

 

 

 

 

 

Should they be making a full application?

Click here for planning advice:
Do permitted development rights for change of use also allow for physical development? and what constitutes "development"?

Background to BH2014/03343 -
prior approval for for 'change of use' 

In their WITHDRAWN full planning application 15/01/2014: 28 & 28B Crescent Road -  BH2014/00124JUST DEVELOPMENTS described the most recent class use of the office buildings as financial and professional services (A2), rather than B1(a).

However, having learnt of the government's grant of "permitted development" for change of use of B1(a) office buildings to C3 residential, JUST DEVELOPMENTS has gone to great lengths to collect evidence to show that the office buildings they want to convert to 5 flats had some B1(a) use prior to 30th May 2013 - the qualifying period for this new opportunity for developers.

In seeking to form 5 flats from their conversions, they are seeking an AMOUNT of development which, under a full planning application, would probably be deemed to be OVERDEVELOPMENT of this sensitive application site - a narrow strip so near to several existing homes.

Selective leases V Actual uses

JUST DEVELOPMENTS has now submitted statutory declarations from the Managing Directors of Service Twenty Four and The Sugar Hill Boutique to say that they were in the building (or that Geo Environmental were) and their lease was for B1(a) class use. However, the buildings concerned started life as parts of a laundry rather than as offices. Within their past, actual uses have been very variable, but more recently very light i.e. more akin to A2 Financial and Professional and B8 storage class uses than heavier B1 uses. Given the variability of actual uses, the statutory declarations obtained as evidence of B1(a) class use, do not represent the suitability of these old laundry buildings for conversion to residential homes at all satisfactorily. 

Geo Environmental Services was not the only past tenant whose actual operation seemed to be regarded (e.g. in online directories) as "professional" (A2) rather than a heavier office use which might jeopardise the amenity of immediate households. Shoal Creative was another perceived as professional or very light office use.

A2 Financial and Professional Services.

See Guide To Use Classes Order in England (30th May 2013).

notpermitted

 

 

 

 

 

 

 

 

 

 

 

 

 

Further development on the land would certainly need a full planning application

The location plan for JUST DEVELOPMENTS' current application varies from previous ones since this time it only includes the office buildings and not the land. If PRIOR APPROVAL for change of use is granted by Brighton and Hove City Council, under the new permitted developent rule change of use from office to residential would also apply to the curtilege of the buildings. However, this does not mean that JUST DEVELOPMENTS can erect what they like on the rest of the land. Full planning permission (further applications) would be needed to erect additional structures, even though residential use would be established. 

Straight conversion V external alteration

It is doubtful whether the straight conversion intended under the grant of "permitted development" could be adhered to.

The truth is that the buildings have had a number of uses, starting out as parts of a laundry and sprawling onto some of the green space between the Crescent Rd and Belton Rd properties. They are also in poor repair. The current makeshift office roofing, especially that belonging to the annexes, Current is unlikely to meet the standards for residential development without complete replacement.

In order to create decent homes (allbeit overlooking & being overlooked by others), significant elements of demolition and external alteration would be required. It is doubtful whether significant external alteration comes within the terms of the government's 'permitted development rule'. By now, there should be some case history on this point.

What is clear within the context of a narrow strip of land, valued by many adjoining households as an open space, is that JUST DEVELOPMENTS' scheme is most inappropriate as a candidate for the grant of permitted development.

Inappropriate buildings for conversion

Not all offices are suitable for conversion to residential homes, especially when the buildings started out as something different, are in a poor state of repair, have had miscellaneous past uses, and are inappropriately located in relation to existing homes.

A significant number of Round Hill residents whose homes & gardens adjoin the narrow strip of land between Crescent Road and Belton Road have made it clear to Brighton and Hove City Council that they object to overdevelopment of a much valued green space which would clearly result in some very intrusive overlooking and loss or privacy for several households. 

Early in 2014, The Council's Conservation Advisory Group recommended refusal of JUST DEVELOPMENTS' full application BH2014/00124, seeing it as overdevelopment and in a style unsympathetic to the appearance and character of The Round Hill conservation area.

JUST DEVELOPMENTS responded by withdrawing application BH2014/00124 before the Council had the opportunity to decide its outcome. They have since had three attempts [BH2014/00841] [BH2014/0185] and now [BH2014/03343] to gain the grant of "permitted development", which merely needs "prior approval" from the Council and only recognises three valid grounds for objection: i. transport & highways impacts, ii. contamination risk and iii. flood risk.

A determined developer (so far this year!)

 

  • [1] 15/01/2014: 28 & 28B Crescent Road -  BH2014/00124 - full application for conversion of building from financial and professional services (A2) to form 5no self contained flats with associated alterations [WITHDRAWN]
  • [2] 17/03/2014: 28 & 28B Crescent Road -  BH2014/00841 - prior approval for change of use from offices (B1) to residential (C3) to form 5no self contained flats [REFUSED]
  • [3] 03/06/2014: 28 A, B & C Crescent Road - [4] BH2014/01815 - certificate of lawfulness for existing use as offices (B1) [WITHDRAWN]
  • [4] 01/10/2014:  28B Crescent Road BH2014/03343 - prior approval for change of use [initially INVALID, then REGISTERED on 17th October 2014]

An affront to local democracy

If "permitted development" is given PRIOR APPROVAL and the developer is not required to submit a full planning application then this effectively gags those residents immediately affected.  Note that a full planning application which allowed residents to submit their key objections was JUST DEVELOPMENTS starting-point earlier this year, but they withdrew application BH2014/00124 when it seemed destined to failure. Their strategy now is to go all out to convince the Council that the planning history of their site qualifies for PRIOR APPROVAL. If they win this narrow argument, then the Council has no choice other than to discount all other concerns than i., ii, and iii above. 

The current application BH2014/03343

Application number: BH2014/03343

Comment on the above application

Address: 28B Crescent Road Brighton

Description: Prior approval for change of use from offices (B1) to residential (C3) to form 5no self contained flats

Application type: prior approval change of use

Development type: change of use

 

The developer's documents

01 October 2014: Application Form

 

01 October 2014: Drawing(s)

proposed ground & first floor use plans with location plan

 

01 October 2014: Drawing(s)

proposed ground & first floor use plans with location plan

 

01 October 2014: Drawing(s)

proposed ground & first floor use plans with location plan

 

01 October 2014: Supporting Document(s)

lease details - geo environmental 1

 

01 October 2014: Supporting Document(s)

lease details - sugarhill boutique

 

01 October 2014: Supporting Document(s)

land & flood risk assessment part 1

 

01 October 2014: Supporting Document(s)

land & flood risk assessment part 2

 

01 October 2014: Supporting Document(s)

covering letter

 

01 October 2014: Supporting Document(s)

design statement

 

14 October 2014: OS Extract

location & block plan

 

Lawful development certificates:
who issues them?

What if it is not clear whether development is covered by permitted development rights?

It is possible to apply for a lawful development certificate for a legally binding decision from the local planning authority. See
Lawful development certificates.

The above process appears to exist for the benefit of developers rather than to help residents to challenge the legality of notifications to instantly destroy the amenity of a whole open space offering visual and environmental benefits to circa 50 surrounding households.

However, the fact that these certificates are issued by the local planning authority would suggest that our Council does indeed have the power to refuse applications if they are not saisfied that they qualify as "permitted development". This was confirmed to be the case, when Sally phoned The Department for Communities and Local Government on 29th April 2014.

Previous application for Prior Approval

13th May 2013: The Council's decision on JUST DEVELOPMENT's earlier application for PRIOR APPROVAL for change of use.

Open Space

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
I note that The Council has chosen ONE solid ground for refusing "prior approval", which should make its decision easy to defend on appeal.

The developer's first application recorded the "class use" of the offices on the application site as A2 (Financial and Professional). This equates with professional use of 28/28B Crescent Road by Geo Environmental Services immediately before 30th May 2013 when the "permitted development rule" was introduced. To qualify for permitted development in our conservation area, the "class use" immediately before 30th May 2013 would have needed to be B1 (a) and not A2.

See Guide To Use Classes Order in England (30th May 2013).

Knowledge of the planning history of the site will prove very helpful in seeing off an appeal, which may be the next step. If we can support the Council's decision in this way, then at least issues such as overdevelopment, loss of privacy, overlooking, loss of a valued open space will be counted as valid matters for comment in future planning processes.

The Council's ground for refusal

The reasons for the Council’s decision to Refuse to give prior approval for the development are:

1. The applicant has failed to demonstrate that the application site was used for a use falling within Class B1(a) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 either immediately before the 30 May 2013 or when last in use. Accordingly, the proposed development is not permitted under Class J, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 ("the 1995 Order") and the application is refused pursuant to paragraph N. (2A) of the aforesaid Part 3.

Residents' meeting with The Council

Four Round Hill residents met Jeanette Walsh (Head of Development Control), Phelim MacCafferty (Chair of the planning committee), Andrew Huntley (Case Officer for 2014/00841) and ward Councillors Ian Davey and Pete West on Monday 28th April 2014.

Although one ground ("class use") was quoted in the Council's decision of 13th May 2014 to refuse "prior approval", this alone brings application BH2014/00841 outside the terms of the government's grant of "permitted development". At our meeting, we offered several grounds:

Our own grounds for refusing "prior approval"

Our main attempt was to convince the Head of Development Control that Just Development's notification of a proposed change of use to office buildings located at 28/28B Crescent Road does not fall within the terms of "permitted development" in relation to

[1] the class use of the office space occupied immediately before 30th May 2013 when the permitted development rule started to apply.

The application site had various class uses in its history, though users of the office floorspace in more recent years have been professional services. Information in section 22 of the application form submitted by the developer on 15th January 2014 (since withdrawn and replaced by a permitted development notification form), describes the most recent use as A2 (Financial & Professional Services).

[2] the amount of office space being used by 'the then tenant', Geo Environmental Services (a good deal less than 313 sq metres)

[3] the amount of external physical alteration which would actually be needed to change ex laundry buildings, little suited for residential conversion, into homes (semi-demolition as opposed to conversion)

Other valid grounds for withholding prior approval are:

[4] transport impact especially pressure on on-street parking when a car-free development proves to involve unfair discrimination, and

[5] contamination risk which has not been adequately addressed, given the industrial history of the application site, in the land study offered as a supporting document.

Reasons for withholding "prior approval" RE the definition of permitted development

[1] Class Use

CLASS USE: for permitted development to be claimed in the Round Hill conversation area, the class use of the office space would need to have been B1(a) in the planning context immediately before 30th May 2013 when the new rule - granting "permitted development" under specified conditions - was introduced.

The last tenant to occupy office space at 28/28B Crescent Road, whose tenancy also spanned the period leading up to 30th May 2013, was Geo Environmental Services Ltd.

Offering professional services, their use of the site was not 24/7 and did not impact heavily on the 40+ residential households surrounding the narrow strip of land.

Just Development's Application Form BH2014/00841 (claiming permitted development) makes the assumption that all the former offices have most recently been in B1(a) office use. When asked in section 4 of this  form “What was the use of the building immediately before 30th May 2013 or the last use before that date?” the applicant gives a one-word answer “offices”: without writing anything further within the large input box provided on the form. A complete and transparent answer to this question would verify the "class of office use" based on the nature of work carried out by Geo Environmental Development at the time when the change of rule came about.

The longer application form containing thirty sections submitted with BH2014/00124 commits the applicant to declaring the most recent use of the offices. In section 22 of the fuller application form submitted earlier this year (now withdrawn), the applicant describes the most recent tenant's office class use as A2 Financial and Professional Services.

See Guide To Use Classes Order in England (30th May 2013).

notpermitted

 

 

 

 

 

 

 

 

 

 

 

 

Although a recent amendment to The Town And Country Planning Act allows some A2 (Financial and Professional Services) class use to be converted into C3 residential dwellings, however -

  • permitted development does not apply if the cumulative floor space of the existing building changing use under exceeds 150 square metres. Application BH2014/00841 is claiming as much as 313 square metres of office floorspace on the basis of the proposed 5 flats shown in drawings identical to those in the withdrawn application BH2014/00124.
  • Nor does it apply when the application site is within a conservation area where an Article 4 Direction puts tighter controls on alterations which residents can make to their properties. The Round Hill conservation area has been designated as article 1(5) land under the Article 4 direction (introduced in 2002) controlling exterior alterations/features of buildings.

[2] Amount

The AMOUNT of B1(a) office floorspace which can be claimed for conversion under the new permitted development rule, needs to equate with the area (square metres) of office floorspace occupied immediatly before 30th May 2013 when the rule was introduced.

I am puzzled by the figure of 313 square metres given for the AMOUNT of office floorspace. The previous planning application (BH2009/01665) to record the amount of office floorspace belonging to  28B Crescent Road (note under other tenants) gives the amount as 116.58 square metres.

Nowhere on the planning register is there any evidence to demonstrate that there was ever more than 166.58 square metres of internal office floorspace at 28B Crescent Road since 2009.  Application BH2009/01665 was an attempt to add 2 more full-time employees to the 13 full-time employees already on the site by increasing office floorspace from 116.58 square metres to 156.48 square metres. However, Application BH2009/01665 never succeeded: [DECIDED 18 August 2010 FINALLY DISPOSED OF]. From 18th August 2010, there was no more than 116.58 square metres of office space at 28B Crescent Road. There may be more office space at 28 Crescent Road, but the part of that building with a street frontage became a separate residential freehold (now known as 28A Crescent Road in 1999. It seems unlikely that much remained immediately before 30th May 2013 .

Nowhere in proposal BH2014/00841 are we told the area of office floor space in each building, which is unlikely to be as much as claimed in the withdrawn application where exactly the same plans are submitted for office conversion to create as many as 5 flats on this narrow strip of land. 

[3] External physical alteration

The permitted development rule is not intended to cover conversions which would involve a significant amount of demolition and rebuilding. In the latter case, a full planning application may still be required  - a judgement our Council can take. This, together with failure to comply with actual "class use" and "amount", provides a third ground on which we feel our Council should be fair to 40+ immediate residents by saying "No" to "prior consent":

The former laundry buildings at 28/28B Crescent Road were not constructed with materials which would now be deemed safe today (even for offices). They are likely to contain asbestos. These structures include annexes: i.e. quickly built extensions, highly inappropriate both in quality of build and condition for conversion into homes. They are also sited in locations which are most unsuitable for 24/7 occupation by residents: overlooking, involving several existing households, would be a major problem. Servicing the most westerly of these structures (e.g. refuse collection) would be a problem if the developer's current designs were implemented. Converting these poorly sited add-ons into homes as well as the main building would be a clear case of overdevelopment, one which would meet with REFUSAL in the context of a normal planning application.

We now know that our Council has the statutory power to refuse "prior consent" if they are not satisfied that the proposed development qualifies as permitted development. There are many things wrong with application 2014/00841. So many reasons have added up for withholding "prior consent" that there will be massive disillusionment in Round Hill unless the right decision is reached.

The Council has the power to withhold "prior approval" when a proposal falls outside the terms of permitted development.

Since our meeting on 28th April, Sally Wright has been in telephone contact with a member of The Department for Communities and Local Government. Sally wanted to find out more regarding the misleading information the developer has put on the application for permitted development, and what we can do about this.

Sally's contact explained that new clarification around this legislation was introduced in April of this year, which gives the Local Authority the option to turn down a permitted development application if it is not satisfied that the application meets the criteria.

Details of the above are given in the EXPLANATORY MEMORANDUM TO THE TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) (AMENDMENT AND CONSEQUENTIAL PROVISIONS) (ENGLAND) ORDER 2014

Paragraph 4.7 states that:

Prior approvals

4.7 In light of feedback on these provisions since they were enacted in 2013, the prior approval procedures in paragraph N of Part 3 of Schedule 2 to the General Permitted Development Order are amended to clarify that local planning authorities:

      • must only consider the National Planning Policy Framework to the extent that it is relevant to the matter on which prior approval is sought;
      • may attach conditions to grants of prior approval, as long as those conditions are relevant to the matter on which prior approval is sought;
      • may refuse the application if they are not satisfied that the proposed development qualifies as permitted development, or if they have insufficient information to establish whether the proposed development qualifies as permitted development; and
      • may invite further information from applicants relevant to the matters on which prior approval is sought or to the question of whether the proposed development qualifies as permitted development.

Jeanette Walsh (Head of Development Control at Brighton and Hove City Council) has got back to Sally on the above with the following reassurance.

The content is noted. I can confirm that the LPA are aware of the statutory instrument. We will look at this very carefully in reaching a conclusion on the Prior Approval application.

Change of description on The Council's planning register: an unlikely mistake

notpermitted

 

 

 

 

 

 

 

 

 

 

 

 

 

See Section 22 of withdrawn application form (look under "A2 use") for AMOUNT (of office space) & USE (most recent) claimed by applicant.

notpermitted

 

 

 

 

 

 

 

 

 

      • It was stated in section 22 of the withdrawn application BH2014/00124, lodged just a few weeks earlier in January 2014, that all the office space on the site is classed as "class A2 use" (Financial and Professional Services). However, Class A2 office floorspace falls outside the terms of "permitted development in a conservation area.
      • The applicant is claiming that as much as 313 sq metres of office floorspace was in B1(a) office use immediately before 30th May 2013, but conceeds in his Design & Access Statement that the site was only being partly used then.

        Moreover, previous applications e.g. Application BH2009/01665 (see section 19) associate just 116 sq metres of office floorspace with 28B Crescent Road. Given that part of 28 Crescent Road had already been converted to residential, it seems very unlikely that as much as 313 sq metres of office floorspace were being used immediately before 30th May 2013.
      • 28 Crescent Road was referenced alone in Application BH1998/02541/FP for "conversion of ground floor offices and first floor flat into single private dwelling house". This was approved on 19th January 1999).
      • A further application to reference 28 Crescent Road alone was BH2000/01861/FP. This application, approved on 28th September 2000 before Round Hill's (2002) Article 4 Direction set stricter specifications for window replacement, included the replacement of timber windows with UPVC frames. it also included the removal of asbestos cladding replacing it with UPVC boarding. If by 2000, part of 28 Crescent Road had been changed to residential use and a separate freehold (with street frontage) had been created as "28A Crescent Road", then the asbestos removal would relate to the part of 28 Crescent Road which has remained as office space.

Limited assessment of contamination risks

It seems likely that other buildings on the application site contain asbestos. However, 'dangerous and contaminated materials within the structure of the very buildings proposed for conversion' appear to fall outside the terms of reference of the 'Professional Assessment' obtained by the developer declaring that there is not a "High Potential Risk" of Contaminated Land.

Click here for an update on our concerns about the inadequacy of the developer's land survey which fails to address contamination within the buildings to be converted. These structures, two of which are quickly erected add-ons, have had an industrial history far removed from dedicated office buildings. The two most westerly annexes (proposed flats 1, 4 & 5)  are not suitably located with regard to overlooking. However, even if they were, the structures would not be fit for conversion into homes without demolition and rebuilding. Re-roofing would be essential, but the quality of the structures would not merit it. Read why the Council needs better supporting information on contamination risk based on both a site visit and physical inspection of the buildings proposed for conversion.

The context in which The Council is operating

In reporting on our meeting, I am planting some links in this article to explain the context in which The Council is operating, though not to suggest that we are happy with it.

Are there permitted development rights for change of use?

Yes. The General Permitted Development Order gives a national grant of planning permission to some changes of use.

What is prior approval

The developer has to seek approval from the local authority that specified elements of the development are acceptable before work can proceed.

Class J development is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development Reduced parking difficulty resulting from Round Hill's CPZ has already led the Council to approve a scheme for 6 houses on a greenfield site to the NE of Princes Road. However, in 2010 and 2011, before the CPZ, the Council's planning committee refused exactly the same scheme and the developer's appeal was dismissed on the ground that parking infrastructure in Round Hill could not support it.

Three appeal inspectors have already indicated that a condition disqualifying certain residents in our hilly neighbourhood from parking on-street could not be maintained over the long-term. All three inspectors recognise that this is contrary to what the Council's own Local Plan Policy HO7(b) on car-free housing requires. Read more on this including the appeal inspectors' comments on parking difficuty in Round Hill, especially after 8pm when permit restrictions cease to operate.

Is the Council's Sustainable Transport Department willing to support a decision which would reverse the benefits of the CPZ by increasing parking difficulty, so we end up paying for city cramming and loss of our open spaces instead of a reduction in parking difficulty. It seems wrong for a Sustainable Transport Department to serve both different and contrary agendas.

(b) contamination risks on the site; and

(c) flooding risks on the site, and the provisions of paragraph N shall apply in relation to any such application.

(a), (b), (c), the Council and "prior aproval"

Based on soundings we had taken before our meeting, we were not confident that Brighton and Hove City Council's Head of Development Control was about to deny "prior approval" on the  basis of  one or more of the above grounds (a) (b) (c). We therefore felt it necessary to emphasise a more basic reason for denying "prior approval": the applicant's proposal does not fit the description of "permitted development".

Jeanette Walsh told us that her department could make some informatives to highlight the legal areas i.e. whether the notification actually falls within "permitted development". These could cover
(1) which buildings are actually within the application site,
(2) what amount of office floorspace was in fact used by Geo Environmental Services immediately before 30th May 2013, and
(3)  the "class use" of the most recent tenant's activity on the site.

Even if The Council gives prior approval, an actual attempt to develop the application site would almost certainly have to clear a number of other hurdles. The developer may not be able to do much without following up with full planning permissions to cover the amount of external alteration and rebuilding which would be needed to create residential dwellings.

However, we cannot take any comfort while our Council is presenting itself as powerless and local residents are being gagged from expressing concerns which in the context of a planning application would be regarded as valid considerations.

She has since confirmed that she will also look carefully at the statutory instrument for deciding whether the terms permitted development have actually been met in reaching a conclusion on the Prior Approval application..

We are unhappy about the suggested use of informatives; if the Council's wording of the informatives were sufficiently powerful to reflect the several counts on which Application 2014/00841 fails to meet the terms of Class J Permitted Development then the Council would be portraying itself as at fault for failing to use its statutory power to deny prior approval. This would create a very poor precedent and may encourage other attempts to use "Class J permitted development" with insufficient regard to exemptions which define the need for full planning permission.

Classes "J" and "IA" Permitted development

Source of information
"J" Town And Country Planning Act (30th May 2013)
"IA" amendment to Town And Country Planning (6th Aprill 2014)

"Class J" Development consisting of a change of use of a building and any land within its curtilage to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order from a use falling within Class B1(a) (offices) of that Schedule.

Development not permitted

J.1. Development is not permitted by Class J where—

(a) the building is on article 1(6A) land (scroll to foot of article for definition)

(b) the building was not used for a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order immediately before 30th May 2013 or, if the building was not in use immediately before that date, when it was last in use;

Round Hill residents observe that the applicant has overstated (by more than double) the amount of office floorspace that existed on the site immediately before 30th May 2013; at that time, the work which Geo Environmental Services was doing was of a light professional nature falling into A2 class use rather than B1(a).

Further changes to the rules from 6th April 2014

Note that from 6th April 2014, an an amendment to Town And Country Planning (England) (see pages 4 & 5) defines a new class of permitted development. "

Class IA" allows the conversion of A2 (Financial & Professional) to C3 (Residential Dwellings).

CLASS IA (A2 Financial & Professional) to (C3 Residential Dwellings)  IS NOT PERMITTED IF

      • the cumulative floor space of the existing building changing use under Class IA exceeds 150 square metres; and
      • the development (together with any previous development under Class IA) would result in more than 150 square metres of floor space in the building having changed use under Class IA. (Note that the applicant at 28/28B Crescent Road claims to have the right to convert 313 sq metres of office floorspace.)
      • the development consists of demolition (other than partial demolition which is reasonably necessary to convert the building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order);
      • the building is— (i) on article 1(5) land; (Note that 28/28B is within the Round Hill conservation area which has been designated as article 1(5) land under the Article 4 direction controlling exterior alterations/features of buildings introduced in 2002)

Application BH2014/00841 claims 313 sq metres of office floorspace and misleading suggests that the property at 28 Crescent Road was within an area of existing office floorspace when the use of this house (with street frontage) has been residential since change was approved in 1999.

The last application to log office floorspace at 28B Crescent Road records only 116 sq metres. Moreover, the applicant states in his Design and Access Statement that this lesser area has only been partly used as offices within the last few years (116 sq metres was recorded by a different applicant in 2009).

We feel that the notification is using the permitted development right to claim an exaggerated amount of development i.e. enough floorspace for 5 flats (an obvious overdevelopment of the site) when the amount of floorspace actually used by Geo Environmental Services before 30th May 2013 equates with 1 or 2 flats at the most.

(c) the use of the building falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order was begun after 30th May 2016;

(d) the site is or forms part of a safety hazard area;

(e) the site is or forms part of a military explosives storage area;

(f) the building is a listed building or a scheduled monument.

Is external alteration of buildings covered?

Do permitted development rights for change of use allow for physical development?

Where associated physical development is required to implement the change of use, developers should consider whether it constitutes development and should ensure they have planning permission if necessary.

‘Development’ includes:

      • building operations (e.g. structural alterations, construction, rebuilding, most demolition);
      • material changes of use of land and buildings;
      • engineering operations (e.g. groundworks);
      • mining operations
      • other operations normally undertaken by a person carrying on a business as a builder.
      • subdivision of a building (including any part it) used as a dwellinghouse for use as two or more separate dwellinghouses

The categories of work that do not amount to ‘development’ are set out in Section 55(2) of the Town and Country Planning Act 1990. These include, but are not limited to the following:

      • interior alterations (except mezzanine floors which increase the floorspace of retail premises by more than 200 square metres)
      • building operations which do not materially affect the external appearance of a building. The term ‘materially affect’ has no statutory definition, but is linked to the significance of the change which is made to a building’s external appearance.
      • a change in the primary use of land or buildings, where the before and after use falls within the same use class.

After change of use has taken place, do buildings have the permitted development rights associated with the new use?

It varies as to whether, after change of use has taken place, buildings have the permitted development rights associated with the new use. Details are set out in the General Permitted Development Order. In most cases the associated permitted development rights cannot be exercised until the change of use has taken place.

Article 1(6A) land

Zones which will be protected from 25th July 2014

Cllr Phelim MacCafferty (Chair of the planning committee) listened throughout the meeting allowing us to express our concerns about the proposal.

Right at the end, he made the point that the Council had acted very swiftly to protect an area of Brighton from the potentially damaging impact of the new permitted development rule.

The measure to do this is the creation of a special kind of Article 4 Direction creating protected zones which are referred to in The Town an Country Planning Act as "Article 1(6A) land". This is really a measure to protect business sites so that those with homes in Brighton and Hove have somewhere locally to work.

Unfortunately, Round Hill has not been included in a protected zone. If the Council created too many of them, the government could then cancel the Article 4 Directions it did not like. Round Hill already has another kind of Article 4 Direction introduced in 2002 in an effort to ensure that householder alterations to windows, doors etc are in keeping with the character and appearance of the conservation area.

This makes Round Hill "Article 1(5) land" i.e a designation intended to protect conservation areas (especially the street frontages within them). It is frustrating when developers undertaking larger projects than alterations to residental dwellings are seen to escape from complying with the rules applied to exisiting householders.

However, the Council's Conservation Advisory Group was able to recommend refusal of Just Development's BH2014/00124 (withdrawn a few days later) on the basis that it was both overdevelopment and the proposed conversions were unsympathetic to the character and appearance of Round Hill.

It would therefore be galling if BH2014/00841 (the notification of permitted development which residents feel is being unfairly pursued) resulted in the same ugly proposed conversions based on poor quality buildings in locations where they can be too clearly seen by many existing households.

It is fair to provide links to information on what the Council has done to create "Article 1(6A) land", zones in Brighton protected from permitted development. The protection does not come into effect on 25th July 2014, so "the horse has bolted" in relation to creating the same protection for Round Hill. But a more significant home of B1 offices (The Centenary Industrial Estate) remains unprotected.

Although the student accommodation which Matsim's is applying for, mainly sited on the Centenary Industrial Estate, does not count as Class 3 dwellings, approval of the Richmond House proposal on appeal would undermine the B1 uses on the a dedicated and apparently successful industrial estate. This would jeopardise employment opportunities in the city.

The existing warehouses would be nearly as inappropriate for conversion to C3 dwellings as the poor quality structures associated with 28B Crescent Road, though some are in B1(a) use and could be the target of permitted development notifications. The outcome of the Richmond House appeal would have unexpected consequences if market forces decide that land on the Centenary Industrial Estate is more profitable within residential uses e.g. a mix of student accommodation and C3 dwellings.

Links to Council consultation documents showing their proposal to waive permitted development for change of use from office (B1a) to residential (C3)  in Central Brighton, New England Quarter and London Road. The Council hopes this will take effect from 25th July 2014, but they do not extend this proposed restriction to The Round Hill conservation area.

This page was last updated by Ted on 27-Jan-2019
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