An inspector dealing with an appeal relating to the residential conversion of offices in Leicestershire has determined that a condition on the original consent limiting the building to B1 use was of no effect (DCS Number 400-012-303).
Planning permission for the office use in the former barn had been granted subject to a condition stating that the premises should be used only for purposes falling within Class B1, to ensure that the use remained compatible with a nearby dwelling. Application for the change of use to a dwelling was subsequently made under the prior approval procedure. The council refused to grant prior approval on the basis that the condition prevented the change to residential use from falling within the scope of the GPDO.
The inspector considered whether Article 3(4) of the GPDO applied. This clause restricts development permitted by the Order which would be contrary to any condition imposed by any planning permission. Referring to case law, the inspector explained that to invoke this Article, the condition must go beyond specifying the development for which permission is being granted and contain something more which explicitly or implicitly restricts development. He reasoned that in the case before him the condition was intended to clarify the nature of the use permitted and the rights conferred by the GPDO were not explicitly withdrawn in the wording of the condition.
In support of this interpretation the inspector cited paragraph 017 of the Planning Practice Guidance which indicates that conditions restricting future use of permitted development rights or changes of use will rarely pass the test of necessity and should only be used in exceptional circumstances. It was clear to him that the scope of the condition was narrowly defined to ensure that the living conditions of a neighbouring residential unit were not harmed by the use approved. This purpose was specific and did not provide clear justification for restricting the application of the new general GPDO rights which the government intended to bring about deregulation in the re-use of buildings.
He concluded that Article 3(4) of the Order was not engaged and that the condition did not prevent the change of use of the building from office to residential being carried out as permitted development.
The following DCP chapter is relevant: 10.3131