When prior approval is obtained on commercial conversions, development must be completed within a period of three years starting with the prior approval date; Class MA, Condition 2(5) of the General Permitted Development Order.
Even under the former provisions in Class O of the GPDO, which still governs some historic prior approvals before this provision was changed by the Government to the new Class MA regime, development is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date; Part 3, Class O, Condition 2(2) of the General Permitted Development Order.
These deadlines may have implications for some schemes, especially where delivery of the project cannot be commenced immediately following the grant of consent and there is a risk that all or some of the units cannot be completed in time. Delivery might be held up by delays in pre-commencement planning conditions being discharged, delays in tendering and pricing, funding constraints and delays or the need to change contractor (e.g. if the initial party cannot complete the work due to bankruptcy or an inability to deliver or provide appropriate guarantees).
This month’s article examines the case law and practice relating to the challenges raised by this sort of situation and the options open to developers who might be caught out.
When does the ‘change of use’ take place?
This is central to the question of meeting the deadline. The “development” referred to in this context is ‘change of use’ and only change of use. It is this that must have been “completed within a period of three years”.
A change of use may occur when the activity on the site changes and sometimes when works are carried out to alter the use of land, such as physical conversion of a building for residential purposes without actual occupation having taken place: Impey v Secretary of State for the Environment (1984). Therefore, it is not necessary for any new apartments to have been occupied to meet this condition; if the Council insist that they will only accept that a development is lawful if a lease is provided, for example, to prove that residential occupation began in time, then this would not be a lawful approach.
