Appeal 6003197

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule [site address] , Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for the change of use of commercial premises into [site address] flats at [site address] [site address] , Lancaster, [postcode] , in accordance with the application 25/01096/PAC and the details submitted with it, including plan nos 2113.P.1 [name], Block and [name], 2113.P. [site address] [name] and 2113.P.3 [name].

The description of the development in the banner heading above is taken from the application form. For my formal decision, I have adopted the description used on the Council’s decision notice as it more concisely describes the proposal.

The main issue is whether the proposal is permitted development under Schedule [site address] , Part 3, Class MA of the GPDO, with particular regard to its accordance with the [name] Standards1 (NDSS).

Article 3(1) and Schedule [site address] , Part 3, Class MA, of the GPDO provides for a permitted development right for the change of use of a building falling within use class E (Commercial, Business and Service) to class C3 (dwellinghouses). This is subject to the requirements of Article 3 of the GPDO, and the limitations and conditions set out under Class MA. 1 Technical housing standards – nationally described space standard, 27 March 2015

Paragraph 9A to Article 3 of the GPDO provides that Schedule [site address] does not grant permission for, or authorise any development of, any new dwellinghouse where the gross internal floorspace is less than [address] metres in size, or where there is not compliance with the NDSS issued by the Department for Communities and Local Government on 27 March 2015. Paragraph 9B explains that the reference in paragraph 9A to the NDSS is to that standard read together with the notes dated 19 May 2016 which apply to it.

The NDSS requires dwellings to provide at least the gross internal floor areas (GIFA) set out within Table 1 contained therein. It requires a 37sqm minimum GIFA for single storey dwellings providing 1 bedroom and 1 bed space (1 person) where the unit has a shower room, and 50sqm minimum GIFA for a single storey dwelling providing 1 bedroom and [site address] bed spaces ( [site address] person). The NDSS states that furnished layouts are not required to demonstrate compliance, albeit Class MA, paragraph W.( [site address] )(bc) of the GPDO requires a floor plan indicating the total floor space in square metres of each dwellinghouse, the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses.

There is no dispute between the main parties that proposed Flat [site address] would accord with the NDSS and from the available evidence, I have no reason to disagree. Dispute arises only in relation to proposed Flat 1 and its compliance with the NDSS.

The appellant indicates that the GIFA of Flat 1 would be 45.5sqm, while the Council indicates a slightly smaller GIFA of 43.5sqm. In either case, this would exceed the NDSS standard for occupation as a 1 bedroom, 1 person dwellinghouse, but it would fall short of the NDSS standard for occupation as a 1 bedroom, [site address] person dwellinghouse.

The Council has refused to grant prior approval, because the proposed bedroom serving Flat 1 exceeds the NDSS minimum standard for a double bedroom and so is of a size technically capable of accommodating two people. On this basis, the Council considers that the bedroom size creates the reasonable expectation that the unit could be occupied as a 1 bedroom, [site address] person dwellinghouse, requiring a GIFA of 50sqm overall.

However, the application plans clearly indicate that Flat 1 is proposed as 1 bedroom, 1 person dwellinghouse. In terms of what might be a reasonable expectation, while the bedroom within Flat 1 would exceed the minimum size of a double bedroom, this is only one aspect of the development, the flat overall would not meet the minimum size for a 1 bedroom, [site address] person dwellinghouse. The illustration of the plans with a double bed does not preclude single occupancy. The NDSS only seeks to ensure that the minimum standard of accommodation is met, it does not specify a maximum size limit for a bedroom in terms of occupation. I consider that the application documents clearly set out what is proposed, and I have made my decision on that basis.

As the application proposes Flat 1 to be a 1 bedroom, 1 bed space (1 person) dwellinghouse, it is compliant with the NDSS and the provisions of Article 3 (9A) (a) and (b) of the Order.

[name] have had regard to the appeal decision referred to by the Council in Tonbridge2, the proposal in that case sought planning permission for a HMO, it did not relate to development under the GPDO, and so the circumstances are not directly comparable.

[name] 1 were to be occupied by two people, then it would not be compliant with the NDSS and the provisions of Article 3 (9A) (a) and (b) of the GPDO. Article 3 of the GPDO is clear that Schedule [site address] does not grant permission for, or authorise any development of, a new dwellinghouse unless the NDSS is met.

In the circumstances where development is not authorised, then the Council has open to it, the use of its enforcement powers. I accept that monitoring the level of occupation would be difficult, but it would not be impossible. In these circumstances, a condition to control the level of occupation is not necessary, and in any event, paragraph W (13) of Schedule [site address] only allows the grant of prior approval subject to conditions reasonably related to the subject matter of the prior approval. Compliance with the NDSS is not one of the prior approval matters specified within Class MA, but a requirement of Article 3 itself.

The proposal would be near to, but it would not be within the [address] Conservation Area. The appeal scheme does not seek any significant external alterations to the proposal and given the residential character of the area, the proposed change of use to residential would not alter its predominant character. Therefore, the proposal would not impact adversely on the setting of this conservation area.

I have considered the Council’s suggested conditions relating to securing the submitted plans, cycle storage, and the provision of waste and recycling facilities. However, as paragraph W (13) of Schedule [site address] of the GPDO specifies that the development must be carried out in accordance with the details approved, and the approved plans are listed in my decision, further conditions to secure the provision of cycle and waste storage which are clearly shown on those plans, are not necessary.

For the reasons given above the appeal should be allowed and prior approval should be granted.