Appeal 6004923

The appeal is allowed and prior approval is granted under the provisions of Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for ‘Change of use of ground floor (part) and lower ground floors from Class E to 2 flats (2x1bedroom/1person)’ at [site address] in accordance with the application Ref 2025/01507/PMA56, and subject to the details submitted with it and the following additional condition:

The dwellings hereby approved shall not be occupied until the completion of works approved under planning permission 2024/01644/FUL granted by the Council of the London Borough of Hammersmith and Fulham on 28 November 2023.

A planning obligation by way of a unilateral undertaking (UU) pursuant to section 106 of the Town and Country Planning Act 1990 (as amended) has been submitted with this appeal. This relates to securing the removal of the ability for future residents to apply for parking permits with the exception of blue badge holders. I return to this matter later in this decision letter.

Development plan policies and sections of the National Planning Policy Framework (the Framework) are referenced in the reason for refusal relating to transport in the decision notice. These can be considered relevant in this type of prior approval case, but only insofar as they are material considerations and relate to the development and prior approval matters. They have therefore not been determinative but are considered where relevant.

Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO) sets out that development consisting of a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) of Schedule 2 to the Use Classes Order to a use falling within Class C3 (dwellinghouses) of Schedule 1 to that Order is permitted development subject to certain conditions and limitations.

Section MA.1 sets out the limitations while section MA.2 gives the conditions required for a proposal to be compliant with this class and therefore permitted development. There is no dispute between the main parties that the proposal meets the limitations listed. I see no reason to question this.

The main issues in this appeal are therefore as follows: • Whether the proposal would constitute permitted development under Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO). • Whether prior approval is required as to the impacts of transport and flood risk in relation to the building.

Under Class MA, external alterations to the appeal building are not permitted. The Planning Practice Guidance (PPG) advises that where associated physical development is required to implement the change of use in prior approval applications, developers will need to consider whether it constitutes development and ensure they have planning permission if necessary1.

I note the Council’s contention that the appeal scheme relies on the full implementation of the approved planning application2, and at the time that the application which is now under appeal was determined, it was not completed. In particular, it is claimed that the formation of a large rear lightwell and new openings in the rear elevation are essential to provide natural light and ventilation. Although the Council does not reference this explicitly in the reason for refusal, this would be contrary to the condition given in section MA.2(2)(f).

Both main parties have provided photography which shows the rear elevation of the appeal building part way through works which appear to show the installation of doors, windows and an external staircase. I have not been provided with the drawings and plans for the approved planning application although I do have the decision notice. The works shown in the photos would appear to relate to what is described in the decision notice. Although the Council considers that the external alterations should be substantially complete before any change of use could be approved, as per the PPG, I see no reason why the implementation of other works 1 Paragraph: 055 [name]: 13-055-20140306 2 Ref:.2023/01644/FUL – ‘Excavation of part of the rear garden to form a lightwell; formation of 2no. new door openings and the installation of 2no. crittall glazed doors, to the rear elevation of the existing basement; erection of external staircase from the rear lightwell to the rear garden; replacement of existing door with new window, to the rear elevation at ground floor level.’ (the existing planning permission) approved under a different application should mean the proposal conflicts with the GPDO as a result.

Moreover, the existing and proposed plans submitted with the appeal show no changes to the rear other than those permitted by the existing planning permission. As such, the details submitted with it in the event that prior approval was granted would not allow any external alterations, in accordance with the limitations and conditions stated under Class MA. As the Council has not defended its position in this appeal, there is nothing before me to indicate that external changes form part of the application for prior approval. Were it to be the case that works have been carried out contrary to the previous grant of permission or outside of the scope of the change of use allowed under Class MA, suitable action should be taken by the Council to rectify this.

Based on the evidence before me, the proposal would not involve external changes that are not authorised by an existing planning permission. As such, it would not conflict with Class MA of Part 3, Schedule 2 of the GPDO in this respect.

The appeal building is located in a [name] (CPZ) and is evidently scored as a 3 on the Public Transport Availability Level (PTAL) scale. The Council therefore required that the development would be car-free to ensure no increase in off-street parking pressure locally other than for blue badge holders.

This would be secured by a UU, which the Council advises was not present at the time the decision was made. The appellant disputes this, although for the avoidance of doubt I do have a UU before me which would secure these provisions. To my mind this would satisfactorily address this matter, and the proposal would meet the condition given in section MA.2(2)(a) of Class MA, Part 3 of Schedule 2 of the GPDO. This would also comply with policy T4 of the Hammersmith and Fulham Local Plan (adopted February 2018) (LP) which states that the council will also require car parking permit free measures on all new development unless evidence is provided to show that there is a significant lack of public transport available.

Section MA.2(2)(c) of Class MA requires a determination as to whether prior approval is required as to the impacts of flooding risks in relation to the appeal building. The site is in [name] 1, which indicates a low risk of flooding. Again, the Council advises that it did not receive an assessment of flood risk with particular regard to groundwater and sewers not being adequately assessed. The relevant conditions of the GPDO do not require regard is had to the drainage strategy of a proposed change of use under this regime.

The Flood Risk Assessment3 (FRA) submitted with the appeal advises that risk of flooding from all sources is generally low, and the development can be operated safely and without significantly increasing flood risk elsewhere. There are some mitigation measures proposed and subject to these being implemented, and in the absence of evidence to the contrary, this would accord with section MA.2(2)(c) of Class MA of Schedule 2, Part 3 of the GPDO. 3 JM Enviro Limited Environmental Consulting – July 2025

There is much discussion regarding whether the application was determined within the required period following numerous extensions to the statutory 56 days which initially began following receipt of the application by the Council. [name] had regard to the solicitor’s letter4, it was not necessary for me to take a view on this argument given I consider the proposal to be permitted development and therefore in accordance with the requirements of Schedule 2, Part 3, Class MA of the GPDO. As such this was not determinative.

Section W(13) of Part 3 of the GPDO allows for the grant of prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval. Section W(12) states that development must be carried out in accordance with the details approved by the local planning authority where prior approval is required. It is not therefore necessary to add a condition specifying the approved plans and documents, although approval is subject to them and adherence to the submitted UU and FRA.

Development under Class MA is specifically permitted subject to conditions at [name].2.(5) and (6) which include that the development must be completed within a period of 3 years starting with the prior approval date; and that any building permitted to be used as a dwellinghouse by virtue of Class MA is to remain in use as a dwellinghouse within the meaning of Class C3 of Schedule 1 to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the use as a dwellinghouse.

The Council has not suggested any additional conditions be attached to a grant of prior approval in the event that the appeal is allowed. However, for clarity I have attached a condition to specify that the dwellings are not occupied until the physical changes approved under application reference 2023/01644/FUL have been fully implemented. This is to ensure the change of use is carried out in accordance with section MA.2(2)(f).

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