The Planning and Development (Amendment) (No.2) Regulations 2018 (SI 30/2018) (“the Regulations”) came into operation on 8 February 2018 and are an important set of regulations for commercial property owners to be aware of.
The Regulations provide an exemption from the requirement to obtain planning permission for change of use of certain vacant commercial premises to residential use, albeit with a number of caveats.
The Regulations were introduced in an attempt to bolster government policy in relation to housing issues in the State and were designed to re-use vacant commercial buildings as homes, to facilitate urban renewal and increase the supply of housing available more generally.
To avail of the exemption, the structure, or part of the structure requires to have been vacant for at least two years immediately prior to the commencement of the works required to change or adapt the premises.
Whilst initially this exemption was limited to works being completed by 31 December 2021, this was extended by way of SI 75/2022 to cover works to be completed by 31 December 2025. This is a very helpful extension which was in particular sought by a number of charities who have been in a position to obtain housing for those urgently requiring same.
There is no definition of “vacant” in the Regulations (nor the subsequent SI 75/2022), however same should be given its natural and ordinary meaning which suggests the property is empty and not being used. This is particularly timely in a post-Covid world where small and struggling businesses may have ceased trading circa March 2020 and vacated the premises. In those circumstances the two year threshold has been met by now. In this regard it would be prudent for property owners who are intending to avail of this exemption to prepare an affidavit in relation to the vacant status of the building which may be relied upon should a query be raised by a Planning Authority or otherwise.
As with every form of regulation there are conditions and/or limitations attached to same. It is suggested that it would be prudent to take architectural / engineering / planning advice on the technical aspects of these conditions.
The conditions include the below:
- The works required should be mainly to the interior of the building with limited external works being permitted which should be in keeping with the building and neighbouring buildings, including the provision of on-street access to upper floors and alterations to existing ground floor shop fronts in respect of window and architectural details.
- Works to the ground floor of a structure should not conflict with an objective in a development plan for the structure to remain in retail use, with the exception of works solely for the provision of on-street access to upper floors.
- No more than 9 individual residential units can be provided in a building.
- Minimum standards apply to residential units being developed such as minimum requirements in relation to overall floor areas, storage space requirements and the need for adequate natural light in living rooms and bedrooms.
- Works to a protected structure are not permitted.
- Works for the provision of on-site wastewater treatment and disposal systems i.e. septic tanks, are not permitted under the exemption.
- Works are not permitted in a number of limited areas, such as areas of special planning control, areas to which special amenity area orders relate and within certain proximity distances of establishments to which the major accident regulations apply.
- There is provision for issues such as bats and nesting birds which are protected by EU legislation.
- The development must not contravene a condition attached to a prior planning permission obtained.
The appropriate Planning Authority must be notified in writing of the details of the development at least two weeks prior to the start of the proposed change of use works and specifically the Eircode of the property must be provided.
Understandably, the requirement to comply with the building regulations code is not exempted per the Regulations.
On completion of the works it would appear to be good advice to seek a Certificate or Opinion from an architect or engineer confirming that the change of use is exempt and this could be retained with title deeds for future reference.
Professional advice should always be taken before acting on any of the matters discussed. Please contact a member of our team should you wish to discuss this topic further.