Permitted Development Changes

THE END OF CLASS O – CHANGE OF USE FROM OFFICE (NOW PART OF CLASS E BUT PREVIOUSLY CLASS B1) TO RESIDENTIAL (CLASS C3) – AND THE NEW CLASS MA – CHANGE OF USE FROM COMMERCIAL, BUSINESS AND SERVICE (CLASS E) TO RESIDENTIAL (CLASS C3)

This article sets out details of the new permitted development right (Class MA) which allows for a change of use from commercial, business and service uses to residential use, subject to the receipt of Prior Approval from the local planning authority. These rights will apply to all buildings which fall within the recently introduced Use Class E.For ease of reference Class E includes:(a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public,(b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises,(c) for the provision of the following kinds of services principally to visiting members of the public—(i) financial services,(ii) professional services (other than health or medical services), or(iii) any other services which it is appropriate to provide in a commercial, business or service locality,(d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public,(e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner,(f) for a crèche, day nursery or day centre, not including a residential use, principally to visiting members of the public,(g) for—(i) an office to carry out any operational or administrative functions,(ii) the research and development of products or processes, or(iii) any industrial process.

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Headline Facts 

1. Class MA effectively comes into force on 1 August 2021. 2. The ability to utilise Class O permitted development rights will expire on 31 July 2021. That being the last date that such an application can be submitted. 3. Class MA has a restriction of 1,500 square metres of floorspace in a qualifying building. 4. Any Article 4 directions currently in place to restrict office to residential conversion will remain relevant in respect of Class MA until 31 July 2022.

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Details of the new Legislation 

1. As a result of the changes to the Use Classes Order in 2020, amendments have now been proposed to the General Permitted Development Order (England) 2015 (as amended) through Statutory Instrument 2021 No.428 which comes into force on 21 April 2021.2. These changes include the introduction of a new permitted development right, Class MA (Part 3, Schedule 2). This permitted development right effectively comes into force on the 1 August 2021, as that is the first date on which a Prior Approval application can be submitted.3. The new Class MA right allows for a range of commercial, business and service uses (Class E) to convert to housing without needing a planning application, but subject to the receipt of Prior Approval. Permitted development under class MA is simply for the change of use and does not allow for any external works.4. Permitted development rights are restricted if the building is a listed building (or land within its curtilage) scheduled monument (or land within its curtilage), safety hazard zone, military explosives storage area, within a SSSI, an AONB, World Heritage Site, National Park, The Broads or an area specified under section 41(3) of the Wildlife and Countryside Act 1981.5. Class MA does apply to buildings located in Conservation Areas, but Prior Approval allows for specific consideration to be given to the change of use of any ground floor space in those circumstances and impact on the character and sustainability of the Conservation Area.6. Class MA has a restriction of 1,500 square metres of floorspace within any qualifying building. As such proposals involving more than 1,500 square metres of office floorspace will need to be submitted under the existing Class O by the 31 July 2021.7. Class MA also has a three month vacancy requirement for buildings immediately before the date of application for Prior Approval and requires demonstration that a building has been in the qualifying commercial, business or service use for at least two years.8. Class MA will replace Class O which currently allows office to residential change of use (and part of Class M which allows change of use from A1 or A2 to residential). The existing rights for a change of use from office to residential under Class O will continue to apply until 31 July 2021, until after which point legislation restricts the submission of such an application.9. Any Article 4 Direction which is enforce to restrict the conversion of office to residential buildings will remain in force until the end of July 2022 meaning that Class MA will be restricted on buildings currently covered by Article 4 Directions.10. The fee for development under Class MA is understood to be £100 per dwelling created through the proposal, albeit legislation on this has not yet been introduced. This is in contrast to the £96 flat rate charged for Class O applications.11. Class MA requires Prior Approval from a Local Authority. Prior Approval allows for consideration of:a. Transport impactsb. Contamination riskc. Flooding riskd. Impact of noise from commercial premises on intended occupierse. Provision of adequate light in all habitable roomsThese are all matters which were previously considered under Class O.12. The following matters have also been introduced but these apply in more limited circumstances:a. The impact on the intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage  or distribution, or a mix of such uses.b. In Conservation Areas and where the development involves a change of use of the whole or part of the ground floor, whether the change of use, will impact on the character and sustainability of the Conservation Area.c. Where the development involves the loss of services provided by a registered nursery, or health centre the impact on the local provision of the type of service lost.

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Initial Comments 

These new permitted development rights provide more flexibility for the owners of commercial premises without the need for full planning permission. As we have previously mentioned, there are still a lot of limitations and conditions related to the Prior Approval process that now includes matters which require subjective judgement, and therefore do not necessarily allow for a ‘light touch process’ which was the purpose of the Prior Approval regime.Whilst the 1,500 square metres of floorspace cap will potentially slow the loss of office space it leaves questions as to the impact on and how to deal with the remaining floorspace in larger office buildings. In so far as the cap applies to retail (and other uses within Class E) premises on high streets and in town and city centres there is no requirement to consider the impact of the loss of active frontages on vitality and viability etc (save for in Conservation Areas where impact on character and sustainability of the Conservation Area are for consideration). This will likely result in a reduction in active frontages with a profound impact on the appearance of centres.Like any other PD works, CIL liability (subject to exemptions and reliefs) will be applicable (if applicable in a given area) but affordable housing will not be. National Described Space Standards will also apply and approvals will have a 3 year lifespan.For further information, please contact the authors: Paul Brailsford or Liz Young.