Back To Big: Amended Class MA

My 13 February 2024 blog post The RUBR Hits The Road: Residential Urban Brownfield Regeneration covered the various announcements by the Secretary of State that day. But, of course, that afternoon also saw the loosening of significant restrictions on existing permitted development rights to convert commercial buildings into residential use.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024 comes into force on 5 March 2024.

It makes two major changes to the class MA right (class E commercial, business and service uses to class C3 residential use) that came into force on 21 April 2021. First, the 1,500 sq m floorspace upper limit for building changing use under the right is removed. Secondly, the removal of the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval.

This has been a topsy turvy ride.

First of all, of course, from 2013 class O allowed conversion of offices to residential with relatively limited matters in respect of which the local planning authority could require prior approval and with no limitation on the size of building that could be converted (initially a temporary mechanism that was made permanent in 2015). In 2017 new permitted development rights were introduced to enable conversion of light industrial buildings as well as those falling within the old use A1 and A2 use classes (500 sq m and 150 sq m respectively).

Once the new commercial use class E was introduced by way of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (in force from 1 September 2020), the Government consulted on various proposed new permitted development rights, including the right “for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

So at that point the Government was considering not imposing any floorspace limitation. However the Government listened to the outcome of that consultation process. From its consultation response (31 March 2021):

“Question 1: Do you agree that there should be no size limit on the buildings that could benefit from the new permitted development right to change use from Commercial, Business and Service (Class E) to residential (C3)?

10 There were 711 responses to the question, with strong opposition to the proposal. Less than a third were supportive of there being no size limit to the right.

11. Views were expressed as to the impact the measure might have on the viability of the high street. For instance, if it encouraged large numbers of residents to move into the area, this would place additional demands on local services, schools, traffic and parking. It was also suggested that this right could support a trend towards ‘out of town’ shopping while town centres became more residential. Views were expressed about the economic impact that the loss of larger commercial units could have on an area. It was also suggested that the lack of size limit could have far reaching and unintended consequences for local areas and could change the character of those areas. There were some suggestions that there should be a size limit, including that it applies only to ‘smaller shops’.

12. Other respondents felt that the right allowed for the more effective use of buildings, addressing the decline in retail, and changing ways of working, and that a size limit would inhibit such development. There was a view that the change of use of vacant buildings should be supported. Some stated that the policy would result in the loss of neighbourhood parades of shops and local facilities, with a threat to “20 Minute Neighbourhoods” – that is, places where residents have easy, convenient access to many of the places and services they use daily. Views were also expressed as to the potential loss of health services, nurseries and day centres and what impact this might have.”

“47. Reflecting responses to Question 1 that the right should only apply to smaller buildings, the right will provide for up to 1,500 sq m of floorspace to change use. To go further, reflecting comments on the potential impact on business, the building must have been vacant for at least three continuous months. This will help focus the right on smaller buildings that may more easily change use, and which are already vacant, thereby protecting existing businesses. Larger buildings may continue to be brought forward for redevelopment under a planning application, and in such cases may attract affordable housing.”

Accordingly, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 which came into force on 21 April 2021 imposed a cap of 1,500 sq m on the floorspace that could be converted within a building as well as the requirement that the floorspace should have been vacant for at least three months leading up to the date of the prior approval application.

There was then a further consultation last year on “additional flexibilities to support housing delivery, the agricultural sector, businesses, high streets and open prisons; and a call for evidence on nature-based solutions, farm efficiency projects and diversification” (24 July 2023):

“21. The permitted development right currently allows up to 1,500 square metres of Commercial, Business and Service use to change use to residential; this could allow, for example, the delivery of up to 20 two bed homes. To provide greater flexibility for owners and support housing delivery, it is proposed that the right is amended to allow more floorspace to change to residential use. Increasing the cumulative floorspace that may change use in an existing building could have significant benefits for housing delivery, particularly for larger sites. We are seeking views on whether the size cap should be doubled to 3,000 square metres or removed to provide no limitation on the amount of floorspace that can change use.”

“22. The existing permitted development right requires that the premises be vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval. This was introduced to safeguard against businesses being displaced. However, we believe the requirement may be ineffective and could result in property being left vacant for longer periods. In order to provide greater flexibility for owners, enable more premises to change use, and therefore to deliver additional homes, it is proposed that this vacancy requirement is removed.”

The latest changes are the outcome of that consultation although we don’t have any analysis yet of the consultation responses and what may have changed so decisively between the 2021 and 2023 consultation processes. Last week’s statutory instrument was accompanied by an explanatory memorandum  and there is no more detail as to the background to the latest changes than this:

“7.1 Permitted development rights have an important role to play in the planning system. They are an important tool to support growth by providing certainty and removing the time and money needed to submit a planning application. Permitted development rights can incentivise certain forms of development and provide flexibilities and planning freedoms to different users, including businesses, local authorities and local communities.

7.2 There are a number of permitted development rights that allow for the change of use from a variety of existing uses to dwellinghouses. These rights make an important contribution to housing delivery. In the eight years to March 2023, permitted development rights for the change of use have delivered 102,830 new homes to rent or to buy. In the last year 9,492 homes were delivered under these rights, representing 4% of overall housing supply.”

“10.2 There were just under 1,000 consultation responses received. The Government response to the consultation will be published in due course. A summary of responses to the relevant Class MA questions is provided below.

10.3 The consultation sought views on either removing or doubling the limit on the cumulative floor space of an existing building that can change use. Those that supported removing or doubling the floor space limit cited positive impacts on housing supply, with greater flexibility and planning certainty encouraging the delivery of dwellinghouses that might not otherwise have come forward under a planning application. Those that did not support amending the floorspace limit thought that larger schemes would benefit from local authority consideration under a planning application owing to the greater number of planning matters that can inform the decision making process. It was also noted that the permitted development right could impact on the quality of housing delivered.

10.4 The consultation sought views on removing the requirement that a building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval. Those that supported the removal of the vacancy requirement considered that it would streamline the permitted development right for the change of use of commercial, business and service uses to dwellinghouses, speeding up housing delivery, and avoiding unnecessary periods of vacancy. Those that did not support the proposal were concerned that removing the vacancy requirement would result in viable businesses closing or being displaced.”

So, in summary, as from 5 March 2024 any building which has been in lawful class E use for at least 2 years prior to the submission of the prior approval application, may be converted to residential use, as long as various protective designations do not apply, and as long as (if required by the local planning authority) prior approval has been obtained as to:

“(a) transport impacts of the development, particularly to ensure safe site access;

(b) contamination risks in relation to the building;

(c) flooding risks in relation to the building;

(d) impacts of noise from commercial premises on the intended occupiers of the development;

(e) where—

(i) the building is located in a conservation area, and

(ii) the development involves a change of use of the whole or part of the ground floor, the impact of that change of use on the character or sustainability of the conservation area;

(f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

(g) the impact on 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 and distribution, or a mix of such uses; and

(h) where the development involves the loss of services provided by—

(i) a registered nursery, or

(ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006

the impact on the local provision of the type of services lost.”

The Government’s nationally described space standards must also be met.

By way of reminder, these class MA conversions are not of course subject to requirements as to affordable housing and contributions to schools, health provision and so on.

Desperate measures! No doubt some authorities will contemplate a protective rear-guard action by way of introducing further article 4 directions, although DLUHC has been vigilant in modifying those orders which it considers are wider than is appropriate.

Simon Ricketts, 17 February 2024

Personal views, et cetera

extract from photograph by Sergei Wing via Unsplash