New Permitted Development Right from Class E to Residential Use

The Government has confirmed that it will be introducing a new permitted development right (“PDR”) allowing the conversion of Class E uses (commercial, business and service uses) to Class C3 residential use without the need for planning permission following the consultation on this change which closed in January 2021. This builds on the flexibility created by the introduction of the new Class E in September 2020 and will create more opportunity for the re-use of existing vacant units in a changing and uncertain market still grappling with the fallout from Covid. The new PDR replaces the two existing commercial to residential PDRs under Class O (office to residential) and Class M (conversion of shops, financial services, betting offices and pay day loan or mixed uses to residential) which will continue to apply until 31 July 2021.

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 introducing the new PDR under new Class MA will come into force on 21 April 2021 although the PDR will be introduced on 1 August 2021 and contains conditions and limitations informed by the consultation responses. Three new constraints include the following:

Vacancy Requirement

The PDR applies to buildings which have been vacant for at least 3 continuous months immediately prior to the date of the application for prior approval. This requirement was introduced to protect existing business in the premises.

Size limit

The PDR will not apply to buildings with a cumulative floor space of more than 1500 square metres. Buildings above this threshold will require a planning application to change their use.

Minimum 2 Years in Class E

The PDR will only apply to buildings which have been in Class E use (or prior to 1 September 2020 any predecessor use class A1, A2, A3, B1, D1(a), D1(b) or D2(e)) for a continuous period of at least 2 years prior to the date of the prior approval application. This condition was introduced to prevent “gaming” of the planning system.

Other Limitations

Prior approval will be required before development under Class MA can commence and an application for prior approval can be made after 1 August 2021. The development must be completed within 3 years of the prior approval date and a fee of £100 is payable per dwelling converted under the PDR. The matters that require prior approval are similar to other PDRs for the change of use to residential and include transport, contamination, flooding, noise, adequate natural light in habitable rooms and the impact on future occupiers of the development in an area where industrial, waste management, storage and distribution uses are located. Where the development involves the loss of a registered nursery or health centre, the impact on the local provision of these services is subject to prior approval. Where the building is in a conservation area and involves the change of use of the whole or part of the ground floor, prior approval of the impact of the change of use on the character or sustainability of the conservation area is required.

Exclusions

Listed buildings are excluded as are sites of special scientific interest, sites that contain scheduled monuments, safety hazard areas and military explosive storage areas. Agricultural tenancies are excluded unless the express consent of both the landlord and the tenant has been obtained.

Areas of outstanding natural beauty, land specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981(a), the Broads, a National Park, or a World Heritage Site are also excluded.

A changing High Street

When the new PDR takes effect, shops, restaurants and cafes, banks, estate agents, nail bars, doctors’ surgeries, crèches and gyms will all be able to be change into residential units without the need for planning permission. The Government is hoping that that the new PDR will help to attract footfall to the high street whilst allowing it to respond to the changing market and create new homes but the proposals are not without controversy. The RTPI, RIBA, CIOB and RICS have all requested the Government to reconsider the new PDR which they consider “present a risk for our nation’s town centres and small businesses” just as they prepare to re-open and risks the delivery of poor quality housing outside of the normal planning process and without the usual community engagement. The National Trust have also expressed disappointment that the PDR will apply in conservation areas “where extra care should be taken to safeguard local history and beauty”. One thing is for certain – the high street and the retail experience as we know it will like everything else have to find its “new normal” post Covid.

Brecher