Against the backdrop of the pandemic, the government created a new use Class E 'commercial, business and service' category from 1 September 2020, to make it easier for high street premises to change use without the need for a planning application. The aim was to facilitate a wider range of commercial, retail and leisure uses commonly found in town centres adapting to changing circumstances and respond to the needs of their local communities.
Subsequently, in December 2020, the government issued a consultation until January 2021 which sought views on separate proposals on, (1) supporting housing delivery through a new national permitted development right (PDR) for the change of use from the new use class E to residential, and (2) supporting public service infrastructure through the planning system, as well as consolidation and simplification of existing PDRs. You can read our briefings on the consultation proposals here: Supporting public service infrastructure delivery and Supporting housing delivery with a new national permitted development right.
The government's response to the consultation indicated that it would broadly implement its proposals with some changes and further detail is provided below.
Supporting housing delivery through a new national PDR for the change of use from Class E to residential
The new Class MA right will be subject to prior approval by the local planning authority on specific planning matters and will apply, in summary, to buildings:
- that have been in a Class E use for two years
- that have been vacant for at least three continuous months pre prior approval application
- in conservation areas, but not in other article 2(3) land including National Parks, AONBs and SSSIs. There are also some restrictions in place if the land is subject to an agricultural tenancy.
The right will be subject to a size limit of 1,500 sqm of floorspace changing use. The current Class O right places no limit on the size of buildings to be converted and the consultation also suggested there would be no size limit. However, the government is placing a limit on the size of the buildings that can be converted as a result of consultation comments received and to focus the right on medium-sized high street sites which are more likely to be suitable for conversion.
The new Class MA right replaces two existing commercial to residential PDRs; the Class O right, and the Class M right allowing A1 shops and A2 financial and professional services to convert to residential. The explanatory memorandum states that the existing rights for the change of use from offices and from retail to residential will continue to apply until 31 July 2021, and the legislation prevents applications for prior approval under these two rights being made after 31 July 2021. The current Class M right also allows the conversion of take-aways, betting offices, pay day loan shops and launderettes, which will not be allowed under the new class MA.
To deliver the changes, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 will introduce revisions to the Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO). The changes will apply in England and while the regulations are due to come into force on 21 April 2021, the new PDR will have effect, in England, from 1 August 2021. Applications for prior approval may be submitted on or after that date for a fee of £100 per dwelling house, up to a maximum level of £5,000. The fee will be introduced by separate secondary legislation at the first available opportunity. Development must be completed within a period of 3 years starting with the prior approval date.
Applicants will need to demonstrate that premises have been in Class E use for at least two years before the application. Class E was only introduced on 1 September 2020 and the explanatory memorandum clarifies that time served in former use classes but now in Class E will count towards those two years, (former use Classes A1/A2/A3/B1/D1(a)/D1(b)/D2(e)).
A three-month vacancy requirement has been introduced, but the time that the premises is closed as a result of Covid-19 restrictions will not count towards this period where the building continues to be occupied by the owner or tenant. The SI's explanatory memorandum states that as a result of concerns raised during the consultation about the impact on thriving business, applicants will need to show that the Class E building has been vacant for three continuous months immediately before the date of application for prior approval.
Applications to ascertain whether prior approval is required and which can’t be made before 1 August 2021 will need to include a floor plan indicating the total floor space in square metres of each dwelling house. Note that from 6 April 2021 the government's minimum space standard will apply to any schemes which are the subject of a prior approval application.
The local planning authority is required to serve notices on any adjoining owner or occupier and, where the proposed development relates to part of a building, on any owner or occupier of the other part or parts of the building.
The matters for prior approval set out in the consultation document are being taken forward as planned (see our briefing on the consultation). The new PDR will be subject to prior approval by the local planning authority on: transport impacts (particularly safe site access); flooding and contaminations risks to the building; noise from existing commercial premises; adequate natural light; and the impact on future residents from the introduction of residential use in an area which the authority considers is important for heavy industry, waste management, storage and distribution.
As a result of comments on the impact on residents from unsuitable locations, the proposed prior approval to consider the impact on future occupiers from the introduction of residential use in an area that is important for general or heavy industry, and waste management, is being expanded to include storage and distribution and may include a mix of such uses.
In response to comments raising concern over the potential loss of local services the prior approval process will in addition allow for the local consideration of the impact of the loss of health centres and registered children's nurseries on the provision of local services.
In conservation areas, a further consideration is the impact of the loss of ground floor commercial, business and service use on the character and sustainability of the area.
The explanatory memorandum clarifies that separate legislation later in the year will amend the right to introduce an additional prior approval in relation to the fire safety of the building changing use.
Article 4 directions
Note that where there are existing Article 4 directions (a process which disapplies certain permitted development rights), which currently restrict office to residential development under the Class O PDR, these will continue to apply until 31 July 2022. Further, the government consulted on a new policy for Article 4 directions in the recent consultation on changes to the NPPF. It is still considering responses to the consultation and has indicated that it will be issuing a response as soon as possible and including any changes to Article 4 policy.
Other changes contained in the regulations
The regulations also make a number of further changes which are covered in separate briefings. To help deliver improvements to public service infrastructure, the regulations also amend PDRs to allow for larger extensions to schools, colleges, universities, hospitals and, for the first time, prisons.
To protect heritage assets the regulations ensure that a planning application will always be required for the removal of unlisted statues, memorials and monuments which have been in place for 10 years on the proposed demolition date, subject to certain exceptions. Those exceptions are statues which are listed buildings or scheduled monuments, within cemeteries, on consecrated land, within the curtilage of places of worship or dwelling houses or in the grounds of museums and art galleries. Changes to the notification requirements will ensure that the Secretary of State is aware of applications and has the opportunity to call them in, if appropriate.
What effect may the new PDRs have?
The consultation proposals were much discussed when published and generated a large number of responses - just under 900 in total. While the government is implementing the proposals it has, we think, significantly limited the likely effect of the measures in practice and it appears that it has taken some of the concerns into account in the final regulations.
The amending regulations include a number of limitations which were not included in the consultation eg the vacancy requirement and the floor space limit. This will mean that in practice the new PDR will not be as far reaching as the proposals. The size limit will mean that the new PDRs will not apply to the larger office buildings and so we are unlikely to see a sudden rush on large town centre offices being converted to residential.
While the prior approval process does not allow the authority to secure mitigation, in practice, the size limit will mean any conversion would be of a very much smaller scale than conversions seen previously.
Development commenced under 'general consent' – which includes PDRs - is generally liable to pay the community infrastructure levy (CIL), unless an exemption or relief applies, in those areas where a CIL charge applies. Therefore if it is intended to commence development under the PDRs it will be necessary to submit a notice of chargeable development prior to commencing the development, unless the development is less than 100sqm of net additional gross internal area. As the upper limit for the new PDR is above 100sqm it is likely that the requirement to serve a notice may apply in at least some cases. The actual CIL liability will depend on the proposed development and if any relief or exemption applies. Note that the calculation of CIL and the application of reliefs and exemptions is complex and will require an assessment of the specific circumstances in each case. If the proposed development may qualify for relief or an exemption, it is advisable to contact the authority as soon as possible and before commencing development, as in most cases relief cannot be granted after development has commenced.
Additionally, subject to consideration of the impact of a loss of commercial space or retail, the new PDRs apply in Conservation Areas. Many town centres have a historic core and in many cases have relatively smaller commercial and retail units in those historic cores and this limitation may be there to mitigate against the loss of these units.
The safeguard that planning permission will also still be required for any external works which materially affect the buildings external appearance will also still apply.
The full consequences of the new Class MA are likely to become clear with more experience and this is something to keep an eye on. It is however unlikely that the changes will mean very much more than that in some cases new uses for redundant commercial floor space may be found. The loss of employment use may not be desirable, but it may be inevitable in some locations.
The above is a summary only and reference to the regulations should be made in each case and legal advice sought if appropriate. We will be happy to help and please do not hesitate to contact us, or your usual contact at Womble Bond Dickinson LLP.