Changes to use classes and permitted development rights

Permitted development rights (PDR) can be a quicker, simpler and cheaper way of securing consent to carry out development. Several changes have been made to the PDR regime, in part to reflect last year’s changes to the Use Classes Order in England.

Those changes last September significantly amended the categories of land uses. This saw a number of the former distinct and standalone use classes (including retail (Class A1), financial and professional services (Class A2), restaurants and cafes (Class A3), business (Class B1) and some non-residential institutions (Class D1) and assembly and leisure (Class D2) uses) merge into one new and expansive use Class E – commercial, business and service uses. Consequently, shops, offices, medical centres and gyms all now fall within the same use class.

Quite aside from PDR, this means that development with an authorised Class E use will have much more flexibility to change to another use within Class E without the need for planning permission. This applies provided that no building work is needed to bring about the change, and subject to any conditions on the existing planning permission to restrict the use.

The PDR regime takes the position one step further and authorises development without the need for a planning application (but, in some instances, subject to the prior approval of certain limited points) providing certain conditions are met.

From 1 August 2021 in England, new PDRs will come into force to reflect the ‘new’ use classes, in particular, Class MA, which authorises a change of use of any building and land within its curtilage from a use falling within Class E to a use as a dwelling-house.

This also means that those PDR which applied in respect of the ‘old’ (pre-1 September 2020 use classes) will no long have effect from 31 July 2021, namely:

• Class O, which authorises a change of use from office to residential use subject to prior approval and meeting certain requirements
• Class M, which authorises a change of use from shops, financial and professional services, hot food takeaways, betting offices, pay day loan shops and launderettes to residential use subject to prior approval and meeting certain requirements.

This is by no means a straightforward swap, and there are some important differences between the outgoing Classes O and M and the incoming Class MA. In relation to office uses in particular, the Class MA requirements are likely to be more onerous – not least because of the introduction of a cap of 1,500sqm of existing floorspace to be converted. This could lead to a flurry of Class O prior approval applications being submitted before 31 July 2021.

The most obvious difference is, of course, that Class MA will, in principle, be available to many more buildings than the current Classes O and M. However, from 1 August 2021 there will not be a PDR to permit a residential conversion of a hot-food takeaway, betting shop, launderette or pay day loan shop, so planning permission will be needed in those instances.

Prior approval will still need to be obtained from the local planning authority to rely upon Class MA but the need for a retail impact assessment (as in place under Class M) will no longer apply.

However, there will be several additional points for the local planning authority to consider when determining a Class MA prior approval application, including:

• the impacts of noise from commercial premises on intended occupiers
• the impact of introduction of a residential area into an area considered by the local planning authority to be important for general or heavy industry, waste management or storage and distribution uses
• the impact of the loss of local provision of a registered nursery or health care.

Significantly, Class MA also introduces a new requirement that the building to be converted has been vacant for at least three months leading up to the prior approval application.

In a more consistent fashion, Class MA applies only to the change of use. Planning permission will still be required for any building works to facilitate the conversion. But, given the recently introduced statutory requirement to provide adequate natural light, this calls into question how many conversion-ready buildings are likely to be able to benefit from Class MA.

The requirement that the development permitted by any prior approval must be completed within three years of grant is also retained, so developers will have to act fast. A Class MA prior approval is likely to be much cheaper than an application for planning permission, as fees are limited to £100 per dwelling house, to a maximum of £5,000.

Local planning authorities can remove Class MA PDR by way of an Article 4 Direction and any existing Article 4 Directions in effect in respect of Class O will continue to apply until 1 August 2022. This is intended to give local planning authorities the time to introduce a new Class MA Article 4 Direction, should they wish to do so.

It has been suggested that these changes have a role to play in the government’s ambition of creating 300,000 new homes per year; is the PDR regime the most appropriate mechanism to address this issue?

Unfortunately, it is unlikely that Class MA will make a meaningful dent in the housing deficit and there are perhaps greater concerns as to the potential impact of Class MA on the high street and the recovery of the high street following the Covid-19 pandemic. However, the Class MA taking effect later this year is a tempered version of the consultation draft and initial indications are that this will reduce the impact on the high street but also diminish its likely uptake.