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Made it MA - New Class E to residential permitted development rights are here

Posted on 8 April 2021

From 1 August 2021 new permitted development rights (Class MA) will take effect, granting deemed planning permission for a change of use from commercial to residential.  These will replace existing retail, light industrial and office to residential rights with rights applying to all of the relatively recent Use Class E in which those uses now sit.

As with earlier PD rights there are prior approval rules limiting those areas where a council can object to the change on the grounds of transport, contamination, flooding, noise for new occupiers, natural light and impacts of living near industry.

Other qualifications apply such as a requirement for the building to have been vacant for at least 3 months.  Full technical details of the new right can be found here.

CIL & s106 obligations

Local planning authorities cannot secure planning obligations in respect of matters that are not the subject of the prior approval process. Crucially, and which has proved controversial with authorities in the past, class MA residential development does not attract any affordable housing requirements. However, s106 agreements can be used to provide mitigation of the prior approval matters set out above i.e. highways, environmental, flooding, noise etc.

While PD provides no exemption from CIL and the usual rules apply to Class MA development, in most cases the development will qualify for the in-use buildings exemption. There will be tension between this relief and the requirement for the building to be vacant which will put a premium on a "sweet spot" of recently vacated buildings.

Article 4 directions

The Government has made any existing article 4 directions that restrict office to residential permitted development rights (Class O) applicable to Class MA permitted development. Existing Article 4 directions in restricting Class O rights will be automatically extended to 1 August 2022 unless cancelled.

Our thoughts

The new rights are a leaner, more refined, version of what was originally consulted on back in December 2020. Following responses to that consultation the upper size limit, the requirement for two years qualifying use leading up to the date of the application for prior approval, and the three month vacancy requirement were all added. Despite outrage from some sectors the Government has clearly listened to the consultation responses.

However these new rights are not the complete package many think they are; the upper size limit which did not exist in old office-to-resi rights means that Class MA development will never result in the scale of conversion authorised under office to residential PD despite more generous limits elsewhere. Some of the newer prior approval rights could also be interpreted as quite subjective allowing greater scope for authorities to withhold approval of scheme they may not like.

Also, it should be noted that permitted development addresses only the change of use. Any operation development required to facilitate that change of use (be it access / means of escape, signage or something more drastic) will all require planning permission - and to be "building beautiful".

Disappointingly for many clients, the rights remain limited to C3 dwellings, there is no scope to use the Class MA right to create new C4, small HMOs,

The potentially revolutionary effects of Use Class changes last year have not yet really shaken out due to Covid-19. Where vacancies have arisen for the same reason, we may find the uptake of these new rights to be a lot swifter.

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