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

Posted on 08 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, warehouse and office to residential rights with rights applying to all of the relatively recent Use Class E in which those uses now sit.

Class MA permitted development is subject to the following qualifications:

  • an upper size limit of 1,500 square metres of floor space changing use;
  • applicable only to buildings that have been in Commercial, Business and Service (Use Class E) uses for two years (including time in former uses now within that class);
  • applicable only to buildings that have been vacant for at least three continuous months;
  • applicable in conservation areas, but not in other Article 2 (3) land such as National Parks and Areas of Outstanding Natural Beauty;
  • subject to prior approval by the local planning authority on specific planning matters (more on this below);
  • attract a fee of £100 per dwellinghouse.

Prior approval and procedural requirements

As with earlier permitted development (PD) rights there are prior approval rules limiting those areas where a council can object to the change on.

For Class MA development these grounds are:

  • the transport impacts of the development, particularly to ensure safe site access;
  • any environmental contamination risk;
  • any flooding risks;
  • the impacts of noise from commercial premises on the intended occupiers of the development;
  • the provision of adequate natural light in all habitable rooms; and
  • 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.

The following three matters also apply although only in more limited circumstances:

  1. the impact on intended occupiers of the development of the introduction of residential use in an area the local planning authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses;
  2. Where the building is located in a conservation area, and 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; and
  3. Where the development involves the loss of services provided by a registered nursery, or health centre the impact on the local provision of the type of services lost.

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.

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