Keeping it Class E: New Class E to Residential PD Rights to take effect on 1 August 2021
This morning, MHCLG announced that a new set of permitted development rights for Class E to Residential use will be laid before parliament today - the legislation is due to take effect on 1 August 2021.
I have not been able to track down the draft statutory instrument as yet,* but from the MHCLG Press Release it looks as if some significant changes have been introduced as a result of the consultation.**
Whilst the new PD right will still apply to all Class E uses, and is still intended to apply to conservation areas, there does appear to have been:
- a tightening of the conditions that will apply to it; and
- an extension of the types of matters that can be taken into account during the prior approval process.
Unlike the consultation draft version, the Class E to Residential PD Right that is being introduced, will be subject to:
- a vacancy requirement: the building changing use will have to have been vacant for at least 3 months prior to the date of the application;
- a size restriction: no more than 1,500 square metres of floorspace will be able to change use under the right;
- a long use restriction: the building must have been in Class E use for two years before benefiting from the right; and
- a new prior approval consideration that allows councils to consider the impact of the loss of health centres and registered nurseries on the provision of local services.
The previously suggested prior approvals are also to remain. These being:
- Flooding
- Impacts of noise from commercial premises; and the
- Provision of adequate natural light to all habitable rooms
The ability to consider the impact of the loss of the ground floor use to residential will remain a prior approval consideration solely in conservation areas.
Buildings that are converted to residential under the new right will also have to comply with space standards, which were introduced into the existing version of the GDPO last year (and which come into effect on April 6th).
Helpfully for Local Authorities, MHCLG have included transitional provisions for Article 4 Directions - although these appear to be limited to Article 4 Directions restricting the conversion of offices to residential uses - as opposed to residential conversions in a broader sense. It will, however, give many Councils some much needed breathing space, and the ability to at least try to get replacement Article 4 Directions in place before the transitional provisions expire next year.
In the words of the Press Release itself:
"Where there is an existing Article 4 direction on 31 July 2021 in respect of the change of use from offices to residential (under Class O) it will continue to have effect on equivalent development in respect of offices (now within the Commercial Business and Service use class) until 31 July 2022."
We will have to wait until we can get hold of the draft statutory instrument to see how these commitments have been translated into law. As, depending on how some of the new requirements have been drafted, I can already see some issues arising for them.
For example:
- The three month vacancy requirement may not be as strict a protection as the government envisages if it can be evaded by simply serving early notice on commercial tenants;
- The long use restriction could cause issues, if it has been drafted in relation to Class E itself (which has only existed since last September) as opposed to the individual use types contained within it; and
- The transition period for Article 4 Directions has the potential to cause confusion, if drafted too prescriptively.
Nonetheless, the revised version promised by this morning's press release does seem to be a much more workable version of the right than the consultation draft.
Some may consider this a small mercy, but it is one for which I, personally, am rather grateful.
* to be fair, it is 9.02am, so I should probably give them some time.
** which, on a personal basis, makes me feel much better about how much time it took to put our consultation response together!
The government is now introducing legislation for England to bring forward this right from 1 August 2021. The right will allow for local consideration by the local planning authority of specific planning matters through the prior approval process. These considerations include:
Flooding
Impacts of noise from commercial premises
Provision of adequate natural light to all habitable rooms
In conservation areas only - consideration of the impact of the loss of the ground floor Commercial, Business and Service use
Impact of the loss of health centres and registered nurseries on the provision of such local services
The right also includes a vacancy requirement that will ensure the building changing use has been vacant for 3 months before the date of the application to protect successful businesses in these premises. A size limit will also be included of 1,500 square metres of floorspace being able to change use under the right to focus the right on medium sized high street sites which are more likely to be suitable for conversion.”
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