Keeping it Class E: the Regs are out!
Just before Easter Nicola wrote about a MHCLG Announcement detailing that at a new set of permitted development rights for Class E to Residential would be laid before parliament. The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 is now out!
It was laid before Parliament on 31 March 2021 and comes into effect on 21 April 2021 with its principle effect - introducing a new class MA into the GPDO; granting deemed planning permission for change of use from commercial and business use (class E) to residential (class C3), taking effect from 1 August 2021. I don't want to repeat what Nicola has already said, just to add what is now clearer with the regulations now available.
The new Class MA is principally created by Regulation 6 which inserts the new Class MA after Class M of Part 3 of Schedule 2.
Article 4 directions
Reg 6(1)(g) makes it very clear that only Article 4 directions restricting Class O (office to resi) are carried forward with the transitional arrangements. The transitional period is also extremely tight too - ending on 1 August 2022. The period between an Article 4 direction being made and then confirmed is usually 1 year (to avoid compensation being payable by the LPA) but this does not take into account the work needed behind the scenes to put them in place.
This means that, in my view, any Article 4 direction which was aimed at Class M (retail, takeaway, sui generis etc to resi) PD rights which survive in the new Class MA, does not survive and there will be a period of of time before those Article 4 directions can be re-issued, if they are still required. Alternatively it is an example of the prescriptive drafting Nicola warned about which could cause confusion.
Three month vacancy requirement
No specific drafting is included to heed against unscrupulous landlords simply giving early notice. Nor are additional definitions provided to distinguish between a true vacancy and a COVID vacancy; or are the government expecting everything to be fully back to normal by 1 August 2021?
Long use provision
Thankfully the drafting does clarify this one. Reference is made to the A1-A3, B1 etc uses prior to Class E coming in and the period of use must be continuous.
Prior Approval
MA.2(2)(g) introduces a Prior Approval consideration of 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 which was not mentioned in the government announcement.
This is an important consideration of the agent of principle but in my view does not go far enough in respect of how other town centre users may (or may not be) good neighbours.
What else?
Reg 4 replicates the previous constraints which run through Schedule 2 (Part 1) (development within the curtilage of a dwellinghouse); such that none of the dwellinghouses created by Class MA benefit from the usual PDR to extend or improve etc.
New Regulation MA.2(6) - that any dwellinghouse created by Class MA is to remain in use as a dwellinghouse within the meaning of Class C3 and for no other purpose is a clear closing of the loophole allowing HMO's to evolve from PD conversions to residential.
Regulations 5 & 7 respectively provide sunset clauses to Class M (retail, takeaways and specified sui generis uses to dwellinghouses) and Class O (office to residential); in that the application for Prior Approval has to be made on or before 31 July 2021. This is in line with the transition arrangements in Regulation 3 of the The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 No. 757.
Whilst Class M was limited to 150sqm, Class O was not and as such the effect of this standardising is a substantial curtailing of the office to resi PD right. This is also puts an end to the PD right for the residential conversion of betting offices and pay day loan shops.
Regulation 13 specifically removes from Class E "use as a swimming pool or skating rink" and protects it in Class F.2 as a local community use.
So what?
A lot is being made of the new Class E being broader than ever before, in my view it can be summarised thus: -
- Old Class D uses are new to the concept of resi conversion under PD rights - will the 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 be enough to protect all of the services introduced to this conversion right? Whilst many nurseries and health centres may have been paid for by s.106 contributions, so to may the sports provision which used to sit in Class D2(e).
- Old Class A uses are not new (allbeit some retail now sui generis uses have lost their right to convert). Those that have retained have had the floor space allowance increased ten fold, what difference will this make?
- Old B1 uses are now new at all but the introduction of a 1,500 sqm cap is a huge curtailing of that right.
The right also includes ... a vacancy requirement that will ensure the building changing use has been vacant for 3 months ... to protect successful businesses in these premises. A size limit will also be included of 1,500 square metres of floorspace ... to focus the right on medium sized high street sites which are more likely to be suitable for conversion.”
