Permitted Development - Saviour of the High Street?

The law comes into force on 1st August 2021.

The introduction of Class E last summer was the most radical change to the planning system to date but the Government have almost super charged this, by now going even further and enabling commercial buildings in Class E to become residential through permitted development. As a reminder Class E is a general “commercial, business and service” use class covering retail, food, financial services, gyms, healthcare, nurseries, offices and light industry and movement between these uses no longer require planning permission.

The introduction of these latest permitted development rights is aimed at giving greater flexibility to bring unused commercial buildings back into use. These are announced along with a package of measures to help support the nation’s high streets including longer operating hours and more flexible delivery times for retailers.

The permitted development rights have been toned down since the consultation last year, with various conditions restricting its applicability (outlined below), in particular a limit on the quantum of floorspace which is permitted to 1,500 sqm automatically ruling out many buildings. However, they are still powerful and have the ability to transform our high streets but is this for better or worse?

The role and function of high streets across the country has been changing for some time however, the coronavirus pandemic has acutely affected this. Over the last year we have seen significant numbers of retailers closing down and going into administration. In many cases the brands are moving to an online format, therefore physical stores are no longer required. As a result many high streets across the country are blighted by vacant commercial units with no immediate prospect of these coming back into use. In order to help the high streets survive or come back to life the Government’s intent is to provide as much flexibility and diversity as possible to enable the high street to adapt and thrive for the future. The Government also believe that the proposals will deliver much needed homes and bring people back into town centres to live and work. However, it is perhaps counter-intuitive to allow for shops and other commercial uses in town centres to be turned into residential, creating dead frontages and harming the vitality of these streets.

Despite some controls over residential quality it is questionable that the resulting dwellings will be of a good quality. As with all these things I think we will see some really good examples and some really poor ones and such consequences may dramatically outweigh the benefits to high streets and to housing supply. In these regards, not only does this proposal go against national planning policy it also takes away the control from local planning authorities to plan for the rejuvenation of their town centres.

Nonetheless, permitted development can be a useful tool, as we have seen with Class O (office to residential). It can at least stimulate development with the permitted development option being relied upon as a fall-back to enable more planned regeneration.

Unfortunately, the full impact of the pandemic on our high streets is yet to be seen and whilst the Government is under pressure to support and help landlords and businesses it feels too premature to introduce these powers which could fundamentally change the character and function of our town centres for better and for worse.

On a positive note, greater flexibility to enable the market to determine what uses should go where shouldn’t be criticised and the changes to the planning system this year are making steps towards bringing policy into the 21st century and reflective of the challenges businesses are facing.

Key Facts:

• The new Class MA is a permitted development right to change use from Class E to residential use is now law and comes into force from 1st August 2021.

• To benefit you need to demonstrate that the Class E building has been vacant for at least 3 months before your prior approval application.

• You will also need to show its been in Class E (or before Class E, Classes A1/A2/A3/B1/D1(a)/D1(b)/D2(e)) use for at least 2 years before the application.

• The cumulative floor space of the existing building cannot exceed 1,500 square metres. This is a significant change to the consultation document last year which didn’t include any size restriction therefore this is a significant step down and will restrict the power of this permitted development right and its ability to make a significant contribution to housing numbers.

• Unsurprisingly it doesn’t apply to listed buildings. Buildings in conservation areas are applicable but there are further considerations during the prior approval process whereby the impact of that change of use on the character or sustainability of the conservation area needs to be assessed if all or part of the ground floor is proposed to be changed (see below).

• Article 4 directions, which currently restrict office-to-residential changes under Class O will be in force until July 2022. However, this time will enable Local Council’s to prepare replacement Article 4 Directions before the transitional provisions expire next year. It’s likely Local Planning Authorities will include other if not all other Class E uses (beyond offices) in any replacement Article 4 Directions, but in some cases LPAs might only cover specific uses within Class E. Watch this space….

• Prior approval from the local planning authority is required and will assess the following:

  (a) transport impacts of the development, particularly to ensure safe site access;

  (b) contamination risks in relation to the building;

  (c) flooding risks in relation to the building;

  (d) impacts of noise from commercial premises on the intended occupiers of the development;

  (e) where—

  (i) the building is located in a conservation area, and

  (ii) 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;

  (f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

  (g) 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; and

  (h) where the development involves the loss of services provided by—

  (i) a registered nursery, or

  (ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006, the impact on the local provision of the type of services lost. All new residential units will need to meet the minimum national space standards (which come into force from 6th April).

• Whilst the Government is focused on beauty, there is no mention of design. Any external alterations will require planning permission and be assessed in accordance with the development plan.