Who are the winners of the new Class MA?

The introduction of Class MA to the Town and Country Planning (General Permitted Development) (England) Order 2015 (the "GDPO") has radically broadened the remit of Permitted Development Rights ("PDRs") which aims to bring increased flexibility to the planning system. Class MA allows sites to be converted from Use Class E to residential use without first obtaining full planning permission. While this brings many exciting opportunities for developers, the changes are not without their own constraints.

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2021 (the "Amendment No. 2 Order") came into force on 1 August 2021 to primarily reflect last year's changes to the Use Class Order. Although the Government's vision is to provide new homes and revitalise highstreets post pandemic, PDRs continue to divide opinion.

Prior Approval Process

Developments under PDRs can be quicker and cheaper as they do not require full planning permission, however proposals under Class MA will still have to go through the prior approval process. Prior approval allows the Local Planning Authority to assess proposals considering factors including flooding, transport and parking, and contamination. Notably, the prior approval process does not impose obligations upon developers to provide affordable housing – in direct contradiction to the Government's promise to provide more of this vital housing.

In response to criticism over the low-quality housing produced under the original PDRs introduced in 2013, the Government has introduced additional limitations on the use of Class MA for applicants as follows:

• In granting prior approval, local authorities must consider the impact of noise from nearby commercial premises, and (if relevant), the impact of the loss of health centres and registered nurseries on the provision of such local services;
• New homes must meet national space standards, and must provide adequate natural light;
• The building must have a floorspace of no more than 1,500sqm limit (a tenfold increase from the current limit of 150 sqm);
• The building must be vacant for at least three months prior to the application for prior approval. This means you cannot apply if tenants are in occupation; and
• The building must be used as one of the uses authorised by Class MA or Class E for at least two years prior to the date of application.

Furthermore, buildings above seven storeys will also require a fire safety report, and it is also worth noting Class MA is restricted in certain areas, such as Areas of Outstanding Natural Beauty, and of course does not apply to listed buildings.

Article 4 Directions

Article 4 Directions allow local authorities to limit the use of PDRs. Existing Article 4 Directions relating to office to residential conversions will only remain in place until 31 July 2022. However, many councils already have plans to introduce Article 4 Directions blocking Class MA – with 17 of 35 London councils already indicating the intention to do so.

Although Class MA has been in effect for as little as two months, the uptake of Article 4 Directions prohibiting Class MA is already starting to take shape, with Reading Council's policy committee voting to introduce a new Article 4 Direction to withdraw the Class MA PDR. In response to this trend to introduce Article 4 Directions, the Government is reviewing the National Planning Policy Framework (the "NPPF") to set a higher threshold for councils looking to block PDRs. Through introducing the new PDRs, while simultaneously looking to block local attempts to slow down or prevent PDR take up, the Government is using a two-pronged approach to unlock development on a national level. This may present new opportunities in areas previously protected for developers to explore the use of PDRs.

Looking forward

The Government hopes Class MA will play a pivotal role in providing new homes, whilst helping high streets and town centres recover from the impacts of the pandemic. Opinion is divided on whether they will achieve these objectives. Many in the industry have complained that the prior approval process takes just as long as an application for planning permission. Also, some argue that allowing housing to spring up in town centres unchecked by planning permission will further weaken the high street's chances of recovery. The London Borough of Islington has gone so far as to embark upon a legal challenge, seeking the revocation of new PDR Class MA. A date for the High Court hearing is yet to be set, and we await further details on the grounds of challenge.

It's argued that Class MA risks diluting commercial success of highstreets by removing the ability of councils to assess areas that are struggling and make plans through the local plan process accordingly. However, this change gives landlords the ability to make important decisions with wide-ranging consequences.

Opinions aside, these changes do provide a necessary update to the GDPO to bring the legislation in line with the amendments to the Use Classes Order made in 2020. Overall, developers will need consider how to best make use of the new flexibility introduced by Class MA, whilst acknowledging the new constraints it brings. For specialist advice, please contact Jade Chalmers, or another member of the Planning team.