Wednesday 7 April 2021
Class MA - Some further points
In my post yesterday, I briefly summarised the provisions of the new Class MA in Part 3. However, it is worth bearing in mind some other points to which I did not have time to draw attention yesterday, including one or two deliberate omissions from Class MA.
Residential conversion of several types of premises that are sui generis uses is not permitted by Class MA. Thus, in contrast to Class M, this PD right does not extend to hot food take-aways, betting offices, pay day loan shops or launderettes. I do not know whether this omission was deliberate or inadvertent, or whether the government may add these to Class MA in the future.
Second, also in contrast to Class M, the PD right under Class MA does not include any building operations. This is in line with Classes O and PA, which Class MA also replaces. So, planning permission will be required in the vast majority of cases for external alterations to the building, including new doors and windows, and other external details. LPAs should bear in mind, however, that planning permission for the change of use itself is already granted by Article 3 of the GPDO (as well as all internal alterations to convert it to residential use – covered by section 55(2(a)). It follows that the only issues for the LPA to consider in determining a planning application for such building operations are those that relate strictly to those building operations themselves, including aesthetic and other material considerations (if any).
In Class M, the requirement for a prior approval application included the following matter:
- whether it is undesirable for the building to change to a residential use because of the impact of the change of use on adequate provision of services of the sort that may be provided by a building falling within Use Class A1 (shops), Use Class A2 (financial and professional services) ……… , but only where there is a reasonable prospect of the building being used to provide such services, or (where the building is located in a key shopping area) on the sustainability of that shopping area.
This requirement is not repeated in Class MA, so the retail impact that may result from the residential conversion of retail premises, even in a key shopping area, is no longer a matter with which an LPA can concern itself. The only ‘protected’ uses whose loss must be considered are NHS health centres and registered nurseries. Clearly, therefore, (despite ministerial protestations to the contrary) the government is content to preside over the decline and death of England’s town centres.
Furthermore, Class MA (unlike former Class PA) does not include as a matter requiring prior approval:
- where the authority considers the building to which the development relates is located in an area that is important for providing industrial services………, whether the introduction of, or an increase in, a residential use of premises in the area would have an adverse impact on the sustainability of the provision of those services
Instead, the relevant matter that may require the LPA’s prior approval under Class MA is 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 is not the same thing at all]. Here again, the LPA is precluded from considering the impact of the loss of industrial premises. So planning officers can forget any idea of protecting employment land where residential conversion is proposed under Class MA.
A couple of final points are worth bearing in mind. First, although prior approval is required in respect of the provision of adequate natural light in all habitable rooms of the dwellinghouses, and there is no reference here to the adequacy of the residential accommodation, Article 3(9A) makes it clear that Schedule 2 does not grant permission for, or authorise any development of, any new dwellinghouse where the gross internal floor area is less than 37 square metres in size, or that does not comply with the nationally described space standard issued by the former DCLG on 27 March 2015. On the other hand, adequacy of amenity space, provision for refuse storage, etc. is not a matter with which the LPA can concern itself in relation to Class MA.
The second point is that paragraph W of Part 3 applies to the processing of all prior approval applications under Part 3, and so the 56-day Rule will apply to Class MA in the same way. Planning officers must therefore be alert to the need to issue a determination within the 56-day period, which commences on the day following receipt of a completed application. So LPA officers should not waste time in deciding whether of not to ‘validate’ the application. If it does not comply with the rules, it can be rejected under paragraph W(3).
I dare say there are other ramifications to Class MA that will become clear in the light of experience, but that will do for now. Happy town planning!
© MARTIN H GOODALL
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There is a devilish little corner of my brain playing with the possible implications of the first two requirements of MA in combination - 3 months vacancy AND 2 years continuous use. Note, continuous use not lawful or authorised. But perhaps the two years continuous use "prior to the date of the application" doesn't mean immediately prior? After all the 3 months vacant period is specified as 'immediately' prior by contrast so perhaps the 2 years is meant to be measured in effect as 'some period of at least 2 years continuous use at some point prior to the at-least-3 months vacancy that must have been immediately prior to the application'?
ReplyDeleteOn balance, I think this possibly indicates that the two years need not be immediately prior to the prior approval application. However, I am open to other suggestions.
DeleteI should perhaps clarify my original reply to the question posed above. The 2-year period must immediately precede the void period. There must be no intervening change of use, nor must the disuse of the building have amounted to abandonment of the use. So the qualifying use must still be the extant lawful use at the time of the prior approval application, in the sense that the right in planning terms to use the building for the qualifying use must not have been lost, either by being abandoned or by being supplanted by some other use.
DeleteWhat if the building has been vacant for the qualifying 2 year period, but not abandoned, ie: vacant but on the market for rent/purchase.
DeleteI would reiterate what I wrote above. But on the specific issue now raised, I agree that the wording of paragraph MA.1(b) [“unless the use of the building fell within one or more of the classes specified in sub-paragraph (2) for a continuous period of at least 2 years prior to the date of the application for prior approval”] does seem to allow the void period to be counted as part (perhaps the whole) of the qualifying two-year period. The requirement is not that the building should “be used” as such, but simply that it “fell within” the relevant use class for at least 2 years. I have an instinctive feeling that the relevant use must actually have been implemented (and perhaps the rule in Kwik Save would apply, if that use was only very brief before it was then suspended). But, subject to these observations, it would certainly seem to be arguable that in principle (if not in practice), the whole of the qualifying period could actually fall within the void period.
DeleteFor a class O PD application, you mention that " LPA officers should not waste time in deciding whether of not to ‘validate’ the application", is that to say that if some plan was missing in the original application, that was provided say 6 days later, at which point the application was validated, the council still MUST determine by the day after the 56 days of the original application? Or are they within the right to start the 56 days from the validation date?
ReplyDeleteThe term ‘validation’ is misleading in this context. The prior approval application is incomplete, and therefore invalid, without the requisite plan. If this, and any other missing material, is subsequently supplied to the LPA, so as to comply with the provisions of paragraph W, the application becomes a complete and valid application on the date when the missing material is received by the LPA. So the 56-day period only starts on the next day after that. The date of submission of the original (incomplete, and therefore invalid) application is irrelevant.
DeleteFollowing the changes to the Use Classes Order, with the introduction of Class E and the revocation of Class A, we were all waiting to see what the government would change by way of the operation of the system of permitted development rights. One of the interesting (and by interesting I mean frustrating, annoying and time wasting) aspects is what they seemingly have not changed (unless I've missed it!). The particular stone in my shoe is the status of Class G to Part 3 to Schedule 2 to the GDPO, change in use from Class A1 (shop) to a mixed use of Class A1 (shop) and up to 2 flats. I can find no reference to the revocation of Class G. Can it still operate beyond 31 July 2021 or is it effectively redundant by virtue of Class A1 ceasing to exist? Could it continue because even though the reference to Class A1 is redundant, we can still construe what a shop is?
ReplyDeleteAdrian T
There is clearly some further tidying up of Part 3 of the Second Schedule to the GPDO that the government will need to do before 1 August. The introduction of Class MA is not the whole story. It replaces some, but not all, of the existing residential conversion provisions in Part 3. I am expecting to see a further set of amendment regulations this summer, coming into effect on 1 August, which (it is to be hoped) will tie up any loose ends when the transitional provisions in the UCO amendment regulations expire.
DeleteMartin
ReplyDeleteAs you say, there must be some further tidying up to do. I'm hopeful that there will be some transitional provisions so that any proposals to vary existing Prior Approvals (such as Class O) can be submitted and determined (whether that is in writing or through some formal procedure) even if they are lodged after 01/08/21.
Any thoughts in terms of a way around this?
My assumption is that if a prior approval event occurs before 1 August this year, the development can go ahead at any time (subject to the the 3-year time limit). In fact, I would expect that a relevant transitional provision would allow prior approvals to be issued after 31 July, where a valid prior approval application had been made on or before 31 July.
DeleteHowever, on and from 1 August, a prior approval application under Class O can no longer be made, and an application will then have to be made under Class MA instead.
Lots to absorb with the recent amendments including farewell to Class G. What are your thoughts on combining Class MA on mixed use buildings? I can't seem to find anything in legislation which will allow this? What exactly does 'change of use of a building' actually mean?
ReplyDeleteAs I pointed out, residential conversion of premises that are in sui generis use is not permitted by Class MA. Mixed uses are by their very nature sui generis.
Delete‘Change of use’ must necessarily mean a material change of use from one use to another. If both uses currently fall within one and the same Use Class that now applies (since 1 September 2020), then this is not a material change of use. However, where the existing use is a mixed use, this is in itself sui generis and so there would be very few changes of use of such premises that would not be seen as being a material change of use.
Hi Martin,
ReplyDeleteInteresting read as ever. If a building has a Sui generis use at ground floor, but the upper floors are office use (have been for a long time), could the upper floors benefit from a part MA / O conversion to C3?
Keep up the great work!
One has to look at the separate planning units (applying the Rule in Burdle).
ReplyDeleteThe PD rights (if any) that apply to each planning unit depend on what Use Class (if any) each planning unit falls into.