Comment

Class E to Residential Use PD Right confirmed

MHCLG has today confirmed the long anticipated Permitted Development (PD) Right for the new Use Class E (Commercial Business and Service) to residential use, which will come into effect on 1 August 2021. The right seeks to increase flexibility for commercial premises within England and forms part of a suite of measures MCHLG is seeking to bring in to revitalise the high street.

The legislation is available here.

The PD Right is not as open and broad as many expected, or feared, following the consultation which closed in January this year, with a size limit included so only properties under 1,500 sq m of floorspace will benefit. In addition to this, there is a requirement for any property which seeks to benefit from the PD Right to have been in Class E use for a period of 2 years, and to have been vacant for 3 months ahead of the Prior Approval application date. Therefore it will not apply carte blanche to all commercial premises, which would have had far greater implications on England’s town centres.

A Prior Approval process will be required for the PD Right, with which LPAs can only give consideration to the following criteria:

• transport;
• contamination;
• flooding;
• the impacts of noise from commercial premises;
• the provision of adequate natural light to all habitable rooms;
• the impact of the loss of the ground floor Commercial, Business and Service use on Conservation Areas; 
• the impact of the development for future residents from the introduction of residential use in an area considered important for industrial, waste management, storage and distribution uses; and,
• the impact of the loss of health centres and registered nurseries on the provision of such local services.

There are no other locational restrictions on the PD Right, excluding the typical exceptions of National Parks, AONBs, SSIs, Listed Buildings or World Heritage Sites. As a surprise to many following the consultation, the right can apply in Conservation Areas, however the impact of the loss of a ground floor commercial use on the Conservation Area must be assessed through the Prior Approval process as noted above.

Existing Article 4 Directions removing the PD Right for the change of use from offices to residential, will continue to apply (where the existing use is office), until 31 July 2022. It will be interesting to understand how future Article 4s may relate to this following the Government’s consultation of the revised NPPF, which seeks to tighten up the rules for when Article 4 directions can be introduced.

The Government is also sending a clear message that this PD right should facilitate enhanced housing delivery through conversion of existing buildings on ‘brownfield’ sites. This ties in with their recent confirmation of the revised approach to the standard method for assessing housing requirement.

This focussed on a 35% uplift in requirements within the country’s 20 largest cities and urban areas, and a shift away the large scale greenfield release or tackling fundamental reforms to the Green Belt, mooted as a consequence, certainly within the South East, of the draft consultation on the standard method last year. Obviously a much more politically palatable solution for the Government.

Although National Space Standards will apply to all dwellings created through this new PD Right, no consideration to tenure, mix or amenity space is required. Consequently, it is highly likely that the nature of conversion proposals will predominantly bring forward one and two bed flats for the open market, with limited or no communal or private amenity space. This will place additional pressure on meeting the needs for affordable dwellings and three bed plus family housing within wider administrative areas beyond town and city centres. Nor will it ensure delivery of meaningful amenity space, which has been so valued during the COVID-19 pandemic.

It is also worth noting that in the same press release, MCHLG announced new planning rules allowing for the extension to public service buildings such as schools, colleges, universities and hospitals, and for the first time prison buildings, by allowing them to up to extend up to 25% of the existing footprint of the cumulative buildings on the site, or 250 square metres, whichever is greater, and increasing the height restriction for these extensions from five to six metres.

These changes are welcomed but should be viewed as one of many levers needed to resolve the housing crisis. Government must be aware of the potential consequences this new PD Right will inevitably have on our town and city centres and we will continue to monitor the situation with interest.

For further information please contact Luke Sumnall, Andrea Arnall, Cat White or Simon Packer.

31 March 2021