Comment

Proposed Permitted Development Rights for Class E explained

As expected following the reforms to the Use Classes Order (UCO) in July this year, the Government has now published for consultation its proposed changes to Permitted Development (PD) Rights for the new use classes.

Our previous commentary on the Use Classes Order is available here.

Most notably, a PD Right is proposed for the new Use Class E (commercial, service and business class) to change use to residential. This undoubtedly has the potential to have a significant effect on not only housing delivery but also our town centres.

The proposed PD Right for Class E would allow for the change of use from any operation, or mix of operations, within the commercial, business and service use class (Class E) to residential use (C3). The PD Right will go significantly beyond existing rights which allow offices and retail to switch to residential use, as it would now allow for restaurants, indoor sports facilities such as gyms, health and nursery uses to benefit from the change of use to residential under PD Rights for the first time.

This could be revolutionary for increasing housing delivery numbers across the country, particularly in accessible and sustainable urban areas; however, the negative impacts on our already struggling high streets, through the loss of commercial uses, could be just as far reaching.

As is often the case with PD Rights, the devil will be in detail and the criteria against which applications for Prior Approval will be assessed is vital to the usefulness and success of this extended regime. It will be key to understand the circumstances, thresholds and areas the PD Right will apply to, to fully understand the implications, positive and potentially negative. On this note, the first question in the consultation is whether it is agreed that there should be no size limit on the buildings that could benefit from the new PD Right. The consultation also asks whether the right should apply in conservation areas to support historic town centres.

As is the case with the existing PD Rights for office or retail use to change to residential, Prior Approval for the change of use from Class E to residential would also be required from the Local Planning Authority. The consultation proposes the following considerations for the Prior Approval:

• Flooding risk
• Transport and safe access considerations
• Contamination
• Noise from existing neighbouring commercial premises
• Adequate natural light in all habitable rooms
• Fire safety
• The impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management

It is worth noting that if adopted as legislation, these Prior Approval considerations will be enshrined in law therefore removing all other development management policies from being considered if planning permission were required. The statutory nature of the considerations also means that each criteria must be considered as acceptable and an ‘on balance’ decision cannot be made.

This highlights that, if adopted in its current form, the Prior Approval Process will protect light industrial floorspace within Class E, which is located in industrial areas, from being lost to residential use. Within conservation areas, it is proposed that the Prior Approval will also assess the impact of the loss of the ground floor use to residential, in recognition of the conservation value that retail frontage can bring to conservation areas. However, this is as far as the locational restrictions go, leaving the question of how to ensure the right mix of commercial and residential in centres potentially unchecked. 

The consultation also sets out the Government’s intentions for rationalising the existing Permitted Development Rights due to expire on 31 July 2021. It categorises the existing PD Rights into four categories:

• Category 1 - the right is no longer required. Example - Class D shops to financial and professional.
• Category 2 - the right is unchanged by the amendments to the Use Classes Order and therefore no amendment is necessary. Example - Class L small HMOs to dwellinghouse and vice versa.
• Category 3 - the right may be replaced by the new proposed PD Right from the commercial, business and service use class to residential. Example – Class O offices to dwellinghouses.
• Category 4 - the right requires detailed consideration. There are several rights that may fall into this category, including some where the scope of the PD Right is broadened, for example to allow for the change of use to the commercial, business and service use class rather than an individual use within it, such as a shop. Or may similarly be broadened by providing for the change of use from a greater range of uses, such as from the commercial, business and service use class.

Although taking the major headlines, the Class E to residential PD Right is not the only right issued for consultation. In order to support the delivery of public sector infrastructure, the Government is consulting on increasing the flexibility set out in the existing Class M right for extensions to schools, colleges, universities, and hospitals. A ‘prioritised’ 10 week determination period for major public sector planning applications is also consulted upon.

For more information on the consultation, which is open to 28 January 2021, please contact Catriona Fraser.

17 December 2020