Planning matters

The people of Wales go to the polls on 6 May in the sixth general election since the formation of the Senedd (formerly the National Assembly for Wales) in 1999. This will be an election like no other that we have seen. Set against the backdrop of the Covid-19 pandemic, policies relating to health and economic recovery are central to the manifestos of all of the main parties. This will also be the first general election in which 16 and 17 year olds are able to vote. The impact of this context remains to be seen – as Labour seeks to retain the control on the Senedd that it has maintained for the past 22 years, and looks to achieve an overall majority for the first time.

This blog provides a high-level summary of the key policies of the four main parties in Wales on a number of key areas: the economy, tourism, housing and planning. It is not intended to set out in detail all of the policies of each party but instead provides a broad overview of the policy context that may shape the development industry over the next Senedd term. Whilst all of the parties seek to chart a course to the post-Covid future, with common themes including a return to the freedoms that we once took for granted, a growing economy, and a greater focus on environmental concerns, their specific targets and policies vary considerably.

As illustrated below, the economy of Wales lags behind that of the UK in a number of key metrics. This has been a long term structural characteristic, but research undertaken by Lichfields in April 2020 found that large parts of Wales were subject to a particularly high risk of economic harm as a result of Covid-19. Whilst Wales has clearly not been the only part of the UK to experience decline, its underlying structural base and differences in the lockdown restrictions have had a profound effect. Rebuilding the economy – and narrowing the divide with the rest of the UK – must be at the heart of the next government’s agenda.

Tourism is one of the key economic sectors in Wales which accounts for over 9% of total employment. Prior to Covid-19, tourism enjoyed rapid growth but there were 100m fewer visitor days in 2020 compared to 2019. The economic impact of Covid-19 on the Welsh tourism sector in 2020 amounted to £6bn – equivalent to 63% of 2019 value of the sector.

However, tourism has a significant role to play in the economic recovery of Wales with there being significant pent-up demand to go on holiday and foreign holidays remaining in doubt for 2021. Going forwards, the tourism sector will look to the Welsh Government for policies that support its future development and enable it to contribute towards economic recovery across Wales.

Like the rest of the UK, Wales is in the midst of a housing crisis. Fewer than 6,000 dwellings were completed in 2018/19, against estimates of need of between 9,000 and 12,000 which is itself is below the average of 14,000 completions each year in the 1970s.

Against this context – and in recognition of the clear economic, social and environmental benefits associated with an increase in housing delivery, it is not surprising that each of the main parties in Wales have included policies relating that address the need to increase the supply of new housing. However, the scale of growth that is anticipated by each party varies very significantly, as does the emphasis that has been placed on the provision of market – as well as affordable – housing.

The planning system is central to the delivery of all the objectives of each party relating to economic growth and housing supply. Whilst the Labour manifesto is silent on the topic, the other main parties include a range of measures that will update the system and – to a lesser or greater extent – undo many of the recent changes that have been made to the planning system in Wales.

We know not to focus too much on opinion polls but these continue to put Labour ahead – albeit not by enough to achieve its long-sought majority. Because of Covid restrictions necessitating the quarantining of ballot papers after the polls close, we will not know which party – or parties – will form the next Welsh Government quite as quickly as usual.

The specific shape of the legislative agenda that emerges over the next Senedd term will depend on the political landscape after 6 May, the extent to which Covid-19 continues to derail the usual business of government, and the ability of the next government to fund its package of policies in the context of a severely weakened economy and an historic national deficit.

Our ask of whichever party is in power next month would be to prioritise the following:

1.  Increase the delivery of market and affordable housing – recognising the importance of housing in both sectors to build mixed and sustainable communities, house the local workforce, and ensure that everyone has access to a good quality home. Increasing the delivery of housing will also have a profound economic benefit in terms of investment, direct and indirect job creation during the construction phase, and on-going spending by residents once the homes are occupied.

2.  Require a realistic assessment of need for housing and reward those authorities that meet/exceed their housing targets.

3.  Support the reuse of brownfield land but recognise that there is insufficient previously developed land to meet our future development needs.

4.  Focus on economic recovery, driven by emerging sectors – including environmental/green sectors – whilst also recognising the role of existing economic strengths, including:

a.  Biosciences/medtech;

b.  High tech sectors;

c.  Manufacturing;

d.  Logistics;

e.  Creative industries;

f.  Tourism; and,

g.  Agriculture. 

5.  Strategies should be prepared for each of these sectors, recognising the existing strengths in different parts of Wales, the challenges and issues that exist and the policy interventions that would ensure that their future economic contribution could be maximised.

6.  Maintain an adequate and well-trained workforce in order to encourage inward investment and indigenous growth.

7.  Ensure that the planning system is equipped to facilitate the economic and housing growth that Wales needs if it is to complete nationally and internationally.
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On 12 May, we will mark a year since the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment (‘EIA’)) (England) (Coronavirus) (Amendment) Regulations 2020 came into force.  Whilst the snappy title and content probably passed many by in the confusion of the early days of the first lockdown of 2020, hidden away in paragraphs 16 and 17 were some critical amendments to the Town and Country Planning (EIA) Regulations 2017 that provided those of us involved in major applications in England including EIA with some considerable temporary relief in the practicalities of producing and consulting on a final Environmental Statement (‘ES’) – and namely in whether this must be submitted in paper or electronic form.  The original Regulations were due to lapse at the end of 2020 and have now been extended until either the end of June 2021 or the end of December 2021 depending on the whether the submission being made is a full ES or further environmental information.

But I wonder if these need to lapse at all; and whether in fact we should use the lessons learnt over the last year and throughout the next few months to finally make some real progress in moving to a fully electronic system of EIA and, indeed, determination of major planning applications.  Is there a need to go back to paper copies?

The tradition of producing a paper copy of an ES and celebrating the sheer number of pages and A4 lever arch files you have managed to generate has always jarred with me; how can a document ostensibly in place to ensure that significant environmental impacts have been addressed meet its objective when a small woodland has been used to produce a carefully curated paper copy (at an often significant printing cost)?  Or indeed copies – as often we are asked to submit a number alongside major planning applications; which themselves will include armfuls of printed paper plans and documents.

I understand the difficulties faced by local authorities in their requests for paper copies.  The Town and Country Planning (EIA) Regulations 2017 require an applicant or appellant to make a ‘reasonable number of copies’ of the statement available at a specified address for review whilst an application is under consideration; but what is ‘a copy’?  The reason for the requirement is certainly clear; namely to ensure that the information is available for all to review, form an opinion and, if desired, to submit comments or representations (i.e. to ensure that nobody has been prejudiced by a lack of ability to access key environmental information).  But in a time of pandemic when the very places where public access could allow this information to be located had their doors closed; how could this test be satisfied?  There was little point in spending time and money in printing out the documentation for interested parties to peer at through the locked doors of the local authority or library.

Following a few weeks of initial confusion, the Covid Regulations allowed a more pragmatic approach; namely that confirming when access to public buildings was not possible that the ‘copy’ referred to in the Regulations could be an ‘electronic copy’ and an address could be a website address.  This has allowed for the submission of major planning applications and ESs to continue throughout the pandemic with ease, be the subject of consultation, commented on and determined; all without a single printer being switched on.

So what happens when the Covid Regulations lapse?  Given the demonstrable success of the last year in this regard, I am hopeful that we can learn from the recent experience and finally move to a fully electronic system of EIA with major planning applications.

Its not a new issue.  In 2002, the government set up the Planning Portal with the stated objective of providing an entry point to online planning information and to allow planning applications in England and Wales to be submitted online.  In 2011, the Portal celebrated that more than 50% of all planning applications were being submitted online and since then the system has continued to grow such that it is now the norm for minor and moderately scaled applications to be submitted electronically.

In addition to this, and over the last couple of years, PINS has been trialling fully electronic examination of Nationally Significant Infrastructure Projects and has now confirmed that there is no longer a requirement, at the point of submission, for DCO applications and associated EIA to be provided in printed form.  At the heart of this is some significant work to ensure the PINS website can cope with the scale of these major applications as well as ensure that they are clear and easy to navigate by providing the applicant with specific guidance on labelling and presenting individual electronic files. 

And within EIA, increased digitisation is something for which the industry has been lobbying over the last couple of years.  In its September 2020 response to the Planning White Paper called  ‘Levelling up EIA to Build Back Better’, the Institute of Environmental Management and Assessment (‘IEMA’) noted that:-

“The adoption of digital and paper-less submissions and virtual consultations has been accelerated by recent amendments to mitigate the Covid pandemic. IEMA recommends that some of these temporary measures are considered further to become permanent changes, such as the removal of the need to provide hard copies of documents.”

IEMA goes on to recommend the establishment of a permanent move to digital submissions, improved use of interactive mapping and the establishment of a national data hub for both primary data and EIAs.

I think the historic nervousness to ‘go fully digital’ for major applications including those with EIA is for three key reasons:-

• A nervousness or inertia toward new approaches (‘if it ain’t broke don’t fix it’);
  
  
• A concern about legal challenge (if a paper copy isn’t requested ‘as usual’ this will cause issues); and
  
  
• A worry that a completely digital system will not be fully accessible to all.

In my view the third point is perhaps the most important and ensuring that this test is satisfied will help to address the first two.  And here I think the lessons we have learnt over the last year are of critical importance.

Probably the easiest way to ensure access to the complex information in a major planning application and ES is via the internet.  ONS data indicates that in 2020, 96% of all households have access to the internet; but we also know from news over the last year that this is not as simple as it sounds, with quality of access and indeed access to a computer with the internet in certain households also being key determinants.

ONS data also records the reasons given by adults over 16 for using the internet to interact with public authorities or services.  Whilst not specific to planning applications and EIA, it is notable that the percentage using this means to obtain information from websites comprises just 44% of the population in 2020.  And an examination of differences by age, sex or disability status demonstrates a similar level of engagement:-

So once public buildings are open, we can perhaps address the first issue with planning departments or libraries providing computers with access to planning applications and EIA in the relevant district or borough.  But clearly more is needed to access harder to reach groups who currently do not use the internet to secure information from public bodies.

I think there are three key actions that work to assist in addressing this issue:-

1. Embed consultation into the whole process – remembering that one of the primary purposes of any ES and planning application is as an information source to assist in consultation and decision making, then it should be embedded into the ethos of the pre-application and EIA process. At the earliest stage, it is important to identify every party or group of consultees who will be interested in the submission and work to ensure that the content and presentation of the documentation will be effective and appropriate for each group.  In short it needs to be complete and complex enough for technical experts to fully understand the detail; but also use a language and format accessible to allow those less experienced in reading applications of this scale to be able to engage with the process.
   
   
2. Use a variety of means of communication – the sheer scale of data and written text in a major application and ES is a key issue whether in paper or electronic form. The benefit of using digital only submissions is that it allows access to a whole plethora of new and interesting ways of presenting complex data including using GIS or other mapping, infographics, etc.  Lichfields ‘Smarter Engagement’ tool can help in identifying the best ways to engage with different types of group and consultee.
   
   
3. Keep a record – with a note to the concerns over legal challenge, it is important to keep a clear digital record of comments made and how these have been addressed; and if anyone identifies concerns with accessing data, to ensure that these have been addressed quickly.

In my view, and if the above is implemented successfully, this should allow us to continue as we are without needing to start re-loading the printer with ink.  Digital-only submissions have been one of the success stories of the pandemic so lets keep the momentum, stop printing out major planning applications and ESs and lets save some trees.

 

The latest batch of new and revised permitted development rights seek to set the foundations for ‘Project Speed’, the Government’s strategy to bolster England’s public infrastructure and harness its economic recovery, following the impact of the pandemic and the UK’s exit from the European Union.

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 will introduce revisions to The Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO). The legislation is set to come into force on 21 April 2021, though the timing of certain provisions may vary.

While the property press headlines focus on the introduction of the new permitted development right for converting vacant buildings that fall under the new Use Class E to residential (covered in this blog, Class MA: Mercantile to Abode ), this blog looks at other changes, which are focused on supporting public bodies construct new buildings and structures and carry out other alterations and renovations. These also sit alongside separate permitted development rights which will grant port operators the same powers as those vested to airports, which will allow for small scale development without the need for planning permission.

Commenting on the changes, Communities Secretary Robert Jenrick commented:

The changes will significantly increase the envelope of what is considered as acceptable without making an application for planning permission. We cover the key changes in detail below:

The big change for public service providers is the amendments to Part 7 Class M of the GPDO (2015). This permitted development right allows for the “extensions etc for schools, colleges, universities and hospitals”. The amendments increase the threshold for the amount of new floorspace permitted, while also now allowing prisons to benefit from the right, alongside education providers and hospitals.

This class of the GPDO allows for new buildings as well as extensions, though these must be within the same use or ancillary to the existing use, while any new development must be situated within the curtilage of the premises’ boundaries.

Buildings benefiting from Part 7 Class M will now be allowed to expand their facilities significantly - by up to 25% of the footprint of the current buildings on the site as of 21 April 2021, or by up to 250 square metres, whichever is the greater. This was previously limited to 25% square metres of the ‘original building’ or 100 square metres (with the exception of schools which were already capped at the new lower limit of 250 square metres).

The height limit for new buildings (which does not include plant) has also increased from five to six metres, though this will remain capped at five metres within ten metres of a boundary of the curtilage of the premises.

The “original building” continues to exclude buildings already erected under Part M. And the provision stating “where 2 or more original buildings are within the same curtilage and are used for the same institution, they are to be treated as a single original building in making any measurement”, does not appear to have been changed.

Whereas some other permitted development rights, such as those for upward extensions, expressly provide for related building operations, such as access and egress, related storage, waste and plant etc; Part 7 Class M as amended only refers to buildings. Permitted development rights for the provision of hardstanding already exists for schools, hospitals and universities under the Class N of Part 7 of the GPDO. Surprisingly, perhaps, these remain unchanged though are limited to just 50sqm in total.

No prior approval is required for schools, colleges or hospitals wishing to benefit from the extended PD rights. However, where the expansion of a school results in any increase in the school’s admission numbers, a travel plan must be submitted for the site within six months from the date of completion. This will need to outline the long-term management strategy for providing sustainable transport to and from the premises.

Given the relative scale of many universities and the central and sometimes sensitive locations they often occupy, prior approval is however required for the following matters:

• transport and highways impacts of the proposed development;
  
  
• the design and external appearance of the erection, extension or alteration; or
  
  
• the impact of the development on heritage and archaeology.

Where an application for prior approval is required, as with other prior approval procedures, development must not begin before the LPA either determines prior approval is not required, grants prior approval or the expiry of 56 days following valid application submission, without the LPA giving a decision. The Explanatory Memorandum confirms that secondary legislation is expected to introduce a fee of £96 for prior approval applications made by universities.

As with the current requirements for Class M, development is not permitted within the curtilage of a listed building. Furthermore, the Class M materials condition relating to development on Article 2(3) land (i.e. national parks, Areas of Outstanding Natural Beauty, conservation areas, the Broads, and World Heritage Sites) will also continue to apply, requiring new buildings and extensions to use materials of a similar external appearance to those used of the original buildings. This would only be assessed where external appearance is a prior approval matter – i.e. for universities. For schools, colleges, hospitals and prisons it would be for the developer to ensure that this condition is met.

The new legislation has also expanded the permitted development rights for docks, harbour, water transport, canals and other inland navigation undertakings. The new measures relate to previous commitments made following the Government’s Freeports consultationlast October.

Article 10 of the Amendment Order will widen the scope of Class B of Part 8 of the GPDO to provide, as the explanatory memorandum states, “dock, pier, harbour, water transport, canal or inland navigation undertakings greater flexibility to undertake development, supporting ports as an important economic agent further to the exit of the UK from the EU”, while also permitting such development to be undertaken by the statutory undertaker’s agent of development, allowing for works be undertaken by others on the behalf of the operator.

The amendments include text, stating that development is now deemed to fall within Class B of Part 8 where:

The changes now bring PD rights for ports and similar water transport infrastructure in-line with those available to airports. With the UK now outside of the EU, there will likely be other planning changes in tow aimed at supporting the movement of goods, and the Government’s objective of delivering growth and regeneration through the introduction of Freeports.

The Government had also previously stated it will consider a review of the current National Policy Statement for Ports (NPSP).

The changes reflect the general direction of travel for the planning system, with Ministers streamlining the application process for certain types of development, by expanding permitted development rights and simplifying the classification of use classes; for once the Government has very little to say about the design or appearance of development, except where this may potentially impact on designated heritage assets.

The added flexibility will likely be welcomed by some operators, allowing for greater flexibility in adding additional capacity, while also allowing for the reconfiguration of existing buildings – something which many businesses and organisations have grappled with in responding to COVID-19.

Clearly some public service and port infrastructure development will fall outside the remit of the newly expanded permitted development rights. In its response to the December consultation on these changes, the Government has confirmed that it will go forward with its plans to streamline the application process for ‘major development’ in this area, which will likely be brought about principally through amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015. It has stated that these will involve:

• reducing the statutory determination period from 13 weeks to 10 weeks;
  
  
• shortening the statutory consultation period from 21 to 18 calendar days;
  
  
• requiring that local planning authorities notify the Secretary of State when they anticipate making a decision; and
  
  
• making clear that the policy in paragraph 94 of the National Planning Policy Framework about the importance of pre-application engagement is extended to these types of development.

Although we await further detail on these additional measures, the Government has stated it intends to introduce them by the end of August 2021.

 

In December 2020, the Government began a consultation on a variety of changes to permitted development rights. At the core of the “Supporting housing delivery and public service infrastructure”[i] consultation were proposals responding to the need for amendments to permitted development rights, following the September 2020 abolition of use classes A1-A5, B1, D1 and D2, the introduction of new classes E, F.1 and F.2 and the movement of further uses outside of a use class and thus sui generis. The change of use permitted development right most fleshed out in the consultation was a proposed Class E to Class C3 (residential) permitted development right.

The outcome of several elements of that consultation have now been published and the associated amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) have been laid before Parliament in the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021. 

Tom Davies' blog looks at the amendments to permitted development in that Order related to ports and public service infrastructure (hospitals, education and prisons) that will come into force on 21 April 2021.

This blog considers the new Class MA business and commercial to residential permitted development right (PDR) introduced by that Order, which will replace and introduce certain commercial to residential PDRs, from 1 August 2021. To be clear, classes M, MA and O are classes of permitted development within Part 3 of Schedule 2 to the GPDO, whereas other classes mentioned in this blog are use classes defined in the Use Classes Order 1987 (as amended) (see the Lichfields Guide to the Use Classes Order).

New class MA will be a different beast to the current retail and office to residential PDRs, with several different limitations and conditions.

It is important for developers to consider the differences between the old and new business and service to residential PDRs in order to decide - for former A1, A2 and B1(a) use classes - whether or not to submit an application for prior approval before or after 1 August 2021.

Our summary table provides an overview of the key differences between the current and proposed business and service to residential PDRs.

This shows that the new, broad, permitted development right will actually reduce the scope of office to residential permitted development while increasing the scope of retail to residential PDRs and introducing new PDRs for other typically main town centre uses to change to residential.

In essence, the Government has reined back the proposals consulted on by adding floorspace limitations, vacancy and location limitations, having reflected on the consultation responses it received. And as with the permitted development rights for additional storeys to provide new dwellings, introduced in summer 2020, the bold press releases are not inaccurate, but do not flag the hurdles to be overcome before utilising these permitted developments becomes a viable option.

Notwithstanding, Class MA, which will allow very many properties within Class E to change to residential without consideration of impact on the High Street if the proposal is outside of a conservation area and limited consideration if it is within, will be among the most significant planning changes in a generation. Only listed buildings and their curtilage and properties in the most sensitive locations such as World Heritage Sites, National Parks and Areas of Outstanding National Beauty will be excluded from the new PD right. The legislation precludes or requires assessment of loss of retail and office in beautiful and heritage locations, but in no other retail or business destinations. The retail assessment required by the current Class M PD right will fall away.

Delivering housing and the reuse of redundant shopping space are known to be the Government's priority and the Class MA permitted development right emphasises this.

From 1 August 2021 Class MA will:

• Replace Class O office to residential
  
  
• Partially replace Class M retail to residential (partially because Class M currently permits change of use to residential from uses not within Class E, e.g. take-aways, betting offices, pay day loan shops and launderettes, as well as from A1 and A2)

Class PA – B1(c) light industrial to residential - has already fallen away, at least for the moment.

Subject to limitations and conditions, former uses classes Class A1 (shops); Class A2 (financial and professional services); Class A3 (food and drink); Class B1 (business); Class D1(a) (non-residential institutions – medical or health services); Class D1(b) (non-residential institutions – crèche, day nursery or day centre) and Class D2(e) (assembly and leisure – indoor and outdoor sports), other than use as an indoor swimming pool or skating rink, will benefit from the Class MA PDR.

This means that Class E buildings or planning units that formerly fell within Classes A3, D1(a), D1(b) or D2(e), will benefit from permitted development rights to change use to residential that they did not benefit from before, provided Class E limitations and conditions are met and there are no restrictive conditions.

Yes.

The permitted development right does not apply if more 1,500sqm of cumulative floorspace is to be converted. This is significantly more than the 150sqm permitted under Class M retail to residential at present, but a significant new restriction for office to residential change of use via permitted development.

This limitation also did not feature in the original consultation and was introduced in response to the consultation on the new permitted development right.

Converting only part of a building is permitted, so the building may be bigger than 1,500 sqm. The Explanatory Memorandum says at paragraph 7.7:

Given that the floorspace of most retail premises within town centres is below 1,500 sq.m, this limitation excludes very few of such premises from the new permitted development right, but many small shop units may be under the minimum space standard for residential use.

No.

There are also limitations relating to the location of the development, longevity of existing use and vacancy. Article 4 Directions removing Class O permitted development rights will continue to apply until 31 July 2022. The inference is that Article 4 Directions removing Class M permitted development rights for change of use from former use classes A1 and A2 will fall away. However, there are transitional and saving provisions relating to Article 4 Directions at Regulation 3 of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 and the Explanatory Note to those Regulations says:

There may also be restrictive planning conditions or legal agreements that prevent change of use via Class MA.

The PDR does not apply in certain designated areas. For former class A1 and A2 uses the Class MA PDR is less restrictive than current Class M, because Class MA applies within conservation areas where Class M does not. But there will more limitations on the locations that will be able to benefit from office to residential PDRs than there are at present. Class MA does not apply in a site of special scientific interest, an area of outstanding natural beauty, an area specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 (enhancement and protection of the natural beauty and amenity of the countryside), the Broads, a National Park or a World Heritage Site -  Class O applies in these areas and Class M does not.

As with the Class M and Class O PDRs, development is not permitted by Class MA if land covered by, or within the curtilage of, the building is or forms part of a safety hazard area or a military explosives storage area; a listed building or land within its curtilage and/or a scheduled monument or land within its curtilage.

There may be a condition on a planning permission for an existing use or development that seeks to prevent change of use to other uses. The extent to which such a condition would prevent a building or part of a building from benefiting from Class MA would need to be considered on a case by case basis. As noted above, legal agreements should be checked too.

To benefit from Class MA, the use of the building must have fallen within Class E or one or more of the uses that it replaced for at least two years continuously prior to the date the prior approval application is made.

This limitation was introduced in response to the consultation outcome and did not feature in the original consultation.

The legislation is not clear on whether the building must have been in the same use or mix of uses for the two year period, but the Explanatory Memorandum suggests not. It says that “the building must have been in Commercial, Business and Service use for two years before benefiting from the right […] time served in the uses in former use classes now within the Commercial Business and Service use class […] will count towards this period”.

It is possible that planning units that were once in a sui generis mix of uses now together fall within class E (e.g. shop and café where the café is not ancillary).  Similarly, where uses such as beauty salons might now be considered within class E, they were not always considered to fall within class A1. Therefore, the implications of the longevity test for such buildings and planning units formerly considered sui generis, but now in Class E, may need some consideration.

The longevity test is intended to prevent “gaming”, but giving how wide-ranging Class E is, one wonders what gaming might have taken place to have a lawful Class E use for less than two years purely with a view to obtaining planning permission for residential?

The building must have been vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval.

This is another limitation that was introduced in response to the consultation outcome and did not feature in the original consultation.

Periods of closure as a result of Government Covid-19 restrictions will not count towards the vacancy period where the building continues to be occupied by the owner or tenant.

A prior approval application can be made to change the use of part of the building only. The vacancy test applies to the building, but as the definition of a building in the GPDO relates to part of a building this might mean the vacancy test is only required for the part of the building to be converted. Certainly this would be the most sensible interpretation in order to make the best use of land.

The requirement that building must have been vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval suggests that the building can be brought into use after the prior approval application has been submitted.

All prior approval matters are carried over from Class O, and of these matters the following are also Class M prior approval matters: transport and highways impacts of the development, contamination risks, flooding risks and the provision of adequate natural light in all habitable rooms of the dwellinghouses.

Three new prior approval matters will be introduced relating to loss of certain social infrastructure, agent of change and impact on conservation areas, which will not be relevant to all schemes.

A key change arising from Class MA will be the loss of a prior approval matter considering the impact of the loss of retail, which is currently required under Class M. This becomes more of a glaring omission given that one of the new prior approval matters requires the impact of the loss of nurseries and clinics to be considered (where relevant).

In a conservation area and where the change of use is at ground floor level, the impact on the character and sustainability of the conservation area is another new prior approval matter. Addressing this matter could potentially include a limited assessment of retail impact.

There are two agent of change prior approval matters – one requires consideration of the impacts of noise from commercial premises on the intended occupiers of the development, which is already a Class O prior approval matter. A new prior approval matter requires consideration of 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. How local planning authorities are to determine what is an important area for such uses is potentially open to interpretation.

The Class M external appearance and design prior approval matter does not feature in Class MA, but nor does the ability to obtain prior approval for operational development reasonably necessary for conversion to residential – so that prior approval matter is no longer relevant.

There will be minor changes that affect all prior approval applications under Part 3. Firstly, the total floor space in square metres of each dwellinghouse must be shown on the plans. Secondly, the local planning authority must now serve notice on any owner or occupier of the other part or parts of the building, where the application relates to part of a building.

The requirement to meet space standards will come into force on 6 April 2021, through an amendment to Article 3 of the GPDO. From that date, Article 3 will state that the GPDO does not grant permission for any dwellinghouse that would be less than 37sqm or would not comply with the nationally described space standard. Therefore, this new requirement will apply to current Classes M and O and all other classes of permitted development that permit dwellings, including Class MA once in force.

£100 per dwellinghouse, up to a maximum fee of £5,000. This is a significant rise from the current £96 total fee (the fee for change of use only, under Class M, is £206 if operational development is proposed too).

According to the Government, “this strikes a balance between supporting local authority resource and encouraging future development”.

The minimum internal floorspace requirements mean that a 1,500sqm building could accommodate a theoretical maximum of 40 dwellings, more likely fewer given the circulation space needed and housing mix potentially desired. So, notwithstanding the intended maximum fee stated by the Government, it is unlikely that an application fee would exceed £4,000. 

Yes. Valid prior approval applications must be submitted on 31 July at the latest.

And for the moment, Class M can be used after 31 July 2021 for uses that benefit from this PDR and do not fall within new Class E (e.g. take-away to residential). However, it is anticipated that different Part 3 (permanent change of use) permitted development rights relating to other now obsolete use classes (such as Class A5 take-aways) will be in force by 1 August 2021. According to the Supporting housing delivery and public service infrastructure consultation outcome, the Government will undertake a technical consultation on each Part 3 permitted development right that is to be amended or replaced.