27th May 2021

New residential permitted development rights explained

Housing secretary Robert Jenrick has revealed that new residential permitted development for England will come into effect in the autumnMatt Gilks, a senior associate in Thrings’ Planning and Environment team, reviews the new rules and explains how a wide range of parties - from shop floors to front doors – will be impacted.  

Housing secretary Robert Jenrick has revealed that new residential permitted development for England will come into effect in the autumnMatt Gilks, a senior associate in Thrings’ Planning and Environment team, reviews the new rules and explains how a wide range of parties - from shop floors to front doors – will be impacted.  

 

The government has announced a new permitted development right to allow for new residential changes of use. The changes are a notable opportunity for landowners and investors to revisit their portfolios in the context of this further loosening of control by local planning authorities over development control decision-making. 

The controversial new right allows the change of use from the commercial, business and service use (Class E) to residential use (Class C3). The changes are intended to support housing delivery, economic recovery and high street regeneration and do not require a full planning application to the local planning authority (LPA). 

Key requirements to apply for prior approval on or after 1 August 2021 are: 

  • The building must have been in Class E use for two years before benefitting from the right ― that includes time spent in the former uses 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); Class D2(e) (assembly and leisure – indoor and outdoor sports), other than use as an indoor swimming pool or skating rink; 
  • A building must have been vacant for three continuous months immediately before the date of application; 
  • No more than 1,500 sq m of floorspace may change use in any building and the development must meet nationally described space standards. 

The right will apply over the vast majority of England and in conservation areas, but will not be available in national parks, Areas of Outstanding Natural Beauty or where the land is designated as a Site of Special Scientific Interest (SSSI) or where it is a listed building. The LPA can take account of a number of factors in deciding to grant prior approval.  

The LPA can consider the impact of the loss of ground floor commercial, business and service use on the character and sustainability of conservation areas. They may also consider the potential impact of the loss of health centres and registered nurseries on the provision of such local servicesIf the site is occupied under an agricultural tenancy the express consent of both the landlord and the tenant must be obtained. Other factors are flooding; transport impacts; contamination; noise; adequate natural light; and the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for industrial, storage or waste uses. 

With a proposed application fee of only £100 per home, there will be a number of underutilised but attractive commercial properties being considered for conversion over the summer. It is important to consider the extent to which other permissions are required for additional works to augment a residential conversion. 

Those wishing to exercise permitted development rights in Class O (change of use from office to residential) and Class M (retail, takeaways and specified sui generis uses to dwellinghouses) need to make applications on or before 31 July 2021.  

Commercial landlords seeking to implement this planning procedure will undoubtedly need to give careful consideration to the three-month vacancy condition. This will be particularly relevant in respect of sitting tenants. A value judgment and legal advice linked to the timing and cost of procuring vacant possession of such properties will need to be consideredBusiness rates liability that may accrue from the date of vacant possession, compensation payments in respect of the removal of protected tenants, and the cost and delays that may be incurred may also be influencing factors in considering this process. On the other hand, where landlords have been forced to take surrenders of non-performing commercial tenancies, this could present them with an interesting opportunity to pursue and engineer the planning value of existing vacant commercial properties through the use and implementation of the prior approval process.  

Office to residential prior approvals under Class O that are blocked by an LPA Article 4 Direction removing permitted development rights will continue to be prevented by those directions until 31 July 2022. 

If you are interested in exploring the potential benefits of the new Class MA permitted development right, or require advice on its implications and opportunities, please contact Matt Gilks or another member of Thrings Planning and Development team.


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