The previous government caused some controversy when they extended permitted development rights, where planning permission is effectively granted nationally for an entire class of development if certain requirements are met. Class MA, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development Order) (England) Order 2015 allows commercial buildings to be used for housing. This caused an outcry in some quarters following the introduction of these rights in 2013and concerns were set out in a report carried out by the Royal Institution of Chartered Surveyors dated May 2018 and titled ‘Assessing the impacts of extending permitted development rights to office-to-residential change of use in England’. The report raised a concern that the pace of development would outstrip supporting infrastructure in some authorities and that developers could avoid planning gain because they would not need to provide affordable housing or pay section 106 contributions. In particular, office-to-residential conversions were found to be much less likely to have amenity space and generally were much smaller. As a consequence, more safeguards and checks were added to the relevant permitted development rights.
Concerns and challenges
What is often not recognised are the limitations on permitted development rights and what hoops have to be jumped through to allow the change of use, including a prior approval process for some classes of permitted development. This is demonstrated through a recent appeal decision where a planning inspector dismissed an appeal against a refusal by London Borough of Hammersmith and Fulham of a prior approval application for the change of use of an office to 34 dwellings.
Class MA allows the change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) to a use falling with Class C3 (dwellinghouses). However, a condition of Class MA provides that before beginning development a developer must apply to the local planning authority for a determination as to whether prior approval of the authority will be required on a number of specified matters. The relevant matters include transport impacts, the provision of natural light, waste management and fire risk. These factors were all considered in this appeal.
The inspector considered that the proposed residential use would cause local parking stress in relation to both time and volume. It was concluded that it was unlikely there would be sufficient space to meet parking demand, which would result in an adverse transport impact. Additionally, the London Plan requires development delivering ten or more units to provide a parking bay for disabled people from the outset and there would be a conflict with this policy as such a parking bay would not be provided.
Key issues identified in the appeal
Additionally, a policy in the Local Plan required new development to have car parking permit-free measures imposed unless evidence is provided to show there is a significant lack of public transport available. A draft unilateral undertaking was submitted, and it sought to restrict access to parking permits through restrictive covenants. However, the inspector stated that eligibility for permits is controlled by Local Traffic Orders and the unilateral undertaking did not set out a mechanism for ensuring the Council amends its Traffic Orders. The inspector was not able to conclude that the development would meet the requirement for car-free housing.
The plans submitted with the application showed cycle stands and racks located within the undercroft to the building. The inspector considered that Class MA allows a change of use to land within the curtilage but not operations required to facilitate that change of use. The cycle racks were outside the building and installation would be engineering works that would require separate planning permission. As such, the proposals were outside the scope of the permitted development rights despite the minor nature of the development. The National Planning Practice Guidance provides that where physical development is required to implement the change of use, developers need to consider whether it constitutes development and ensure they have planning permission if necessary.
Additionally, the inspector concluded that the application did not meet requirements regarding fire safety as the Fire Statement that the appellant prepared was not sent to the Council.
Lessons for developers
This decision is a reminder to developers that permitted development rights cannot be taken for granted because all prior approval matters must be acceptable to the local planning authority. The refusal on the ground that cycle stands could not be provided without a separate planning permission highlights that prior to submission of a prior approval application developers need to be careful in checking that a permitted development right they wish to rely upon also allows the full extent of any operational works required for the change of use to be acceptable.
The continued popularity of class MA conversions
Despite the hurdles faced in obtaining prior approval, applications for change of use from commercial to residential under Class MA remain very popular for developers and 1,535 applications under this right were submitted to local authorities in England in the 12 months up to September 2024. Applications in the Greater South East accounted for 70 per cent of the 20 local authorities that received most applications pursuant to this right in this period and this would suggest that Class MA is very attractive in those parts of the country where housing demand is particularly high.
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