In September 2021 the Government brought in what was arguably one of the most radical changes to the planning system in years – the changes to the Use Class Order. This saw re-classification which revoked Class A, Use Class B1 and Use Class D moved them into the new Use Class E (Commercial, Business and Service).
This has brought with it is own issues including making section of the National Planning Policy Framework (the Framework) irrelevant in relation to their approach to retail and the high streets as well as matters such as the Community Infrastructure Levy (CIL). In relation to the latter the CIL regulations were updated in November 2020 to move over the old charging schedule in the context of Use Class E (it previously references the old Use Classes). Whilst this provides clarity, with reference to CIL, for specified uses within Use Class E it does not provide guidance in open Use Class E applications. This is an issue as not all of the previous uses would have been CIL liable Despite this many Councils appear to be applying an “if it is capable of being a CIL chargeable use” it is being treated as CIL liable.
The implications for CIL receipts for Councils as a result of these changes are therefore quite major. This is as a result of the fact that changes of use between uses within Use Class E are not defined as development and thus do not require planning consent. These changes do, however, have their limitations in that they do have to have a certified, existing lawful use. As a result of the ability to change uses within Use Class E it is not uncommon for Councils to control changes within Use Class E via condition upon permission granted (i.e. controlling it to a defined use within Use Class E). Regardless of the potential allowances within the Use Class Order, a breach of condition is still a valid enforcement route (as are S106 agreements which may define and control use).
It is, therefore, very key to double check (as with all planning) your starting point, the site history and any general restrictions (such as Article 4 directions, discussed below) before taking the plunge with something you “think” is permitted development. Notwithstanding this it is important to take any legal restrictions into account such as tenancy restrictions which, whilst not a planning matter, could result in an issue outside of the planning world.
So with the introduction of Class E we also have Class MA. This allows Class E to be changed to Class C3 (residential dwellings). But not so fast. Class MA is subject to qualification criteria as well as a second stage of prior approval, the latter including things like highways, natural light etc. The qualification criteria alone require the application site to have been vacant for three months before application but also (slight contradiction) two years of continuous legal use (as use Class E or the equivalent previous use Class) we well as a maximum (cumulative) floor space of 1,500 sq./m. Surprisingly for some Class MA does apply in Conservation Areas (CA), however, the Council has an additional element of assessment in that it can assess the impact of loss of ground floor retail in a CA.
As with many permitted development rights they can be met with resistance and Class MA is no exception. Many Councils have sought to bring in Article 4 directions which specifically seek to restrict the use of such permitted development rights. The timings of these are important – if existing Article 4 directions are in place it may be that proposals need to wait twelve months, however, it is evident that many Councils are trying to further control proposals with new Article 4 directions designed to come into force at the end of the existing Article 4 directions. Paragraph 53 of the Framework is, however, clear in its wording as to when Article 4 directions are appropriate. Councils seeking to apply such directions county wide, or beyond the minimum area reasonably required to achieve the defined objectives are unlikely to be able to justify the Article 4 directions in question.
As can be seen the headline of “permitted development” is again far from simple. There is, in addition, a period of potential uncertainty ahead at the time of writing. This is mainly because if a Court of Appeal Case (Rights Community Action Case) which is currently awaiting judgement. If this case is won it could result in quashing of permitted development right changes which could essentially result in chaos and a period of limbo whilst we wait to see if there is re-consultation and reintroduction of the rights in question.
As with all things “permitted development” they are not simple, they require a robust understanding of the qualification criteria to be even considered as benefitting from the rights in question. Further information is then required for the matters which require prior approval as outlined within the legislation. These matters provide scope for further subjective assessment.
With regards to Class E, and the changes within that use Class and applications into that Use Class, it is imperative that the approach is carefully considered with regard to CIL liability as well as established existing use before any changes are made. It should also be remembered it is for the use only, not external changes or matters which may require additional consents such as Listed Building Consent. It is evident from even this short article which, quite honestly, barely touches the surface on some of these matters to consider that professional advice is important. Taking the time to specifically work out the starting position and site history is important and documenting this all is important. A couple of hours of professional advice could save you from a costly and embarrassing mistake when considering your planning potential for a site.
If you are considering change of use on your property and you are, understandably, confused as to the options – let us undertake an appraisal and set out the options, risks, positives and negatives for you in one simple, quick document. Hit the contact page to get in touch or book an initial mini chat!