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When the wind(fall) blows

Roy Pinnock examines the sweeping Commercial to Residential permitted development right that was trailed in Autumn 2020 and which will come into effect from 1 August 2021

The right will have major implications for the use and regeneration of England’s urban areas but the Government appears to have listened hard and taken on board some tough messages from consultees. The new Class MA rights are contained in the now-published amendment regulations.

Change is going to come

Some form of change to the PD regime was needed to address the impact of the new Class E introduced in September 2020. Faced with a choice to preserve or extend the existing PD rights, the Government has decided to extend them to provide new homes, create ‘planning certainty’ and boost high street footfall as well as the re-use of vacant commercial (brownfield) land.

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A bit of a shock

Existing residential conversion PD rights only apply to a limited set of commercial uses: offices, light industrial units, shops, professional services premises and hot food takeaways. A minimum size threshold of 150sqm applies for shops, professional services and takeaways. The new right was proposed to apply:

  • to all Class E uses – so including restaurants/cafes, surgeries/clinics, crèches and nurseries, and gyms
  • without size limit
  • in Conservation Areas
  • without prior approval in relation to design, high street frontage or other factors (other than in Conservation Areas)
  • with prior approval rights for local planning authorities limited to flooding, transport, contamination, noise amenity, natural light, fire safety, and ‘agent of change’ issues relating to general or heavy industry, waste management, storage and distribution uses.

Homes would have to meet space standards, and in conservation areas there would be an additional prior approval criterion around the impact of changing a ground floor use. The right will not apply to listed buildings, or scheduled monuments, etc. Nor will it apply in National Parks and Areas of Outstanding Natural Beauty.

Concerns

There are things to like about this – getting chimney pots back around shops, cutting back often bloated, straggling and obsolete shopping areas, recycling existing buildings, speed of delivery and limiting carbon emission and embodiment from redevelopment.

Concerns expressed by consultees were bleak, though, as recognised in the Government’s consultation response: over two-thirds of the nearly 800 respondents objected to the proposals.

Compromises

The proposals have taken on board some of the concerns, so the rights will be subject to:

  • A 3-month vacancy requirement
  • Threshold tests: prior Class E equivalent use for 2 years and a maximum area of 1,500 sqm
  • Continuation of existing Article 4 directions for office to residential
  • Consideration of the impact of the loss of the ground floor Commercial, Business and Service use but only in conservation areas
  • Protections for health centres and nurseries
  • Prior approval on the grounds noted above (along with transportation).

Article 4 directions restricting office-to-residential (Class O) changes continue to apply until July 2022.  This gives authorities time to put in place non-immediate directions.

What is to come

The changes show that Government listened to consultees but there is much not to like about the new position:

  • The size threshold and vacancy test may not protect valuable retail frontages outside conservation areas. Residential change of use tends to be indelible and the impact on unprotected frontages will be long-lasting.
  • The schemes will not contribute to any form of community infrastructure, including place-making investment needed to underpin residential amenity at street level. The 3 month vacancy period will allow schemes to come forward that bear no CIL. Infrastructure funding levied from other schemes will need to make up the difference.
  • The blanket availability of the right will lead to Existing and Alternative Uses values which will disrupt the comprehensive redevelopment schemes, masterplan and development plan led developments in town centres which have begun to come forward at pace as residential and office assumptions have been challenged. This will: reduce affordable housing yield (both from the PD schemes and comprehensive redevelopment with a higher residential PD fallback value), and make site assembly/ CPO and brownfield development more difficult.
  • It allows high street frontages to be disrupted with tooth gap residential development anywhere outside a conservation area or National Park/ AONB etc. (which are designated for its historic/landscape character and appearance rather than retail function and other place credentials).

Because some of the protections are arbitrary there is a risk that there is a highly visible and deeply felt impact which risks eroding place-making gains and faith in the planning system. They also cut across the lessons learned from Covid-19 in terms of the need to reinforce quality of place and local services and promote the ’20 minute neighbourhood’. Hopefully the tide of larger, comprehensively planned schemes already unleashed by changes to retail and office demand will provide a better alternative to piecemeal conversion.

Expect a similar tide of Article 4 directions in the meantime, against the backdrop of proposed changes that would move the goalposts for adoption from ‘protection of local amenity/well-being’ to ‘avoiding wholly unacceptable adverse impacts across the smallest geographical area possible’.

Roy Pinnock is a partner in the Planning and Public Law Team at Dentons. This article first appeared on the firm's Planning Law Blog.

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