Class MA Change of use - 1500sqm floorspace threshold - Public forum - Planning Advisory Service (PAS)

Hmm.

Option 3 makes most sense to me

(With a slight tweak that what matters is the cumulative amount of floorspace which has actually had it's use changed rather than the cumulative amount of floorspace in a series of prior approval apps.

Hate to come up empty for any authority for this view but the only cases I can find that come near this is an ongoing dispute over the idea that in order to identify the existing use, one must first identify the planning unit. Permission for statutory review was granted May 2022 and if the local press is to be believed the court hearing is this month.

https://www.bailii.org/ew/cases/EWHC/Admin/2022/1184.html

https://www.chroniclelive.co.uk/news/north-east-news/new-plans-revealed-derelict-west-25268193

Whether or not the case will pick up points that might be tangentially related to the planning unit, such as the size of buildings proposed for change of use, remains to be seen, but it will be an interesting judgement in any case.

We looked at this in dealing with our Article 4 that came into force in Reading in November.  The advice we received when we asked this question of legal colleagues was that it was your Option 3.  We were pointed towards a helpful part of the explanatory memorandum of the Town and Country Planning (General Permotted Development etc) (England) (Amendment) Order 2021 No 428, which, in paragraph 7.7 says:

“7.7 The Class MA right will provide for the change of use from any use within the Commercial, Business and Service use class (E) to residential (class C3) use. In order to prevent gaming, the building must have been in Commercial, Business and Service use for two years before benefiting from the right. As the use class has not long been in place, time served in the uses in former use classes now within the Commercial Business and Service use class, such as A1 (shops), and D1 (b) (non-residential institutions – crèche, day nursery or day centre), will count towards this period. To protect successful businesses, the right will require the building to have been vacant for three continuous months immediately before the date of application for prior approval. The time that the premises is closed as a result of Government Covid-19 restrictions will not count towards this period where the building continues to be occupied by the owner or tenant. No more than 1,500 sq m of floorspace in any building may change use. Part of the building may change use under the right, including where the lower floors are in Commercial, Business and Service use and the upper floors residential. The right will apply in Conservation Areas, but not in other land listed in Article 2(3) of the General Permitted Development Order, such as National Parks and Areas of Outstanding Natural Beauty. In accordance with the Secretary of State’s announcement of 30 September 2020, under Article 3 (9A) of the General Permitted Development Order, the homes delivered are required to meet, as a minimum, the nationally described space standards"

This rules out Option 1, and would seem to point to option 3 rather than 2.  Of course, that's the intention of the order, but I am not aware whether there is any case of the rather ambiguous wording actually being tested.

Hackney met with DLUHC to discuss our Article 4 Direction last year, and we were told that the 1,500sqm could apply to a larger building where only part of the building was being converted under PD rights.  The PDR right does not simply apply to buildings 1,500sqm or smaller, just to the space being converted.  

Thanks for the responses everyone.  The consensus seems to be that the third option is the most sensible - reassuring that we aren't thinking too far out of line!  Thanks Mark for the reference to the explanatory memorandum in particular.

This feels like a recurring theme  - ambiguously worded new legislation that we think we know the most sensible interpretation of, but it's not clearly worded (where it easily could be), leaving room for some 'enterprising' interpretations!