Retail Repurposing: Helping or hindering the high street

A controversial new permitted development right allowing unused commercial premises to be converted into homes will take effect from 1 August 2021 in England. Lydia O’Hagan explains the detailed requirements.

The proposals are intended to revitalise England's ailing high streets by allowing unused premises including vacant shops to be used instead as homes. The Government hopes that the spending power of new occupiers will provide a much needed boost. The measures are hugely controversial however, attracting the wrath of many organisations such as the Royal Town Planning Institute who see the potential for adverse impact on the vibrancy of high streets and town centres and an increase in poor quality homes.

The new right (Class MA) is limited to 1,500 square metres of floorspace and is subject to prior approval requirements. It will not apply unless:

• For a continuous period of at least two years before the date of the application for prior approval, the use of the building fell within one or more of old use classes A1, A2, A3, B1, D1(a), D1(b) or D2(e) (other than indoor swimming pools or skating rinks) before 1 September 2020 or the new Class E on or after 1 September 2020; and 
• the building has been vacant for a continuous period of at least 3 months immediately before the date of the application for prior approval. There is no requirement for marketing however, so as the law stands it appears applicants would not be prevented from gaining vacant possession to seek to rely on the right.

There are exclusions, including SSSIs, safety hazard or military explosives storage areas, listed buildings and scheduled monuments (or land within their curtilage), areas of outstanding natural beauty, the Broads, National Parks and World Heritage Sites. Conservation areas are included. Where a site is occupied under an agricultural tenancy, the express consent of both landlord and tenant must be obtained.

Prior approval will be required on matters of transport and noise impacts, contamination and flood risk, provision of adequate natural light to all habitable rooms, the impact on intended occupiers of the development (where development is in an area important for general or heavy industry, waste management, storage and distribution or a mix of such uses) and where relevant, the impact of the loss of health centres and registered nurseries on the provision of such local services. In conservation areas, the LPA must also consider the impact of the loss of ground floor commercial, business and service use on the character / sustainability of that area. Any homes approved will need to meet the national space standards.  There is no provision for deemed approval.

Development must be completed within 3 years of the prior approval date.

The new measure will replace existing permitted rights allowing the conversion of offices (Class O) and A1 shops and A2 financial and professional services (Class M) into dwellings. All those wishing to rely on Class O or Class M must submit their applications by 31 July 2021.

Existing Article 4 directions preventing changes of use from office to residential will continue to have effect until 31 July 2022, giving authorities an opportunity to draw up new directions.  However, the recent consultation on changes to the National Planning Policy Framework proposes that Article 4 directions should only remove rights in limited circumstances. For changes to residential, the consultation proposed that directions could be limited to situations where it is essential to avoid wholly unacceptable adverse impacts OR where necessary to protect an interest of national significance; and should apply to the smallest geographical area possible. The Government’s response to the consultation is awaited.