Secretary of State revises boundaries on Article 4 Directions restricting Class MA Permitted Development Rights

The Secretary of State (SoS) for Levelling Up, Housing and Communities has, at the end of July, directed that Article 4 Directions be modified which restrict Class MA permitted development rights (PDRs) made by Westminster, RBKC, Richmond on Thames and Wandsworth Councils.

As a recap, Class MA PDRs came into force on 1st August 2021, and, subject to Prior Approval, allow for 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 residential (Use Class C3). Class MA replaces the previous commercial to residential PDRs including Class O (Office to Residential) and Class M (A1 shops and A2 financial and professional services to Residential), which have since expired.

These significant provisions were seen to provide wide-ranging opportunities for under-used or vacant town centre and strategic sites following the introduction of the newly formed Class E use in September 2020 which encompasses a raft of uses. The PDR allows for a more streamlined process with greater planning certainty and was intended by Central Government to support economic recovery, rejuvenate and diversify high streets through better use of vacant premises and to encourage sustainable use of brownfield sites.

Nevertheless, as predicted, numerous Councils have subsequently sought to restrict this through the imposition of non-immediate Article 4 Directions (most of which are due to come into force now – a year later). A number of London Councils have gone down this route, principally owing to concerns over the loss of business space in town centres and employment locations, with several authorities seeking to cover their administrative areas.

Westminster City Council

Westminster City Council first made a direction on 14th July 2021 under Article 4(1) of the General Permitted Development Order removing Class MA for the majority of the Westminster Central Activities Zone (CAZ). The Article 4 direction was due to come into force on 1st August 2022 and would mean proposals for conversion from Class E to residential would require planning permission and, crucially, relevant development plan policies would apply.

Nevertheless, the SoS has seen fit to modify this Direction, overruling the Council’s proposals to determine that the Direction must cover a smaller geographical area.

The SoS has, within his letter, quoted Paragraph 53 of the NPPF which stipulates Article 4 Directions should be limited to:

• “…situations where an Article 4 direction is necessary to avoid wholly unacceptable adverse impacts (this could include the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability, but would be very unlikely to extend to the whole of a town centre);
• In other cases, be limited to situations where an Article 4 direction is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities);
• In all cases, be based on robust evidence, and apply to the smallest geographical area possible”.

The SoS goes on to state that:

“The Article 4 direction, as made, does not take a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that Article 4 direction applies only to the smallest geographical area possible. I am therefore of the view that the boundary must now be modified in accordance with the notice attached to this letter”.

“This will ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within town centres with continuous ground floor frontages, Special Policy Areas that offer a unique mix of commercial uses and mature Opportunity Areas that have delivered high levels of commercial floorspace in the last decade”.

These modifications will ensure that the Article 4 Direction boundary for areas within the Westminster Central Activities Zone is justified by robust evidence and complies with national planning policy”.

As such, with immediate effect, Class MA PDRs are now restricted only within specific areas and streets within Westminster.

Nevertheless, as per the site boundary revision, Class MA Prior Approval applications can now be made within certain areas of the CAZ, affording a range of opportunities. Westminster is also proposing a separate Article 4 Direction for high streets outside of the CAZ, and which the Council intends to formally introduce in December 2022 (12 months after it was made).

RBKC

The Royal Borough of Kensington and Chelsea (RBKC) made a Direction on 20th July 2021 for the entire administrative area to be covered by an Article 4 Direction.

The SoS saw it necessary to amend the location of the Direction on 22nd July 2022 to:

“… ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial and, where appropriate, other activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within larger town centres, important neighbourhood centres, Employment Zones, clusters of office and light industrial uses across the borough and valued medical uses and creches outside of our town centres”

Richmond on Thames

Richmond on Thames applied on 30th July 2021 for 67 sites to be covered by an Article 4 Direction restricting Class MA.  The SoS has since, on 22nd July 2022, reduced the extent of the Direction, which will come into effect on 31st July 2022.

Wandsworth

Wandsworth applied for an Article 4 Direction on 30th July 2021 to cover the CAZ (Nine Elms) and 62 other sites. The SoS has since reduced the extent of the area covered.

Summary

In summary, it appears that Central Government will be steadfast in their stance that Article 4 directions should be limited to precise and small geographical areas to encourage the intended benefits of the PDR, such as providing a level of flexibility within the planning system to help smaller buildings which can more easily change their use and to help increase housing supply via a more straightforward approach.

It will be very interesting to see where else the SoS will see fit to intervene regarding Class MA Article 4 Directions, particularly considering the legal challenge to revoke Class MA launched by Islington Council.

Given that certain areas of the Westminster CAZ have now been removed from the now live Article 4 Direction, and prior to the implementation a Direction affecting other Westminster high streets in December, there could be some opportunities in the next few months to benefit from these PDRs as Central Government intends.

Firstplan are continuing to monitor the progression of Article 4 Directions across London and elsewhere. Please contact a member of the Firstplan team to discuss opportunities afforded by this PDR and clarification on where the Article 4 Directions do and don’t apply.

Article by Claire Stafford