Amongst all of the ‘doom and gloom’ regarding the UK’s economic performance, cost of living and rising interest rates, many in the SME development community are still finding and exploiting opportunities for development using permitted development rights, especially the wonderfully useful Class MA permitted development right.
As consumer spending over the next 12-18 months is likely to be severely constrained by rising fuel and food costs and increases in interest rates add pain to mortgage costs, these challenges are likely to place further pressure on already-struggling secondary and tertiary retail and commercial pitches, in turn prompting opportunities to exploit Class MA permitted development to change these premises to flats and houses.
In the May edition of the magazine, we walked you through a Class MA case that we took through planning for a High Street premises that had become vacant as a result of recent economic turbulence. Since then, we added further value for the client by adding another floor on top to create another 2-bedroom flat. This has given this scheme additional useful profit margin, much-needed to ensure the continued economic viability of this scheme.
Building on the Class MA scheme
In May 2022, prior approval had been obtained to change the use of the ground floor and lower ground floor, and then under a separate application the upper floors to a total of eight one-bedroom and studio flats.
The applications were submitted in early February 2022 and finally determined in May 2022. Normally, Class MA applications are subject to a 56-day (2 month) time-frame and it is open to the applicant to wait until this period expires and, if and when it does with no decision, then approval follows automatically.
However, roughly six weeks in to the application, the officer indicated possible refusal. This had to be addressed (it was largely a misunderstanding of the proposal by officers and was easily corrected). Once it was addressed, officers asked for an extension of time by several weeks to agree a Section 106 undertaking relating to the payment of money toward local habitats and nature conservation.
If we had decided to ‘sit on our hands’ at this time, there was a real danger that the officers might refuse the application before the end of 56 days. In any event, deemed prior approval for Class MA rights under the Planning Acts would not have automatically given the client the consent that they still needed in this case under The Conservation of Habitats and Species Regulations 2017. Article 3(1) of the Town and Country Planning (General Permitted Development) Order 2015 expressly brings the 2017 Regulations into the area of PD rights in planning legislation. It makes clear that there is a separate consent regime for nature conservation that applicants need to follow, whether or not they need planning permission or however they obtain confirmation of permitted development rights. Therefore, we still needed to discharge this separate requirement for Habitats consent by agreeing to pay these sums through a Section 106 agreement and agreeing to a small extension of time was necessary.
An opportunity to add value
As can be seen from the street view below, this site presented a great opportunity to look to increase the building height.
Firstly, the roof heights along the High Street, as well as the building styles and finishes, are very varied. In particular, the building height to the left of the site is already one full storey higher and other buildings in the vicinity are also higher.
Secondly, the site already has a pitched roof (double-pitched with valley gutter – see the centre of satellite image below), which due to its shallow pitch and the narrow width of the roadway to High Street, meant that this cannot be clearly seen from the ground level up.
As the building is clearly pre-1948 and located in a conservation area, permitted development rights for upwards-only extensions are not available in this case, and so an application for full planning permission was made instead.
Applying for an extra storey therefore seemed like a ‘natural’ progression for the development in this case and made sense in townscape and urban design terms. This would take the building to a total of four storeys – five storeys at the rear including the lower ground floor due to the fall in the street level to the rear. There was no precedent nearby for more storeys than this. When looking at sites, especially mid-terrace and in conservation areas, it is very unlikely that the Council would allow permission for a building to go significantly higher than its neighbours (there are exceptions such as ‘gateway’ or corner sites and new ‘landmark’ buildings).
Issues and timescales
The application was submitted in mid-June, about a month after obtaining consent for change of use under Class MA. This time was taken up by application preparation – such as plans and drawings, preparation of the planning statement and application preparation.
After some delay, the permission was granted in late September 2022, about 3 months later. These delays were partly due to the unusual layout of the title in the land, in respect of which there was a ‘flying freehold’ (part of the upper floors within our ownership oversailed the lower floors to the neighbouring property in the terrace) and questions were raised by third parties regarding the legal interest in the rear access and courtyard to the site (where bin storage was proposed). These issues affected whether the application had been properly advertised by the Council, who were minded to restart the 3-week public consultation period as they were concerned that it had not been properly advertised to neighbours. Legal proof of title managed to avoid this.
The other main source of delay was down to, firstly waiting on the Conservation and Design officer to respond, and secondly, trying to settle the Section 106 undertaking toward natural habitats contributions.
Dealing statutory consultees
Statutory consultees on planning applications are perhaps, in our current experience, the greatest source of delay to obtaining any officer feedback on applications, let alone the decision. Some of these consultees can have a significant impact on the outcome of the scheme and can either help or harden planning officer opinion about the merits of the scheme.
These consultees include officers in Conservation and Design, Environmental Health, and Traffic and Highways. It is critical that key issues of possible contention are identified between the client and the planning consultant at an early stage. Where these officers get involved in a scheme, if their concerns are technical and might significantly impact on value and cost or viability, it can make sense to enlist the help of a specialist in the area. Firstly, your planning consultant can deal with a great many of these issues, but will not have access to specialist parking and trip rate databases, usually not be equipped or trained to undertake natural light, noise or air quality assessments, and sometimes a more ‘scientific’ or forensic approach to officers concerns (some of which may be general, untested and anecdotal) is needed.
We have also found in the past, especially with heritage officers when dealing with significant interventions affecting listed buildings or conservation areas, there may be resistance on such issues through the absence of a heritage consultant and a genuine and thorough, or ‘scholarly’, approach to the development proposals. It may be a degree of professional snobbery or concern that the applicant is not taking such issues seriously enough, which can lead to some significant early resistance from such officers. Of course, a heritage consultant is not needed in every case. We did not need this in this case given the fairly straightforward nature of the proposals.
Chasing up progress
A question that often comes up is how and when to chase the officers.
As consultants we are often trying to strike a balance between pushing as hard as we can for the client and being proactive, but also not making such a nuisance of ourselves that we harm the potential to establish a relationship with the officer.
Then again, some officers (or planning departments) are so poor at answering email – most officers are still working from home and thus only available via email – that it is clear that they have been more or less told by their line managers to prioritise the timing of delivery sometimes to the detriment of the quality of the decision.
Certainly, when an application has been submitted, usually via the Planning Portal, it is good practice to chase this up after about a week with the Administration Team to ensure prompt registration and validation of the application. After that, there is no point chasing for at least another 3 weeks during the statutory consultation period of 21 days.
As the 21 days comes to an end, we expect officers to start turning to an application and reviewing it. It can take a week or two after that to get a response from the case officer. If after a couple of weeks there is no response, we usually start copying in the team leader, after which we might start emailing the team leader and copying in the case officer, and as a last resort copying in the Head of Planning or emailing them directly. If we have the contact details for the statutory consultee of other officers on whom the planning officer is awaiting a response, then we will copy them in too or email them direct.
Be mindful of your ‘target decision date’ for the application. For instance, if the application should take 56 days or 8 weeks to determine, assume that from the start of week 7, officers will be looking to write up their recommendation and decision. Therefore, after about week 4-5, serious thought needs to be given toward cranking up some pressure through email chasing if officers are not responding.
Conclusions
Recent forecasts for the UK economy in the short to medium term will create an opportunity for developers and investors bold enough to captilise on current landlord anxiety over the state of the commercial lettings market, especially in secondary or tertiary pitches, which may see already weak consumer demand drop-off even further as household budgets experience a greater squeeze.
These opportunities will be tailor-made for PD-led strategies, particularly making use of the new Class MA permitted development rights and, in the right circumstances on appropriate sites, offer further opportunity to add value at roof level with the right due diligence and an experienced professional team.
The planning process will continue to throw up challenges, especially given officer workloads and delays in managing applications, as well as the ‘remoteness’ of some officers. However, with mitigating strategies, persistence and good design, this can help protect and enhance the value of a scheme and ensure a tidy and viable exit from projects during this turbulent time.
