Appeal 6005402

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (GPDO) for the change of use of Class E space to form 1 apartment at [site address] , Southend-on-Sea, [site address] [postcode] in accordance with application 25/01365/PA64 and the details submitted with it and subject to the following condition:

Prior to the first occupation of the dwelling hereby approved, full details (including scaled elevations) of secure and covered cycle storage for occupiers of the development shall have been submitted to and approved in writing by the Local Planning Authority under the terms of this condition. The approved secure and covered cycle storage shall be provided and made available for use by the occupants of the dwelling hereby approved prior to its first occupation and shall be retained as such thereafter for the lifetime of the development.

Under Article 3(1) and Schedule 2, Part 3, Class MA (hereafter referred to as Class MA) of the GPDO, planning permission is granted for development consisting of a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) of Schedule 2 to the Use Classes Order to a use falling within Class C3 (dwellinghouses) of Schedule 1 to that order subject to conditions and limitations.

Permission under Class MA is conditional upon the developer first applying to the Local Planning Authority for a determination as to whether its prior approval would be required as to the matters set out in paragraph MA.2. These matters include transport impacts, contamination risks, flooding risks, impacts of noise from commercial premises and the provision of adequate natural light in habitable rooms.

Whilst there is no dispute between the main parties that the proposed development would meet the limitations and restrictions set out under paragraphs MA.1(1) and (2), the Council refused to grant approval on the basis that the proposal includes operational development which does not meet the requirements for permitted development under Class MA.

The appeal relates to part of the ground floor of the building which was last used as a shop with offices (and 2 existing flats) above. Both commercial uses would now fall under Class E of the Use Classes Order.

The main issues in dispute are: • Whether the proposal would be permitted development under Class MA, with particular reference to whether the trickle vents shown on the plans would take the proposal beyond the scope of Class MA; and • The effect of the proposal on the integrity of European sites.

The appellant proposes to convert part of the ground floor to the front (Use Class E) to one self-contained flat (Use Class C3). The proposed flat would be a 1 bedroom, 1 person unit with a gross internal floor area of 38.[address] metres, accessed by an existing door to the north-eastern corner elevation. A retail unit with ancillary commercial spaces at ground floor would be retained. Bin and bike stores are shown to the rear. The submitted plans show that trickle vents would be installed to the ground floor eastern and northern elevations of the building to provide ventilation to the proposed flat.

The Council has taken the view the trickle vents would amount to operational development necessary to facilitate the change of use and make the flat habitable in terms of ventilation. Operational development is not permitted under Class MA and therefore a full application for planning permission would be required for such operational development, unless the Council deems that the works would not materially affect the external appearance of the building.

Prior notification under Class MA does not require any assessment of ventilation and the proposal would still be subject to control under the Building Regulations. Whilst no details have been provided of the trickle vents, they are annotated via a note on the plans, although there is no requirement in the procedure for applications for prior approval under Part 3 for elevations to be submitted. Regardless of this, if trickle vents were required to ventilate the flat, they would be subject to control via planning permission. The permitted development is for change of use only and ventilation is not a prior approval matter, therefore my consideration is focused on the change of use and not operational development. This matter would not preclude a grant of prior approval for the change of use under Class MA.

Given that I am satisfied that the proposed development falls within the scope of Class MA, I need to go on to consider the prior approval matters set out in MA.2.(2).

The Council has not indicated any issue with the prior approval matters, and based on the information submitted with the application and my observations at the site visit, I have no reason to take a different view.

Regulation 9(1) of the Conservation of Habitats and Species Regulations 2017 (the ‘Habitats Regulations’) requires an appropriate authority to exercise their functions (which are relevant to nature conservation) so as to secure compliance with the requirements of the Habitats and [name].

Article 3(1) of the GPDO grants planning permission for the classes of development set out in Schedule 2 subject to Regulations 75-78 of the Habitats Regulations. Regulation 75 provides that it is a condition of any planning permission granted by a general development order on or after 30 November 2017 that development which is (a) likely to have a significant effect on a European site, alone or in combination with other plans or projects and (b) not directly connected with or necessary to the management of the site must not be begun until the developer has received the Council’s written notification of approval of an application made under Regulation 77.

Article 3(1) and Regulations 75-78 operate to impose a pre-commencement condition on all development that is permitted by the GPDO and would affect a European site. Permitted Development cannot be lawfully begun until the developer has made a Regulation 77 application and received written notification from the Council to the effect that the development would have no adverse effect on the integrity of the European site. Neither the GPDO nor Regulations 75-78 prescribes the sequencing of prior approval and Regulation 77 applications. Developers do not need to obtain written notification of a Regulation 77 approval before seeking prior approval or vice versa.

A prior approval appeal cannot be dismissed on the ground that a Regulation 77 application is required but not yet made or approved. As such, the second reason for refusal, which centres around mitigation requirements in the adopted [name] and [name] (RAMS) Supplementary Planning Document, would not constitute grounds to dismiss the appeal.

My attention has been drawn to an appeal decision for a different site where the Inspector deemed the proposed development did not constitute permitted development under Class MA as there was no planning permission to secure the physical works required to facilitate the change of use. However, the extent of the physical works required in that decision appeared to be significant, including raising the ridge height of the roof of the building, the insertion of a door and the blocking up and insertion of new windows including a Juliet balcony and roof lights. The circumstances of the case are not directly comparable as the physical works proposed in this appeal relate only to ventilation which is not a matter for consideration under prior approval for a change of use under Class MA.

I note the comments that the proposal would be damaging to local retail with the loss of the commercial frontage and the suitability of the proposed unit for living accommodation with respect to noise from on street and vehicular traffic. However, neither issue is within the scope of paragraph MA.2 (2) and cannot be considered as part of this appeal.

For the reasons given above I conclude that the appeal should succeed.

Paragraph MA2(5) of the GPDO imposes a standard condition that development must be completed within three years of the date of this decision.

[name](13) of the GPDO explains that further conditions may only be imposed where they are reasonably related to the subject matter of the prior approvals.

I have attached a condition requiring the provision of cycle parking as this relates to the transport impacts of the development.

A condition specifying the approved plans is unnecessary as the proposal relates to a change of use only. The other conditions in the Council’s suggested list relating to hours of construction, refuse and recycling storage and limiting the development to use as a single dwellinghouse are unnecessary as they do not reasonably relate to subject matter of the prior approval.