Appeal 6007107

The appeal is dismissed.

Under Article 3(1) and Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the Order), planning permission is granted for the change of use of a building falling within use Class E (commercial, business and service) to Class C3 (dwellinghouse). This is subject to limitations and conditions, as set out in subsequent paragraphs of Class MA.

The conditions establish a requirement for developers to apply to the local planning authority for a determination as to whether prior approval will be required in relation to various specified prior approval matters.

In light of the above, the main issues are: • whether the proposal constitutes permitted development under Schedule 2, Part 3, Class MA of the Order; and • if so, whether prior approval should be granted.

Article 3(9A) of the Order provides that Schedule 2 does not permit any new dwellinghouse where the gross internal floorspace is less than [address] metres (sqm) or there is not compliance with the [name] (NDSS) issued by the Department for Communities and Local Government in 2015.

The appeal decisions at the same location, references 6002104 and 6003695, concerned proposals for prior approval for the change of use from Class E to 2 x 1-bedroom flats. The proposal before me is not substantially different to the dismissed appeals in terms of the size and layout of the flats. The Inspector dismissed these appeals on the basis that the flats were suitable for 2-person occupation given their bedroom sizes, and consequently their overall floor area did not achieve the minimum of 50sqm required for 2-person occupation under the NDSS.

The flats in the appeal scheme contain bedroom sizes of over 11.5 sqm, indicating they would be capable of 2-person occupation, irrespective of intent. The floorspace for each flat would fall below the 50sqm minimum for a 1-bed, 2-person flat. The flats would not therefore comply with the NDSS.

The appellant does not consider that the previous Inspector’s interpretation of the NDSS is the only reasonable interpretation, and has provided a list of examples from across England where local planning authorities have granted prior approval schemes on that basis of the overall floorspace as the determining factor in occupancy1.

I do not agree that the examples quoted should lead me to conclude that this is the way in which the majority of Class MA prior approval applications are determined nationally, or that this is the ‘correct’ interpretation of the NDSS. To my reading, the NDSS is clear that for a 1 bedroom, 2-person flat, the minimum floorspace would be 50sqm.

The provisions of paragraph W of the Order apply to Class MA. [name] (13) of the Order sets out that prior approval may be granted subject to conditions reasonably related to the subject matter of the prior approval. Compliance with NDSS is a prerequisite consideration as to whether the proposal constitutes permitted development, rather than relating to a subject matter of prior approval. It is therefore not a matter which could be dealt with by condition, as suggested by the appellant.

It is not necessary for me to go on to consider whether the proposal would be compliant with the specified prior approval matters under the conditions of Class MA, since I have found the development would not comply with one of the relevant pre-requisite limitations set out in Article 3(9A) of the Order. The proposal therefore falls outside of the permitted development granted under Part 3, Class MA of the Order.

I note the appellant’s request that I consider the merits of their assessment of natural light. As the appeal does not comply with the pre-requisite limitations which would make the proposal permitted development, it would not be necessary or appropriate for me to make a determination on the issue of natural light.

For the reasons given above the appeal should be dismissed.