Walkthrough: a Class MA refusal on the old vacancy rule

A Class MA vacancy refusal is now a historical problem rather than a live one, because the three month continuous vacancy condition was removed from Class MA for applications submitted on or after 5 March 2024. The walkthrough below is illustrative and set before that date, and it is worth following anyway, because the evidential failure it describes is exactly the failure that now sinks schemes on the two year qualifying use condition instead.

The building and what the owner wanted to do

The subject of this illustrative walkthrough is a two storey end of terrace building on a secondary shopping parade in a market town. Ground floor retail, first floor offices used by the same business, roughly 240 m² across both floors, no listing, outside the conservation area that covers the high street two streets away.

The owner bought it as an investment with a tenant in place. The tenant, a long standing kitchen showroom, gave notice. The plan was three flats: two one bedroom units at first floor and a studio behind the retained shopfront.

Class MA looked straightforward. The building had been in Class E use for years, it was under the then floorspace cap, and nobody was objecting.

The two conditions that governed eligibility

Class MA sits in Part 3 of Schedule 2 to the General Permitted Development Order 2015. At the time of this illustrative application it imposed two separate historical tests on the building, and the owner treated them as one.

The first was qualifying use. The building had to have been in a use falling within Class E for a continuous period of at least two years before the date of the application. That test was about the lawful use of the building, not about whether anybody was in it.

The second was vacancy. The building had to have been vacant for a continuous period of at least three months immediately before the date of the application. That test was about occupation, and only occupation.

A building could pass the first and fail the second, which is what happened here. The owner read the two years and assumed a long trading history answered everything.

The evidence offered on vacancy, and why it fell short

The tenant's lease ended on a Friday. The application went in sixteen days later.

What the owner submitted was a copy of the surrender deed, a photograph of the empty shop and a letter from the managing agent saying the unit was available to let. Reasonable looking documents, and none of them helped.

Three months had not passed. The arithmetic was the whole of it. The authority did not need to assess anything, weigh anything or consult anybody, because the development simply fell outside the class and so the permission granted by the Order did not apply to it. The prior approval application was refused on that single ground.

Two further points made it worse. The fee was not refunded, because the application was validly made and determined. And the agent's letter recorded the date marketing began, which fixed the earliest date a vacancy period could have started, so there was no room to argue about it later.

What would have satisfied the council at the time

Nothing in that submission needed to change. Only the date did.

Where vacancy was in issue under the old rule, authorities looked for evidence covering the whole three month period rather than a snapshot: utility bills or meter readings showing no consumption at the property, council tax or business rates records showing an empty property, dated photographs at intervals, marketing particulars with the listing date, and a statement from the owner or agent setting out the sequence. The weakness of a single photograph is that it proves one afternoon.

The practical lesson survives the rule change. Where a permitted development class turns on a period of time, you are being asked to prove a continuous state, and continuous states are proved with records that accumulate rather than with documents created the week before you apply.

The rule changed in March 2024

The vacancy condition and the 1,500 m² cumulative floorspace cap were both removed from Class MA with effect from 5 March 2024. Buildings can now be trading on the day the prior approval application is submitted, and there is no upper size limit on the building.

So the illustrative refusal above could not happen today. If you are reading an older refusal notice, an older appeal decision or an older guide, check the date before you take the vacancy point seriously, and read the current text of Class MA on legislation.gov.uk rather than any summary of it.

What has not changed is the two year qualifying use condition, the exclusion of listed buildings and buildings within the curtilage of a listed building, the exclusion of protected land including sites of special scientific interest and National Parks, and the requirement that every new dwelling meets the nationally described space standard.

Where Class MA schemes fail now

The qualifying use condition has taken over as the common point of failure, and it is harder to evidence than vacancy ever was. You are proving the lawful use of a building over two continuous years, which means producing leases, rating records, planning history and sometimes a statutory declaration. A unit that drifted between a shop, a hot food takeaway and a nail bar may never have been in Class E throughout, because hot food takeaways are sui generis. A building used partly for storage may have been in Class B8 for part of the period.

Natural light is the other common failure. Every habitable room needs adequate natural light, and the authority can refuse prior approval on that ground. Deep plan floorplates with internal bedrooms do not pass, however the layout is drawn, and a Daylight and Sunlight Assessment prepared against the relevant Building Research Establishment guidance is the document that settles the argument either way.

Then there are the in scope matters that need positive evidence rather than assertion: transport and highway safety, flooding, noise affecting the future residents from nearby commercial premises, and contamination. Ground conditions on former commercial sites are a recurring surprise, and our walkthrough of a conversion where contamination was found mid build shows what it costs to discover that after the permission rather than before. Land contamination reports must be prepared by suitably qualified and experienced persons in accordance with the relevant British Standard, and an AI draft is a starting point for that specialist rather than a substitute.

The full application route, and what it cost

In the illustrative case the owner did not wait out the remaining ten weeks of the vacancy period. The tenant's departure had already triggered an empty rates liability, and a full planning application for change of use to three flats was submitted instead.

That decision traded one set of constraints for another. The full application opened up the whole policy framework rather than a closed list of matters, so the authority could and did raise amenity space, cycle storage, refuse storage and the loss of a ground floor retail frontage in a designated secondary shopping area. The case had to be argued on policy, which meant a Planning Statement working through the development plan rather than a short covering note.

It also took longer than the eight week target, as applications with a frontage loss issue usually do, and it attracted neighbour representations that a prior approval would never have generated. Permission was granted with conditions on the shopfront treatment and refuse storage. Had the owner simply dated the application three months later, none of that would have been in play.

The sequencing lesson is the one to take away. Check the qualifying conditions of the class against a calendar before you pay a fee, and if the class does not fit, decide deliberately whether to wait or to accept the wider policy exposure of a full application. If you want to see which supporting documents a conversion of this type usually needs, enter the postcode on PlanScope and work through the constraints before you commit to consultant fees.

This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it. A Lawful Development Certificate is the only formal way to confirm that works are lawful. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.