Class MA: the three month vacancy rule no longer applies

If you are looking for the Class MA vacancy requirement, it no longer exists. The condition that a building had to be vacant for a continuous period of at least three months before the prior approval application was removed with effect from 5 March 2024, by the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2024. The same amendment removed the 1,500 m² cap on floorspace changing use. A great deal of published advice still describes both, which is why owners keep asking how to prove three months of emptiness they no longer need to prove.

What Class MA permits now

Class MA sits in Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. It allows a change of use from Class E, the commercial, business and service class created by the 2020 amendment to the Use Classes Order 1987, to Class C3 dwellinghouses, together with building works reasonably necessary to convert the building.

It is a prior approval right, not a free pass. You apply to the local planning authority, the authority considers a defined list of matters, and it either grants or refuses prior approval. There is no planning balance and no policy test of the kind a full application attracts, which is the whole point of the right and also its limit.

With the floorspace cap gone, a whole office building can now change use under Class MA where the other conditions are met. That is a larger change than the removal of the vacancy rule, and it is the reason some authorities have looked again at Article 4 directions.

The condition that was removed, and what that changes in practice

The old MA.1 wording excluded development where the building had not been vacant for at least three continuous months immediately before the date of the application. Owners used to engineer that vacancy, sometimes ending a tenancy early and losing rent to qualify.

That is no longer necessary. A building in active Class E occupation on the day of the application can be the subject of a Class MA prior approval, provided the qualifying use test is met. Tenancy agreements and the practicalities of possession still govern when you can actually carry out the works, of course, and a prior approval does not override a lease.

One consequence is worth planning around. Because occupied buildings now qualify, the evidence pack shifts from proving absence of use to proving presence of use, which is a different set of documents.

The two year qualifying use test

This is the condition that remains, and it does most of the work. The building must have been in use within Class E, or in a qualifying earlier use, for a continuous period of at least two years before the date of the application.

Continuous is the word to watch. A gap of several months between tenants, with no use at all, can break the two year run and push the earliest application date back. Short voids between lettings are usually bridged where the building was being marketed and held ready for the same use, though that is a judgement for the authority on the evidence in front of it.

The qualifying earlier uses matter for older buildings. A unit that was in a pre-2020 use which was later swept into Class E, such as an office or a professional services premises, can still qualify, because the amended Use Classes Order carried those uses across. Set out the use history as a dated sequence and name the class at each point.

Where Class MA still does not apply

The exclusions in MA.1 have not changed with the conditions. Class MA is not available where the building is listed or lies within the curtilage of a listed building, nor where the land is or forms part of a scheduled monument, a site of special scientific interest, a safety hazard area or a military explosives storage area. Agricultural tenancies bring their own restriction. Read the current MA.1 list in the consolidated order rather than relying on a summary, including this one.

Article 4 directions are separate and more common. Where an authority has withdrawn the Class MA right over a town centre, a primary shopping frontage or a defined employment area, you are back to a full planning application and the local plan applies in full. Check the authority's Article 4 register first, because everything else is wasted effort if a direction bites.

Conservation areas do not remove the right, though the loss of a ground floor use in a conservation area is one of the matters the authority may weigh.

What the authority can consider on prior approval

The list is closed, which is the discipline of a prior approval. Broadly the authority looks at transport and highways impacts, with safe site access the usual focus, contamination risks, flooding risks, the impact of noise from commercial premises on the people who will live in the new dwellings, the provision of adequate natural light in all habitable rooms, the impact of losing certain services where a nursery or health centre is displaced, and in a conservation area the effect of losing a ground floor use.

Each of those deserves its own short, headed section in the submission. Where highways are in issue, a focused Transport Statement dealing with access, servicing and parking is usually proportionate for a conversion. Contamination is normally answered by a desk study, and a Land Contamination Phase 1 assessment prepared by a suitably qualified person is the right starting point where the site history is industrial. Flood risk is screened from the published maps, and a Flood Risk Assessment follows if the building sits in Zone 2 or 3.

Assembling the evidence pack

For the two year test, the documents that persuade are the dull ones.

1. A dated use history table, naming the use class in each period and the source document for each entry.
2. Leases, licences or tenancy agreements covering the two year period, with the demise shown on a plan.
3. Business rates records naming the occupier and the rating description.
4. Utility or service accounts where a rates record has a gap.
5. Dated internal photographs for any month the paperwork leaves ambiguous.

Put the table first and the documents behind it. An officer who can trace the two years in one page is unlikely to go looking for reasons to doubt it. Where the building has been subdivided or amalgamated over the period, explain the planning unit history too, which is the same analysis set out in splitting a commercial unit into two. A short Planning Statement is the sensible place to carry all of this.

Timing and the version of the order that governs

Prior approval under Part 3 is determined within 56 days under paragraph W, and the development must be completed within three years of the prior approval date. The order as it stands on the date of your application is the version that applies, so a scheme designed in 2023 against the old cap and the old vacancy rule should be re-checked before submission rather than dusted off.

And if an adviser tells you to empty the building for three months first, ask which version of MA.1 they are reading.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. For specialist technical reports, qualified professional input may be required. Enter your postcode on PlanScope to see which supporting documents a commercial to residential conversion is likely to need.