Class MA vacancy and continuous use conditions

Class MA lets a building in Class E use change to residential use under permitted development, subject to prior approval. The condition that still catches most applications is the requirement that the building was in Class E use for a continuous period of at least two years before the date of the prior approval application. The separate three month vacancy requirement, and the 1,500 square metre floorspace cap, were removed by an amendment order taking effect in March 2024, so an application refused on vacancy grounds before that change may well succeed now.

Check the current consolidated text of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 before you rely on any summary, including this one. The class has been amended repeatedly.

What Class MA permits

The right allows a change of use from Class E, the commercial, business and service class introduced in 2020, to Class C3 dwellinghouses. It also permits building operations reasonably necessary for the conversion, which in practice means limited internal works and openings rather than extensions.

Class E is broad. It covers shops, financial and professional services, cafes and restaurants, indoor sport, medical and health services, creches and day nurseries, offices, research and development, and light industry appropriate in a residential area. A building moving between those uses stays within Class E and does not need permission, which is what makes the two year test workable in the first place.

Dwellings created under the class must meet the nationally described space standard, and that condition is not negotiable at prior approval stage. A layout that produces a 34 square metre one bedroom flat fails, whatever the prior approval matters say.

The continuous use condition

The building, or the part being converted, must have been in use falling within Class E for a continuous period of at least two years ending on the date of the prior approval application.

Three points decide most cases. Continuous means without a break in the qualifying use, so a period of non-Class E use inside the two years breaks it. The use must have been lawful, so an unauthorised office in a former workshop does not count until it becomes immune. And the two year period ends on the application date, which means delay in submitting can be fatal if the last tenant left and the use lapsed.

Where the building was in a use that was Class A1, A2, A3, B1 or D1 before September 2020, that use became Class E on the transition, and time before the transition counts where the use would have fallen within Class E. That is the point most agents get wrong in the other direction, assuming the clock started in 2020.

Evidence that satisfies an authority

Prior approval is a documentary exercise, and the authority is entitled to be satisfied that the conditions are met. Assemble the evidence before you submit:

• leases or licences covering the whole of the two year period, with any gaps explained
• business rates records showing the rating description and the liable party
• utility bills and meter readings showing occupation levels
• dated photographs of the interior and of signage
• VAT registration or company records tying a trading entity to the address
• a statutory declaration from the owner or a former occupier where documents are thin

Gaps are normal and are not fatal by themselves, but they need explaining in the covering statement rather than leaving for the case officer to notice. A short supporting Planning Statement setting out the use history chronologically, with the evidence cross referenced, is worth more than the same documents submitted loose.

An illustrative example shows how tight the timing can be. A retail unit trades until the end of January, the landlord decides in November to convert it, and the prior approval application goes in the following March. The Class E use ran for six years, so the two year condition is comfortably met on the historic record, and the gap since January does not now defeat the application. Under the position before March 2024 the same facts would have needed a vacancy check as well. This example is illustrative.

Buildings and land the class excludes

Some sites are outside the right altogether. Listed buildings and land within their curtilage, scheduled monuments, sites of special scientific interest, safety hazard areas and military explosives storage areas are all excluded, and there are further exclusions relating to agricultural tenancies and certain protected land.

Flood zone restrictions apply to both Class Q and Class MA, and they are worth checking early because they are absolute rather than a matter of judgement.

The other common surprise is an Article 4 direction. Many authorities have removed Class MA in defined town centre or employment areas, which returns the proposal to a full planning application. Check the authority's published list of directions before spending anything, because a direction is a complete answer.

The prior approval matters the council assesses

Within 56 days the authority considers a defined list of matters, which has grown as the class has been amended. It covers transport and highways impacts, contamination risks, flooding risks, the impact of noise from commercial premises on the intended occupiers, the provision of adequate natural light in all habitable rooms, and, where the building is in a conservation area, the impact of the loss of ground floor commercial use on the character or sustainability of that area.

Natural light is the one that fails schemes quietly. A deep plan office floor converted to flats produces habitable rooms with borrowed light or no window at all, and the authority is required to consider it rather than entitled to. Show window positions and room by room daylight provision on the submitted plans.

Noise from neighbouring commercial premises is the second. Where the building sits above a restaurant or beside a late licensed venue, an acoustic assessment with a glazing and ventilation specification answers the point. Without one the authority has nothing on which to approve.

Contamination and flooding are handled in the ordinary way, with a desk study or a site specific assessment proportionate to the history of the building and its location. On a former light industrial unit, a Phase 1 desk study is the minimum an authority will expect, and on a site with a known industrial past the authority may seek intrusive work before it will approve. Land contamination reports are a field where the local planning authority expects work prepared in accordance with the relevant British Standard by suitably qualified and experienced persons, so treat any draft as a starting point for that professional.

What to do before applying

Work in this order. Confirm the use history and assemble the evidence. Check the exclusions and any Article 4 direction. Test the layout against the space standard and the natural light requirement with a real plan rather than a sketch. Then commission the technical work the prior approval matters require, which on most buildings means noise, contamination and flooding.

One financial item to settle early: prior approval schemes can be liable for the community infrastructure levy, and the liability and any exemptions need dealing with before development starts rather than afterwards.

A prior approval decision confirms only that the specified matters are acceptable and that the conditions appear to be met. Where the use history is finely balanced, a Lawful Development Certificate under section 192 of the Town and Country Planning Act 1990 is the only formal way to confirm that proposed works and uses are lawful.

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.