The Class MA condition at the centre of a Leatherhead planning appeal has stopped five proposed flats from proceeding through permitted development. Inspector C Walker dismissed the appeal on 12 November 2026, finding that a restriction attached to a 1983 permission prevented reliance on Class MA for a ground-floor part of Ashcombe House in Surrey.
Mole Valley District Council had rejected the prior approval application for a change from commercial premises to five self-contained homes. The dispute was not about the standard of the flats, parking or natural light. It was whether the property had a legal entitlement to use the commercial-to-residential permitted development right at all.
The decision is a useful warning for anyone buying or converting older commercial buildings. A Class MA condition issue can arise even when the current use appears to fall within Use Class E and a developer has prepared a full prior approval submission. The original planning permission, its approved plans and the precise wording of its conditions still matter.
What the Class MA condition actually said
The appeal concerned the ground-floor eastern part of a three-storey building at Ashcombe House. Planning permission granted in 1983, under reference MO/82/1070, had authorised an office building with a shopping arcade at ground level. The proposed change of use was shown on plans for part of that ground floor.
Condition 8 of the 1983 permission required the shopping areas to be used for retail purposes only, and for no other purpose without the planning authority’s prior written approval. That distinction mattered because Class MA grants a national right to change qualifying Class E premises into Class C3 homes, but it does not override all restrictions on a property.
The Inspector considered the wording of the actual condition, rather than assuming that any reference to an earlier use automatically removed future rights. The question was whether this particular restriction was inconsistent with the planning permission which would otherwise arise under the General Permitted Development Order (GPDO).
Why an old permission can block permitted development
Article 3(4) of the GPDO prevents reliance on permission granted by that Order where the development would be contrary to a condition imposed on an express or deemed planning permission. An owner therefore needs to look beyond the latest use-class description and identify any operative conditions in the planning history.
The Inspector relied on the established distinction between a condition that merely describes a permitted use and one that positively restricts other uses. Planning Geek’s guide to permitted development rights removed by condition explains why the exact language and context of a restriction have to be examined rather than treating every old condition alike.
This Class MA condition was not saved by the fact that the original wording referred to the planning authority’s prior approval. The Inspector recognised that it had been drafted in 1983, well before the modern prior approval procedure developed. In context, the reference was not a route for obtaining Class MA consent under the present GPDO.
That distinction is critical. An application for prior approval under a permitted development class does not itself grant a fresh, express planning permission overriding an incompatible condition. Where express permission is required, the applicant must pursue a full planning application, unless the legal restriction can first be altered or removed through an appropriate procedure.
The Court of Appeal decision that shaped the outcome
The Inspector referred to Dunnett Investments Limited v Secretary of State for Communities and Local Government and East Dorset District Council [2017] EWCA Civ 192. That Court of Appeal case concerned a condition permitting the former Class B1 use and prohibiting any other purpose without express planning consent from the authority.
In Dunnett, the courts treated the emphatic prohibition and requirement for express consent as preventing the GPDO from supplying the necessary permission. The judgment does not mean that simply naming a use class always removes permitted development rights. The actual words, read objectively and in context, must show a sufficiently clear restriction.
The Inspector also cited the older City of London Corporation v Secretary of State for the Environment and Watling Street Properties Ltd (1971) 23 P&CR 169 authority on the scope of conditions controlling use. The report is historically important, but the Leatherhead appeal was decided on its own wording and the law currently applicable to the scheme.
Our Class MA guide sets out the separate eligibility tests, exclusions and prior approval matters. Passing those other tests would not overcome a condition that independently prevents the development from being permitted in the first place.
Why the Inspector rejected the five flats
The Inspector found that condition 8 not only specified the permitted retail use but also contained an additional, explicit restriction on future development. Reading it as a whole, the Inspector found that it excluded the proposed use from permission granted by the GPDO.
The Inspector’s conclusion was direct: Express planning permission is required for the development
. That was not a finding that the five flats would necessarily be unacceptable on a full application. It meant that the procedure chosen for this proposal could not authorise them.
Once the Class MA condition prevented the development from qualifying, the Inspector had no reason to assess the remaining Class MA restrictions or the listed prior approval matters under paragraph MA.2(2). The dismissal was therefore an eligibility decision, not a refusal after weighing whether the residential scheme was good or bad planning.
What owners and developers should check first
An older commercial unit may have passed through several use-class regimes and amendments to permitted development legislation. The building’s current Use Class E status is relevant, but it is only one part of a legal history that can include permissions, conditions and approved plans predating the present order.
Before relying on Class MA, obtain the permission that established the relevant lawful use, read every condition and check whether a later approval varied or superseded the restriction. Confirm which part of the building each permission covers. A three-storey building can contain different lawfully authorised uses, and the ground-floor retail area may have a different planning history from upstairs offices.
Planning Geek’s change of use guidance explains the wider distinction between development requiring express permission and development authorised through a specific statutory right. Where the condition’s meaning is uncertain, the right response is a careful legal and planning assessment, not simply a prior approval application framed around modern use classes.
The Class MA condition dispute in Leatherhead shows why early due diligence can prevent a costly false start. It also leaves open a different course: the applicant could seek express planning permission for the residential conversion, when the council would then determine the merits under the applicable development plan and national policies.
The decision and its significance
Appeal 6014091 was dismissed by Inspector C Walker on 12 November 2026 following a site visit on 11 November. The application reference was MO/2026/00746 and the appellant was Dropfix Plumbing Ltd. The Planning Inspectorate decision provides the full reasons.
The practical lesson from this Class MA condition case is that permitted development rights operate within a property’s existing legal restrictions. An appealing conversion, a qualifying class of use and a complete set of drawings will not secure Class MA consent if the relevant planning condition prevents the change.
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