The Town and Country Planning (Use Classes)(Amendment)(England) Regulations 2020 (the Regulations), which are due to come into force on 1st September 2020, represent a complete overhaul of the current Use Classes Order (UCO) and constitute one of the most significant changes to the planning system in thirty years, with huge implications and opportunities for operators on the high street and beyond.
How Fladgate can help
- The changes to the UCO will have wide ranging implications for the planning system and we can provide detailed advice on what is now allowed under the Regulations.
- It will be important to review existing leases in terms of the scope of the permitted user clause. Careful consideration will also need to be given to the drafting of new leases to take into account the new UCO; if the use is restricted, say to uses within a particular class of the previous version of the UCO, then this may affect rent reviews, but if the use is left open, to allow tenants to take advantage of the new expanded use classes, then it may present the tenant with too much freedom to change to a use that the landlord may not wish to allow.
- In addition, the changes to the UCO may also affect contractual documents such as contracts that are conditional on obtaining planning permission and overage agreements. A sale contract (or agreement for lease) conditional on a change of use may become unconditional without the need to obtain planning permission because it is no longer required under the UCO. Similarly, where overage is triggered by a change of use, the payment may become due without planning permission being obtained.
Fladgate is available to assist in all planning and property related matters enquiries and you may have.
The Use Classes Order
The Use Classes Order groups different uses of land and buildings into use classes. A change of use within a single use class is not considered to be development and therefore does not require planning permission. The Regulations will permanently remove the long established classification of uses within Class A (retail), Class B1 (business) and Class D (non-residential institutions and assembly and leisure) and reallocate them to the following new use classes:
- Class E (commercial, business and service) – broadly incorporating the previous commercial classes A1 to A3 (shops, financial and professional services and restaurants/cafes) and B1 use class (offices, research and development and light industrial). It also includes nurseries, health centres and indoor sport, recreation or fitness uses (which would include gyms and potentially indoor swimming pools and skating rinks, even though they are expressly included in Class F.2 as well).
- Class F.1 (learning and non-residential institutions) – this comprises certain uses from the former D1 use class including education, displays of art, museums, libraries, public halls, places of worship and courts.
- Class F.2 (local community) – this comprises swimming pools, skating rinks, areas for outdoor sports, community halls or meeting places together with certain local shops (specifically those selling essential goods including food to the public, with floorspace of up to 280m2 and where there is no other such facility within 1000m).
- In addition, the former A4 (drinking establishments) and A5 (hot food takeaway) use classes have been removed entirely. These uses, together with venues for live music performance, cinemas, concert halls, bingo halls and dance halls (all formerly Class D2) no longer fall within any use class and will be added to the (non-exhaustive) list of ‘sui generis’ uses meaning that changes to and from these uses will require planning consent.
- The residential (C), general industrial (B2) and storage and distribution (B8) use classes will remain unchanged.
Reasons for the changes
The changes were devised to address the decline of the high street and it is hoped that that the new use classes will provide more flexibility for businesses to adapt to meet changing demands (particularly in the new Covid-19 environment). Planning permission will not be required for changes of use within each new use class, as this will not be considered development. Furthermore, a building may be in a number of uses concurrently or in different uses at different times of the day without planning permission.
In terms of the new Class E, users will have greatly increased flexibility to be able to switch between a range of commercial uses without the previous restrictions or administrative delays. The new Class F2 also seeks to recognise the importance of small local shops servicing the essential needs of local communities. Conversely, the removal of A4 (drinking establishments) and A5 (hot food takeaway) uses into the list of sui generis uses (therefore requiring planning permission to change use further), removes flexibility and may frustrate operators of such uses and impact negatively on values.
- There are no particular restrictions in terms of size of unit (other than F.2 local shop), location of the premises or hours of operation in the Regulations. They apply to all locations and there is no requirement to notify the Local Planning Authority of an intended change of use under the Regulations. As such, there would be no ability for the Local Planning Authority to apply conditions to changes of use.
- However, any existing planning conditions on a property e.g. opening hours, parking, deliveries, noise etc. would continue to apply to the new use. The planning history of the property in question must therefore be checked carefully, to establish whether there are any such pre-existing restrictive conditions (or planning obligations) that restrict the operation of the property, or even operate to prevent further changes of use from taking place at all. This would have to be assessed on a case by case basis, but generally, if the condition restricts a change of use by reference to a use class only then this would not prevent further changes of use if it now fell within one of the new use classes. However, if the wording of the condition restricts the operation to a specific use (e.g. gym or office), the condition would still apply and prevent changes to an alternative use without a planning application (or s.73 variation/removal of the condition, although as this results in a new permission, Councils could then apply additional conditions restricting future changes of use).
- In addition, any Article 4 Directions in place that restrict changes of use would continue to apply. There is also the potential for Councils to seek to adopt new Article 4 directions restricting the ability to utilise specific permitted development/use class rights in particular circumstances or locations.
- Note also that planning permission will still be required for building works that materially affect the external appearance of the building and local planning authorities may seek to exert control by that route, (as has often been seen with office to residential conversions).
- Lastly, in addition to these potential planning constraints, landlords and tenants will need to check their leases for any constraints imposed by way of restrictive covenants and user clauses. Those wishing to rely on the changes to the UCO and new permitted development rights may need to revisit their leases to ensure they give the requisite scope.
- Existing applications under determination for uses, or changes of use, falling within the new classes must continue to be determined by reference to those uses, e.g. a current application for gym uses would be determined as a D2 use and the Council would still able to apply conditions in the normal way. However, if a current application were to be refused or withdrawn, or if the permission is granted but not yet implemented, a change of use could be undertaken, if applicable, via the new UCO after the 1st September.
- In terms of current permitted development rights, transitional provisions from 1 September 2020 until 31 July 2021 will ensure that current use classes (as they exist on 31 August 2020) continue to operate for the purpose of existing permitted development rights in force (as they exist on 31 August 2020) where such use classes are referenced. It is expected that revised permitted development rights will then be introduced by the end of the transition period.
- It is worth noting at the time of circulation, that the Regulations currently subject to a judicial review challenge on the grounds that the government failed to comply with the Strategic Environmental Assessment Directive and to take account of consultation responses and other material considerations. The case is to be heard in October and we will issue an update if the challenge is successful and the Regulations are quashed.