Amendments to the 'Use Classes Order' explained

On the 1st September 2020 amendments to the planning Use Classes Order will come into effect throughout England. Jonathan Waugh, Associate Director in our London planning team, explains the changes, opportunities, restrictions and unintended consequences this may bring.

18 Aug 2020

Part of the Government’s ‘Project Speed’, new regulations will give greater planning freedom to buildings and land to support the economic recovery and are the most comprehensive amendments to the planning Use Classes Order since 1987.

The new Use Classes Order removes the need to obtain planning permission for a change of use between a range of commercial activities and introduces part-uses. It provides a real opportunity to use sites more flexibly. With less scope for Councils to control the use of shops, gyms and offices, the amendments are controversial and commenters are already speculating how they may be rolled back.

However, with the publication of the planning White Paper on the 6th August, promising radical change to create a system better suited to the needs of the modern day,  the Use Classes Order amendments support a wider quest for fundamental changes to the planning system.

The key changes

  • Combining several retail and commercial uses into one new use class (Class E) to encourage flexible change of use and part-use of premises
  • Create new use classes for learning and non-residential institutions, and local community uses (Classes F1 & F2)
  • Re-classifying several uses as Sui Generis, including cinemas and pubs/bars, which therefore will not be able to undergo change of use without planning permission

Transitional provisions have been introduced ensuring that existing Permitted Development rights will continue to apply until 31 July 2021, by which time they will likely be updated. Live applications or those submitted before 31 August 2020, aside from outline consents, will continue to be described under the existing Use Classes Order.

Opportunity

Planning permission is not required for change of use within a use class. For example, under Class E a creche or medical centre will have the freedom to change to an office, or vice versa. As consent is not required (aside from any external physical changes to a building), Councils will not be able to introduce Article 4 Directions constraining development, as had been seen in response to new permitted development rights.

The regulations remove uncertainty for new occupiers and crucially relax some of the rigidities of the current system; supporting innovation such as the operation of a restaurant-come-bakery or the yoga studio-shop-café-health clinic-nursery that high streets have been calling out for.

Restrictions

In order to benefit from the new flexibility there must be no restrictive planning conditions or Section 106 obligations in place that would prevent change of use. Properties must first have been ‘meaningfully’ operated in their lawful use, for instance removing the potential for an implemented but unfinished office building from automatically being converted to a supermarket.

Residential use classes, including hotels, are unaffected. In addition, several uses have been re-classified as Sui Generis and as a result planning permission would be required for change of use to or from them. For example, a drinking establishment with expanded food provision was previously included in Class A4 along with pubs. These uses are now listed separately as Sui Generis, meaning that formal consent will be required to change between the two.

Furthermore, planning policies will continue to apply on schemes that require planning permission. Whilst Councils will need to give due regard to the Use Classes Order, they are likely to continue to give weight to policies protecting retail, offices or creche uses as per their Development Plans, relevant designations and allocations. It may be possible to take a phased approach, undergoing change of use before seeking planning permission for wider development; however, the new use would need to be ‘meaningfully’ operated before it is lawfully established.

Councils may seek to attach conditions or Section 106 obligations on new planning permissions to restrict the ability to change use within a use class. Existing tests on applying conditions and legal obligations will continue to apply; however, these will form key discussion points in future determinations.

Unintended consequences?

There will be significant ramifications on wider planning policies and development. Whether you consider these  unintended consequences or merely the invisible hand of market forces at work will likely depend on your political outlook. Nevertheless, several matters will likely spur the publication of further guidance or reforms:

  • Originally mooted as steps to revitalise town centres, the Use Classes Order will apply to all properties, regardless of their proximity to a town centre. By potentially allowing out of centre locations to be used as supermarkets without planning permission, it undermines the town centre first approach enshrined in the National Planning Policy Framework (NPPF); which requires Retail Impact Assessments for out of centre Class E developments. Key revisions to the NPPF are likely as a result, and are expected in any case following the recently published Planning White Paper.

  • The reforms remove a key tool in the arsenal of Councils to support place making and protect adjoining uses. Other regulatory regimes, such as licensing, will become much more important to protect the amenity of neighbours.

  • There may be significant ramifications for new Local Plans. For example, how can Councils satisfactorily ensure sufficient employment floorspace over the plan period when there are fewer constraints on developers releasing offices to alternative uses? Again, the White Paper proposes the fundamental reform of the Local Plan process and envisages new Plans being in place by the end of the current parliament (May 2024). It remains to be seen whether there will be a significant delay in the adoption or progress of new Plans as a result.

  • There may be greater uncertainty about the existing use of a building. In particular, the difference between a public hall (Class F1) and a local community hall (Class F2); how a local shop (Class F1) can be differentiated between a normal shop (Class E); and when a premises is a public house (Sui Generis) or a public house with expanded food provision (also Sui Generis) or indeed a food and drink operation (Class E). Until further guidance is provided through policy or the Courts, it may be necessary to seek Certificates of Lawfulness to confirm the lawful use of a property. Alternatively, the planning White Paper proposes an interactive web-map based Local Plan system, and it may be envisaged that existing uses will be stated on these maps.

  • Further clarity may be needed on how to appropriately assess the breadth of Class E uses as part of Environmental Impact Assessments, given the different impacts that could arise from different uses.

  • There may be greater uncertainty in establishing property valuations, in turn impacting on Financial Viability Assessments, planning policy marketing requirements, and the new ‘Infrastructure Levy’ proposed by the planning White Paper.

  • Class E could accelerate the role of town centres as places to live centred around leisure and restaurant uses, and lead even further to a decline in their role primarily for shopping.

Further advice

Overall, the new Use Classes Order provides significant opportunities to optimise the use of sites and bring buildings into better use. Nevertheless, there is additional complexity, particularly in the short term, and the ramifications will need to be unpicked on a site-by-site basis.

For further information on these reforms or to discuss how they can be applied to your site please contact your local planning office.

 

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