The Government’s intention to radically reform the planning system includes allowing more types of commercial premises through the reform of the Town and Country Planning (Use Classes) Order 1987 (UCO). The intention is that the use classes system should better reflect the diversity of uses on high streets and in town centres to give businesses the flexibility to adapt and diversity to meet changing demands. However, the effect of the changes to create a new commercial, business and services use class will not be limited to high streets or towns only. The reforms will apply to any buildings or land within the relevant uses anywhere in England.
The legislation[1], which comes into force on 1 September 2020, significantly amends the UCO by creating two new classes of permitted development (PD) rights.
The key changes are summarised below. However, as with all new changes, it’s early days and there are likely to be grey areas around how the new classes will be interpreted and applied in practical terms by both developers and local planning authorities.
New Class E, Part A
A new Schedule 2 is inserted in the UCO, which provides for new Class E (Commercial, business and service), will be for the use, or part use, for all or any of the following purposes:
- The display or retail sale of goods, other than hot food, principally to visiting members of the public
- The sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises
- The provision of financial services; professional services (other than health or medical services); or any other services which it is appropriate to provide in a commercial, business or service locality to principally visiting members of the public
- Indoor sport, recreation or fitness, not involving motorised vehicles or firearms to principally visiting members of the public
- The provision of medical or health services to principally visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner
- A creche, day nursery or day centre, not including a residential use to principally visiting members of the public
- For an office to carry out any operational or administrative functions; the research and development of products or processes; or any industrial process, being a use, which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit
Further, new Class E incorporates the previous classes. Therefore, any building or land which is used for Class A1 (Shops), Class A2 (financial and professional services), Class A3 (Restaurants and cafes) and Class B1 (Business) will be treated as falling new within new Class E.
New Class F, Part B
New Class F1 (learning and non-residential institutions) is also inserted in Schedule 2 and incorporates the remaining parts of current Class D1 that is not new Class E. This includes education, non-commercial galleries, museums, libraries, public halls, places of worship and law courts.
New Class F2 (local communities) is created for community uses, again incorporating part of the current Class A1 and D2. New Class F2 will be for the following uses:
- A shop selling essential goods, including food, where the premises cover an area of no more than 280 metres and there is no other such facility within a 1,000-metre radius of the shop’s location, i.e. small corner shops
- Local community halls
- Outdoor sport or recreation not involving motorised vehicles or firearms
- An indoor or outdoor swimming pool or skating rink
New sui generis uses
The following uses are considered as being sui generis, which means they fall within their own class and no other classes:
- A public house, wine bar or drinking establishment (currently Class A4)
- A drinking establishment with expanded food provision (currently mixed use of Class A4 with Class A3)
- A hot food takeaway for the sale of hot food where consumption of that food is mostly undertaken off the premises (currently Class A5)
- A venue for live music performance
- A cinema (currently Class D2)
- A concert hall (currently Class D2)
- A bingo hall (currently Class D2)
- A dance hall (currently Class D2)
Generally speaking, sui generis uses cannot be changed to any other use (including any other sui generis use) without express planning permission. However, a change of use within the new use class will no longer require planning permission as it will no longer constitute ‘development’.
Key transitional provisions
Whilst the changes take effect on 1 September 2020, a “material period” then follows from 1 September 2020 to 31 July 2021, which phases some of the changes relating to applications and PD rights. During this ‘material period’, references to uses and use classes in the GPDO [2] will remain as defined in the current UCO. This then allows a period of grace for development currently permitted under the GDPO to happen with reference to the current use class definitions.
Applications for prior approvals in the ‘material period’ under existing PD rights will be assessed against the current UCO. ‘Live’ applications for planning permission submitted before 1 September 2020 (including ones submitted between now and September) which refer to uses or use classes in the current UCO, must be determined by reference to those old use classes. Once implemented, however, and in the absence of controls in the permission, such uses may fall within the new classes for the purposes of the UCO. After 1 September 2020, there is no prohibition on applications seeking permission specifying the new use classes.
Comment
The introduction of new Class E is significant and covers a wide range of uses such as retail, food, financial services, gyms, healthcare, nurseries, offices and light industry. A change of use within the same use class does not constitute development and therefore does not require planning permission. The Government’s intention is that this will allow greater flexibility, helping high streets and town centres to adapt quickly to consumer and business needs. It also hopes that introducing these changes to permitted development rights will reduce the pressure on greenfield sites by giving greater freedom for buildings to change the use without planning permissions.
However, there are some concerns over the introduction of new classes. If applications seek an open Class E use, then there is likely to be complex issues around the extent of planning conditions and S106 obligations required to control the myriad of potential impacts. In practice, this could lead applicants to apply for permission for a single or flexible use involving one or more of the uses within Class E which would, once implemented, benefit from the flexibility to move within the other Class E uses.
There are also potential issues around the appropriate community infrastructure levy (CIL) rate where permission is granted for an open Class E use. Charging schedules gear rates to the current use classes and it’s not clear if this issue has been considered by the Government. Local planning authorities will need to review how the changes interact with their charging schedules and, where there are issues, this may impact on the ability of developers to reach accurate estimates of CIL liability.
[1] The Town and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020/757)
[2] Town and Country Planning (General Permitted Development) (England) (Order) 2015 (SI 2015/596)
