UK: Simplifying Use Classes: Adding Flexibility For Businesses To Adapt

An overhaul of the Town and Country Planning (Use Classes) Order 1987 is intended to provide much needed flexibility for businesses to adapt and diversify to meet changing demands. The legislation has been laid before Parliament and is expected to come into force on 1 September 2020.

How are the use classes changing?

Planning permission is not generally required to move between uses in the same use class. If a use is specified not to fall within a use class (referred to as sui generis), then it does not benefit from such flexibility.

From 1 September 2020, significant changes to the Town and Country Planning (Use Classes) Order 1987 will amend the use classes for England only.  The A and D use classes will be removed and the changes will create wider new use classes namely:

• Class E (commercial, business and service) – broadly incorporating the previous retail use classes A1 to A3 (shops, financial and professional services and restaurants and cafes) and B1 use class (offices, research and development and industrial processes which can take place without impact on amenity). It also includes gyms, nurseries and health centres.
• Class F.1 (learning and non-residential institutions) – this comprises certain uses from the former D1 use class likely to be in public use, including uses for education, display 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 ie those mostly selling essential goods including food to the public of up to 280m² where there is no other such facility within 1000m.

The residential (C), general industrial (B2) and storage and distribution (B8) use classes will remain unchanged.

A number of additional uses will be listed as sui generis and outside any use class including cinemas, concert, dance and bingo halls, live music venues, hot food takeaways, public houses, wine bars and drinking establishments (with or without expanded food provision).

Why are the changes required?

The current Use Classes Order was introduced in 1987 and has been amended a number of times since to reflect changes in the way land is used over time and prevent changes that could impact upon amenity.

Many traditional high streets are in decline. Even before COVID-19, shopping was increasingly done on-line and many retail operators were adapting their business models to offer a wider leisure experience. Changes of use often require planning permission and whether permission is granted depends on the local planning authority's policies for a particular area.

The Government considers that the new use classes will better reflect the diversity of uses found on high streets and in town centres and provide flexibility for businesses to adapt and diversify to meet changing demands. This will promote vitality and viability of town centres by speeding up the ability of landlords and tenants to respond to rapid changes in the retail and leisure sectors - all the more important as our centres seek to recover from the economic impact of COVID-19.

How will I benefit from the changes?

The increased flexibility will be welcomed by many landlords, business owners and fund/asset managers with vacant premises or assets that require repositioning.  Local planning authorities will need to re-think their policies and strategies for town centres, to reflect the new use classes and the potential for a more diverse range of uses.

The new use classes will provide an opportunity to respond to new trends and behaviours which may follow the pandemic, such as the need and desire to work flexibly and have access to a wider range of local facilities. Alongside permitted development rights and planning applications to introduce residential properties, centres could provide office, social, medical, leisure and entertainment facilities.

The use classes will allow more flexible use of individual properties to reflect changing retail and business models.  A building may be in a number of uses concurrently (eg a café and a shop) or in different uses at different times of the day. Changes to the mix of uses within a use class will not require planning permission.

What else do I need to know?

You should check carefully whether you can benefit from the rights. Consider whether existing planning permissions and agreements affect your ability to change use. Check other documents, such as leases, to see what uses are permitted.  Planning permission may still be required for works necessary to allow changes of use to proceed. Consider also whether other consents are required. 

In addition to the flexibility offered by use classes, permitted development rights apply in relation to certain uses (for example drinking establishments can offer "enhanced food provision" under permitted development rights).  From 1 September 2020 to 31 July 2021, existing permitted development rights will continue to apply based on the current use classes.  New, revised, permitted development rights are expected in due course.  

Article 4 Directions (which can remove permitted development rights) can be made, modified or cancelled by reference to the existing use classes during the same period. Article 4 Directions made before 1 September 2020 will continue to have effect in any event.

Where applications for planning permission or reserved matters approval are submitted before 1 September 2020 which refer to the existing use classes, the application will be determined by reference to those use classes.

The Government intends to update the Planning Practice Guidance to reflect the new changes before they come into effect on 1 September 2020.  We will provide a further update on these changes when they become available.

Originally published by Charles Russell Speechlys, July 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.