The Government has now implemented significant changes to the use classes system in England (Use Class Order 1987) through the new Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. The main driver of change has been a need to enable the repurposing of buildings on high street and town centres.
The Regulations contain some detailed transitional provisions which will affect how and when changes take effect in practice. The Regulations came into force on 1 September 2020. Separately, the Government has announced major changes to the permitted development regime.
The Regulations introduce three new use classes (E, F1 and F2). The most significant change is the creation of a new “Commercial, Business and Service” use called “Class E”. This brackets together a wide variety of uses, all of which are now considered to be in the same use class:
- Financial, professional or other commercial services
- Publicly accessible indoor sport, recreation or fitness
- Publicly available medical or health services
- Crèches, day nurseries and day centres
- Offices, including research and development
- Industrial uses which do not harm amenity.
Planning permission is not required for changes of use within the same use class. This means that many types of business user will be able to change the uses of properties without seeking planning permission. For example, under the new rules, a shop will be able to change to an office and then to a gym and back again, without planning permission.
The residential (C classes), general industrial (B2) and storage and distribution (B8) use classes remain unchanged, except for a new cross-reference in the B2 class to the new Class E.
Some of the community type uses have been put together in the new Class F1 and Class F2. Class F1 refers to learning and non-residential institutions where there is generally wider public use such as school, libraries and art galleries. Class F2 refers to local community facilities where classes groups together such as community halls and meeting spaces, uses which provide for physical group activities such as swimming pools, skating rinks and areas for outdoor sports and a small, local shop like one you would find in a rural community or a large residential development.
A further significant change is the confirmation of a new list of sui generis uses. Sui generis uses generally cannot be changed to any other use without planning permission. The new list of sui generis uses includes:
- Pubs, wine bars and other drinking establishments (including those with expanded food provision)
- Hot food takeaways
- Live music venues
- Cinemas, concert halls, bingo halls and dance halls.
From 1 September 2020 to 31 July 2021, permitted development rights enabling a change of use will continue to be applied based on the existing use classes, as they existed on 31 August 2020. For example, the office to residential permitted development right will continue to have effect pursuant to the existing system.
Planning applications submitted before 1 September 2020 that cite the current use classes must continue to be decided by the local planning authority using the former uses classes after 1 September 2020, so there will be no change there.
In order to change the uses within a class, there must have been actual and lawful use (i.e. if the building is not being used or occupied for the use permitted under an existing planning permission, it will need to be bought into that use before it can then change to another use within Class E).
Permitted development rights
The Government has also implemented, in parallel, a separate series of changes to permitted development rights. In summary, the following additional permitted development rights are available:
- From 31 August 2020, there will be a new permitted development right allowing the demolition and rebuilding of “vacant and redundant” office and light industrial buildings into dwellings, without planning permission.
- From 31 August 2020, new permitted development rights will enable the upward extension, by up to two storeys, of existing postwar-built homes. These rights will also be extended to the creation of new homes above terraces, offices and shops, without planning permission.
Both rights will require that prior approval is sought from the local authority prior to commencement of the development. This includes approval in respect of traffic and highway matters, air traffic and defence asset impacts, contamination risks, flood risk, the external appearance of the building, the provision of adequate natural light in all habitable rooms of the new dwellings, impact on amenity of the existing building and neighbouring premises including overlooking, privacy and loss of light, and the impact on any protected views.
The key constraint is that the upward extension rights will only apply to existing residential dwellings or purpose-built, detached blocks of flats. Mixed-use buildings will not benefit from these new rights.
Potential legal challenge
At the time of preparing this article, a pre-action protocol letter has been submitted to the Ministry for Housing, Communities and Local Government in respect of both the changes to the use classes order and the new permitted development rights. The letter alleges a failure to meaningfully consider consultation responses, breach of the Public Sector Equality Duty and failure to carry out an appropriate Environmental Impact Assessment. The Government was required to reply by 26 August 2020, or else the applicant has threatened to seek interim relief as part of a judicial review application, preventing these legal provisions from having effect.
Effect of changes
In terms of the new permitted development rights, the ability to demolish and replace office and light industrial buildings with dwellings provides another avenue to enable creative forms of residential development. This may result in properties without any other viable use being creatively repurposed as residential accommodation, and otherwise unusable or undevelopable properties could now be redeveloped to provide much-needed housing.
Landowners, occupiers and other business operators with the benefit of Class E uses will now have a much broader array of options available to them in terms of possible uses of those sites. Persons with newly sui generis uses will find those uses are now subject to local authority control.
The Government’s newly-relaxed approach will also have the effect of enabling previously-unused sites and assets to be brought back into use. This means that previously under-utilised land can also now be used more effectively.
These changes also have the effect of unlocking uses which were previously impractical in specific contexts. For example, many local authorities have policies which seek to protect specific uses in the town centre, or office space within designated areas. These restrictions would no longer have effect against changes of use within Use Class E.
As a side effect the changes will also have an impact on valuation. For example, a property which had achieved a desirable change of use may now find that any such extant permission is unnecessary and does not result in an uplift in value. Similarly, there is likely to be a levelling-out of valuations for properties within the new use class, given the interchangeability of uses therein.
Landlords will also need to be particularly cognisant of the new arrangements when looking at leases and the extent of use that is authorised. Allowing too broad a permitted use could now result in undesirable changes of use within the scope of the lease, and landlords will not be able to fall back on the planning system as a bulwark against such changes.
Finally, while the changes are very significant, they are only the tip of the iceberg for potential planning changes on the immediate horizon. The Government’s current White Paper foreshadows the possibility of swinging changes to the entire planning system over the coming months, including the potential implementation of a consolidated infrastructure levy, and it may well be that further permitted development reforms follow in kind.
If you have any questions arising in relation to the above, please do not hesitate to contact the Planning Team at Bevan Brittan.