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
The new permitted development rights significantly extend the scope of new development which can be carried out without planning permission. The process of prior approval will have the effect of mitigating some of the most harmful impacts of those developments, but the major practical consequence is that infrastructure contributions can only be sought in relation to the matters approved through the prior approval process. Government-commissioned research also indicates that converted dwellings built using permitted development rights are generally significantly worse, in terms of every qualitative metric, than equivalent dwellings with planning permission.
The new use classes will also have secondary impacts on other processes which are informed by the use class regime (i.e. valuation procedures, which will have to account for a wider range of possible uses, and statutory nuisance, because changing uses can result in additional amenity impacts). For those local authorities with policies which seek to protect town centre uses or office uses in particular locations, the changes will undermine those policies by allowing developers to sidestep those parts of the planning regime entirely.
Taken together, the changes represent a very significant shift in control away from local authorities and the communities they represent, into a significantly less regulated environment.
Overall, local planning authorities will lose a significant degree of control over changes of use, and may seek alternative routes to manage changes of use (including imposing more restrictive planning conditions, or the use of Article 4 directions). There is a silver lining for authorities in this respect, in that the changes may result in increased take-up of otherwise disused units, which in turn may have a beneficial impact in terms of business rates.
In addition, the changes are very significant, but 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.