Upcoming Reforms to the Planning System
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, were introduced by the government on 20 July and take effect on 1 September 2020.
The changes introduce amendments to the 1987 Use Classes Order and accompany the recent changes to permitted development rights.
It is hoped that these changes will support the recovery of our high streets and towns which, retail commentators suggest, were already in decline before being hit even harder by the effects of COVID-19. By allowing landlords and tenants to repurpose commercial premises more easily and without the need to obtain express planning permission from the planning authority it is hoped that these changes will invigorate the high street.
Planning System Reform Classes
The changes include the creation of three new use classes:
- Class E ‘Commercial Business and Service’ – this class covers a wide range of uses including retail, financial and professional services, cafés and restaurants (currently A1-A3), offices, research and development and light industrial (currently B1), clinics, health centres and nurseries (currently D1) and indoor sport and recreation (currently D2) as well as “any other business which it is appropriate to provide in a commercial, business or service locality”. Changes of use within the new Class E will not need planning permission as it will not constitute development at all.
- F1 - learning and non-residential institutions (currently D1) these will include museums, art galleries, libraries, public halls, religious institutions or a law court;
- F2 – local community (currently D2). This includes use as a shop of no more than 280 square metres mostly selling essential goods, including food and at least 1km from another similar shop, and use as a community hall, area for outdoor sport, swimming pool or skating rink.
Parts A and D of the Schedule to the Use Classes Order (“Schedule”) have been deleted and Use Classes A1 to A3 and D1 and D2 now form part of the new Class E Use Class.
The change of the remaining use classes within parts A and D of the original Schedule have become Sui Generis use, including cinemas and bingo halls, drinking establishments, and hot food takeaways.
Wider Flexibility from the Legislation
Given the wider flexibility afforded by the legislation, when drafting leases, landlords may to be more cautious and refer to the actual use that the tenant intends to use the property for, rather than describing the permitted use by reference to the Use Class. For example, if the use permitted by the lease simply states ’offices’ and does not refer to the Use Classes Order, or it refers to a use within a class of the Use Classes Order as at the date the lease was entered into, then there will be no change of the use permitted by the lease.
Such an approach may be detrimental to the landlord if there is a rent review clause in the lease. On review, the rent review provisions may contain an assumption that the property can be used for a use within the old Use Classes Order. This may mean, that the hypothetical tenant will pay less rent because the hypothetical permitted use is more restrictive.
On 20 July 2020 the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020 was also made and comes into force on 31 August. This 2020 Order inserts a number of permitted development rights into the Town and Country Planning (General Permitted Development) (England) Order 2015, which sets out classes of development for which a grant of planning permission is automatically given. This currently includes, for example, changes of use from Use Class A1 (shops) to Use Class A2 (financial and professional services) and vice versa, Use Class A3 (restaurants and cafes) to Use Class A1 or A2 and Use Class A5 (hot food takeaway) to Use Class A1, A2 or A3.
Permitted Development Rights
The 2020 Order inserts the following permitted development rights into the 2015 Order:
- Enlargement of dwellinghouse by construction of additional storeys (Class AA, Part 1)
- New dwellinghouses on detached buildings in commercial or mixed-use (Class AA, Part 20).
- New dwellinghouses on terrace buildings in commercial or mixed-use (Class AB, Part 20).
- New dwellinghouses on terrace buildings in use as dwellinghouses (Class AC, Part 20).
- New dwellinghouses on detached buildings in use as dwellinghouses (Class AD, Part 20).
These new permitted developments will not require planning permission but will be subject to a number of statutory conditions and limitations.
Article 4
Although the changes to the Use Classes Order and the General Permitted Development Order appear to provide much more flexibility and opportunity for permitted development, there is some speculation about whether localised powers in the form of Article 4 directions will later be introduced to soften the impact of the new legislation.
Article 4 directions can be introduced by the local planning authority to remove permitted development rights. This means that planning permission will be required for a development that would otherwise not have required planning permission under the 2020 Order. Local authorities may try to use these directions to shape the built environment in their area.
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