The Town and Country Planning (Use Classes) Order 1987 put uses of land and buildings into various categories known as ‘Use Classes’. (Please see the table below.) The UK Government has introduced radical changes to the Use Classes Order with its Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. It came into effect on 1st September 2020 (subject to certain transitional provisions) and introduces major changes by way of a reclassification of the planning “use classes” of property.

However, these amendments to the Use Classes are subject to judicial review and the proceedings are likely to be heard in the middle of October. Therefore, this article reflects the legal position before that judicial review hearing.

What are some of the key reasons for these Use Class changes?

Firstly, the Government wants to help to save the high street by allowing high street uses to merge or switch without planning permission (but note the new Use Classes are not restricted to town centres (i.e. there is  no geographical or spatial limit on Class E so they also apply to out of town business parks and retail malls). The Government believes there is a need to repurpose buildings on high streets and town centres.

So, under the new rules, a shop will be able to switch to an office and then to an indoor sports gym and back again, without planning permission as they are all under the new Class E. The new Class E allows for a mix of uses to reflect changing retail requirements. It allows a building to be used flexibly by having a variety of uses occurring concurrently or by allowing different uses to occur at different times of the day. The significance of this is that uses can change within the same class without the need for planning permission; and

Secondly the Government wants to protect local community assets (for example the local pub) by taking them out of the Use Classes and making them “sui generis” meaning that planning permission would be needed to change to a different use. Therefore, Class F2 was introduced to ensure important community facilities are protected via the planning system.

The Use Classes Order specifies uses which do not fall into a class and thus cannot change unless there is a permitted development right.

Below is a table showing the different Use Classes, prior to 1st September 2020 and the new categorisation following the implementation of the amendments on 1st September.

 UseUse class until 31 August 2020Use class from 1 September 2020
ShopsA1E
Financial & Professional ServicesA2E
Food & Drink (mainly on the premises)A3E
Business (office, research and development and light industrial process)B1E
Non-residential institutions (medical or health services, crèches, day nurseries and centres)D1E
Assembly and Leisure (indoor sport, recreation or fitness, gyms)D2E
Non-residential institutions (education, art gallery, museum, public library, public exhibition hall, places of worship, law courts)D1F.1
Shop no larger than 280 sqm (selling mostly essential goods and at least 1km from another similar shop); community hall, outdoor sport/recreation area, indoor or outdoor swimming pool, skating rinkA1F.2
Public House, wine bar, drinking establishmentA4Sui generis
Hot Food TakeawayA5Sui generis
Cinema, Concert Hall, Bingo Hall, Dance Hall, Live music venueD2Sui generis

 

Key points to note: –

  • Class A is revoked from 1 September 2020.

Class A 1/2/3 are effectively replaced with the new Class E (a, b , c).

Class A4/5 uses are not covered by the new Class E (Commercial, Business and Service) and become defined as ‘Sui Generis’=

  • B1 Business is revoked from 1 September 2020.

It is effectively replaced with the new Class E(g).

  • Class D is revoked from 1 September 2020.

Class D1 is split out and replaced by the new Classes E(e-f) and F1.

Class D2 is split out and replaced by the new Classes E(d) and F2(c-d) as well as some newly defined ‘Sui Generis’ uses.

  • Class E – Commercial, Business and Service (introduced from 1 September 2020).

In 11 parts, Class E more broadly covers uses previously defined in the revoked Classes A1/2/3, B1, D1(a-b) and ‘indoor sport’ from D2(e):

E(a) Display or retail sale of goods, other than hot food

  • E(b)Sale of food and drink for consumption (mostly) on the premises
  • E(c)Provision of:
    • E(c)(i)Financial services,
    • E(c)(ii)Professional services (other than health or medical services), or
    • E(c)(iii)Other appropriate services in a commercial, business or service locality
  • E(d)Indoor sport, recreation, or fitness (not involving motorised vehicles or firearms)
  • E(e)Provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner)
  • E(f)Creche, day nursery or day centre (not including a residential use)
  • E(g) Uses which can be carried out in a residential area without detriment to its amenity:
    • E(g)(i) Offices to carry out any operational or administrative functions,
    • E(g)(ii) Research and development of products or processes
    • E(g)(iii)Industrial processes
  • Class F – Local Community and Learning (introduced from 1 September 2020).

In two main parts, Class F covers uses previously defined in the revoked classes D1, ‘outdoor sport’, ‘swimming pools’ and ‘skating rinks’ from D2(e), as well as newly defined local community uses.

F1 Learning and non-residential institutions – Use (not including residential use) defined in 7 parts:

    • F1(a) Provision of education
    • F1(b) Display of works of art (otherwise than for sale or hire)
    • F1(c) Museums
    • F1(d) Public libraries or public reading rooms
    • F1(e) Public halls or exhibition halls
    • F1(f) Public worship or religious instruction (or in connection with such use)
    • F1(g) Law courts
  • F2 Local community – Use as defined in 4 parts:
    • F2(a) Shops (mostly) selling essential goods, including food, where the shop’s premises do not exceed 280 square metres and there is no other such facility within 1000 metres
    • F2(b) Halls or meeting places for the principal use of the local community
    • F2(c) Areas or places for outdoor sport or recreation (not involving motorised vehicles or firearms)
    • F2(d) Indoor or outdoor swimming pools or skating rinks

Sui Generis

Sui generis is a Latin term that in this legal context means ”in a class of its own”.

Some uses are specifically defined and excluded from classification by legislation and since 1 September 2020 become “sui generis”.

The former A4 public houses, drinking establishments and wine bars and

the former A5 Hot food takeaways have been removed from Class A and have not been put in the new Class E but are now sui generis uses where they fall outside the defined limits of any other Use Class. It means they cannot change use without planning permission.

For example, C4 (houses in multiple occupation) is limited to houses with no more than 6 residents. Thus, houses in multiple occupation with over six residents become a “sui generis” use.

Planning Applications

The UK Government  stated that any planning application that has been submitted before 1st September 2020 must be decided under the old Use Classes Order 1987, but post 1 September 2020, new planning applications including planning variations and reserved matters approvals will be determined by reference to the new Use Classes Order so if a property owner has an A3 use then that will be  considered a Class E use.

Permitted Development Rights

The permitted development rights that will be associated with the new Use Classes Order have not been published yet and there are transitional provisions in relation to the new Use Classes Orders and permitted development rights which remain until the end of  July 2021.

What is the impact of the new Use Classes Order on the drafting of Leases?

Our advice is for Landlords and Tenants to check the drafting of their existing leases to ascertain what uses are controlled and how that use is defined.

Perrin Myddelton suggest that on the drafting of a new lease,  if a landlord wants to restrict a certain use, for example in  Class E (which contains 11 parts)  then the lease will have to restrict to that particular part use rather than relying on the general definition of the new Class E Use Class. Otherwise a tenant could take advantage of the flexibility of Class E and depending on the exact wording of the lease change the use to any category within Class E without the need for planning permission.

The changes may affect contracts that are conditional on planning and on your existing development strategy. If you are making a planning application Perrin Myddelton can advise you on the effect of the new law relating to the Use Classes Order.

 

Contact us

Our expert team at Perrin Myddelton advise commercial landlords, tenants, developers and property investors and are here to help with this.

Please contact Paul Dutch, Partner, Head of Commercial Property, 01582 466175 p.dutch@pmsolicitors.co.uk who will be happy to assist on the impact of the changes on both commercial leases and planning matters.

The information provided in this article is not intended to be a complete review of all changes in the law or to cover all aspects of those referred to. You should take legal advice before applying it to specific issues or transactions.