Back to Basics: In a class of its own

Pamela Chesterman and Robert Litherland go back to the drawing board on use classes, explaining what they are and how they have recently changed. As part of the government’s plan to “radically reform” the planning system, changes were made to use classes on 1 September 2020, with one of the major drivers being the ability to reimagine our high streets for evolving business models. Further changes took effect on 1 August 2021 to permitted development rights, helping to ease the transition between commercial and residential properties, and provide some relief to the ongoing housing crisis.  Background: planning permission Development is the magic word when it comes to planning permission. If development is carried out, then planning permission is needed. The Town and Country Planning Act 1990 describes development as the “carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land”.  This means that either physically changing the property or just changing how the property is used can require planning permission. It is the second aspect – changing how the property is used – that we are concerned with here. The Use Classes Order 1987 defines categories of uses for land or buildings into “use classes”.   The key concept behind use classes is that certain properties can sit within a category of use, for example shops would make up a class, or restaurants and cafés would sit together in a class, with the scope of some of the classes being wider and some narrower than others. Before 1 September 2020 classes were grouped into broad themes A to D:  Group A contained properties that you would expect to find on the high street, covering retail, and food and drink, such as shops (A1), and restaurants and cafés (A3);   Group B included places of work, with uses such as businesses (B1) and general industrial (B2); Group C included places of residence, with classes for hotels (C1) and dwelling houses (C3); and Group D included non-residential institutions (D1) and assembly and leisure (D2) classes. The Use Classes Order allows changes from one use to another without the need to have planning permission if the proposed use is in the same class. While this system went some way to reducing the burden on the planning system, and offered some freedom to property owners, it could still be considered restrictive to a business trying to diversify, or a high street looking for a new lease of life.  The changes made have amalgamated a number of the classes identified above, with the intention of loosening some of the restrictions that have led to many boarded-up properties on our high streets. The government originally stated that its reason for the use classes overhaul was a desire “to better reflect the diversity of uses found on the high street and in town centres and to provide flexibility for businesses to adapt and diversify to meet changing demands”; however, the changes seem particularly prescient given many town centres’ need to metamorphose in response to Covid, and the regulations were, in fact, fast-tracked in light of the pandemic.  2020 changes The Town and Country Planning (Use Classes) (Amendment) Regulations 2020 came into force on 1 September 2020.  The greatest change made by the 2020 regulations is that many of the original classes have been subsumed by the introduction of one big super class in Schedule 2 – class E: for commercial, business and services. Schedule 2 also introduced the new class F1 for learning and non-residential institutions, and class F2 for local community.  As all classes under parts A and D now sit within a different class, parts A and D have been revoked from the UCO 1987 Schedule.   Class E Alive to the increasingly multifaceted nature of businesses, class E creates greater flexibility for activities in buildings to change and for different parts to be used for different activities.   Class E “commercial, business and services” incorporates these, previously disparate, classes into a single class: Shops (A1) Financial and professional services (A2) Restaurants and cafés (A3)  Offices (B1) Non-residential (D1) – which includes premises such as health centres and gyms Assembly and leisure (D2). Class F The new class F applies to local community and learning premises. Class F1 F1 focuses on “learning and non-residential institutions”, including:  Provision of education Display of works of art Museums Public libraries and reading rooms  Public halls and exhibition halls Public worship/religious instruction Law courts. Class F2 Class F2 provides some consideration for the potential impact on local communities of commercial properties being able to shift too easily between uses, leaving those communities without essential services. Therefore, everything in F2 sits under the umbrella of “local community”:  F2(a) focuses on community-style shops, which would typically sell essential goods; they must also be small – no more than 280 sq m – with no other facilities like those provided within 1km; F2(b) is for halls and meeting places principally for the local community; F2(c) covers spaces for outdoor sport or recreation (that don’t involve motors or firearms); and F2(d) is for indoor or outdoor swimming pools and skating rinks. Retained use classes The following classes were retained from the Schedule after 1 September 2020: General industrial (B2) Storage and distribution (B8) Hotels (C1) Dwelling houses (C3) Houses in multiple occupation (C4). Sui generis There is now a significant list of land and buildings that fall outside the use classes identified above and are therefore “sui generis”, or in a class of its own. Many of those now featured in the sui generis class were previously in class D2, including public houses. The biggest impact of this change is that – unlike other use classes – any change from a sui generis use, even to another use identified as a sui generis, will require planning permission. 2021 changes General permitted development is like a national grant of planning permission given by the secretary of state to certain types of development under the Town and Country Planning (General Permitted Development) (England) Order 2015. The changes that came into force on 1 August 2021 follow a similar vein to the permitted development rights granted under class O, which allowed for the change from office to residential, and class M, which allowed for the change from shops, financial services, betting offices and payday loan or mixed uses to residential.  Amendments to GPDO have created new permitted development rights allowing changes to be made from class E (commercial, business and service) to class C3 (dwelling house) – this amendment comes under class MA (Part 3 of Schedule 2 to the GPDO 2015). While this change is significant and does provide greater opportunities to open up properties for residential use, there are a number of limitations and conditions. Limitations The property must have: been vacant for three months; and been within one or more of the appropriate use classes for a continuous period of two years. Cumulative floor space must not exceed 1,500 sq m (however, part of the building may change use). Development is not permitted if any part of the property is, or is within: a listed building or in its curtilage;  a site of special scientific interest;  a scheduled monument or in its curtilage;  a safety hazard area; or a military explosive storage area.  Also excluded are buildings within areas of outstanding natural beauty, designated wildlife sites under the Wildlife and Countryside Act 1981, the Broads, national parks, world heritage sites and land occupied under an agricultural tenancy, unless express consent is given by the landlord and tenant.  Conditions Development falling under this class must also adhere to prescribed conditions: Before beginning development, the developer needs to apply to the local planning authority to check for prior approval. There is a substantial list of prior approval matters including things like flood risk, noise impact, contamination risk and the effect on transport.  The provisions of paragraph W (the procedure for prior approval) of Part 3 apply in relation to a prior approval application. Development must be completed within a period of three years starting with the prior approval date.  A building permitted to be a dwelling house under class MA must remain in use as a dwelling house (class C3) and cannot be used for other purposes except those ancillary to use as a dwelling house. The future and fettered use In case readers are worried that planning is migrating into the Wild West, it is worth considering some of the constraints that can be imposed on those wishing to develop. Just as with classes O and M, Article 4 directions can be applied by local planning authorities, bringing permitted development under planning control, thereby fettering the use of the broad concessions provided by class MA.  While the new changes in many ways reflect a progressive outlook on the evolving nature of business, retail and housing, the greater flexibility afforded by planning legislation does not prevent restrictions still being applied through lease user clauses.  If businesses are hoping to capitalise on these new freedoms, they must look carefully at the agreements they are entering into, or seek to renegotiate agreements they are already party to. For landlords, thought should be given to the broad concessions that the new regulations will give their tenants: landlords should contemplate the parameters of use that new lease agreements are offering and ensure that they are comfortable with their tenant’s new freedom.  Pamela Chesterman is a director and Robert Litherland is a paralegal in the planning team at Brabners Next time in Back to Basics, Helen Burns explores the registration gap Photo © Wokandapix/Pixabay