Planning the great experiment

Lauren Fendick and Clare Harman Clark consider how the life sciences industry might take advantage of recent changes to use classes. For more than 60 years, the planning system in England and Wales has set out to do one thing: manage change. Promoting developments or changing use is often a costly and time-consuming exercise. So when changes were hastily introduced at the beginning of the autumn that promised a radical shake-up of the whole system, nascent industries such as life sciences, both reliant on flexibility and hampered by strict use classes, were excited. So what’s new? Since the Town and Country Planning Act 1947, whenever a landowner desired to develop their land or change its use they have been obliged to obtain consent from the local planning authority – consent within the gift of planners with their own views on the strategic development of a town or wider area. In this way, using strict designations pursuant to the Town and Country Planning (Use Classes) Order 1987 (as amended over time), whole streets were zoned into retail (class A1), or office (class B1a) or residential (class C3) use. The physical opportunities for businesses falling into specific use classes have therefore been constrained, both numerically and spatially. Until now, there were six main use classes (plus the catch-all “sui generis”), which included separate designations for storage or distribution (class B8), takeaways (class A5), hotels (class C1) and even bingo halls (class D2(c)). But thanks to rationalisation in the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, as of 1 September, amalgamated use classes remain. A new class E sweeps up every previously distinct commercial, business and service use into one use designation. In practice, this means that what started life as a retail unit can now become office space without local authority involvement via change of use consents. A change of use within class E does not constitute development at all. Square footage permitting, a nursery can turn into a bank, a kebab shop can morph into an indoor sports venue, or an office can become a life sciences start-up space. Of course, express planning permission might still be required for a dramatic refurb or any change to the elevation of a property or signage. But provided the intention is to provide “any other services which it is appropriate to provide in a commercial, business or service locality”, property owners have relative carte blanche to imagine their property in a different guise. Moreover, start-ups from all manner of different fields have the freedom to contemplate working in a range of different properties. The purely industrial class B2 was left untouched by the recent regulations, to sit alongside two new classes: F1 (learning and non-residential institutions) and F2 (local community – being small shops in certain circumstances and other community spaces such as outdoor sports areas and pools). While they also left the residential zones alone, a consultation published on 3 December by the Ministry of Housing, Communities and Local Government has revealed that the next step is lumping class C3 (residential) into this new class E, in order to address the housing crisis. All change? Of course, before September, there were always certain carve-outs to those use class designations. Further restrictions may exist in underlying planning permissions, or be embedded in section 106 agreements. Generally, however, use class changes were introduced via permitted development rights, usually politically driven and often (for example, the “retail to residential” right) met with consternation. PDRs permit owners to segue between specific classes without express planning permission for change of use, provided the local authority has not suspended the offending PDR with a blanket article 4 direction. Moving forward, any existing article 4 directions will continue under transitional provisions until 31 July 2021. Local planning authorities are understandably concerned by the change. The previous system at least enabled the control of some strategic planning for town or city, in which the streets could be zoned into particular uses. Moreover, the regulations came hard and fast, laid before parliament in July and effective law two months later as part of the government’s “project speed”. They were challenged unsuccessfully at the High Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin); [2021] EGLR 2. However, the crowd-funded applicant has confirmed its intention to appeal.  Creating opportunity In the meantime, we are all watching closely to see how the regulations will work to shape our communities and our cities. Buildings may be repurposed rather than mothballed, and space may flex, to respond nimbly and efficiently to an area’s needs. We believe that it is arguably for burgeoning sectors such as life sciences that the opportunities are most profound. Traditionally limited to finding space with a pre-approved research and development use class (B1b) or maybe even the industrial processes use class (B1c), the life sciences sector has done incredible things with the development of campuses, effectively pooling infrastructure and minds. But what if start-ups have more freedom to explore the potential to shape their own knowledge areas in urban centres? What if, like tech start-ups, micro-labs can benefit more routinely from the vibrancy of city centres? Those at the cutting edge of science might just be at the cutting edge of town planning too, and as we know, the best way to predict the future is to create it. Lauren Fendick is a partner and Clare Harman Clark is a senior professional support lawyer at Taylor Wessing Photo by Public Domain Pictures/Pexels