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A new order for the planning system: Government reforms the Use Class Order

Unprecedented times call for unprecedented action. Yesterday saw one of the most drastic changes to the planning system for several decades unfold: a fundamental overhaul of the Use Class Order.

The changes, which will come into effect on 1 September 2020, will see Use Classes B1, A1-A5, D1 and D2 revoked, and replaced with a series of new Use Classes:

  • Class E: ‘Commercial, service and business class’ – this combines Use Classes A1-A3, B1, parts of D1 (health, crèches and nurseries) and parts of D2 (indoor sports and recreation)
  • Class F: ‘Community and learning’ (this is in 2 parts):
  1. F1: ‘Learning and non-residential institution’ – this includes the majority of current D1 uses but excluding crèches, nurseries and health which are now covered under Class E
  2. F2: Local community class – this includes local shops (restrictions apply) and community halls, outdoor leisure and swimming/skating rinks

In addition, Use Classes A4 and A5 will become Sui Generis, as will some establishments which formerly fell under Use Class D2, such as cinemas, live music venues, concert, bingo and dance halls.

The changes come alongside a steady stream of recent amendments to Permitted Development Rights (PDR), part in response to COVID-19, and in part laying the foundations for the long anticipated “first principles” reform to the planning system and associated White Paper, touted since March this year and expected next week.

The amendments to PDR have largely been focussed on creating new measures to encourage people to build more homes, but in announcing changes to the Use Class Order, Robert Jenrick confirmed the intention to “support the recovery and reimagination of our high streets and towns”. Could this change therefore be an indicator of further reform on the horizon?

At first glance, the new ‘E’ Use Class seems highly logical. Predominantly ‘Main Town Centre’ uses are combined into one Use Class, befitting of the 21st century ‘blurring of uses’ which is becoming more and more apparent. It will give an unprecedented level of flexibility allowing the adaption of high streets and centres, which rely on being able to respond quickly to market demand.

However, the Use Class Amendment Order makes no reference to spatial considerations, meaning any town centre uses located outside of centres (such as in business and retail parks) will also become ‘Use Class E’, and could therefore change to any other use within that Use Class without comprising ‘development’, and without the need for planning permission and consideration against policy. Indeed we could see the reverse of this scenario, where in theory at least, the UK’s largest high streets and shopping centres could now become the focal points for non-retail activities such as offices. Equally, the UK’s more traditional office centres could now also see the introduction of non-office type activities irrespective of location or street frontage. Retail and town centre first policies which have been dominant since the mid-nineties would therefore appear to become void. The unintended consequences of this being that the new Use Class could indeed cause inadvertent harm to the high streets it is trying to protect.

This raises substantive questions around what this will mean for Local Planning Authorities applying local and national planning policies which govern the spatial distribution and allocation of uses, which no longer exist. According to the new Order, from 1 September 2020 any “relevant planning application” (including planning applications and reserved matters applications) will be determined by reference to the new Use Classes. So what does this mean for reserved matters applications where the outline planning permission relates to the provisions of the old Order, and how will this affect the Section 73 process?

In an added layer of complication, whilst the new uses will come into effect on 1 September 2020, these new uses will not be applied to the General Permitted Development Order (i.e. PDR) until 31 July 2021. Any application during this time for prior approval (or judging whether such approval is required) will be determined with reference to the current Order.

Presumably the intended purpose of this ‘grace period’ is to give the Government time to consider how the new uses will work in practice, and what further reforms are required to support their application. However, when you consider that the changing of land or a building to a different activity within the same Use Class does not comprise ‘development’, then the General Permitted Development Order would not apply. Is this an inadvertent error? It remains unclear how the two separate Use Class Orders are intended to be used, and whether they can successfully be used alongside one another for two different purposes.

We anticipate that further, more detailed announcements relating to planning reform will follow in the coming days, and these should provide clarity and guidance on how the new Use Classes will practically be applied within the planning system. Whether intentionally or not, the Government appear to have set themselves a deadline for this, with the 1 September only five weeks away.

Our detailed guide, which is available here, includes the latest updates and sets out the key permitted development rights for each use. 

For more information on Use Class Order please contact Rosie Cotterill.

23 July 2020