From 1 September 2020, the Government will implement major changes to the planning use class order, removing the need for planning permission to move between many uses and leaving in its place little more than market forces.
From 1 September, many of the familiar use classes will be abolished and a new Use Class E - “commercial, business and service“, will be created which subsumes all of the following Use Classes:
- Shops (most of existing A1 except essential local shops – see new Use Class F2)
- Financial/professional services (A2)
- Cafés/restaurants (A3)
- Indoor sports/fitness (D2 part)
- Crèche/nurseries and medical health facilities (D1)
- Office/business uses (B1)
Units within any of the above existing uses can lawfully change to any other within Use Class E without consent (subject to any restrictions in the lease, express conditions contained in the existing consent or s106 agreement).
To put this into context, Westfield shopping centre in White City recently obtained planning permission to convert the former House of Fraser into We-Work style flexible offices. Under the new system this would not require consent.
Notably excluded from this new Use Class E are the 'bad neighbour' uses of pubs/drinking establishments and takeaways (former A4 and A5), which will become sui generis (uses without class) and therefore always need planning permission to change from or to.
A new Use Class F2 will also be created to protect the following 'community uses':
- Shops of not more than 280sqm mostly selling essential goods, including food and at least 1km from another similar shop
- Hall or meeting place for the principal use of the local community
- Indoor or outdoor swimming baths, skating rinks, and outdoor sports or recreations not involving motorised vehicles or firearms
While the protection of such community uses will be welcomed in rural areas, given that the shop criteria in F2 is around the size of a larger "Little Waitrose" or "Tesco Local" we challenge anyone to find a store in London that is not within 1km of a similar store.
A new Use Class F1 will be created to include the remainder of the old D1 and D2 e.g. schools, non-residential education and training centres, museums, public libraries, public halls, exhibition halls, places of worship and law courts.
The ideology behind it is clear, red tape and regulation = bad, market forces = good. Laissez-faire planning is the Government's direction of travel not just in respect of use classes but also in the major expansion of permitted development.
Restrictions on use in leases will now be all the more important for landlords who wish to retain an element of control over their units. Although in many cases this will remove the delay, expense, uncertainty and potential resulting vacancy of units while planning permission for changes of use are sought.
You should also bear in mind that in the interests of simplicity and clarity the planning system will now be using two Use Class descriptions because permitted development will continue to be exercised with references to uses as classified in the current system until at least 31 July 2021.
In considering whether a property can benefit from changes of use within this new Use Class E you should consider:
- Does the current permission authorising the existing use contain a restriction with the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order?
- Are permitted development right effectively removed or restricted by condition?
- Are there restrictions in a binding s106 agreement?
This is a particularly complex area where careful analysis of the precise wording of the consent, particularly in light of the Lambeth decision, should be applied. Mishcon's Planning and Environment team are happy to help you navigate this new system.
Please see our updated use class table below.