Changes to the Planning Use Classes to Revitalise High Streets

29 juillet 2020

As part of wider changes to the planning system, the Government is changing the categories of use in the Use Classes Order from 1 September 2020 (in England only). The purpose is to better reflect the diversity of uses on high streets and in town centres - although the changes also aim to help those settings adapt to changing demands of society. This is one of the changes predicted by Ben Stansfield and Nigel Hewitson back in March, when discussing the impacts the COVID-19 pandemic will have on town and country planning.



What are the changes?

The new regulations which take effect on 1 September 2020 amend the Town and Country Planning (Use Classes) Order 1987 as it relates to England to abolish use classes A1-A5 (inc); B1; D1 and D2 and create three new use classes as follows:

  • Class E - Commercial, business and service - (includes previous uses A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes) and B1 (business))
  • Class F.1 - Learning and non-residential institutions
  • F.2 - Local community

New Class E is very wide. It will include retail, food, some services, gyms, healthcare, nurseries, offices and light industrial uses. Class F.1 and F.2 take in some of the current use classes D1 (Non-residential institutions) and D2 (Assembly and leisure). Some particular uses will no longer fall within a class, meaning planning permission will be required to change - including pubs and bars, hot food takeaways, and cinemas.

A full summary of the new use classes is in the table at the end of this note.

Why are the changes important?

High Streets across the country have been struggling during recent years as they fail to compete with online retailers and large out-of-town retail parks and shopping centres. The move to online shopping has been accelerated by the COVID-19 pandemic, as many traditional High Streets have been forced to close for the last few months and many customers feel uncomfortable shopping in person.

By creating a new "Commercial, Business and Service" use encompassing all of the uses outlined above, it will be possible to move between the uses without the need for permitted development rights or planning permission. This will give more flexibility to property owners and allow them to be more creative with their stores to offer mixed uses. For example, a property could operate as a shop during the day and a restaurant or a gym in the evening.

The Order has not included pubs and bars (previously use class A4) or hot food takeaways (previously use class A5) within the new Use Class E, to avoid struggling shops changing use to pubs and takeaways along the High Street without planning permission. Interestingly, this now means that the flexibility offered to pubs three years ago to change to a mixed pub/restaurant use ("drinking establishment with enhanced food offering") is no longer available.

What do the changes mean for landlords and tenants?

This is a difficult time for landlords of high street and town centre properties. These changes may help with renewal or reletting of properties with leases that expire around or after 1 September because the current or new tenant is less likely to need planning permission for their proposed use of the property.

Landlords should not be concerned about a loss of control. Planning permission for change of use is separate from a landlord's ability to control use of property - usually achieved through a specific obligation on a tenant to only use premises for specified uses. In most cases (particularly retail and leisure properties) this will be narrower than any of the existing use classes. Some leases allow change of use with landlord consent not to be unreasonably withheld or delayed and some may allow change of use within a use class without consent. Where that is the case, leases commonly specifically limit that to the use classes as they were at the date of the lease. The new classes will not therefore affect those positions.

As above, the welcome news for occupiers is that where a change or expansion of use is needed to develop business or unlock the disposal (assignment or subletting) of a property, planning permission will not be needed for many changes from 1 September 2020. The cost, hassle, delay and uncertainty of that process is taken away.

Most leases require the tenant to get the landlord's consent to both an application for planning permission and (depending on the lease terms) the change of use itself. If no planning permission is required then engagement from the landlord will be limited to the latter.

Should new leases refer to new Use Class E? This is unlikely. Tenants may welcome the flexibility of an open E class use but the uses within the class are so wide that landlords are going to require more control. For example, the prospect of a change of use from a restaurant to an office is unlikely to be commercially acceptable - even if subject to a landlord acting reasonably in giving consent. Leases will continue to refer to specific uses - and references to use classes may disappear altogether in town centre settings. Landlords will need to think carefully about what range of uses and flexibility they will permit in leases going forwards based on their intentions for the property and any wider place making strategy.

Table of new use classes in England from 1 September 2020

New Class Current class Use
E

A1 (shops)

A2 (financial and professional services)

A3 (restaurants & cafes)

B1 (business)

Commercial, Business & Service

  • Display or retail sale of goods (other than food) principally to visiting members of public
  • Sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises
  • Provision of the following kinds of services principally to visiting members of the public:
  • financial services
  • professional services (other than health or medical services)
  • any other services which it is appropriate to provide in a commercial, business or service locality
  • Indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public
  • Provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner
  • Creche, day nursery or day centre (not including a residential use) principally to visiting members of the public
  • General business use for:
  • an office to carry out any operational or administrative functions
  • the research and development of products or processes
  • any industrial process (being a use, which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit)

F1

D1 (Non-residential institutions)

D2 (assembly & leisure)

Learning & non-residential institutions

Any use not including residential use:

  • for the provision of education
  • for the display of works of art (otherwise than for sale or hire)
  • as a museum
  • as a public library or public reading room
  • as a public hall or exhibition hall
  • for, or in connection with, public worship or religious instruction
  • as a law court

F2

Local Community

Use as:

  • a shop mostly selling essential goods, including food, to visiting members of the public in circumstances where:
    • the shop's premises cover an area not more than 280 metres square, and
    • there is no other such facility within 1000 metre radius of the shop's location
  • a hall or meeting place for the principal use of the local community
  • an area or place for outdoor sport or recreation, not involving motorised vehicles or firearms
  • an indoor or outdoor swimming pool or skating rink

New sui generis uses (requires planning permission to change)

 

A4

Public house wine bar or drinking establishment

A4 / A3

Drinking establishment with expanded food provision

A5

Hot food takeaway

D2

Cinema, concert hall, bingo hall, dance hall


CECI NE CONSTITUE PAS UN AVIS JURIDIQUE. L'information qui est présentée dans le site Web sous quelque forme que ce soit est fournie à titre informatif uniquement. Elle ne constitue pas un avis juridique et ne devrait pas être interprétée comme tel. Aucun utilisateur ne devrait prendre ou négliger de prendre des décisions en se fiant uniquement à ces renseignements, ni ignorer les conseils juridiques d'un professionnel ou tarder à consulter un professionnel sur la base de ce qu'il a lu dans ce site Web. Les professionnels de Gowling WLG seront heureux de discuter avec l'utilisateur des différentes options possibles concernant certaines questions juridiques précises.