Education Matters - A class apart: Planning use class reform and educational institutions


12 November 2020

Reform of the planning use class system that came into force on 1 September 2020 has altered the framework within which most educational institutions had become familiar with operating in.

The primary change that will be of interest is the abolition of Use Class D1, which included, amongst other things, non-residential educational institutions and training centres as well as crèches and day nurseries.

As part of the changes, the educational uses which formerly sat within Use Class D1 have now been reallocated to Classes E and F1, with non-residential educational institutions falling within Use Class F and crèches and day nurseries falling into the new Use Class E.

The temporary permitted development rights that previously benefitted certain schools, crèches and day nurseries will remain for now, however given the pace of the current reforms to the planning system it is always advisable to check these rights before seeking to rely on them.

Whilst the reforms have been welcomed by many as introducing flexibility into the planning system more generally, there will be some in the education sector who query the separation of residential institutions from crèches and day nurseries, in planning terms, particularly where they operate, or intend to operate joint offerings.

Education institutions, particularly those with larger campuses or estates with tenants providing services and amenities or who provide a source of investment income, should also be aware that some uses formerly within Use Classes A1 and A2 (shops, cafes, restaurants) and B1 (offices, research, light industrial) have been grouped together within Use Class E. Care should be taken with defining the permitted use within new leases, given the greater flexibility available under new Class E. Institutions will wish to avoid unintended outcomes such as leases being assigned to the wrong type of user for the location, which may impact on student experience or reputation. Consider framing permitted use definitions by reference to a description of the specific activities permitted, taking into account any effects of the wording on rent review. It may makes sense to avoid reference to a Use Class in your definition, or perhaps only reference it where a robust consent mechanism exists. We also suggest reviewing your existing leases to see if any issues may arise due to the new wider Use Class.

Conversely, the new Use Class E could prove useful where institutions are tenants in any of their premises and are looking for more flexibility in terms of assigning the lease or subletting. For example, a lease of administrative space which allows changes within the former Use Class B could potentially now allow assignments to former Class A shop or restaurant users.

As a final point of caution, the High Court is shortly due to determine a challenge to the introduction of the Statutory Instrument that has formalised these changes in law. Should this challenge be successful, and the Statutory Instrument quashed, the changes will be reversed, at least in the short term.

We would be happy to discuss any specific questions you may have in relation to how the new Use Classes may affect your organisation. Please contact Dwight Patten in the first instance.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.