Amendments to the Town & Country Planning (Use Classes) Order 1987 (Use Classes Order)


13 October 2020

With effect from 1 September 2020 any building or other land situated in England which is being used for the purpose of Class A1, A2, A3 or B1 of the Use Classes Order on 31 August 2020 is to be treated as if it is being used for a purpose specified in new Class E under regulation 7 of the Regulations. 

The new class E is the “commercial, business and service" use class and encompasses most of the previous Class A, B1 and part of D1/D2. 

The remaining Class A uses and uses within old Class D1/D2 which are not absorbed into class E will either fall within the new F1/ F2 class or become a sui generis use not falling within the Use Classes Order.

The new classes F1 and F2 are for “learning and non-residential institutions” and “local community” uses respectively. F1 incorporates the remainder of old Class D1 and includes the non residential use of schools, education and training centres, museums, libraries, public halls, exhibition halls, places of worship and law courts. New Class F2 incorporates old Class A1 by including a shop selling essential goods which is not more than 280msq and not within 1000 metres of another facility as well as including a community hall or meeting place, places for outdoor sport and recreation, indoor and outdoor swimming pools and skating rinks.

A quick reference table summarising the changes is set out below. 

These changes do not automatically mean that every property currently being used as A1, A2, A3, B1, D1 or D2 will benefit from the full range of uses within new Class E or F. Existing conditions restricting their use will continue to apply and in some cases limited descriptions of a use within planning permissions may have the same effect, albeit this will likely be a minority of cases. 

In addition the property must be in 'in use'. Current thinking is that developments granted permission for one of the previous use classes which have been constructed but have not yet been bought into use would first need to be used for the original permitted use under the previous use classes. Also beware of restrictions in user provisions within existing leases, it will depend on the drafting but it may be more restrictive and still not allow you to move within the class E uses.

Existing Applications

Under regulation 4 of the Regulations  applications that have already been “submitted” or “deemed to be submitted” must be dealt with by reference to the old use classes, resulting in a consent under previous use class A1 for example.

Permitted Development 

Any reference to the old use classes will continue to apply until 31st July 2021 in relation to Permitted Development. 

This means that applications for prior approval under the the General Permitted Development Order should continue to refer and be determined based on the previous uses classes.

Those wishing to move between uses within Class E should bear in mind the potential impact on the availability of permitted developments rights.

New Applications and the Local Plan

The recent guidance states that development plan policies may need to be updated to reflect the amendments but it remains unclear as to whether this would mean a plan is “out of date”. It may be that as the NPPF has not yet been updated and what is “out of date” is assessed in the context of the NPPF a plan would not be considered out of date on this basis. It remains to be seen how this will develop and how the Planning Inspectorate will deal with this in practice. 

It is also suggested that whilst the regulations have the effect of converting existing "in use" properties to an unrestricted Class E use Planning Authorities are free to restrict its future application in line with local plan policies to ensure the right uses in the right places based on objectively assessed need where appropriate. 

Conclusion

Whilst Class E may appear to benefit a number of developments, conditions on planning permissions restricting the use would likely still be in effect, the property must have been lawfully 'in use' and in some cases overly restrictive descriptions in planning permissions could have the effect of limiting the ability to change a property's 'use' within the new classes. 

Landlords and Tenants should be mindful that user restrictions in leases may be out of date in relation to the new use classes and should be reviewed.

Those seeking to utilise the new classes should bear in mind that they are currently being challenged in the High Court. Whilst at present they remain law, if quashed potentially any changes made under the new regulations would become unlawful. Those seeking to rely on the new classes may wish to obtain advice before doing so.

Before seeking to change the use of a building advice is therefore recommended.

English Use Classes – changes from 1 September 2020

Amendments to the Town & Country Planning (Use Classes) Order 1987 by the Town & Country Planning (Use Classes) (Amendment) (England) Regulations 2020, Town & Country Planning Use Classes (Amendment) (England) (No. 2) Regulations 2020 and the Town & Country Planning Use Classes (Amendment) (England) (No. 3) Regulations 2020 which come into force on 1 September 2020.

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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 October 2020.