Use Classes Revisited: Planning News from 11 August

I don’t normally spend blog posts looking at a single day… but a lot happened on 11 August. So, I am making an exception*…

This week’s post takes a look at one Prime Ministerial announcement and two substantive High Court Judgments which were made on 11 August 2026**. A day that I may, or may not, have spent in a soft play centre.

Prime-Ministerial Pledge to revisit the Use Classes Order

The first, and arguably most significant, news came from a press release issued by 10 Downing Street, which contained the following paragraphs:

“The government will also require planning permission for vape shops to finally give local people and councils a say over whether they open and to stop them opening near schools. The definition of a vape shop will also be tightened to stop businesses getting around the new rules by claiming to be a general convenience store or retailer.

Adult Gaming Centres (AGCs), which are adult-only venues offering up to 24-hour access to gambling machines such as slot and fruit machines, will also require planning permission under proposals due to come into effect at the start of next year.

The changes come as vape shops and adult gaming centres have spread rapidly across many town centres. Unlike most businesses that communities raise concerns about, they can currently open without planning permission under the same rules that apply to coffee shops and clothing retailers.”

Given that retail and indoor recreation facilities are both currently “Class E” uses, this reads like a promise to revisit the scope and extent of Class E when parliament returns in the autumn.

This would be the first amendment to Class E since it was first introduced in 2020 – a move which Zack Simons KC described at the time as “radical” – and it looks as if the intention is to make it a narrow one. The intention seems to be to remove Adult Gaming Centres and Vape Shops from Class E entirely – making them Sui Generis – which will require some very careful drafting…

High Court Decisions on CIL and s.70C of the Town and Country Planning Act 1990

Tuesday also saw the publication of two interesting High Court decisions, which are worth having on your radar.

Herod Property Ltd, R (On the Application Of) v Westminster City Council [2026] EWHC 2122 (Admin)

Herod Property is a case about CIL and permitted development rights. It may also win an award for containing the most relatable statements in a high court judgment.

At paragraph 40 of the decision, Sir Tim Kerr states that the CIL Regulations “are not for the faint hearted.”   Later, at paragraph 84, he states “Indeed, they are awkward and do not fit together easily.” Two statements with which I happen to agree.

In the interests of brevity, I am not going to get into the facts. Instead, I am just going to repeat (verbatim) the key sections of the judgment concerning the relationship between the rules around when a notice of chargeable development needs to be served by a developer if there is a nil liability, and when or how the Council should reach their own conclusions on the CIL liability for the scheme.

“82. I think it is inescapable that regulation 64(1A)(b) places responsibility on the developer for deciding whether it, the developer, is of the view that the zero CIL exception applies. I cannot read that provision as making a notice mandatory unless the collecting authority agrees that one need not be served. Its views are relevant if and when regulation 64A comes into play. Its views do not determine the developer’s obligations under regulation 64. Thus, the developer may lawfully decide not to issue a notice if it considers that the zero CIL exception applies, regardless of whether the collecting authority concurs with that view.

83. Under regulation 64A, it is clear that the collecting authority must serve a notice of chargeable development if the developer has not served one, the development has commenced and neither of two exceptions applies (the gross internal area of new build being less then 100 square metres, unless it will comprise one or more dwellings; and where an exemption for residential extensions was granted). There is no exception to the authority’s obligation to serve a notice merely because it is aware the developer relies or may rely on the in-use exemption, even if it agrees that the in-use exemption reduces CIL to zero.

84. These observations amply justify Mould J’s comment, when granting permission, that the provisions are “not straightforward”. Indeed, they are awkward and do not fit together easily. A developer such as this one, confident that the in-use exception will produce zero CIL, may well be tempted not to issue a notice of chargeable development. The language of regulation 64(1A)(b) tends to encourage this course. It is counterintuitive to issue a notice indicating that a development is chargeable while of the view that it is not.

85. However, in my judgment a developer who decides not to serve a notice, in reliance on the zero CIL exception, takes certain risks if it does so without first satisfying the collecting authority that the in-use exemption does indeed or will indeed produce zero CIL. The collecting authority is in no way bound by the developer’s decision that the in-use exemption produces zero CIL. Indeed, it is bound under regulation 64A itself to serve a notice of chargeable development, which some might think tends to indicate the contrary.

86. The procedure ordained by regulation 64 and, where it applies, regulation 64A, is the start of a process for determining how much CIL, if any, is payable on commencement of the development. The developer’s view that no CIL is due may turn out to be wrong. If it has commenced the development, it loses important review and appeal rights. The collecting authority must act reasonably in the normal public law sense, but the powers it may properly exercise include deeming powers where there are gaps in its knowledge.

87. There is a power under regulation 68 to set the deemed date of commencement of development where no commencement notice has been served under regulation 67. The latter regulation is also awkward for the developer. The obligation to submit a commencement notice before commencing development is subject to the same three exceptions as apply in regulation 64, which I have just considered.

88. The analysis is the same. It is up to the developer whether or not to treat the zero CIL exception in regulation 67 as applicable. If it does so, it is not in my judgment acting unlawfully under the Regulations – aside from any contractual obligation – by not serving a commencement notice. But if the developer chooses not to serve one, it is plainly on notice that by regulation 68 the collecting authority may – indeed must – determine the deemed commencement date if it has reason to believe that the development has been commenced.

89. The second deeming power is that found in Schedule 1 paragraph 1(8) and (9). If the authority lacks sufficient information or information of sufficient quality, it may deem a relevant building not to be an in-use building. The third deeming power is that where the authority lacks sufficient information or information of sufficient quality to establish the matters in (9)(a) and (b) (whether part of a building falls within a description in certain defined terms in the formulae; and whether the gross internal area falls within such a description), the authority may “deem the gross internal area of the part in question to be zero”.

90. Deeming powers of this kind would be red flags to a well advised developer, even one confident its CIL liability should be zero; particularly where the developer decides to refrain from engaging with the collecting authority, decides not to serve a voluntary notice of chargeable development, does not issue a commencement notice and commences development, thereby losing valuable review and appeal rights.

91. While hindsight is a wonderful thing, it is now clear that the prudent course for a developer in the claimant’s position, who is confident that the in-use exemption will produce zero CIL, is:

(1) to check with the collecting authority, before commencing development, that on the basis of the developer’s submitted plans, the authority agrees that the CIL payable will be zero, due to the in-use exemption;

(2) if the authority does not agree, without obligation and voluntarily, to submit a notice of chargeable development, accompanied by a clear statement that the developer relies on the in-use exemption and says that CIL will be zero;

(3) to submit with that notice a plan (see regulation 64(4)(b)) to make good the case for zero CIL under the in-use exemption (“any building … relevant for the purpose of calculating E or KR under regulation 40 and Schedule 1…”);

(4) to proffer any further information, documents or materials which, under regulation 64(8), the authority may consider relevant to assist it in confirming that the CIL payable on commencement will be zero;

(5) to include with the notice the anticipated commencement date and confirmation that a commencement notice under regulation 67 will be submitted before that date;

(6) to elicit from the authority, if possible before commencing the development, written confirmation that the authority agrees, on the basis of the information it has, that no CIL will be payable;

(7) if the development has not yet commenced and that agreement is not forthcoming, to seek a liability notice stating the CIL said to be due and to seek a review of that determination and if necessary to bring an appeal; and

(8) if for good reason the developer urgently needs to commence the development without the comfort of a zero CIL determination, to explain to the authority why this is so and to reserve its rights, exceptionally, to bring a judicial review should the authority seek any CIL.

91. Where, as in this case, the developer does none of these things and does not engage with the collecting authority, the latter must exercise its CIL collecting functions as best it can, acting reasonably and lawfully in the normal public law sense. It must make whatever enquiries it is required in public law to make. It is in dispute whether it did so here. I will have to return to that dispute. The collecting authority must determine how much, if any, CIL is payable under the Regulations and it must also deal with other ancillary issues such as late payment, interest and any surcharge.”

Which is at least a helpful roadmap moving forward.

Baker, R (On the Application Of) v Reigate and Banstead Borough Council [2026] EWHC 2124

I can deal with Baker more briefly. It is a case centred on when a Council can lawfully refuse to determine an application under s.70C of the Town and Country Planning Act 1990. This is a power applies where an application is seeking permission for something which has already been held to be a breach of planning control under an enforcement notice that is already in effect over the application site.

The case does not create new law. It is, however, a handy recap of where things currently stand with s.70C, stating:

“74. To summarise the effect of Moran and Connors, the purpose of section 70C is to preclude any requirement that there must be two separate considerations of the underlying planning merits of a breach of planning control where the authority has issued an enforcement notice against that breach of planning control before the submission of a planning application for the development.

75. Section 70C gives local planning authorities a broad discretion, including whether they are prepared to allow to be undertaken the duplication of the consideration of the planning merits of the breach of planning control which was the subject of enforcement action. The exercise of that discretion is challengeable on grounds of irrationality but a claimant who challenges a decision on that ground has a high hurdle to surmount. A decision will be irrational if in the exercise of its discretion the authority fails to take account of an obviously material consideration. The claimant’s case is that in exercising its discretion to decline to determine the second application, the council failed to take account of an obviously material consideration.”

“83. Moran established that there is no obligation on the authority to reconsider the planning merits on a new planning application where there is a prior enforcement notice. Connors makes clear that there is no such obligation even where the planning merits have changed, for example because of a change in policy. As Fordham J said in Connors at [9], there is no “fresh claim test” similar to rule 53 of the Immigration Rules. Although Lewis J in R (O’Brien) v South Cambridgeshire District Council and the Secretary of State for Communities and Local Government said at [44] that where material planning considerations have changed an authority has a discretion to determine the planning application, he said in the same paragraph, rightly, that the authority has no obligation to do so.”

“86. In any case, fundamentally, it is clear from Moran and Connors that a change in the underlying planning merits does not give rise to obviously material considerations creating a requirement for the authority to consider a planning application where there is a previous enforcement notice.”

I can’t wait to see what happens the next time I take a few days out of the office…

*and not just because it is another piece of anecdotal evidence to support my long-standing theory that everything happens whilst I am on annual leave

** for completeness, there are also two published permission decisions from that day, but I am not talking about them, because this blog is already quite long. If you want to read them yourselves, they are Kelly, R (on the application of) v West Oxfordshire District Council [2026] EWHC 2145 and Hamble Parish Council v Secretary of State for Housing, Communities and Local Government & Anors [2026] EWHC 2138 (Admin)