Changes to the Use Classes Order

What's happened?

Draft legislation has been published which makes a number of significant changes to the Town and Country Planning (Use Classes) Order 1987 (UCO). The significance of the UCO is that uses can change within the same class without the need for planning permission.

The two main reasons for the changes are:

• to help the high street by allowing typical high street uses (such as shops, gyms, nurseries and offices) to merge or switch without planning permission; and
• to protect "community assets" (such as pubs, music venues and cinemas) by taking them out of the "classes" and making them "sui generis", meaning that planning permission would be needed to change to a different use.

The changes only relate to England and so this article focuses on the law in England and not wales. The changes are due to come into effect on 1 September 2020.

Despite the focus on saving the high street, the new use classes are not restricted to the town centre. This means that they can apply to out of town retail and office parks.

What does the UCO do?

The UCO categorises uses into "classes" (see Appendix 1). Uses which fall within a particular class are allowed to change to another use within that class without the need for planning permission. For example, under the new rules, a shop will be able to change to an office and then to a gym and back again, without planning permission or any other planning approval.

The UCO also lists uses which do not sit in a class and therefore cannot change unless there is a permitted development right allowing it (see the Town and Country Planning (General Permitted Development) (England) Order 2015). 

What are the new classes?

"Class E (Commercial, Business and Service)" is the new town centre use (see Appendix 1). This new class allows for a mix of retail, leisure and business uses to reflect changing retail and business models. It recognises that a building may be in a mix of uses at once (clothes shop and beauty salon) or be used for different uses at different times of the day (office and gym).

Some of the "community assets" have been put together in new Class F1 and Class F2 (see Appendix 1):

The "F1 (Learning and non-residential institutions)" class is for uses where there is generally wider public use such as:

• schools;
• libraries; and 
• art galleries.

The "F2 (Local community)" class groups together:

• community halls and meeting spaces;
• uses which provide for physical group activities such as swimming pools, skating rinks and areas for outdoor sports; and 
• a small, local, shop like one you'd find in a rural community or a large residential development (see Appendix 1 for the specifics on this).

What about residential, general industrial and storage uses?

No change. The residential (C classes), General industrial (B2) and Storage and distribution (B8) use classes remain unchanged in practical terms.

What about pubs and takeaway uses?

Uses that previously fell in Classes A4 and A5 will become "sui generis" uses, meaning that they will be in their own, individual class and will require planning permission to change, unless permitted development rights exist. A full list of the other sui generis uses is at Appendix 1.

What does this mean in practice?

Planning Applications submitted before 1 September 2020 that cite the current use classes must continue to be decided by the council using the current (by then old) use classes after 1 September 2020, so there will be no obvious change there. However, applicants can probably expect more planning conditions restricting use if the council is not comfortable with the relaxing of the rules by government.

In order to change uses within a class, there must have been actual and lawful use. In terms of actual use, if planning permission for a creche is granted, the first use must be as a creche and not another Class E use, but after 1 September 2020 the use could change from creche to a different Class E use, such as a shop. In terms of lawful use, there may be situations where the lawful use has been established over time (continuous use for 10 years without enforcement action), rather than by a planning permission. An owner/occupier may be able to benefit from the wider Class E uses there is enough evidence of a lawful A1, A2, A3 or B1 use to secure a Certificate of Lawfulness.

For those with actual and lawful retail and business (A1, A2, A3 and B1) assets, the changes will mean more flexibility as the law makes it clear that they will automatically fall within Class E from 1 September 2020. 

There has been some ambiguity as to whether the same is true for some of the D uses such as gyms and creches that are included in Class E. However, MHCLG has confirmed that they will also fall within Class E from 1 September 2020. This means that these uses will be able to change uses within the Class E (for example from shop to creche) without planning permission.

It is important that to check whether there are any planning conditions or planning obligations affecting the site which restrict the use. There may also be use restrictions in the lease or restrictive covenants which limit the practical application of Class E.

Owners and occupiers of pubs, wine bars, takeaways, cinemas, concert and dance halls and bingo halls will not benefit from the new law. These assets will be restricted by the "sui generis" label, which usually means they will need to secure planning permission to change the use. 

What about permitted development rights?

PD rights can allow certain changes of use from a use in one class to a use in another (for example office to residential) without a formal planning permission. Note however, that some kind of council sign-off is usually required. 

The changes to the UCO will not change the pd rights for another year (until 31 July 2021) to give people warning and because whole-scale changes to pd rights are expected before then. 

How can we help?

The changes are due to take effect on 1 September 2020. If you are in the process of working up a planning application or are awaiting a decision, we can advise you on the effect of the new law. We can also assist with any queries as to actual and lawful use and securing Certificates of Lawfulness.

The changes will most likely affect any agreements that are conditional on planning and any existing investment/development strategy. Please contact Trevor, Claire or Kathryn who will be happy to help.