Monday, 27 July 2020

Sweeping Changes to the Planning Use Classes Order

Just before the parliamentary recess, the government rushed through sweeping changes to the Use Class Order containing the various Use Classes A to D that we have grown used to.

From 1 September 2020 existing buildings that are already used for Class A1, A2, A3, B1 and certain D1 and D2 uses will fall within a new single Class E (commercial, business and service). There is also a new Class F (F1 – learning and non-residential institutions; and F2 – local community) and a new list of sui generis uses that include uses that were previously within the old use classes (bafflingly – eg pubs, wine bars and drinking establishments that were formerly within Class A4).

Martin Goodall’s Planning Law Blog is an excellent resource on all planning matters. He makes some very interesting observations on the new law, both in the post and in his comments section, and provides a very useful summary of the new law.

It’s obviously too early to tell what the effects of the changes will be. No doubt in some areas they will be welcome, but there seems to be potential for a good deal of confusion in the hospitality sector as to what changes of use are permitted without the need for planning permission. 

The reclassification of some uses as sui generis, which includes pubs and hot food takeaways, means they will be subject to a greater level of planning control than before, as a change of use from one sui generis use to another requires planning permission. So for operators in this category there will be less flexibility, not more.

There’s certainly enough in this new law to keep planning lawyers gainfully employed for a considerable time, so good luck to them!

There are also issues for property lawyers to consider, not least what effects the changes might have on existing leases that refer to the old use planning order and use classes.

Much will depend on the drafting.

If the lease simply describes the use (eg “offices”) without reference to the old use classes order or the lease refers to the use classes order as at the date the lease was entered into, then there is no change in the extent of the use permitted by the lease.

There may however be implications on rent review or lease renewal, depending on what the lease says.

If the use permitted by the lease refers to the old use classes order as amended or replaced from time to time, the change now enacted by the government will potentially impact on the use permitted by the lease.

For example a reference to any other use within Class A1 would now mean any use within Class E, which is considerably wider, covering as it does retail, food, financial services, indoor sport and fitness, medical or health services, nurseries, offices and light industry.

What this means will depend on what level of control over change of use the lease gives the landlord, but clearly in some cases it could result in a much wider set of permitted uses. This too could have impact on rent review.

In new leases, landlords may now want to restrict the permitted use by describing the specific use rather than with reference the new much wider use class E, or by permitting changes of use only to certain specified uses or within specified parts of the new Class E only.

If this was meant to make everything easier, then I’m not sure it’s succeeded. Much will also depend in the planning world on how it’s all handled by local authorities.

Interesting times ahead.

UPDATE 23/9/20 - A legal challenge by way of judicial review has been made to the changes to the GDPO and the changes to the Use Classes Order.The High Court (Holgate J), has directed that this action will be heard in a “rolled-up” hearing in the first half of October. There is a possibility this could go all the way to the Supreme Court. Changes of use carried out in the meantime pursuant to the new Use Classes Order will remain valid as if the relevant statutory instruments are quashed it will not have retrospective effect.

UPDATE 18/11/20 - The legal challenge to the changes made to the GDPO and the Use Classes Order has been dismissed by the High Court, saying it's not responsible for making political, social or economic choices, and that there is no requirement for strategic environmental assessment. See this later blogpost on the ruling by the High Court.

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