FLEXIBILITY & PROTECTION
A USE CLASS ORDER FOR THE 21ST CENTURY?

Reform was promised and change is very much the order of the day for this Government with the latest changes to use classes and permitted development rights. Mike Jones, Planning Partner highlights the fundamental changes to use classes which come in to force on the 1st September 2020. 

The latest changes in England have been branded as the support required for the recovery and ‘reimagination’ of the high street, very much as a response to the impact of Covid19. In short this is an attempt to add flexibility to release change and recovery for some uses, at the same time as protecting others to ensure they are not lost all together. 

As part of last year’s Radical Regeneration Manifesto,  Bidwells championed the reform of the Use Class Order. The new changes are indeed ‘radical’ as we are not talking about ‘permitted’ changes of use but re-defined uses, therefore certain changes within the same class no longer constitute ‘development’ and therefore planning permission is not required.

The changes introduce a new Class E, labelled ‘Commercial, Business and Service’. This new class will see a combination of A1 retail (shops), A2 (financial/professional services), A3 (Café’s & restaurants), part D2 (indoor sport/fitness), part D1 (medical health facilities and creche/nurseries) and B1 (employment uses).

There is also a Class F.1 ‘Learning & Non-Residential’ and F.2 ‘Local Community’. These protect uses such as those most likely threatened by the impacts of lockdown and social distancing and those of most value to areas of limited services and include community buildings, libraries, places of worship, small local retail (less than 280sqm), swimming pools and museums.

In respect to the ‘agent of change’ principle and difficult neighbouring uses A4 (public houses), A5 (hot food takeaway) and D2 (live music venues) have had had their ability for permitted change removed and they are to be defined as Sui Generis uses. As before where there was ambiguity between whether a use was A1, A3 or A5 having cafes/restaurants and takeaways in separate use classes will cause confusion.

Our view

Jonathan Phillips, Partner, Planning

The reference to pubs and live music venues as Sui Generis is as much about affording them protection from change of use to prevent loss of community facilities, as it is to protect existing noise and odour sensitive uses from the potential impacts of new pubs, hot food take-aways and live music venues.

The PD from A1 to A3 may assist independent café operators, but it does not remove the need for planning permission for material shopfront alterations, consent for signage, licensing and landlord’s consent. The reaction from national chains is mixed, most suggesting that it is too little too late; they are reducing units not expanding. Likewise financial branches are closing due to the rise of internet banking and they have no requirement for high street presence.

Having listened to the hospitality industry in relation to pavement seating, the Government could have reached out more to national operators to ascertain what factors would assist recovery, not simply relax regulations in order to attract uses that have no plans for increased high street presence. The uses looking to expand are pubs and hot food take-aways that could be more constrained than before.

Mike Jones, Partner, Planning

One of the main impacts of this reform is how it will date many local development plan and Neighbourhood Plan policies. For example, most development plan policies seek to restrict or prohibit the loss of certain uses such as A1 retail and B1 employment in town centres and designated employment sites. This in many instances will be refreshing, as it will allow the market to dictate change, rather than policies that in some instances are artefacts of time in historic saved policies of the 1990’s in some cases. This may therefore dilute the age-old argument of what is the most valuable ‘employment land’. 

These changes will certainly require a re-think of existing town centre strategies, emerging employment strategies and the role  primary shopping area. It remains to be seen if the market is the correct tool to govern such provision, but in a post COVID19 world with many units sitting empty and the legacy of large outlets dominating such spaces, it may provide an opportunity for independent entrepreneurs and the necessary flexibility to enable recovery. 

No doubt the pending White Paper will add more context to future guidance and policy implications for plan making and policy writing of the future, but in the meantime careful consideration should also be given to protective covenants and or conditions or legal obligations that may restrict the use of premises, which may frustrate these radical changes.  However, the biggest headache would appear to be that for the purposes of Permitted Development, the old use classes apply, so we will be operating two separate Use Class Orders from September! 

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