PLANNING – CHANGES TO USE CLASS ORDER

Following the government’s plans to “radically reform” the planning system, changes to the use class order were rushed through and came into force on 1 September 2020. The changes bring together under a new Use Class E, a number of uses that were previously under separate use classes. Class E more broadly covers uses previously defined in the revoked Classes A1/2/3, B1, D1(a-b) and ‘indoor sport’ from D2(e) as follows:


E(a) Display or retail sale of goods, other than hot food
E(b) Sale of food and drink for consumption (mostly) on the premises
E(c) Provision of:
E(c)(i) Financial services,
E(c)(ii) Professional services (other than health or medical services), or
E(c)(iii) Other appropriate services in a commercial, business or service locality
E(d) Indoor sport, recreation or fitness (not involving motorised vehicles or firearms)
E(e) Provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner)
E(f) Creche, day nursery or day centre (not including a residential use)
E(g) Uses which can be carried out in a residential area without detriment to its amenity:
E(g)(i) Offices to carry out any operational or administrative functions,
E(g)(ii) Research and development of products or processes
E(g)(iii) Industrial processes

From 1 September 2020 any property that is used or occupied for a use that fell within the revoked Classes A1/2/3, B1, D1(a-b) and ‘indoor sport’ from D2(e) will now fall under the new Use Class E.
The change is significant as planning permission is required to move between classes (unless the change is covered by ‘permitted development’ rights), but planning permission is not required to move between uses within the new Use Class E. This means that premises that are currently used as offices (previously B1), for example, could be used as a dental surgery (previously D1) without the need to obtain planning permission.

The introduction of the new Use Class E should present more options for dentists looking for new premises or indeed considering selling or letting existing premises. However, the change may have some negative impact on value as the exclusivity of the previous D1 use for properties in certain locations attracted a premium, a point that we are starting to see made by dental practice valuers. This will of course present opportunity for some and disappointment for others.

Care will also need to be taken when drafting leases. If a landlord wishes to have tight control over what the premises can be used for it may be better to refer to the specific use rather than a use class or any other use within a use class, as is commonly the case. From the tenants’ perspective, if the user provision in a lease allows any use within a use class, then the tenant may find that this goes in the landlords’ favour on rent review as the lease allows greater flexibility in terms of use and assignability. It is, as always, a balancing act.
The speed at which the changes were rushed through has caused concern for some and a legal challenge was brought by the Rights: Community: Action Group (RCA) seeking a judicial review. RCA argued that the Secretary of State failed to carry out a Strategic Environmental Assessment, have regard for public sector equality duty and carry out an equality impact assessment or consider the evidence against the reforms. The court dismissed the action on 17 November 2020 and the judge emphasised the role of the court in judicial review was to resolve questions of law rather than make public, social or economic choices, which Parliament has entrusted to ministers and other public bodies. RCA still have an opportunity to appeal the decision and on their website they say “this is a case that must be appealed”, but it is at this point unclear whether this action will go any further and, in view of the judges’ comments, it is difficult to see how an appeal could be successful. For the moment, the changes remain in force and we will be watching closely for any further developments.

Given the lingering possibility of appeal, it would be prudent to seek planning advice if you are considering any change of use of existing premises or before committing to take any new premises, particularly if there is to be a significant gap between exchange of contracts and completion.

If you have any questions or concerns, please speak to a member of our team who will be happy to assist you.

Nataleigh Adamson

ROBERT MANDER
CHARTERED LEGAL EXECUTIVE
E: [email protected]
T: 0113 8343705

Rob is a Chartered Legal Executive specialising in all aspects of commercial property including acquisitions, disposals, property finance and landlord and tenant work. He joined us in September 2019 from Mishcon de Reya LLP in London having relocated to Sheffield with his family.

This article is published by Goodman Grant Solicitors Ltd and correct as 18/02/21. Please note that the information and any commentary on the law contained in this article is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author or the publisher. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter.

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