Commercial property change of use – radical new legislation to come into force
A great deal of very significant planning legislation has come into force across the last several months and while predictions are a dangerous game to play, it could well be that the forthcoming changes to the Town and County Planning (Use Classes) Order 1987 (“UCO”) are the most significant of all.
The changes come into effect from 1 September 2020 and the principle change is to allow permitted uses to be changed within the same use class – without any need for obtaining planning permission. Use classes A1, A2, A3 and B1 have all been abolished and grouped together in a new class E.
If this sounds academic and dry, it’s really not.
Commercial Property use class explained
What it means is that a change in use between a shop to an office, or an office to a gym, or a gym to a creche, or a creche to a light industrial process – is no longer “development”. Such changes no longer require planning permission and they cannot be scrutinised or opposed by the local planning authority.
This is a truly radical change. In many cases it is to be welcomed – take a look at your local high street (pre-or post-Pandemic version) which I predict is not quite the bustling centre of social and business life that it once was.
But while it is the high street, principally, that is supposed to be the beneficiary of these liberalising changes there is nothing in the legislation excluding its effect from out of town shopping centres and business parks. The effects of all this are going to be extremely far-reaching and quite unpredictable.
So, liberalising, yes, but there will be some regulation.
Firstly Government has avoided certain assets falling into class E. These are basically the old use class A4 and A5 (pubs and hot food takeaways) and the old D2 (cinemas and bingo halls) which will no longer fall into any defined use class. Instead they will be sui generis. And you cannot switch across to other uses from a sui generis use without obtaining planning permission.
Secondly, new classes F1 and F2 will protect wider public uses – schools, art galleries, libraries and other community facilities. F1 in particular will protect small shops selling ‘essential goods’ where there are no alternative premises within 1km.
Thirdly, there is a fair bit of grit in the oyster of all this liberalisation which businesses should give thought to before they swallow.
- Councils who object to excessive flexibility can continue imposing conditions on new consents which circumvent the liberalisation under class E. They would do that by imposing a condition on the consent specifying that the premises may be used for the purposes of a creche and for no other purpose.
- Existing premises may already have such conditions on their consents governing their current and future uses.
- There is a possibility that restrictions as to use may be found in s106 agreements.
- If a change in use requires changes to the external appearance of the building then all bets are off and planning permission will likely be needed.
Even outside the development control regime, there are a range of private contractual arrangements that could frustrate the liberalisation of uses being deployed, such as
- user restrictions in leases and
- restrictive covenants preventing use of the land (for the benefit of neighbours).
How might the new commercial property use class order change the high street?
It is tempting to reference Covid-19 in any legislative change at present – but this feels like something that was coming irrespective of the Pandemic. Much of the Use Classes Order has looked anachronistic for most of the last decade and with the rise of online shopping and the massive advantages enjoyed by online retailers there are good arguments that the high street in particular can only benefit from this sort of flexibility.
But I personally doubt these changes will stay – at least in their current form – because they have not been consulted on and because of the inevitable swathe of significant local changes they will give rise to and which the electorate find they can do nothing about. That may become such a toxic issue within the Conservative party at grassroots level that some further change has to be made.
There is law in play here, too, and it is the law of unintended consequences. We are about to discover what some of those consequences are!