Use Classes Order - “All change, please.”

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757), which were made on 20 July and take effect on 1 September 2020, make important changes to the already much amended 1987 Use Classes Order. The changes are quite complex, because of the need to take account of various knock-on effects and the consequent requirement to include various transitional provisions to ensure a reasonably smooth move to the new and revised Use Classes.

Parts A and D of the original Schedule to the UCO are entirely revoked, which puts an end to Use Classes A1, A2, A3, A4 and A5, and Classes D1 and D2. These are replaced by new Use Classes in Schedule 2, except for those listed below that have now become sui generis uses. Class B1 is also abolished as a separate Use Class, and is also subsumed within a new Use Class in Schedule 2. Use Class B2 remains in what is now Schedule 1, in an amended form. Rather than discussing these changes piecemeal, I will summarise the new, revised and surviving Use Classes below.

Several of the uses previously within specified Use Classes have now been added to the list of sui generis uses set out in Article 3(6). These are uses:

(p) as a public house, wine bar, or drinking establishment [formerly A4],
(q) as a drinking establishment with expanded food provision [which fell awkwardly between A4 and A3],
(r) as a hot food takeaway for the sale of hot food where consumption of that food is mostly undertaken off the premises [formerly A5]
(s) as a venue for live music performance [formerly within D2, and possibly also an ancillary use in some cases within other Use Classes],
(t) a cinema [formerly D2(a)],
(u) a concert hall [formerly D2(b)],
(v) a bingo hall [formerly D2(c)],
(x) a dance hall [formerly D2(d)].

[This has a number of potential consequences. First, where several of these uses fell under one and the same Use Class in the previous version of the UCO (such as, for example, a cinema, a concert hall, a bingo hall or a dance hall - all of which fell within Use Class D2) a change of use between any of those uses would not have been development.

Now that each of these uses is a sui generis use, a change of use from one of these uses to another use, even though it was formerly within the same Use Class will now constitute development, and will require planning permission. However, these changes do not take effect until 1 September, and so (at the time of writing) there is a five-week period in which somebody wishing to make a change of use from, say, a cinema to a bingo hall can still do so without requiring planning permission. However, it might be advisable to preserve dated documentary and photographic evidence of the change of use, and even possibly to exhibit that material to a statutory declaration recording the change of use, in order to counter any allegation in future that the change of use required planning permission and was therefore a breach of planning control. After 31 August, however, it will no longer be possible to make such changes of use without planning permission (unless they are permitted by the GPDO).

The effect that this and the other changes described below may have on permitted development under the GPDO is covered (at least for the next year) by a saving provision which I will explain later in this note.]

The former Schedule to the UCO (now SCHEDULE 1) contains the following Use Classes:

PART B

Class B2. General industrial

Use for the carrying on of an industrial process other than one falling within the uses described in Schedule 2, Class E, sub-paragraph (g).

Class B8. Storage or distribution

Use for storage or as a distribution centre.

PART C

[This part is not affected by the amendment regulations, and so does not require further summary here. Use Classes C1, C2, C2A, C3 and C4 therefore continue unchanged.]

The new SCHEDULE 2 contains the following Use Classes:

PART A (Commercial, Business and Service)

Class E. Commercial, Business and Service

Use, or part use, for all or any of the following purposes—

(a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public [formerly A1],

(b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises [formerly A3],

(c) for the provision of the following kinds of services principally to visiting members of the public [all formerly within A2] —
(i) financial services,
(ii) professional services (other than health or medical services), or
(iii) any other services which it is appropriate to provide in a commercial, business or service locality,

(d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public [formerly within D2(e)].

[Although this new Use Class makes no mention of a gymnasium, the phrase “indoor sport, recreation or fitness” would appear to be wide enough to embrace such a use, which has not been specifically added to the list of sui generis uses in Article 3(6). Similarly, although swimming baths and skating rinks are specifically included in Use Class F, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. As with several other queries of this nature, I have not yet understood the ramifications of this apparent confusion.]

(e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner [formerly D1(a)],

[I cannot see why there is a need to distinguish between E(c)(ii) (which does not include health or medical services) and E(e), which comprises those services, when both are now in one and the same Use Class (Class E).]

(f) for a crèche, day nursery or day centre, not including a residential use, principally to visiting members of the public [formerly D1(b)],

(g) for—
(i) an office to carry out any operational or administrative functions [formerly B1(a)],
(ii) the research and development of products or processes [formerly B1 (b)], or
(iii) any industrial process [formerly B1(c)],
- being a use [in all three cases, as in the former Class B1] which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

[One potentially problematic change is that the list of other uses that were formerly included in Use Class A1 (shops) are omitted. Without that listing, quite a few of those uses would not have come within the A1 Use Class, because they did not comprise or include (except as a purely ancillary use in some cases) the retail sale of goods. They included (among other uses) use as a post office, a travel or ticket agency, hairdressing, a funeral business, or a hire shop.

The new Use Class E does include “any other services which it is appropriate to provide in a commercial, business or service locality”, and it may be that all the uses formerly listed in Use Class A1 would now come within this category. If so, the new Use Class could be even wider than the Use Classes that it replaces, and might well embrace other services that one might reasonably expect to find in a commercial, business or service locality. These could include, for example, a nail bar, a tattoo parlour, a body toning salon, a tanning studio, etc. etc. If this interpretation is correct, then there is scope for a very wide range of uses that would previously have been regarded as sui generis.

On the other hand, there have in the past been appeal decisions in which it was held that a ‘weight loss centre’, a ‘body toning salon’, a ‘tanning shop’ and a ‘tattoo studio’ did not come into the category of “other services which it is appropriate to provide in a shopping area”, and it would seem to be entirely possible that planning inspectors might similarly determine in future (as a matter of fact and degree) that such uses do not properly fall within this category and therefore remain sui generis. The resulting ambiguity in the drafting of the new regulations is unfortunate, and is likely to cause difficulty for developers, building owners and the proprietors of businesses and also for LPAs.]

PART B (Local Community and Learning)

Class F.1 Learning and non-residential institutions

Any use not including residential use—

(a) for the provision of education [formerly D1(c)],
(b) for the display of works of art (otherwise than for sale or hire) [formerly D1(d)],
(c) as a museum [formerly D1(e)],
(d) as a public library or public reading room [formerly D1(f)],
(e) as a public hall or exhibition hall [formerly D1(g)],
(f) for, or in connection with, public worship or religious instruction [formerly D1(h)],
(g) as a law court [formerly D1(i)].

Class F.2 Local community

Use as—

(a) a shop mostly selling essential goods, including food, to visiting members of the public in circumstances where—
(i) the shop’s premises cover an area not more than 280 metres square, and
(ii) there is no other such facility within 1000 metre radius of the shop’s location,

[These uses were formerly within A1, and it would appear that they are also capable of falling within new Use Class E, because there is no provision that excludes the uses in new Class F.2 from alternatively, falling within Class E. The ramifications of this apparent confusion will only become apparent as the interpretation of these new provisions is explored in practice.]

(b) a hall or meeting place for the principal use of the local community,

[This use (formerly within D1(g)) would also appear to be capable of falling within new Use Class F.1, because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class F.1. Here again, I have not yet understood the ramifications of this apparent confusion],

(c) an area or place for outdoor sport or recreation, not involving motorised vehicles or firearms [formerly within D2(e)],

(d) an indoor or outdoor swimming pool or skating rink [also formerly within D2(e)]

[So far as an indoor swimming pool or skating rink are concerned, here again, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. This is another case in which I have not yet understood the ramifications of this apparent confusion.]

You may wonder why, following the abolition of the Use Classes in Parts A and D of the former Schedule to the UCO, the new Use Classes have been designated as E, F.1 and F.2. Well, as Polonius observed, though this be madness, yet there is method in’t. As we shall see below, the former Use Classes that have been removed from the UCO will still have a ghostly after-life. So to avoid confusion with these wraith-like entities, the new Use Classes have been given entirely new designations.

The most significant effect of the recast Use Classes is to produce much larger classes of uses that are covered by each of Parts E and F (Classes E, F.1 and F.2). In accordance with Article 3(1) of the UCO, where a building or other land is used for a purpose of any class specified in Schedule 1 or Schedule 2, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land. This is slightly modified by paragraph (1A), so that (additionally) the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. Section 55(2)(f) of the 1990 Act also continues to apply in this context.

So to take a few random examples, a change of use between a retail shop and a restaurant, a bank or building society (or any other kind of office, whether it was formerly in Use Classes A2 or B1(a)), a doctor’s or dentist’s surgery, a light industrial use or a crèche, day nursery or day centre, which are all now with Use Class E, will not constitute development and will not therefore require planning permission. Where any changes of use between these uses was formerly PD under the GPDO those permitted development rights will no longer be required, and any restrictions, limitations or conditions applying to such PD will no longer apply.

In the case of Class F.1, all the uses listed in this Use Class were formerly within Class D1, and so there is no change in that regard, except that the scope for changes of use that do not constitute development is slightly reduced, because the provision of medical and health services and use as a crèche, day nursery or day centre are no longer in the same Use Class (as they now fall within Class E).

The purpose and effect of Use Class F.2 is somewhat puzzling. Quite apart from the overlap of certain ‘community’ uses with similar uses in other Use Classes which I have noted above, it appears to be the intention that a use such as a community hall could have its use changed (in whole or in part) to a community shop, without needing planning permission.

The observations I have set out above represent only my first impression of the new provisions, and there may be other ramifications and unforeseen consequences that I have not yet identified.

Now, excuse me while I wrap a wet towel around my head to prevent my brain from overheating, and I’ll try to explain the transitional, savings and consequential provisions.

First of all, between 1 September 2020 and 31 July 2021, any references in the GPDO to the uses or use classes specified in the Schedule to the Use Classes Order are to be read as if those references were to the uses or use classes which applied on 31st August 2020 (i.e. before the UCO was amended by the current regs). If between those two dates, a prior approval application is made under Part 3 of the Second Schedule to the GPDO, or if an Article 4 Direction is made, modified or cancelled, it is the pre-September 2020 uses, use classes and definitions that are to apply to that application or to that Direction. If an Article 4 Direction is made before 1 September 2020, references in the Direction to pre-September 2020 uses or use classes are to continue to be read as references to those uses or use classes.

In the same way, if a planning application (including an application for PiP or an application for the approval of reserved matters) is made before 1 September 2020, referring to a pre-September 2020 use or use class, that application must be determined by reference to that pre-September 2020 use or use class. (There are one or two other minor transitional provisions which I don’t propose to go into here.)

On the other hand, where a building or other land is being used for the purpose Class A1 (Shops), Class A2 (Financial and professional services), Class A3 (Restaurants and cafes), or Class B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for the corresponding purpose specified in Class E (Commercial, business and service) in Schedule 2.

Most readers are no doubt aware of the provision in Article 3(4) of the UCO which provided that where land on a single site or on adjacent sites used as part of a single undertaking is used for purposes consisting of or including purposes falling within use classes B1 and B2, those classes could be treated as a single class in considering the use of that land for the purposes of the UCO, provided that the area used for a purpose falling within Class B2 was not substantially increased as a result. This provision is now replaced by a similar provision which refers to the use described in Schedule 2, Class E, sub-paragraph (g) and the modified Class B2 in Schedule 1, so that those classes may be treated as a single class in considering the use of that land for the purposes of this Order, so long as the area used for a purpose falling within Class B2, or Class B2 as modified, is not substantially increased as a result.

Now, I must take a deep breath before plunging into the No.2 and No.3 amendment orders to the GPDO, with their interesting new permitted development rights. Such fun!

ADDENDUM: When writing the blog post above, I was focusing on the amendments to the Schedule to the Use Classes Order. I should also have drawn attention to Regulation 7 of the Use Classes amendment regulations. This provides that for the purposes of the Use Classes Order, if a building or other land is being used for a purpose that, on 31st August 2020, fell within any of Use Classes A1 (Shops), A2 (Financial and professional services), A3 (Restaurants and cafes), or B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for a purpose specified within the new Class E (Commercial, business and service).

Thus, those uses that were expressly specified as being within Use Class A1 (such as, among other things, use as a Post Office, as a Travel Agent, for hairdressing, or for the direction of funerals, etc. etc.) will definitely come within Use Class E. I am sorry that I failed to spell this out.

UPDATE (28.8.20): Two minor corrections have had to be made to the drafting of the UCO amendment regs, by the Town and Country Planning (Use Classes) (Amendment) (England) (No 2) Regulations 2020 (SI 2020 No.859) and ditto (No.3) Regs (SI 2020 No.895). The first correction relates to CIL, and preserves references to the Use Classes that applied when an LPA adopted a charging schedule. The second correction relates to a local community shop falling within Use Class F.2. The definition as originally drafted referred to the shop’s premises covering an area not more than “280 metres square”. The corrected version changes this to “280 square metres”.

© MARTIN H GOODALL