Autumn’s changes to the planning system have been described as the most radical since the Second World War. They amend a 1987 order which put the use of a building into various ‘use classes’. Under this system, change from one use class to another often required planning consent but some ‘change of use’ could take place without planning consent within the same user class or from one use class to another.
The most significant reform is that Classes A, B1 and D1 applicable to retail, office and non-residential institutions are removed and new use classes Class E, Class F1 and Class F2 are introduced. These changes are summarised in the table below:
|
Use |
Use class until 31 August 2020 |
Use class from 1 September 2020 |
|
Shops
|
A1 |
E |
|
Financial and Professional Services
|
A2 |
E |
|
Business (office, research, development and light industrial process)
|
B1 |
E |
|
Non residential institutions (medical or health services, creches, day nurseries and centres
|
D1 |
E |
|
Assembly and Leisure (indoor sport, recreation and fitness, gyms)
|
D2 |
E |
|
Non residential institutions (education, art, gallery, Museum, library, exhibition hall, places or worship, law courts)
|
D1 |
F1 |
|
Shops no larger than 280 sqm (selling mostly essential goods at least 1lm from another similar shop), community hall, outdoor sport/recreation area, indoor or outdoor swimming pool, skating rink
|
A1 |
F2 |
|
Public House, wine bar, drinking establishment
|
A4 |
Sui generis |
|
Hot food takeaway
|
A5 |
Sui generis |
|
Cinema, concert hall, bingo hall, dance hall, live music venue
|
D2 |
Sui generis |
The government has said that the main driver being these changes has been to the need to enable a repurposing of buildings on high streets and in town centres and the new class E aims to address this by allowing for a mix of uses for differing retail requirements. It means that the high street will have several different uses rather than what might be traditionally associated with the high street or any other ‘retail’ area. Changes to another use (or now a mixture of uses) within new Class E will not therefore need planning permission.
The new Class E effectively absorbs the old Class A and now includes uses as early years and healthcare settings. This potentially means that a nursery could operate on the high street and other places that might traditionally be deemed to be retail areas. However, the flexibility introduced by the new regime is not restricted to traditional high streets and town centres and will also apply to traditional out-of-centre business parks even though this runs contrary to the current national and local planning policies designed to protect city centre retail areas. This undoubtably presents more opportunities for nurseries and potentially removes the need for planning consent to be obtained for a change of use.
Restrictions to change of use
A new concept brought in by the reform is that of local community uses which fall under a new Class F (‘Local Community and Learning’). This consists of Class F1 Learning and non-residential institutions and Class F2 Local Community. The idea of this use class is that the planning system will afford protection to important community facilities. Changes within Class F will not require planning permission. Nurseries might of course operate from buildings that fall within Class F (such as churches or church halls) whilst nurseries themselves are, as mentioned above, a use that falls within Class E. There is therefore now a degree of ambiguity about ‘split’ use buildings. There is uncertainty as to the tipping point at which, for example, the use of a church hall (which falls with Class F) will have been deemed to have been replaced by a nursery (which falls with Class E), thus possibly requiring consent for change of use or obtaining a certificate of lawfulness.
Reform of the use class regime is welcome and seen as presenting new opportunities for nurseries. However, there are matters that need careful thought. It is not impossible that a building might still be subject to historic planning conditions which would restrict or prevent a change of use. It might also be the case that historic planning obligation such as a section106 agreement stipulates a specific use. It is also possible that a local authority may seek to limit reliance on Class E through what are known as Article 4 directions which remove reliance on permitted development rights in certain areas. Consideration should therefore be given to the planning history of a building before assuming that the new regime makes the intended change of use inevitable.
The changes do not also obviate the need to consider whether there might be restrictive covenants that prevent the intended change of use. It might also be the case that, in the case of leasehold properties, the clause which governs the use of a building will prevent alternative uses or at least require the landlord’s consent to be obtained to the change of use.
It will be essential to undertake property and planning due diligence to ensure that you can achieve your aspirations.
