On July 21, 2020 the Government published the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 which came into force on September 1, 2020.
The headline change within these regulations was the introduction of the new Use Class E which brought together, into a single class, A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes), B1 (business) parts of D1 (non-residential institutions) and D2 (assembly and leisure). Changes between uses within the same use class do not constitute development, therefore planning permission will not be required (there are restrictions which will need to be considered such as size, length of use, etc).
We also saw the introduction of Class MA, which took effect on August 1, 2020 and which enables the change from any of the uses in Class E to residential use without the need to obtain planning permission. This is the biggest de-regularisation of the planning system we have had for many years. The Government’s intention behind the changes was to enable property markets, on a local level, to respond to changes in retail and business behaviours and to provide flexibility and reduce risk for town centre occupiers, especially in a post-COVID world, but, in practice, what has this meant for the high street?
The changes mean that, theoretically, a large out-of-centre B1 office building could be converted into retail use without any requirement for planning permission and, therefore, without the need for any considerations that would normally form part of a change of use planning application process. However, it is worth remembering that any external changes to the fabric of any building would still require planning permission and consideration must surely be given to the beauty agenda that has gained so much airtime recently, the focus of this being place making, ensuring the right homes in the right locations and quality design. Arguably, therefore, there are still some backdoor controls available to local councils in respect of Class MA and Use Class E changes.
Another way for local councils to avoid the application of these rights, is the ability to use an Article 4 Direction and, as a result, require planning permission to be applied for when changing the use of a building. However, this has been done with limited success. Brighton and Hove City Council tried to remove the right for occupiers to utilise PD rights for changes of use on the basis that local commercial centres and shopping parades are important for the sustainability of neighbourhoods. Yet the Secretary of State chose to intervene and reduced the area affected by the Direction by 67% as the Direction did not take ‘a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that the Article 4 Direction applies only to the smallest geographical area possible’. This approach is not uncommon and there are plenty of other examples of central government intervening in the use of such Direction by local councils.
Unfortunately, it is difficult to isolate the impact of the changes to the use classes order on town centres from all of the other things that have impacted urban areas in the past two to ten years. High streets across the country have struggled as they fail to compete with online retailers, out-of-town retail parks, and shopping centres. Added to that, we have seen the closures of some big retailers such as Debenhams and those in the Arcadia Group, which further weakens the demand for high street retail. Furthermore, the pandemic and its economic fallout, along with the war in Ukraine and current cost-of-living crisis, all compound the variables that have to be considered in assessing the impact of these regulations.
What we do know, however, is that Class E and Class MA are definitely here to stay with no proposed amendments announced with the Levelling Up Bill or the amendments to the National Planning Policy Framework so it will be a case of continuing to wait and see what effects, if any, this de-regularisation of the planning system has had on the face of our high streets.
Howes Percival has announced that Sarah Hollis, Senior Associate, from its Planning Team is moving to focus and spend more time in the firm’s Northampton and Milton Keynes offices.
Lucy Lord, Partner and head of the Northampton Commercial Property Team said:
“Howes Percival’s Planning offering has been ranked within the top 15 practices nationally by Planning Magazine for the last two years; to now have a permanent presence from this team in our Northampton and Milton Keynes offices shows our real intent to grow and invest in these markets.
“Sarah is a very highly regarded planning solicitor who is ranked in the Legal 500 as a key lawyer and we have no doubt her skills, expertise and approach to clients and work will be a great addition to our local markets. She also offers supplementary services to our existing practice areas.”
Howes Percival’s planning solicitors can help with all aspects of planning law, from residential and commercial development, to retail, agricultural and renewable energy schemes and have wide experience of representing clients at planning appeals, in High Court proceedings and in planning enforcement and prosecution cases.