What do you need to know about the new Use ‘Class E’?

Having been the subject of a failed attempt at judicial review, the new Use Class E is here to stay (for now). Curiously, so are a number of the use classes that it effectively replaced. That latter point is really to do with the existing permitted development rights for changes of use, which all referred to the ‘old’ use classes, such as B1, and still do. What that means in practice is that there will still need to be some read-across to the old use classes when considering if permitted development rights apply.

The government may decide to similarly overhaul the regime for permitted changes of use to align with the new Use Class E or something entirely new – we shall have to wait and see.

What does the new Use ‘Class E’ include?

The new Use Class E (Commercial, Business and Service) now incorporates parts of Class A (retail, food and drink, professional services), Class B (offices), some medical services, creches and day nurseries under Class D.

The relevance of such a broad class of uses is that movement within a use class, absent a restriction imposed by a planning condition or otherwise, does not constitute development and so does not require planning permission. The extent to which this causes headaches for planning authorities will depend on the extent to which owners and occupiers seek to exploit this new freedom.

Undoubtedly many authorities will wish, in hindsight, that they had restricted changes of use but did not reasonably see a day when a day nursery could be changed to a shop or café without planning. For owners and developers, it will be critical to check the planning permission to see whether such changes may occur without approval from the Planning Authority.

What do you need to be aware of?

This is not a one-way street, in terms of the balance of power between owner/ occupiers and the planning authority. There are a number of potential pitfalls to watch out for.

What if you have a lease allowing use within a class that no longer exists. Does this free up a multitude of changes of use by a tenant not envisaged at the time that the lease was entered into? Possibly not, but it will depend on the terms of the lease. In many cases, a reference in a property document will simply be a shorthand for a number of uses and it is not intended to have the same meaning and effect as it does in a planning context.

What else might you need to look out for? A good question. The list of uses that no longer fall into a use class has been extended. This means that at the same time as the pool of uses under Class E has been expanded, certain uses such as pubs have fallen out. There are other quirks such as the list of uses that were specifically within Use Class A1 that one might not normally consider to be ‘retail’ where there now may be less certainty that they are within Use Class E, as the list has gone but the description ‘retail’ remains the only basis for assessment.

Permissions for new buildings within the new Use Class E may authorise uses which trigger payment of CIL, even if that is not the exact use to which the building is to be put, absent a condition the permission authorises that use and CIL is likely to be payable. Whilst a change of use within Class E may not require permission, operational development (e.g. extractor fans for café uses, increased parking areas) will still require permission.

What has been missed, it seems, is an opportunity to recognise the multitude of new uses on the high street and assign them somehow within the Order.

We wait to see if this will be part of the next, almost inevitable, round of changes to the Use Classes Order and associated permitted development rights.

If you would like to discuss what this means for you, please get in touch with our Planning team.