In summer 2020 the Government introduced wide-ranging planning reforms which overhauled many use classes following concerns over failing high streets and the COVID-19 pandemic.
Use classes determine how the use of a building is classified for planning purposes and on 1 September several new use classes came into effect. In particular, the reforms introduced the broad new “high street” Commercial, Business and Services use class (Class E) which encompasses shops, restaurants and cafés, offices and gyms.
The shake-up to the previous use classes is significant as it is possible to change uses within the same use class without planning permission. Also, entirely new permitted development rights (PDRs) will come into effect in summer 2021 which are a national grant of planning permission for development considered to be low-impact. These changes therefore mark a shift in how the use of buildings is classified and controlled.
In this article we examine the recent judicial review challenge to the new use classes and the government’s consultation on a proposed PDR for Class E that, if introduced, will have significant long-lasting effects on high streets and town centres across England.
R (Rights: Community Action) v Secretary of State for Housing Communities and Local Government  EWHC 307
The action group Rights: Camera: Action (RCA) brought a claim for judicial review against the new use classes and new PDRs providing for the construction of residential dwellings in certain circumstances.
The claim was heard on 14-15 October 2020 in the High Court, six weeks after the revised use classes came into effect.
The RCA’s grounds of challenge were as follows:
- The statutory instruments should have been subject to an environmental assessment
- The Government failed to comply with the public sector equality duty
- There were deficiencies in the Government’s consultation process
The Court was quick to dismiss the second and third grounds.
Although considered arguable, the first ground (that an environmental assessment was required), was rejected by the Court. The issue here was whether the Government had created a ‘framework for future development consent’, which would require an environmental assessment.
The Court found that no framework for future development consent had been created. The Use Classes Order 1987 (as amended) (UCO) sets out when planning permission is not required and therefore cannot amount to a framework for future development consent. Further, the Court found that although the PDRs granted planning permission for certain types of development, they were not found to set out the criteria for determining prior approval applications. Therefore neither could it be said to set a framework for future development consent.
Thus the claim for judicial review failed, with the RCA’s arguments given fairly short shrift by the Court. The deadline for appealing the decision to the Court of Appeal has now passed and it would appear that the RCA has decided not to continue with its legal challenge.
New Class E Permitted Development Rights
Comprehensive PDRs for all the new use classes have not yet been introduced. However, on Friday 3 December MHCLG published a consultation containing proposals for one new PDR in particular as part of its ongoing reforms to increase the supply of new homes.
The proposed PDR would permit all uses falling within the new broad Commercial, Business and Service class (Class E) to change to residential use (Class C3) without planning permission in England. In order to benefit from the new right, premises must have been in Class E use on 1 September 2020 when the new use class regime came into effect.
There are, of course, existing PDRs that already permit a change of use from office to residential (Class O of Schedule 2 to the GPDO) and retail etc. to residential (Class M GDPO) which apply until July 2021. These would be replaced by the new PDR.
It is proposed that the new PDR will apply irrespective of the size of the building (or part of a building) and interestingly it would also apply to conservation areas, although the Government is consulting on these points, amongst others. There are, however, other limitations and conditions that restrict the right for example where EIA would be required, where a building is listed etc.
There will also be the need to seek prior approval for a number of matters including on flooding, contamination, noise, transport, fire safety and the availability of natural light. Homes provided under the PDR will also need to meet national described space standards.
Importantly it is unclear whether CIL applies to the proposed PDR and this will be subject to further MHCLG announcements.
It seems the Government does not foresee a particularly rosy outlook for the future of the high street, and the proposals are likely to have wide-ranging effects as many more buildings could benefit from the right to switch to residential use.
If struggling retailers make use of this right and permanently switch to residential uses, potentially large swathes of brownfield land would be unlocked for residential development, providing interesting city centre development opportunities for developers and RPs alike.
However, dilution of high street uses seems likely and there will also be concerns about the lack of associated affordable housing provision and the potential for more housing in unsustainable locations. Some local planning authorities may be unhappy with these proposals and the effect on their high streets and employment areas and could look to Article 4 directions to curb the effect of these changes. Whilst local planning authorities will most likely welcome flexibility in the system they will need to consider these proposed changes in light of place making and the aims of their local plans.
One thing is for sure the pace of planning reform is set to continue in 2021.
The consultation runs until 28 January 2021.