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Fundamental changes to high street use classes
Central Government is implementing a comprehensive review of planning policy as it relates to the high street, focusing on use classes and permitted development rights. The Secretary of State, Rt Hon Robert Jenrick MP, tweeted about changes to the Use Classes Order that will come into force on 1 September: “Today I have introduced new laws to support the recovery and reimagination of our high streets and towns. As we protect and grow our economy post #COVID19, we must think flexibly about how best to support our high streets and town centres”. Changes to town centre use classes will allow far greater flexibility to change uses within town centres without the need to obtain planning permission. They will make current shop frontage planning policies obsolete or toothless, restricting the ability of local planning authorities to control the mix of uses. The changes provide for three new uses classes: Class E (Commercial, business and service), Class F.1 (Learning and non-residential institutions) and F.2 (Local community). The changes will combine: Shops (A1), financial/professional services (A2), cafés/restaurants (A3), indoor sports/fitness (D2 part), medical health facilities (D1 part), creche/nurseries and office/business uses (B1) will be subsumed into a new single Use Class E. Many development plans have sought to prevent the decline of Class A1 shop uses in town centres by restricting changes of use. The new approach aims to promote the vitality and viability of town centres by allowing more diversification in a way that can respond to rapid changes in the retail and leisure sectors. The increased flexibility will be welcomed by many landlords and fund managers with vacant premises. It remains to be seen whether this ‘let the market decide’ approach has harmful unintended consequences for town centres. However, local planning authorities will now need to re-think their policy/strategies for town centres, with less emphasis on retail as the key attraction. The potential implications of permitted changes in use outside town centres may also have unintended consequences. Could a large out-of-centre B1 office building with no restrictive conditions be converted to retail use(s) without planning permission or an assessment of the impact on the town centre or application of the sequential test? Allowing retail uses to occupy out of centre buildings appears, therefore, to run counter to the objective of maintaining and enhancing town centres, but presumably also reflects the expectation that the retail market is unlikely to seek such development formats and locations in the future.    Other changes introduce more restrictions rather than flexibility. Partly in response to the impact of the Covid-19 crisis, there is added protection against the loss of learning, non-residential and community facilities, including museums public halls and local shops. These uses are now included in new Classes F1 and F2.  Other potential ‘bad neighbour’ town centre uses have been placed in the list of sui generis uses, with no permitted changes of use e.g. pubs/bars (A4), takeaways (A5), cinemas and live music venues; albeit that this is as much about protecting some of these uses as it is about ensuring changing to those uses requires planning permission. The grey area relating to food/beverage outlet’s classification as A3 or A5 will become a key area of dispute e.g. it is not clear whether a mixed restaurant and takeaway use is now in the new E class or sui generis.    We have prepared a table that gives an overview of the new and retained use classes. For the new Use Class E,  the table shows that whilst this combines some commercial ‘High Street’ uses, so that change of use is not development at all (as opposed to permitted development), there are now several more uses defined as sui generis, including more main town centre uses than previously. In combination, these changes represent the most fundamental change in town centre planning for over 30 years. The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 will come into force on 1 September 2020.


Permitted changes of use – a solution for the high street?
As highlighted in an earlier blog (Jonathan Wallace, Town Centres: A Time for Change), the high street is finally climbing up the political agenda. Although other issues – the housing crisis, climate change and of course Brexit - remain at the top of the list, the Government is, at last, waking up to the fundamental change being experienced in our town centres. We now have a High Streets Minister (Jake Berry) who, to his credit, set up an expert panel led by Sir John Timpson – of the shoe repairs chain, a staple of many high streets across the country. This panel published their recommendations in the High Street Report in December 2018. These included the creation of a High Streets Task Force to share information and expertise across the country, the Future High Streets fund (which has since been launched) and other short term solutions, related to town centre housekeeping, empty shops and parking. In parallel to this work, the Government undertook a consultation on supporting the high street, with a number of changes to Permitted Development Rights (PDRs) being announced. These new rights, which came into force on 25 May 2019, allow: shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and launderettes to change use to an office (B1(a)); and hot food takeaways (A5) to change to residential use (C3). In addition to the above, the temporary change of use between commercial and community uses has also been extended from two to three years and the scope of the PDR extended to allow temporary change of use to certain class D1 uses. This is intended to give business and community organisations longer to test the market, before applying for a more permanent permission. My colleagues Steven Butterworth and Jennie Baker previously asked the question - would the new PDRs really improve vibrancy in town centres? The additional flexibility this brings to help centres adapt to change is a good thing. In many areas, particularly those with higher vacancy rates and limited investment, a ‘laissez-faire’ approach which prioritises re-occupation of empty units will be appropriate. The temporary changes of use also allow authorities time to weigh up any potential harmful impacts before granting permanent permissions. Some may have concerns that these recent changes could result in ‘dead’ frontages and/or that the new uses might not be ‘the right type’. Don’t forget, however, for permanent changes of use local authorities can use the prior approval process to consider the potential impact upon the provision of services or the sustainability of key shopping areas. Depending on the end use, they can also consider issues such as highways impact, noise, flooding, contaminated land and design/external appearance. Although perhaps more draconian, they also have the ability to impose Article 4 Directions which restrict PDRs. Lichfields has provided a quick reference guide to the various PDRs for changing between main town centre uses. Inspection of the different permutations raises a number of questions, not least whether a simplified version of both the Use Classes Order and these PDRs would benefit everyone. Why allow a bank to change to an office, dwelling or leisure use, but not a café/restaurant? And why could a hot food takeaway or laundrette go to an office or dwelling, but not leisure use, which would contribute more to town centre vibrancy? Rather vaguely, MHCLG confirmed in May that they will ‘amend the shops use class to ensure it captures current and future retail models’. This will apparently include clarification on the ability of the A use classes to diversify and incorporate ancillary uses. It remains unclear, though, whether the Government will merge A1, A2 and A3 to create a single use class. Whilst keeping A3 uses separate makes more sense, it would be strange if Classes A1 and A2 were not merged, when you can already switch between the two without seeking prior approval. Source: Retail and Leisure Market Analysis Full Year 2018 (Local Data Company – May 2019) Whatever the outcome, local authorities cannot rely upon PDRs to promote the future health of town centres. A more flexible policy framework and approach to determining planning applications is critical. Too many Councils are still developing overly prescriptive policies relating to frontages and protecting Class A1 uses. Primary Shopping Areas will continue to have role in the larger centres but their role and composition must be re-imagined. How many more high profile retail chains need to fail before we recognise the need for new anchors for our town centres? There is no doubt more to come from the Government on this topic. Reliance by Councils on further PDR changes will only go a limited way to addressing the challenges town centre are facing. However, a more flexible and pragmatic approach, allied to a longer-term vision of what their town centres can be in future, and use of the many tools local authorities now have their disposal, could help to provide a catalyst for their revitalisation and re-imagination.