Health and Leisure (Class D Uses) within the New Planning Class E Use Class after 1 September 2020

Changes to the Use Classes Order for England came into effect on 1 September 2020 [see 1 below] (see our recent Law-Now articles here and here). The changes included a new “Class E” which captures the former Class A1, A2, A3, B1 and certain Class D1 and D2 uses into a single Commercial Use Class. Change of use within Class E do not require planning permission, because they are not development (s55(2)(f) TCPA 1990), providing that there are no restrictions in planning conditions or s106 obligations which prevent this. These changes are a response to the difficulties faced by town centres which have been exacerbated by the coronavirus pandemic, and give businesses more flexibility in how they use their premises.

Concern has arisen about how the changes to the Use Classes Order (‘UCO’) take effect in relation to those Class D1 and D2 which have been transposed into use Class E. In this Law-Now we consider the issues to take into account in deciding on the extent to which former D1/2 uses have moved to Class E.

The changes to the order also revoke old use classes and introduce a new Class F. We will consider these changes in future Law Nows in the coming weeks.

D1 and D2 uses and ‘visiting members of the public’

Classes D1 and D2 are revoked. Some uses previously in Classes D1/D2 have transferred to Class E if they principally provide services for visiting members of the public and the premises are used for the following (with some limitations linked to residential use):

• indoor sport, recreation or fitness;
• medical or health services; or
• a creche, day nursery or day centre.

The meaning of ‘visiting members of the public’ has previously been discussed in commentary, appeals and case law in the context of Class A1 and A2. By analogy, the following factors may be relevant when deciding whether a D1/D2 use will become a Class E use:

• membership requirements, e.g. a Council-run swimming pool versus a pool at a membership-only facility.
• prior registration requirements, e.g. A private dentist requiring registration before treatment.
• Limitation to particular groups, e.g. gender or age restrictions or employee only gyms or nursery.

The main purpose of the unit should be considered, and whether this purpose involves a steady flow of visits by members of the public. If the service is not principally provided for members of the public, or if people have to undergo specialist consultation or registration process before accessing goods or services, this may point towards the use not falling within Class E. D1/D2 uses which fall outside of Class E are likely to be treated as “sui generis uses”. This will be covered in more depth in later Law Nows.

When will existing D1 and D2 move to Class E?

On first reading of the 2020 amendments this seems quite straightforward. All existing uses that will be subsumed into Class E transfer on 1st September 2020.

However, Regulation 7 of the changes to the UCO confirms that existing uses in Classes A1, A2, A3 and B1 shall be treated as if they are included in the new Class E from 1 September 2020. It is, however, silent as to the status of those premises currently in use for Class D1 and D2 which fall within the new Class E.

This omission could be interpreted as not effecting the transfer of those existing uses D1/D2 uses to Class E. It would then follow that only new “qualifying” D1/D2 uses which principally provide services for visiting members of the public are Class E uses. Following this logic pre-existing D1/D2 uses would not benefit at all from the right to change use to other E classes pursuant to s55(2)(f) TCPA and would need to obtain planning permission. The other existing uses specifically referred to in regulation 7 which transferred to Class E on 1st September 2020 will not be constrained in this way. They will benefit from the right to change to any other Class E use. If this approach is the correct one, it also begs the question as to which uses the former D1/D2 uses could transfer to without permission.

The alternative approach is to assume that section 55(2)(f) applies to all existing uses which will be included in the new Class E, and all such uses shall be transferred on 1st September. Regulation 7 would simply be a reiteration of this position in respect of certain uses but not all. Our view is that this approach makes more sense in the context of the objective to provide more flexibility for commercial uses. It also sits more comfortably with current approaches to legal interpretation.

However, the answer to this question raises the issue as the intention behind regulation 7 and how the courts would treat it.

Ignoring Regulation 7?

The Impact Report for the UCO Amendment[2] states that ‘the introduction of Class E will mean, that from 1 September 2020, it will be possible to change between any uses, or mix of uses, falling within this new class without having to obtain planning permission’ (emphasis added). This indicates that the government intended for all existing uses that will fall within class E to transfer on 1st September 2020.

It follows that s55(2)(f) of the TCPA 1990 applies to all uses in the new use Class E on and from 1 September whether or not they are included in the list in Regulation 7. A change of use within any part of the new Class E is permissible without obtaining planning permission (subject to any restrictions in planning and conditions s106 obligations). However we must be mindful that the Impact Statement is not law. It simply indicates the government’s intended objective.

On the face of it this interpretation renders Regulation 7 superfluous to requirements. If it had not been included, then s55(2)(f) would apply and achieve the same effect. We must ask ourselves whether a judge reading the legislation would be prepared to read regulation 7 as a repetition of the effect of s55(2)(f) of the Act to emphasise its effect in respect of the majority of uses that will transfer to Class E, but not others.

However there is a more sophisticated argument which is that it provides clarity for existing A1 uses. It is not necessary to consider whether the relevant A1 use falls within class E or F2. Class F2 will only relate to new uses. Of course it remains an issue that it does not provide clarification in respect of the former D1/D2 uses that have been transposed into Class E. There may however be public policy reasons for this.

Following this approach means that the amendment UCO does not amend the effect of TCPA 1990 and create a distinction between Class D1/D2 uses and the other uses which will move to Class E. However, there is an element of doubt about this interpretation.

Excluding existing Classes D1 and D2 from Class E

An alternative interpretation is that Regulation 7 was introduced to differentiate between existing Classes A1, A2, A3 and B1, which shall move to Class E, and existing Classes D1 and D2 which are omitted. Adopting this interpretation means that regulation 7 would disapply the benefits of s55(2)(f) for pre - existing Class D1/D2 uses now within Class E by omitting them from its list. This interpretation will also challenge the judiciary. It would mean that the primary legislation is effectively being disapplied by secondary legislation without specific authority. Secondary legislation is often used to fully explain or add detail to primary legislation. However, one would expect any limitation to be very clear in the regulations. A regulation which expressly states that existing class D1/D2 uses shall not transition to class E on 1st of September should have been included if that was intended.

An additional issue which arises would be what changes would be lawful from pre-existing D1/D2 use classes? Would it be solely within this narrow subset of Class D1/D2?

Drawing on the analogy of planning conditions, the need to use clear language and be and specific when creating new limitations in the planning system is pepper-potted throughout recent case law. This has been considered in the context of planning conditions in the Lambeth Case ([2019] UKSC 33), and article 4 directions in the Berkshire Assets Case ([2018] EWHC 2896 (Admin)). The courts are also clear that planning permissions are not legal documents. It is a logical extension of this line of judicial thinking that regulations which create limitations must conform to a higher standard. They must be more precise and specific if they purport to change the application of established legal principles in primary legislation.

Conclusions

Our view is that if Regulation 7 was intended to change the effect of s55(2)(f) in respect of those Class D1 and D2 uses transferring into the new Class E, it was unsuccessful. This could only be achieved by expressly disapplying it in respect of Classes D1 or D2. In our view, Regulation 7 reiterating the impact of s55 for some uses does not amend it for other uses. The omission of those Class D1 and D2 uses will not affect the ability to change between all new Class E uses using s55(2)(f). This is consistent with the objectives of the amendments to the UCO stated by government and the Impact Assessment which accompanies the amendments to the UCO.

However this interpretation does come with some risk. It may be difficult for judges and inspectors who are given the job of interpreting regulation 7 to conclude that it is meaningless, or that it simply acts as a kind of “key” for uses commenced or authorised under the previous iteration of the use classes order. Our view is that the courts would be unlikely to read in the specific wording required to disapply the ability to change uses within the same use class. It may also be of comfort to the courts that it is possible to attribute some meaning to regulation 7, despite its meaning not being immediately obvious on first reading.

In short the changes to the Use Classes Order are clearly more complex than they first seem. It is not immediately obvious how the various “old” uses have been transposed. This also potentially creates a gap between new Class E uses permitted under the new regime, and the “old” uses that have been partially, but not wholly, subsumed into that use class. This is likely to present the courts and Planning Inspectorate with some interesting interpretative challenges in the coming months and years.

[1]The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020

[2]Reform of the Use Classes Order – Assessment of impacts 2020

[3]Explanatory Memorandum to the Town and Country Planning (Use Classes) Amendment (England) Regulations 2020 No. 757