New Use Class E at Planning Appeal

The year of 2020 has not only bought on some radical changes to our daily lives, but also to the Use Class Order (UCO). The most recent amendments to the Town and Country Planning (Use Classes)Order (1987) took effect on the 1st September 2020 and sought to dissolve the previously divided land uses (A1, A2, A3, A4, A5, B1, D1, and D2) and create three new use classes; Commercial, Business and Service use class (Class E), Class F.1 (Learning and Non-residential institutions) and Class F.2 (Local community). These changes, particularly the introduction of Class E have been noted by many in the industry as the most radical change to the planning system in decades.

But, the future of these radical changes are already in doubt following a High Court challenge, which has been lodged by campaign group Community: Action Ltd (RCA) against the Government on the introduction of the recent permitted development rights and the changes to the use classes order. The case was heard in Court yesterday and the outcome is expected later this month.

In the meantime, just a month after the changes were introduced; we are starting to see the implications of the new ‘Class E’ in the first appeal decision whereby the Inspector has directly referenced the implications of the changes to the use classes order. The appeal was against the refusal of planning permission by Islington Council for the change of use of an existing shop to a restaurant with a single storey rear extension in Finsbury Park town centre.

The Inspector considered that the main issue was the effect of the proposed development upon the vitality and viability of the town centre. The adopted development plan policy requires proposals for the loss of A1 retail to meet five criteria. In this case the proposal did not meet the criteria. However, the Inspector noted the introduction of Class E and advised that the proposed change no longer constitutes a change of use or an act of development, so the retail use could be lost without planning permission.

As the proposal includes an extension to the existing building, planning permission was still required but the Inspector effectively considers the changes to the use classes order as providing a fallback position, which can be given considerable weight as a material consideration that outweighs the conflict with the development plan.

In this case the Inspector applies planning balance and concludes that the changes to the use classes order outweigh the conflict with the development and the proposals would not be harmful to the vitality and viability of Finsbury Park Town Centre.

The Council recommended a planning condition to restrict the use to that of a shop or a restaurant. Interestingly the Inspector advised that it has not been demonstrated that the other uses in use class E would be harmful so as to justify withdrawing the right to use the premises as such. Therefore, the condition was not necessary or justified.

Depending on the outcome of the current high court challenge later this month, we expect that this will be the first in many appeal decisions whereby the Inspector will grapple with the changes to the use classes order.