Notes from the High Street: Class E vs. the NPPF

Some of us are old enough to remember late July 2020 when the new “Class E” in the Use Classes Order was the most radical shake-up in English town planning for a generation.

[You need a 3 minute Class E refresher? Enjoy. If you have an hour or 2 for deeper dives into Class E’s legal implications, join the club. And ditto its planning policy implications (with some of the best planoraks in the biz), have at it.]

Well, I know we’re all chatting about Planning for the Future nowadays [I summarised some of its choicest cuts here, and its “big idea” on housing numbers there]. But let me tell you, #planoraks: for my money, Class E is still the most important English planning reform in decades.

Why? 2 big reasons:

1. It’s actually happening, and it’s happening now. Subject to some fiddly transitional provisions, Class E kicks in from 1st September 2020. No ifs. No buts. No consultations. No refunds.

2. Lots of the White Paper ideas really could be radical, but it’s still only a consultation, lots of details are still TBD, even with a fair wind and a committed Government the reforms won’t actually be with us for a few years, and their real target is changing the way the planning system works. Which is (obviously) very important stuff. But Class E’s even more fundamental. It changes the scope of what English town planning is actually about.

So. What’s planning all about, anyway?

Well, so far as the Government’s concerned (and it’s their system, to be fair) planning’s all about contributing to the achievement of sustainable development. As you may remember, the White Paper isn’t just sticking with that idea, it’s upgrading it. “Sustainable development” is to be put onto a statutory footing as the one-and-only test for judging the acceptability of the next generation of local plans. So, as the central purpose for our planning system, sustainable development‘s here to stay.

But what does it actually mean? 😬. Well. Mmm. Tricky. Still, one of the bits of sustainable development most us could agree on is at §8(a) of the NPPF: “ensuring that sufficient land of the right types is available in the right places and at the right time to support growth”. The right uses in the right places. Sounds obvious, doesn’t it? Better than obvious - it sounds sustainable.

This theme runs through the NPPF. The presumption in favour of sustainable development is all about plans meeting their objectively assessed needs for the full suite of uses: housing, retail, offices, industrial space and on and on. Strategic policies are supposed to “make sufficient provision” for “housing (including affordable housing), employment, retail, leisure and other commercial development”. To be “sound”, plans have to provide “a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs” for all of these different kinds of use.

So far so good. You work out what the needs are for these different kinds of things. Then you plan to meet them. Of course, the Use Classes Order has been, and still will be in the brave new world of the White Paper, a building block of how plan-making authorities actually seek to control, plan for and meet needs for these different kinds of uses.

So why does Class E put such a large cat amongst the pigeons? Here’s the 5 step answer (and sorry in advance if you find steps 1-4 a bit noddy):

1. The UK planning system regulates development (section 55 - i.e. operational development & material changes of use).

2. But material changes of use within the same use class in the UCO are deemed not to be development (section 55(2) and Article 3 of the Use Classes Order).

3. And if it ain’t development, you don’t need planning permission (section 57). Which takes it outside the scope of planning control.

4. So - basic but important point - Class E isn’t some kind of permitted development right which local authorities can restrict e.g. using Article 4 directions. You don’t need a permitted development right to change from one Class E use to another because the change isn’t development.

5. So here’s the question: how are planners supposed to do what the NPPF tells them to do - ensure that plans make the right land available in the right places - if changing between retail, commercial or office uses doesn’t comprise development so could – in principle anyway – happen without any need for planning permission?

Tricky, eh? And here’s another brain-teaser: the sequential test.

As you may remember, the NPPF’s definition of “main town centre uses” includes retail, leisure, entertainment, cinemas, restaurants, bars, pubs etc, offices, arts, culture and tourism development. If you’re in that category, and your site is not in the town centre, you’ll need a sequential test: see part 7 of the NPPF. You may also need an impact assessment to on the vitality and viability of the town centre. These can be mission-critical pieces of work, and if you fail to pass them, then §90 of the NPPF says your application should be refused. 

Well, here’s the problem:

Class E includes some of these “main town centre uses” – e.g. retail, food and drink, offices. But it also includes some things which are not defined as “main town centre uses”, e.g. medical services and some industrial uses.

Which leads us into to a policy lacuna the size of a bus: what if we apply for (say) an out-of-town medical centre, bag our planning permission, and then – with no further need for planning permission – change the building’s use to restaurant or retail? Just like that, we’ve avoided the operation of the sequential test altogether.

Planning practice guidance is (apparently) on the way for those befuddled authorities who are wondering how on earth they’re supposed to exercise basic plan-making and development control functions in light of Class E. Which will be really welcome.

But the point runs deeper than that. We know a new NPPF is coming eventually. But after Class E, it can’t come soon enough. And there’ll be some deep thinking to do for those tasked with the re-drafting job. To answer brain-ticklers like: how can the NPPF’s basic recipe for sustainable development - planning for the right uses in the right places - survive in a brave new world where changes between many of those uses are outside the scope of planning control?

We’ll soon see, #planoraks. In the meantime, stay well and enjoy courtesy of this blog the next must-see planning meme: