Changes to the Use Classes Order - International Law Office

Significant amendments to the 1987 Use Classes Order took effect on April 21 2005. This update summarizes the changes.

Use Classes Order

The Use Classes Order groups together in specified classes various uses of buildings or land. The Town and Country Planning Act 1990 then provides that a change of use of a building or other land will not require planning permission if the new use and the former use are both within the same class.

General Permitted Development Order

The General Permitted Development Order 1995 builds on this framework by providing that planning permission is deemed to be granted for certain changes of use even if the new use and the former use are in different classes.

Some uses are exempted from any specified class and are sui generis.

The result is that if there is a proposed change of use that is not within the same class and is not permitted by the General Permitted Development Order, or if it involves change to or from a sui generis use, then planning permission will need to be obtained.

New Changes

The changes made by the new 2005 order are as follows:

• Internet cafes are now classified as Class A1 ("Shops");
  
  
• A nightclub is expressly declared a sui generis use and therefore planning permission is now required for a change of use to or from a nightclub;
  
  
• Retail warehouse clubs (a retail club where goods are sold or displayed for sale exclusively to persons who are members of that club) are also declared sui generis so that planning permission is also now required for a change of use to or from a retail warehouse club;
  
  
• Class A3 (previously "Food and Drink") is now reduced in scope to "Restaurants and Cafes" (excluding takeaways, pubs and bars);
  
  
• A new Class A4 ("Drinking Establishments") is created for pubs and bars;
  
  
• Takeaways now fall into a separate new Class A5 ("Hot Food Takeaways");
  
  
• Planning permission will not be required for a change of use from Classes A3, A4 or A5 to Classes A1 ("Shops") or A2 ("Financial and Professional Services");
  
  
• Planning permission will also not be required for a change of use from Classes A4 or A5 to A3;
  
  
• Planning permission will be required to change from Classes A1, A2 or A3 to Classes A4 or A5; and
  
  
• Planning permission will also be required for a change of use from Class A4 to A5 or from Class A5 to A4.

Leases

Most leases contain references or restrictions of use to certain specified use classes. Where reference is made to a previous version of the Use Classes Order, that particular order must be looked at when interpreting the lease. For example, if a lease refers to the 1972 Use Classes Order, the courts would still look at the 1972 order to interpret the permitted uses under the lease, even though it has been replaced by a later order.

Therefore, the 2005 amendments will not affect clauses in leases which define the permitted user by reference to earlier versions of the Use Classes Order. However, from April 21 a tenant may need to obtain planning permission for a change of use permitted by the lease. Consider the example of a lease that permits "any use within Class A3 of the 1987 order". The tenant currently uses the property for a restaurant, but proposes a change to a pub. The change would not require the landlord's consent (because it is covered by Class A3 of the 1987 order), but would require planning permission authorizing the change to the new Class A4.

Landlords also need to be careful to ensure that the 2005 changes are considered when drafting permitted user clauses. Narrow user restrictions may impact adversely on any future rent reviews.

Outlook

The amended Use Classes Order has already provoked much debate, because the divisions between the new Classes A3, A4 and A5 will not always be clear-cut in practice. For example, is a 'gastropub' a pub or a restaurant? Could a wine bar be both a bar and a nightclub? What about restaurants which also operate as takeaways? Ultimately, such questions will be a matter for the courts to decide.

For further information on this topic please contact Martin Wright or Anthony Curnow at Ashurst by telephone (+44 20 7638 1111) or by fax (+44 20 7638 1112) or by email (martin.wright@ashurst.com or anthony.curnow@ashurst.com).