Class E Reflections

Class E has been with us for eight weeks or so now and – White Paper, housing algorithms and rebellious Conservative backbenchers notwithstanding – I still think it is actually by far the more significant immediate change to the planning system. So following on from last week’s JR hearing I thought I’d set out some of my favourite unanswered questions and quirks that still seem to be coming to light.

Other services appropriate in a commercial, business or service locality

I’m surprised that this one hasn’t been more remarked upon. This appears to be a close cut-and-paste from Class A2(c) in the old definition of Class A2, but it now refers to “being appropriate in a commercial, business or service locality”, rather than in a “shopping area.” Given the intention of the change to promote flexibility – and the new order’s silence on many of the new uses that have come to light since the 1987 version – I do wonder whether it will be right that a more expansive definition is taken of this element of Class E.

For example, it seems to clearly go against the thrust of the change to continue to argue, as some LPAs do, that beauticians, nail bars and the like would be sui generis, rather than falling within this part of Class E. The new PPG guidance is not particularly helpful on Class E, but does say “it seeks to provide for new uses which may emerge and are suitable for a town centre area” which rather suggests that Class E should be read expansively, so that those other uses also benefit from this additional flexibility.

In some areas of cities particular “commercial, business or service” localities can, likewise, be characterised by quite distinctive local uses which are entirely appropriate or indeed intrinsic to the character of those areas but which may have been treated as sui generis in the past. Again – should a more expansive approach to Class E(c) now be taken?

Pre-schools vs day nurseries vs nursery schools

Bear with me here. So this is one that used to be easy – but now perhaps isn’t. Use “as a crêche, day nursery or day centre” and “for the provision of education” both used to fall in Class D1. So far, so good.

But now, of course, use “as a creche*, day nursery or day centre” is Class E(f). Whereas use “for education” is Class F.1. So I can see some more dancing-on-the-heads-of-pins debates about when a creche becomes a pre-school, and whether the provision of education, rather just nursery care, could require a change of use from E(f) to F.1 (or vice-versa).

Curiously, Class E(f) also now refers to ‘principally for visiting members of the public.’ If you’ve ever used a creche or day nursery you will know that members of the public are (rightly) very much not encouraged to visit; even getting one’s own child back outside of set pick-up hours often seems to prove difficult enough. I am certain the intention is not to make conventional nurseries and day-centres (ie, those with pre-registered children) sui generis, on the basis that actually they are not generally for visiting members of the public, with, conversely, only the occasional shopping-centre or high-street based creche, providing a bit of adhoc childcare whilst hard-pressed parents do some child-free shopping, benefitting from Class E, but the phrasing is curious.

Both are points that additional guidance could help clarify.

[* Yes – we’ve lost the circumflex. I blame Brexit.]

Church halls

I suspect churches and church halls are, in a similar vein, some of the other potential users from this.

Again, public halls and religious buildings were all, previously, in Class D1 and so could be used for other D1 purposes. Including – as they often are – for childcare.

Now, of course, religious buildings are within Class F.1(f), along with “public halls“. Whereas “Hall[s] or meeting place[s] for the principal use of the local community” are within F.2(b). No – I don’t know the difference (and good luck to the Church of England, and others no doubt, trying to work out whether its parish halls are public halls, buildings used in connection with public worship, or halls for the principal use of the local community).

But irrespective of that, as we’ve just seen, childcare is now within Class E. This may mean that planning permission is required when such buildings are sold on, and perhaps reduce their value given that there will be fewer other uses that can potentially operate from within them without the need for planning permission. Often childcare operators are the most enthusiastic acquirers of such spaces.

But, also, perhaps, is there is going to be a debate as to whether planning permission is required to run childcare facilities from a Class F.1 / F.2 building and at what point a change of use occurs? I can think of several public / church / village halls used extensively during the week as playgroups, nurseries and day centres.

They’ve never needed to worry before about entangling themselves in the tentacles of the planning system and the somewhat impractical requests that sometimes seem to come up when what should be simple use questions are raised, such as bin store design, car and bike parking, energy use, etc. I hope that this won’t start now.

Local shops for local people

I’ve left my favourite quirk to last. This is the ‘village shop’ category, Class F.2(a). These have to sell “essential goods“, whatever those may be, “including food“. My grammar isn’t good enough to work out whether the reference to food is prescriptive or illustrative – that is, whether food is simply an example of an ‘essential good’ or that, to be a ‘local shop’, some of the goods must be food.

Such shops would, therefore, need planning permission to change to ‘ordinary’ Class E shops. This would happen, I suppose, were they to stop selling those essential goods – although again presumably as long as they carried on selling some of those mysterious essential goods alongside new lines of “unessential goods”, that would be OK?

However, they – of course – wouldn’t need planning permission to change use to a swimming pool or ice rink.

But the best bit is that, to be a Class F.2(a) shop, rather than a common-or-garden Class E(a) shop, there also needs to not be “another such facility” in 1,000m radius. Now, in one sense, I get this, as an attempt to protect the local village shop, but the effect seems to be that one could find one’s premises changing use class purely because of the actions of someone else, elsewhere, opening or closing another shop (or indeed, starting to sell, or ceasing to sell, those good-old “essential goods”).

Strictly, such a change of use would be development, and thus require planning permission, even though absolutely nothing would have changed at the shop in question at all.

In fairness, the PPG does appear to try to address the point by noting that “Whether a shop falls within this class will be based an assessment of the facts of case at the time the determination is made”, which I think translates as ‘don’t worry about it until necessary’. And this will probably occur infrequently in practice. Nevertheless, this does strike me a bit of an oddity, as the only example I can think of of a planning change of use potentially being triggered by the actions of someone else, potentially up to a kilometre away from the site in question.

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