Aside from the long-awaited “Planning for the Future” White Paper, the big planning and development talking points of the summer have been the radical reforms to the Use Classes Order and the Permitted Development Rights (“PDR”) regime.

We’ve covered the detail of the reforms in our bulletins on the Use Classes Order here and on PDR here. In brief:

  • The changes to the Use Classes Order represent a complete overhaul of the system and, importantly, introduce a broad new commercial, business and service use class (Class E). This new use class incorporates and consolidates the previous shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1) classes, as well as bringing within it gyms, nurseries and health centres. In the absence of conditions or obligations to the contrary, it’s now possible to change use within Class E without the need for planning permission.
  • The reforms to PDR introduce (in certain circumstances) the ability to extend buildings upwards and to demolish and rebuild vacant buildings for new homes. It’s not open season, though, as both new PDRs are subject to an extensive list of exclusions and limitations.

The changes came into force at the start of this week – and already they’re the subject of a legal challenge brought by a non-governmental campaign organisation concerned with tackling the climate emergency.

The action group seeks to challenge on three grounds the lawfulness of the statutory instruments which bring about the changes to the Use Classes Order and PDR:

  • First, that the Secretary of State unlawfully failed to carry out an environmental assessment of the statutory instruments in accordance with his obligations;
  • Second, that the Secretary of State failed to have due regard to the Public Sector Equality Duty; and
  • Third, that the Secretary of State failed to consider the weight of evidence against these “radical” reforms, including consultation responses and the advice of his own experts.

The challenge seeks to quash the statutory instruments.

An urgent application to suspend the operation of the statutory instruments until the claim is settled was withdrawn on 2 September – so the changes remain in force for the time being – but the government’s relief will be short lived.

The Planning Liaison Judge, Sir David Holgate, has ordered that the matter be heard by the High Court at a rolled-up hearing listed for one and a half days between 8 October and 15 October. If permission to apply for judicial review is granted at that hearing, the Court will proceed immediately to determine the substantive claim. The industry must attentively await the outcome.

Those already in the process of updating their approach to use clauses in leases may want to hang fire until the claim is settled before they commit to referencing the new use classes. More nuanced ways of describing permitted use may be more appropriate or anchoring the permitted use to the Order as it existed prior to 1 September.

Will the much-vaunted Class E live to see the autumn? Or will it disappear almost as quickly as it arrived? Watch this space…