Campaign group Rights Community Action (“RCA”) have failed in a High Court legal challenge to overturn recent changes to the 1987 Use Classes Order (“UCO”) introduced by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757) (“The 2020 Regulations”), which came into force on 1 September 2020 (discussed previously here). RCA have stated that they will seek to appeal the ruling.
The definition of Permitted Use within any new and existing commercial lease should be carefully reviewed given there have been many changes to the UCO.
In existing Leases (completed prior to 1 September 2020), if there is reference to the UCO as in force as at the date of the Lease, this will tie you back to the old use classifications and will prevent a Tenant from taking full advantage (or disadvantage as the case may be) of the changes brought about by the 2020 Regulations.
By contrast, if in an existing Lease there is reference to the UCO as amended or replaced, then the 2020 Regulations will potentially extend the scope of a use available to a Tenant. Whilst the majority of Leases will have provision allowing for a change of use within a particular class subject to Landlord approval, the drafting will need to be reviewed carefully as a Landlord might now find themselves having limited powers to refuse consent to a change of use.
In relation to new Leases granted after 1 September 2020, given RCA are looking to appeal the ruling, tactical consideration must be given as to whether to make reference to the UCO as was in force as at 31 August 2020 (i.e. before the 2020 Regulations came into force) or by drafting the Permitted User clause referring to the equivalent new use class under the 2020 Regulations.
The implications of the changes introduced by the 2020 Regulations are potentially far-reaching. If you are in the process of submitting a planning application, awaiting a decision or require specific advice on changing the function or use of a building, please contact the planning team.
