Class struggle

Proposed changes to the Use Classes Order 1987, which are looking increasingly likely, will mean that in many cases it will no longer be possible to change your site's use without planning permission. Frank Orr and Richard Arnot explain.

The government's reform of the planning system is now well advanced and the Planning and Compulsory Purchase Bill is expected to gain Royal Assent in the spring. This will bring about wide-ranging structural changes to the whole system.

However, many of the changes that will directly impact on licensees are not to be found in primary legislation but in secondary legislation such as the Town and Country Planning (Use Classes) Order 1987 (UCO). These changes are expected to take effect in the summer.

Most readers will be familiar with the effect of the UCO, which allows certain changes of use to occur without the need for planning permission, thereby providing flexibility to respond to market trends. The UCO provides that where buildings, or other land, are used for a specific purpose within any of the classes specified in the UCO, their use for any other purpose within the same class does not constitute "development" so therefore does not require planning permission.

The existing UCO defines Use Class A3 as "use for the sale of food or drink for consumption on the premises or of hot food for consumption off the premises". This covers a broad range of both licensed and non-licensed premises.

Changes within A3 are permitted, as are changes from A3 to Use Classes A1 (shops) or A2 (financial and professional services), without the need for planning permission. This current situation is reasonably flexible, where licensees and other business owners can make changes of use within the A3 class to respond to market demand and other factors.

In January 2002, the government issued a consultation document on possible changes to the UCO. Over 2,000 responses were received. In late 2003 the minister for housing and planning, Keith Hill, made a parliamentary statement announcing that the consultation exercise had revealed "widespread concern that such a broad classification (ie A3), which allows changes of use from restaurants to pubs without the need for planning permission, contributes to the increase in the number of licensed premises".

The government, therefore, proposes to separate cafés, restaurants, pubs, bars and takeaways into the following new use classes:

• A3 Restaurants and cafés
• A4 Pubs and bars
• A5 Takeaways

The new A3 class will not permit the sale of hot food for consumption off the premises. Change of use from A3 to A1 or A2 will still be allowed without the need for planning permission. However, all other changes, including to pubs and bars or takeaways, may require planning permission.

Changes from A4 and A5 to A1, A2 or A3 will be permitted - pubs and bars or takeaways may change to cafés or restaurants without planning permission. Any other proposed change of use may require planning permission. This effectively means that in future if you "ratchet down" from bar to restaurant then a return change back to a bar will no longer be automatically permitted.

In addition there is to be a further new use class - D3 Late-night leisure, which is nightclubs. Planning permission will be required for any change of use to or from a D3 use, as long as the change is material.

Licensing​

The proposed UCO changes are entirely separate from the changes in the Licensing Act 2003. However, the forthcoming changes in licensing controls, and the introduction of premises licences in particular, should afford an opportunity for better liaison between planning and licensing authorities. The content of premises licences may well be used as evidence to establish whether there has been a change of use in planning terms.

The question now being asked is - into which use classes will licensed premises fall? We will have to await the revised UCO and any accompanying guidance to see precisely how the various uses are defined, if at all. Whatever the precise wording of the new UCO, in planning terms the starting point will still be to identify the primary use.

If a single primary use can be identified then the use class may readily follow - if the primary use is as a restaurant, the use class will be the new A3.

Ancillary uses will be permitted so long as they are "incidental" or "secondary" activities. For example, in a restaurant, a reception area bar may be permitted as long as it is incidental to - and has a functional relationship with - the restaurant area. Conversely the primary use as a pub or bar falling within new Use Class A4 may legitimately involve ancillary restaurant use.

However, not all licensed premises fit comfortably within the primary-ancillary use framework. For example, does a "pub" with a mix of pub and restaurant uses fall within A3 or A4? Or neither? The courts have recognised that uses should not be forced into a use class if they do not fit comfortably within it. So there is considerable scope for the creation of mixed uses encompassing aspects of both A3 and A4, in the same vein as applications are presently made for mixed A3/D2 uses.

Grey areas​

Some changes of use are clearly material, for instance a change from an unlicensed café to a pub will undoubtedly constitute a change from A3 to A4. However, a material change could be thought of as a change in the character of a use.

It is something of a grey area as to when a restaurant with ancillary bar (new A3) will have changed to a bar with a bistro element (arguably A4). How does one tell if one is having a drink with a meal or a meal with a drink? When does a pub (A4) become a "superpub" and, in planning terms, perhaps more akin to a nightclub (D3)?

Unfortunately, there is no hard and fast rule. Much will turn on the individual circumstances and each case must be looked at on its individual merits and the law applied to its facts.

It is also widely expected that local planning authorities will impose conditions on planning consents in future, restricting use to a specific use class and expressly excluding any other. This has not been the case in the past, as the broader use classes did not enable such restrictions to be applied. Licensees should beware, as any subsequent changes in a premises' use may require further planning consents.

The new arrangements undoubtedly throw up many questions for licensees. Those contemplating making changes of use that may fall foul of the new UCO should seek advice before it comes into force later this year.

Which class?​

• A1 Shops
• A2 Financial and professional services
• A3 Restaurants and cafés
• A4 Pubs and bars
• A5 Takeaways
• D2 Assembly and leisure - cinemas and casinos
• D3 Late-night leisure - nightclubs

Frank Orr is a planning solicitor with Newcastle-based law firm Dickinson Dees, and Richard Arnot is the firm's head of licensing. They can both be contacted on 0191 279 9000.​