Covid, Class E & Christmas: Will December be naughty or nice to our High Streets....
Late November usually marks the beginning of the most important time of the year for our high streets, with a great many retailers relying on strong Christmas sales to see them through the otherwise gloomy winter months.
However, this is 2020, and although most of the year is now, thankfully behind us, the outlook for many retail businesses could hardly be more uncertain. England may be out of its national lockdown* and gearing up for Christmas**, but recent news from Debenhams and Arcadia has shown that our high streets are most definitely not out of the woods as yet.
MHCLG appears to have recognised this, with Robert Jenrick announcing on Monday that retailers are to be allowed to extend their opening hours throughout the Christmas period (and throughout the January sales) - presumably in the hope that allowing them to trade for longer will allow retailers to claw back some of the sales lost during the last lockdown.
In planning terms, this appears to be a wholly informal arrangement. MHCLG has yet to produce new national planning guidance on the point, and given the relatively limited timeframes, it is unlikely that they would attempt to put the relaxation onto a statutory footing. Instead, local planning authorities are being 'strongly encouraged' to:
- take a positive approach when engaging with retailers who wish to extend their retail opening hours; and
- look to relaxing local restrictions where possible
In practice, this is likely to result in Councils being asked to refrain from enforcing planning conditions that contain opening hours restrictions over the festive period.
This 'relaxation' of opening hours is not the only liberalisation to come to our high streets this year. We are also now living in the world of Class E - which survived the Rights, Community, Action Judicial Review entirely unscathed.
For those who are not planoraks by nature*!, over the Summer, the Government completely reorganised the Use Classes Order. This is important because changing between types of development that fall within the same 'Use Class' (as set out in the order) does not count as development and, as a result, does not require planning permission.
Before 1 September 2020, shops, cafes and restaurants, take-aways, offices and leisure uses all fell within separate use classes - which meant that moving between them usually required a planning application of some description.
On1 September 2020, a very large number of these uses were amalgamated into the new Class E, which means that moving between them no longer requires planning consent.
The new Class E covers:
- retail,
- cafes and restaurant
- financial and professional services
- indoor sport, recreation or fitness
- provision of medical or health services, creches and day nurseries
- Use as an office, research and development facility or some light industrial processes.
The upshot of this is that, provided no external changes are required to the unit in question, it will become much easier to repurpose vacant units in the run up to Christmas.
Empty cafes and restaurants, which have closed during lockdown or because of tier 3 restrictions, can become pop-up shops or hairdressers, at the drop of a hat (or at least far more quickly than they could previously) - which could mean that retail landlords are better able to deal with voids than they were previously.
The old use classes have not disappeared entirely, however, they are still relevant for permitted development rights (at least until 31 July 2021) and also for CIL purposes. On 18 November, MHCLG updated it's CIL guidance to confirm that Charging rates set in relation to the old use classes still apply post the creation of Class E. The upshot of this being that if you are applying for a new-build commercial or retail scheme, you are likely to have to specify its intended purpose to the Council, so that they can apply the appropriate CIL charge as set against its old use class description.
The old use classes are also still extremely relevant for user restriction clauses in commercial or residential leases, restrictive covenants which may (or may not) bind a site and, of course, for the interpretation of old planning conditions and permissions - which will still bind a site.
As a result of all of this, it is probably a little early to say whether all of this liberalisation will end up being the saviour of our retail spaces or end up shoved at the back of a cupboard with all of the other unwanted Christmas presents.
One thing is certain though. 2020 will not be like any Christmas in recent memory.
* although several of us are stuck in tier 3 - hello fellow tier-3-ers!
** which in my case translates to trying not to eat the entirety of my advent calendar in one sitting and debating whether it is too early to put up the tree.
*! apparently not everyone is as fascinated by planning as I am
Restrictions may be imposed by individual local authorities when they grant planning permission for individual stores. Typically, such conditions limit the opening hours that a business may trade, for example, from 9am to 7pm unless a separate arrangement is agreed in writing with the relevant local planning authority.
In normal circumstances, a retailer would need to apply to remove or vary such a condition under section 73 of the Town and Country Planning Act 1990. This can be a lengthy process, taking several weeks or more.
The measures announced today make it clear to local planning authorities that they should take a positive approach when engaging with retailers who wish to extend their retail opening hours and look to relaxing local restrictions where possible”
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