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What are the consequences of the shake up of the planning Use Class system?

The Town and Country Planning (Use Classes) (Amendment) (England Regulations) 2020 were laid before Parliament and come into force on 1 September 2020. They apply in England only.

The changes include the revocation of the following Use Classes;

A1 – shops
A2 – financial and professional services
A3 – restaurants and cafes
A4 – drinking establishments
A5 – hot food takeaways
B1 – business. Also revoked are the sub parts of B1;
- B1(a) – offices
- B1(b) – research and development of products and processes
- B1(c ) – industrial process
D1 – non residential institutions
D2 – assembly and leisure

The changes include the amendment of the following Use Class;

B2 (industry)

The changes include the introduction of the following Use Classes;

E – commercial, business and service
F.1 – learning and non-residential institutions
F.2 – Local community

There are no changes to the following Use Classes;

C1 – hotels, boarding and guest houses
C2 – residential institutions
C3 – dwellinghouses
C4 – small HMO

From 1 September 2020;

Small retail shops (not more than 280 sq metres net sales area) selling essential goods including food and at least 1 kilometre from another shop will cease being an A1 use and will become a F.2 (local community) use;
Other A1 shops will become an E (commercial, business and service) use;
A2 uses will become an E (commercial, business and service) use;
A3 uses will become an E (commercial, business and service) use;
A4 uses will not be in a Use Class, they will be sui generis, ie not in any use class;
A5 uses will not be in a Use Class, they will be sui generis, ie not in any use class;
B1 uses (included B1(a), B1 (b) and B1 (c) will become an E (commercial, business and service) use;
B2 uses will either be B2 uses or will be Class E uses.
Clinics, health centres, creches, day nurseries and day centres (previously D1 uses) will become an E (commercial, business and service) use;
Schools, non residential education and training centres, museums, public libraries, public halls, exhibition halls, places of worship, law courts (previously D1 uses) will become an F.1 ( learning and non-residential institutions) use;
Cinemas, concert halls, live music performance venues, bingo halls and dance halls (previously D2 uses) and will be sui generis, ie not in any use class;
Gyms, indoor sport, recreation or fitness not involving motorised vehicles or firearms principally to visiting members of the public (previously D2 uses) will become an E (commercial, business and service) use;
Hall or meeting place for the principal use of the local community (previously D2 uses) will become an F.2 (local community) use;
Indoor or outdoor swimming baths, skating rinks, outdoor sports or recreation grounds (not involving motorised vehicles or firearms) (previously D2 uses) will become an F.2 (local community) use.

Changes of use within a Use Class do not constitute development. That being the case, provided the Order is applicable, its operation not having been restricted by planning condition, Agreement or Article 4 (1) Direction for example, planning permission would not be required, development as defined not happening. If legally binding confirmation is required that planning permission is not required this can only be obtained by way of a successful application for a Certificate of Lawfulness. In the absence of such, there is some risk.

It remains the case that planning permission may be required for operational works to buildings. It also remains the case that other consents and permissions may be necessary for example licenses. Furthermore amendments to leases may be required if the property is rented.

The Regulations additionally include transitional arrangements because of permitted development rights for changes of use in the Town and Country Planning (General Permitted Development) (England) Order amongst others. To respond to this Regulations introduce a ‘material period’ which is defined as meaning the period beginning 1 September 2020 and ending 31 July 2021. It is expected during the material period the Orders giving permitted development rights for changes for use which do constitute development will be amended / updated to reflect the new use classes.

Click here to view the Regulations.

The above is based on our understanding of the new Regulations at the time of issue and in advance of planning practice guidance being issued.

The Government introduced shielding in the peak of the pandemic. Current advice is that shielding is not required. However, those who have been shielding are likely to be the most vulnerable and will likely be nervous about a return to work. They may also be disabled under the Equality Act 2010. You should therefore consider any concerns that are expressed and take action to mitigate any risks. For example, it may be possible to keep these employees on furlough until the scheme runs out or they may be able to work from home. If you would like to discuss any specific scenarios then please contact one of the team.

The proposed start date on the Certificate of Sponsorship is about to pass, what do I do?

Sponsors should update the proposed start date by adding a sponsor note to the CoS via the Sponsor Management System.
Does a sponsor need to report a change in workplace if a Tier 2 visa holder is working from home as a result of Covid-19?

What is the guidance in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 pandemic?

The Department of Health & Social Care has published guidance for hospitals, care homes and supervisory bodies on the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the coronavirus pandemic.

In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:

if new arrangements constitute a ‘deprivation of liberty’ (most will not), and
if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation will be required (in most cases it will not be).

If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.

A summary of the key points to be taken from the guidance is outlined below:

Use of the MCA and DoLS due to Covid-19

During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
It may be necessary to change the usual care and treatment arrangements, for example to provide treatment for people with Covid-19, to move them to a new hospital or care home to better utilise resources or to protect them from becoming infected.
All decision makers are responsible for implementing the emergency Government health advice and any decision made under the MCA must be made in relation to a particular individual, it cannot be made in relation to groups of people.

Best interest decisions

In many cases, a best interests decision will be sufficient to provide the necessary care and treatment for a person who lacks the capacity to consent to the care and/or treatment arrangements during this emergency period.
If an individual has made a valid and applicable advance decision to refuse the treatment in question, then the relevant treatment, even for Covid-19, cannot be provided.

Delivering life-saving treatment

Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of Covid-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.
The DoLS will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with Covid-19.

The full guidance can be found here.

Can we require employees to have their temperatures taken on the way in to work, and is this something we should be doing?

If such testing is regarded as a “reasonably practicable step” which has been identified as an appropriate control following a risk assessment then it is something you can do.

Although you can’t physically force someone to have something intrusive done, this is very likely to be a reasonable management instruction and therefore if someone refuses to have this done as a condition of entry into the work place then disciplinary action may follow.

Where this is something that is required of employees, employers should be letting their staff know that this is one of a number of measures that are being introduced into the workplace for their own safety. If the employer can explain, in advance of the return, why temperature checks need to be taken, what the consequences of the results will be- i.e. will they be sent home if over a certain temperature, whether this data will be stored (and if the sole purpose is to determine whether or not they are fit to attend work on a particular day then why are they being stored), and the fact that temperature checks are a requirement of entry to company premises for everyone, then there shouldn’t be significant resistance to this measure.

Large scale temperature checks have in some businesses become part of the “new normal” working environment.

Can agency workers be furloughed?

Yes, if they are paid via PAYE. This includes agency workers engaged under umbrella companies.

The furlough should be agreed between the agency (the employer) and the worker and documented in accordance with the guidance. It is recommended that the decision to furlough is discussed with end user clients. Just like other employees, agency workers cannot perform work through or on behalf of the agency while furloughed. This includes work for the client.

For agency staff working under umbrella companies, it is for the umbrella company and the agency worker to agree on furloughing the worker.

What are the consequences of the shake up of the planning Use Class system?

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