It is no secret that many of Scotland's high streets are suffering and have been for some time. Vacancy rates have been at a concerning level for years now and the turbulent economic backdrop of recent months has done little to help the situation. The Scottish Retail Consortium recently published a study showing that one in six shops in Scotland is currently vacant, which is not conducive to curating the vibrant town and city centres that many Scots long for, and therefore recent legislative moves designed to improve the situation are welcomed.

At the end of March 2023, the Town and Country Planning (General Permitted Development and Use Classes) (Scotland) Miscellaneous Amendment Order 2023 (the Order) came into force, amending two similarly named orders dating from 1992 and 1997. The Order forms part of the Scottish Government's phased programme of extending Permitted Development Rights (PDRs) and is touted as an antidote to the ailing town and city centres of Scotland. The Order also includes provision for the rollout of electric vehicle charging infrastructure, but that is a topic for another article...

One of the primary changes brought about by the Order is the introduction of a new use class 1A, combining the previous use class 1 (shops) and use class 2 (financial, professional and other services) into a standalone use class. The theory behind this is that it should offer businesses and property owners a greater level of flexibility in relation to the use of their property because express planning permission is no longer needed to change use between those classes (albeit planning permission may still be required for external alterations or if the building is listed etc). The new use class will be particularly attractive to investment landlords as it should increase the potential tenant pool, given neither party will need to spend the time and money seeking planning permission to transition between the two use classes, nor will there be any risk of planning refusal from the local authority in doing so.

Hospitality businesses, another industry that has particularly suffered over the past few years, should also benefit from the provisions of the Order because one of the other key changes is that it is now possible to change from any use within the new use class 1A mentioned above to class 3 (food and drink) without the need for planning permission. Again, a wider group of tenants will be available to landlords and strategic tenants will have an opportunity to set up a hospitality business within premises where previously that would either not have been a possibility at all, or at least only possible with a separate planning consent.

Similarly, the Order now allows hospitality businesses to place furniture on a public footpath or road without submitting a planning application. With swathes of town and city centres across the country being pedestrianised, the hope is that this additional freedom will provide the industry with an opportunity to expand footfall and profitability whilst at the same time bringing some much needed further vibrancy back to central streets and squares.

As with all new freedoms, there are also some restrictions. It will only be possible to change from the new class 1A to class 3 where the premises is not within one metre of an existing dwelling and there are no dwellings above the premises. Similarly, hospitality businesses looking to utilise spaces outside their premises will still need to obtain the consent of the relevant roads authority before doing so – it is just the planning element which is no longer required pursuant to the Order.

Tenants should also be aware that their new-found legislative freedoms may not extend to their own particular leases. A tenant's permitted use under a lease will often be restricted to a specific use class order in effect at the time the lease is put in place. That means, even if that use class order is subsequently amended, in terms of the lease the permitted use remains per the older version of the order to which the lease refers.  Where that is the case, landlord consent would be required for any change of use in terms of the lease, despite there no longer being a requirement to obtain planning permission in terms of the law. For this reason, it is important that tenants review both their legislation and lease-based obligations in tandem before capitalising on the PDRs offered by the Order.

Needless to say, the Order will be welcomed by many property owners and occupiers. It offers a variety of new PDRs and will surely provide opportunities to save time and expense, as well as new avenues for business. The new freedoms established by the Order may not go far enough for some, which is understandable given the lifelessness of many town and city centres across Scotland. More needs to be done, especially given recent drives to adopt the "20 minute neighbourhood" philosophy to a greater extent. The "20 minute neighbourhood" is an attractive model and embracing it could transform society for the better, but it will only be achieved where there are vibrant and enticing neighbourhoods within this radius. This will require government support and, while the Order is a positive start, much more action will need to be taken in the future to achieve the necessary changes.