GPDO Amendment - Extended PD for hot food takeaways

When I published my post on compulsory closure of premises this morning, the expected amendment to the GPDO had not yet appeared on the legislation.gov.uk website. It is now online, and takes the form of the The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 (SI 2020 No.330), which was made at 10.42 a.m. this morning, and comes into effect at 10.00 a.m. tomorrow (24 March 2020).

The amendment order introduces a new PD right in Part 4 of the Second Schedule to the GPDO 2015. This is Class DA. This applies to restaurants and cafes, and drinking establishments, and also to drinking establishments with expanded food provision, to enable them temporarily to provide takeaway food. The actual permitted development right comprises development consisting of a change of use of a building and any land within its curtilage from a use falling within Use Class A3 (restaurants and cafes), Use Class A4 (drinking establishments), a mixed use for any purpose within that Class A3 and Class A4 [sic], or a use as a drinking establishment with expanded food provision as defined in Class AA of Part 3 in the Second Schedule, to a use at any time during the period beginning with 10.00 a.m. on 24th March 2020 and ending with 23rd March 2021, for the provision of takeaway food.

This one-year PD right is subject to the condition that the developer must notify the LPA if the building and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period. For the purposes of the UCO and the GPDO, change of use to the provision of takeaway food under Class DA does not affect the use class which the building and any land within its curtilage had before the change of use. If the developer changes use to the provision of takeaway food under Class DA during the relevant period, the use of the building and any land within its curtilage must revert to its previous lawful use at the end of the relevant period or, if earlier, when the developer ceases to provide takeaway food under Class DA.

For the purposes of Class DA, the “provision of takeaway food” includes any use for any purpose within Use Class A5, and any use for the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.

The development permitted by the new Class DA in Part 4 of the Second Schedule to the GPDO 2015 cannot be prevented or precluded by an Article 4 Direction. On the other hand, bearing in mind the effect of Article 3(4) in the 2015 Order, a condition in an existing planning permission authorising an A3 or A4 use that prohibits a take-away use or a delivery service would still have the effect of preventing the development that would otherwise be permitted by the new Class DA in Part 4. I wonder whether MHCLG thought of this, or whether they simply could not think of a way of overcoming that particular problem. It would surely have been possible to provide that Article 3(4) would be disapplied in the case of a change of use under Part 4, Class DA. [For some further thoughts on this point, see the comments appended to this blog post].

Unfortunately, MHCLG has failed to take the opportunity that this amendment order presented to prevent the exploitation by unscrupulous developers of the default time limits in Parts 1, 3, 4, 6 and 16 of the Second Schedule, at a time when LPAs may struggle to process prior approval applications and to determine them and notify the applicants of their determination within the relevant time limit (28 days, 42 days or 56 days as the case may be under these various Parts of the Second Schedule).

It would have been a simple matter to provide that instead of the developer being at liberty to proceed with their proposed development in default of the determination of their prior approval application being notified to them by the LPA within that period, the prior approval application would be deemed to be refused at the expiry of the specified period for determination unless determination of the application has been notified to the applicant by the LPA before that date. Alternatively, it might be provided that where the LPA gives notice before the expiry of the stipulated period for determination that they will be unable to determine the application within that period, then the determination period is to be extended by the same period again (for example). Such a provision would have to be temporary (continuing to have effect for, say, no longer than a year).

In the absence of such a temporary amendment, there may be quite a few cases where developers can seize on the failure or inability of LPAs to determine prior approval applications within the relevant period, to forge ahead with proposed permitted development in respect of which the LPA could or should legitimately have refused prior approval. [This point is also discussed in the comments below. The bottom line is that, no matter how difficult it may prove to be in practice, there really is no alternative to LPAs ensuring that they keep on top of this, by giving priority to prior approval applications so as to avoid the default position arising.]

© MARTIN H GOODALL