Matters arising – More Q&A on the UCO changes

In our webinar at the end of November, I said I would try to answer some of the points we could not cover in the time available in the Q&A session at the end of the webinar.

Unsurprisingly, there is still some confusion over the effect of the transitional provisions, although I did my best to explain these, both in the Supplement to my book and in our webinar. I have selected a few of the questions that were troubling some of our delegates.

If you have a use which now falls under Class E, will that use then benefit from all permitted development changes of uses of all previous use classes which are now contained within Class E?. [Another question put it this way: I am unclear as to the Prior approval position with respect to changes from the new Use Class E (commercial) to C3 (residential) during the period to 31.8.21.]

The answer to the first of these questions is a definite ‘No’ (at least for the time being). The transitional provisions make it clear that the development permitted by the GPDO is confined to the Use Classes as they existed prior to 1 September 2020. So any PD rights in relation to an existing use are confined to the narrower classes of use specified in the GPDO. The government has, however, consulted on a possible widening of PD rights for uses in Class E, including residential conversion of a wide range of commercial premises (partially covered at present by Classes M, N and O in Part 3 plus, formerly, Class PA). This new PD right will probably not take effect until August of next year, and its precise terms remain to be settled.

This further question was then posed: Provided there is no Article 4 restriction, would it be possible to change a B8 to B1 (less than 500sqm) under GPDO so that, once implemented, the unit would then be open Class E?

In contrast to the previous answer, the answer in this case is ‘Yes’. Once a planning unit is in use in a particular Use Class (in this case, Class E), section 55(2)(f) then allows a change of use to any other use within that same use class. However, caution suggests that the use permitted by Class I(a) in Part 3 should be more than merely nominal before the further change of use that is allowed under section 55(2)(f) takes place. The rule established by Kwik Save Discount Stores v SSW might also apply, by analogy, to a change of use under section 55(2)(f). I would suggest that the use permitted by Class I(a) should be confined to a use that remains within the scope of the former Class B1 for more than six months at the very least (and preferably for a year or more) before a further change of use within Class E is then made in reliance on section 55(2)(f).

The next question was: If a planning condition prevented change to “any other use within Class D1” how would this be applied/understood, as D1 uses are now all categorised in different places?

Conditions that limit the scope of a use authorised by a planning permission will remain in full force and effect (and not only during the ‘material period’, but indefinitely). Such conditions are unaffected by the changes to the UCO. So if a PP authorised a specified use that previously fell within Use Class D1, but contained a condition that prevented a change of use to “any other use within Class D1”, it will continue to prevent a change to any other use that formerly fell within that Use Class. So, (just to take one example) if the authorised use was covered by Class D1(a) (now E(e)), the condition quoted would still prevent its use within Class E(f) (formerly D1(b)). Similarly, if the authorised use was covered by Class D1(c) (now F.1(a), this condition would still prevent its use within Class F.1(b) (formerly D1(d)), F.1(c) (formerly D1(e)), F.1(d) (formerly D1(f)), F.1(e) (formerly D1(g)), F.1(f) (formerly D1(h)) or F.1(g) (formerly D.1(i)). The quoted condition would not, however, prevent a use within any other category in the Use Class into which the authorised use now falls which did not fall within the previous Class D1.

I referred above to the Rule in Kwik Save, and one delegate asked: “With regard to the Kwik Save “colourful implementation” point, you mentioned the relevance of that for uses using PD rights from one use class to another. Does it apply to changes within the same (and now much wider) Use Class?”

Kwik Save itself dealt solely with a change of use that was formerly permitted under Part 3 of the Second Schedule to the GPDO from a specified sui generis use to a use within Class A1, and the rule clearly applies to other PD under the GPDO. I have expressed the opinion, here and elsewhere, that the rule in Kwik Save may also apply “by analogy” to changes of use within the same Use Class under section 55(2)(f). I am not aware of any judicial authority that would expressly support this proposition, but I strongly suspect that if this were to be disputed, the courts might well take the same view as they did in Kwik Save and for the same reasons. I can’t guarantee that I am right about this; it is simply my professional view, based on instinct and experience.

The questioner went on to ask whether implementation is bound by the description of development (which begs the question, they suggest, whether developers ought to apply for permission by reference to a Use Class for an use class rather than a particular use).

It is true that the initial use of a development is strictly limited by its description in the planning permission. (See Wilson v West Sussex CC and East Suffolk CC v SSE.) But a change of use within the same Use Class can then be made under section 55(2)(f), although here too I have always taken the view that the Rule in Kwik Save may well apply to the timing of such a subsequent change of use (a point I have made in the book).

On the second point, I often used to think that it might be advisable to frame a planning application by reference to a Use Class, rather than a specific use, but in practice very few planning officers would be prepared to accept this approach, and they will usually insist on a more precise description of the proposed development. In any event, permissions are frequently conditioned to limit changes of use in one way or another. The government has indicated that such conditions ought not to be imposed on new Class E uses, but I bet many LPAs simply won’t be able to resist the temptation to do so. In that event, a plethora of section 73 applications can be expected, followed by appeals if these are refused. LPAs may well find themselves at risk of an award of costs against them in such cases.

I will deal with some further questions in a future post.

© MARTIN H GOODALL