GPDO tidied up (continued)

In my first post on this topic on 20 July, I confined myself to the changes to Part 3 of the Second Schedule to the GPDO (dealing with permitted changes of use).

The changes to Part 4 (temporary buildings and uses) are mainly cosmetic, but one provision that caught my attention is the deletion from paragraph C.1(e) of the reference to Use Class A4 and the substitution of a reference to Class F.2 (local community use). The first point to note is that the removal from paragraph C.1 of the prohibition of a temporary change of use under Class C from use as a drinking establishment (formerly Class A4) to use as a state-funded school (within Class F.1(a)) does not now allow such a temporary change of use, because use as a drinking establishment is now sui generis, and Class C does not permit a change of use from any sui generis use in any event. On the other hand, a temporary change of use to use as a state-funded school from the new local community use (within Class F.2) is specifically excluded from Class C.

In Part 4, Class CA (provision of temporary school buildings on vacant commercial land), the definition of “vacant commercial land” has been changed. This definition previously referred to land which was last used for a purpose falling within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class D2 (assembly and leisure) . The definition now refers to land which was last used for a purpose falling within Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class E (commercial, business and service).

Class D in Part 4 (temporary use of various business premises) is amended, so that the change of use that it now permits is from use as a betting office, a pay day loan shop or hot food takeaway, or from Class E (commercial, business and service) to a flexible use falling within Class E (commercial, business and service), Class F.1(b) (display of art), Class F.1(c) (museum), Class F.1(d) (public library or public reading room) or Class F.1(e) (public hall or exhibition hall).

An additional temporary PD right was introduced in Part 4 during the current covid crisis. This is Class DA (permitting restaurants etc. temporarily to provide takeaway food). As now amended, this permits development consisting of a change of use of a building and any land within its curtilage from use as a drinking establishment, or as a drinking establishment with expanded food provision, or Class E(b) (sale of food and drink mostly for consumption on the premises) or from a mixed use as a drinking establishment and as a café or restaurant, to a use, up to and including 23 March 2022, for the provision of takeaway food. [As I have previously pointed out, a condition in a planning permission that prohibits hot food take-aways still prevents the temporary change of use permitted by Class DA, due to the effect of Article 3(4) of the GPDO.]

One of my complaints when changes were previously made to the GPDO (particularly in 2015) was that there were inadequate transitional and saving provisions. This time, that previous omission has been repaired.

The first transitional provision relates to changes of use which no longer constitute development. Where a change of use of a building or land was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition requiring a prior approval application but, with effect from 1 August 2021, no longer constitutes development because the change is between uses that both now fall within Class E in the UCO, the change of use may proceed notwithstanding any undetermined prior approval application or related appeal proceedings. [In fact, irrespective of this provision, such a change of use can now be made even if there was a previous refusal of prior approval and even if an appeal against the refusal of prior approval was dismissed, because it is simply not development now, by virtue of section 55(2(f). But before anyone gets too excited about this, just remember that the existing use and the new use must both now be within one and the same use class, failing which section 55(2)(f) has no application.]

There is then a transitional provision for development no longer subject to a condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) without being subject to a condition that is the same, or substantially the same, as the previous condition, the development may proceed notwithstanding any non-compliance with the previous condition (but the development must comply with any other condition imposed by the new provision).

Next, we come to a transitional provision for development subject to a new condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) which imposes a new condition which is not the same, or substantially the same, as a condition which applied under the previous provision, then if it began, or a prior approval application was made, before 1st August 2021, the development may proceed irrespective of whether the new condition has been complied with (but the development must comply with any other condition imposed by the previous provision).

Finally, there is a transitional and saving provision for development which is no longer permitted by the GPDO. This applies to development (“protected development”) which was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) but is no longer permitted by the GPDO on or after 1st August 2021, provided that the land or building was in use immediately before 1st August 2021 for a purpose which qualified it for PD under the previous provision. In this case, the GPDO has effect in relation to such protected development up to and including 31 July 2022 as if the amendments made with effect from 1 August 2021 had not been made. This saving extends beyond 31 July 2022 in relation to the processing and determination of any prior approval application made in respect of such protected development on or before 31 July 2022, and also the determination of any appeal proceedings related to such a prior approval application. In the same way, this saving provision applies to the completion of such protected development which began, or in respect of which a prior approval application was made, on or before 31 July 2022, as if the amendments the GPDO that took effect on 1 August 2021 had not been made.

Where this saving provision applies, a reference in the GPDO to a use or use class specified in the Use Classes Order is a reference to the previous version UCO before the 2020 changes to the use classes in that Order. However, where the protected development consists of a change of use of a building under paragraph I(a) of Class I (industrial and general business conversions) in Part 3, as it applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (g) (business uses) of Use Class E (commercial, business and service), the building must not, in the absence of further planning permission, be used for any other purpose within Class E.

Furthermore, where the protected development consists of a change of use of a building under Class S (agricultural buildings to state-funded school or registered nursery) or T (business, hotels etc to state-funded schools or registered nursery) in Part 3, as they applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (f) (registered nurseries etc) of Use Class E, the building must not, in the absence of further planning permission, be used for any other purpose within Class E (including another purpose within Class E(f)).

© MARTIN H GOODALL

GPDO tidied up

We have known throughout the past year that the GPDO was going to have to be amended to bring it into line with the changes to the UCO that took effect last September. Transitional provisions saved references in the GPDO to the pre-September Use Classes for the purposes of permitted development. However, these transitional provisions expire at the end of this month, and so it was essential for the government to make appropriate amendments to the GPDO to bring it into line to the revised version of the UCO. This has now been done in the form of the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 [SI 2021 No.814], which was made on 7 July, laid before parliament on the 9th and will come into force on 1 August.

The new order makes amendments to the provisions of Parts 1, 3, 4, 7, 8, 11 and 20 of the Second Schedule to the GPDO but, for the moment, I shall confine myself to the changes made to Part 3, dealing with permitted changes of use.

Class A, in its original form permitted a change of use from A3, A4 or A5 to A1 or A2. The right to make this change of use from A4 was later removed. As now amended, Class A will in future permit a change of use from a casino, betting office, pay day loan shop or hot food takeaway to a use falling within Class E (commercial, business and service use), but will still not permit a change of use from a public house, wine bar or drinking establishment. [Change of use from a café or restaurant to some other commercial, business and service use no longer needs its own PD right, because it is no longer development at all.] The PD right under Class A is subject to the condition that, before beginning the development, the developer must notify the LPA in writing of the date on which the use of the building will change. No prior approval application is required.

Class AA, as now re-drafted, will permit a change of use from public house, wine bar or drinking establishment to the same use with expanded food provision and it will also permit the converse change.

Classes B, C, D, E and F are now formally removed from Part 3 (as they have now been rendered redundant).

Class G is amended to reflect last year’s changes to the UCO. It will now permit change of use from a use within Class E to a mixed use for any purpose within that Class and as up to two flats. This Class will also permit a change of use from a betting office or pay day loan shop to a mixed use for any purpose within Class E and as up to two flats.

There is now an added requirement in Class G, before beginning development, to apply for prior approval as to:
- contamination risks in relation to the building,
- flooding risks in relation to the building,
- impacts of noise from commercial premises on the intended occupiers of the development,
- the provision of adequate natural light in all habitable rooms of the dwellinghouses, and
- arrangements required for the storage and management of domestic waste.

Class H is similarly amended to reflect the change to the UCO. It will now permit a change of use from a mixed use for any purpose within Class E and as up to two flats, to a use for any purpose within that Class, and also a change of use from a mixed use comprising a betting office or pay day loan shop and as up to two flats to use for any purpose within Class E. The exclusion in paragraph H.1 is also re-worded to bring it into line with the revised wording of the UCO.

Class I formerly permitted changes of use from B2 or B8 to B1, or from B1 or B2 to B8 (subject to certain floorspace limits). As re-redrafted, it will be limited to the change of use of a building from any use falling within Class B2 to a use within Class B8, subject to a 500 sq m floorspace limit.

Classes J, JA and K are now removed from Part 3.

Class L, which permits a change of use from C3 to C4 and vice versa, remains unchanged.

Class M has been largely replaced by Class MA, but has been retained to deal with certain residential conversions that are not covered by Class MA. As revised, Class M will now permit the residential conversion of a launderette, betting office, pay day loan shop or hot food takeaway, and also the residential conversion of a building in a mixed use combining use as a dwellinghouse with use as a launderette, betting office or pay day loan shop (whether that use was granted permission under Class G or otherwise). Class M(a) permits only a change of use, but Class M(b) permits both the change of use itself and also building operations reasonably necessary to convert the building for residential use. This reflects the current position.

The matters requiring prior approval under Class M previously included the ‘retail impact’ of the proposed residential conversion of the building. No corresponding provision was included in the new Class MA. Thus, (as previously note in relation to Class MA), any general retail impact is no longer a matter with which the LPA can concern itself. Even the impact on the sustainability of a key shopping area is no longer relevant. With one exception, the issue of retail impact has now been similarly removed from Class M, so that it now applies only to the impact on the adequate provision of services of the sort that may be provided by a launderette (but only where there is a reasonable prospect of the building being used to provide such services).

The new Class MA, has been amended even before it had come into force. This change comprises the introduction of a requirement for fire risk assessment to be taken into account in some circumstances. In any such cases, the LPA must approve the fire safety impacts on the intended occupants of the building. (This provision is really too complicated to explain in detail here.) Where the application relates to prior approval as to fire safety impacts, on receipt of the application, the local planning authority must consult the Health and Safety Executive.

Also in Class MA, approval of highways impacts of the development must include particularly the need to ensure safe site access.

Class N is unaffected by the changes to Class 3, rare though residential conversions under this Class may be in practice.

Class O will be replaced with effect from 1 August by Class MA, but the previous amendment regulations provided that any prior approval application under Class O can be made up to 31 July 2021, and Class O will continue to operate after that date where a prior approval application had been made by that deadline. To that extent, Class O remains for the time being in Part 3, but will die a lingering death as Class O applications in the pipeline on 1 August slowly work their way through the system and are subsequently implemented, rather in the same way as the former Class P and Class PA (although the latter has in effect been revived by the introduction of Class MA).

As noted previously, Classes P and PA are now effectively redundant, except as regards the implementation of prior approvals granted under those two Classes. I note that even now there are a few late appeals under these provisions working their way through the system.

Everyone will no doubt breathe a great sigh of relief that no further amendments have been made to Class Q.

As redrafted, Class R will now permit development consisting of a change of use of an agricultural building to a flexible use falling within one or other of Classes B8, C1 or E.

Class S, will no longer permit change of use to use as a registered nursery. So, in future, this Class will permit a change of use only to a state-funded school. The scope of Class T will be similarly limited from now on. The uses from which a change of use can now be made under Class T will be C1, C2, C2A and E.

Similar changes are made to Part 4 (temporary changes of use), but I was rapidly losing the will to live by the time I got to this part of the amendment order, so I’ll leave it there for now.

I should just mention finally that there are transitional and savings provisions that are set out in the Schedule to the amendment order, which preserve for a time the effect of certain PD rights that have now been removed from the GPDO and which provide for the transition between the old and new rules. I will return to these in a later post.

© MARTIN H GOODALL