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