Use Class Order
Lawful Development Certificates
01January/2014
There are instances where changes of use can take place without the need for planning permissions. This is because the Use Classes Order 1987 specially provides that they are not to be regarded as development; the issue of materiality therefore becomes irrelevant. Below are some examples:
(a) Changes of use within the same Class. The Use Classes Order provides: "....where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
Take Class A1 (Shops) as an example; there are ten uses listed: (a) for the retail sale of goods other than hot food, (b) as a post office, (c) for the sale of tickets or as a travel agency, (d) for the sale of sandwiches or other cold food for consumption off the premises, (e) for hairdressing, (f) for the direction of funerals, (g) for the display of goods for sale, (h) for the hiring out of domestic or personal goods or articles, (i) for the washing or cleaning of clothes or fabrics on the premises, (j) for the reception of goods to be washed, cleaned or repaired, where the sale, display or service is to visiting members of the public. Under the above provision, no planning permission is needed to change from the use of a building as a post office to hairdressing, but it does not follow that a change from a use within a particular Use Class to another use outside it must necessarily require planning permission. The basic principle will apply in deciding whether planning permission would be required: is it a material change of use?
(b) Incidental use The Use Classes Order 1987 also provides that if the use of a building falls within one of the USE CLASSES, then no planning permission is required for using part of it for any use which is "ordinarily incidental" to that use. An example would be where part of a shop (Class A1) is used as an office (Class B1). Note that where a use is incidental or ancillary to the main use, it cannot be detached and turned into an independent use. Sui Generis Uses A use that does not fall within a CLASS is often referred to as a sui generis use. Whether planning permission would be required for a change to or from a use will depend solely on whether the change is "material". Sui Generis Uses outside the Use Classes Order The Use Classes Order specifically provides that certain uses are not to be taken as being within any use class. The uses are as follows: - as a theatre, - as an amusement arcade or centre, or a funfair, - as a launderette, - for the sale of fuel for motor vehicles (petrol stations), - for the sale or display for sale of motor vehicles, - for a taxi business or business for the hire of motor vehicles, - as a scrap yard, or a yard for the storage or distribution of minerals or the breaking of motor vehicles, - for any work registrable under the Alkali, etc Works Regulation Act 1906, - As a hostel. Whether planning permission would be required when any of the above uses is involved will again depend on whether the change is "material". Reverting to a former use By way of an example, if the use of a building has changed from office to restaurant, then planning permission would be required to revert to office use. In certain limited cases, no planning permission would be required for reversion to the former use. These are where the intermediate use was: - subject to a time limit condition in the grant of permission; - in compliance with an enforcement notice; - permitted by a Development Order. Abandonment of use Where a building or land has not been used for a while, no permission is needed to resume the last use. If, however, it has been unused for so long that it can be considered that the last use has now been abandoned, planning permission would be required to restart the use. "....when a man ceases to use a site for a particular purpose and lets it remain unused for a considerable time, then the proper inference may be that he has abandoned the former use. Once abandoned, he cannot start to use the site again, unless he gets planning permission: and that is so, even though the new use is the same as the previous one." Hartley v MHLG [1970].
Lawful Development Certificates There are two types of certificate: (i) If the works had not yet been carried out, apply for a Certificate of lawfulness of proposed use or development (CLOPUD). (ii) If the works had already been carried out, apply for a Certificate of lawfulness of existing use or development (CLEUD). Determination of an application for a CLEUD Whether a certificate for a CLEUD should be granted or not is solely a matter of law. The determination will be based on the evidence provided by the applicant, and the local authority's view on the development, however much it is disliked, is totally irrelevant. The Four and Ten year rules. The four and ten year rules are relevant in an application for CLUED.
The local planning authority cannot take enforcement actions if: (a) the operational development was substantially completed more than four years ago; (b) in the case of a change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after then end of the period of four years beginning with the date of the breach; (c) in the case of any other breach of planning control, no enforcement actions may be taken after the end of the period of ten years beginning with the date of the breach. On expiration of the time for enforcement, the uses and operations become lawful and it is advisable, in these circumstances, to apply for a CLEUD. This is because a later purchaser of the land may not have the evidence to prove the lawfulness of the development; in any event, the purchaser would, no doubt, wish to see that a CLEUD has been issued in order to be satisfied that the development is lawful.
(a) Changes of use within the same Class. The Use Classes Order provides: "....where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
Take Class A1 (Shops) as an example; there are ten uses listed: (a) for the retail sale of goods other than hot food, (b) as a post office, (c) for the sale of tickets or as a travel agency, (d) for the sale of sandwiches or other cold food for consumption off the premises, (e) for hairdressing, (f) for the direction of funerals, (g) for the display of goods for sale, (h) for the hiring out of domestic or personal goods or articles, (i) for the washing or cleaning of clothes or fabrics on the premises, (j) for the reception of goods to be washed, cleaned or repaired, where the sale, display or service is to visiting members of the public. Under the above provision, no planning permission is needed to change from the use of a building as a post office to hairdressing, but it does not follow that a change from a use within a particular Use Class to another use outside it must necessarily require planning permission. The basic principle will apply in deciding whether planning permission would be required: is it a material change of use?
(b) Incidental use The Use Classes Order 1987 also provides that if the use of a building falls within one of the USE CLASSES, then no planning permission is required for using part of it for any use which is "ordinarily incidental" to that use. An example would be where part of a shop (Class A1) is used as an office (Class B1). Note that where a use is incidental or ancillary to the main use, it cannot be detached and turned into an independent use. Sui Generis Uses A use that does not fall within a CLASS is often referred to as a sui generis use. Whether planning permission would be required for a change to or from a use will depend solely on whether the change is "material". Sui Generis Uses outside the Use Classes Order The Use Classes Order specifically provides that certain uses are not to be taken as being within any use class. The uses are as follows: - as a theatre, - as an amusement arcade or centre, or a funfair, - as a launderette, - for the sale of fuel for motor vehicles (petrol stations), - for the sale or display for sale of motor vehicles, - for a taxi business or business for the hire of motor vehicles, - as a scrap yard, or a yard for the storage or distribution of minerals or the breaking of motor vehicles, - for any work registrable under the Alkali, etc Works Regulation Act 1906, - As a hostel. Whether planning permission would be required when any of the above uses is involved will again depend on whether the change is "material". Reverting to a former use By way of an example, if the use of a building has changed from office to restaurant, then planning permission would be required to revert to office use. In certain limited cases, no planning permission would be required for reversion to the former use. These are where the intermediate use was: - subject to a time limit condition in the grant of permission; - in compliance with an enforcement notice; - permitted by a Development Order. Abandonment of use Where a building or land has not been used for a while, no permission is needed to resume the last use. If, however, it has been unused for so long that it can be considered that the last use has now been abandoned, planning permission would be required to restart the use. "....when a man ceases to use a site for a particular purpose and lets it remain unused for a considerable time, then the proper inference may be that he has abandoned the former use. Once abandoned, he cannot start to use the site again, unless he gets planning permission: and that is so, even though the new use is the same as the previous one." Hartley v MHLG [1970].
Lawful Development Certificates There are two types of certificate: (i) If the works had not yet been carried out, apply for a Certificate of lawfulness of proposed use or development (CLOPUD). (ii) If the works had already been carried out, apply for a Certificate of lawfulness of existing use or development (CLEUD). Determination of an application for a CLEUD Whether a certificate for a CLEUD should be granted or not is solely a matter of law. The determination will be based on the evidence provided by the applicant, and the local authority's view on the development, however much it is disliked, is totally irrelevant. The Four and Ten year rules. The four and ten year rules are relevant in an application for CLUED.
The local planning authority cannot take enforcement actions if: (a) the operational development was substantially completed more than four years ago; (b) in the case of a change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after then end of the period of four years beginning with the date of the breach; (c) in the case of any other breach of planning control, no enforcement actions may be taken after the end of the period of ten years beginning with the date of the breach. On expiration of the time for enforcement, the uses and operations become lawful and it is advisable, in these circumstances, to apply for a CLEUD. This is because a later purchaser of the land may not have the evidence to prove the lawfulness of the development; in any event, the purchaser would, no doubt, wish to see that a CLEUD has been issued in order to be satisfied that the development is lawful.
Use Class
01January/2014
Use Classes come under town planning legislation, including:
Town & Country Planning (Use Classes) Order [1972]
Town & Country Planning (Use Classes) Order [1987]
Town and Country Planning (General Permitted Development Order) 1995 (as amended)
Town and Country Planning (Use Classes)(Amendment) (England) Order 2005.
At present, the Use Classes are:
A1 Shops - Shops, retail warehouses, hairdressers, undertakers, travel and ticket agencies, post offices, pet shops, sandwich bars, showrooms, domestic hire shops, dry cleaners and funeral directors.
A2 Financial and professional services - Banks, building societies, estate and employment agencies, professional and financial services and betting offices. (Also bureau de change)
A3 Restaurants and cafés - For the sale of food and drink for consumption on the premises - restaurants, snack bars and cafes.
A4 Drinking establishments - Public houses, wine bars or other drinking establishments (but not a night clubs).
A5 Hot food takeaways - For the sale of hot food for consumption off the premises.
B1 - Business - Offices, research and development, light industry appropriate in a residential area.
B2 - General industrial
B3-B7 - Special Industrial Groups - See 'Use Classes Schedule'.
B8 - Storage or distribution - This class includes open air storage.
C1 - Hotels - Hotels, boarding and guest houses where no significant element of care is provided.
C2 - Residential institutions - Residential care homes, hospitals, nursing homes, boarding schools, residential colleges and training centres.
C2A - Secure Residential Institution - Use for a provision of secure residential accommodation, including use as a prison, young offenders institution, detention centre, secure training centre, custody centre, short term holding centre, secure hospital, secure local authority accommodation or use as a military barracks.
C3 Dwelling-houses - Family houses, or houses occupied by up to six residents living together as a single household, including a household where care is provided for residents.
6 April 2010 - A new class C4 (houses in multiple occupation) was created.
Town and Country Planning (Use Classes) (Amendment) (England) Order 2010 (SI 2010/653) Class C4 (houses in multiple occupation) is for use of a dwellinghouse by not more than six residents as a "house in multiple occupation". This effectively means that for planning purposes a dwellinghouse will be an HMO if it is occupied by between three and six unrelated occupants as their main residence, if they share basic amenities.
The following uses are excluded from Class C4 of the UCO 1987: social housing; care homes; children's homes; bail hostels; properties occupied by students which are managed by the educational establishment; properties occupied by religious communities; and properties occupied by the owner and up to two lodgers. Neither of these changes has retrospective effect. Where more than six unrelated people share a dwellinghouse, the use is still classified as sui generis. Sui generis uses cannot be changed to any other use without obtaining express planning permission from the local planning authority (LPA).
D1 - Non-residential institutions - Clinics, health centres, crèches, day nurseries, day centres, schools, art galleries, museums, libraries, halls, places of worship, church halls, law court. Non residential education and training centres.
D2 - Assembly and leisure - Cinemas, music and concert halls, bingo and dance halls (but not night clubs), swimming baths, skating rinks, gymnasiums or sports arenas (except for motor sports, or where firearms are used).
Sui Generis - Theatres, houses in multiple paying occupation, hostels providing no significant element of care, scrap yards. Petrol filling stations and shops selling and/or displaying motor vehicles. Retail warehouse clubs, nightclubs, launderettes, taxi businesses, amusement centres. Casinos.
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Concern over antisocial behaviour by patrons of bars and nightclubs has led to changes to English planning law. These will come into effect on 21 April 2005 under the Town and Country Planning (Use Classes)(Amendment) (England) Order 2005. The old A3 (food and drink) use class will be divided into three separate classes: restaurants and cafes; drinking establishments; and hot food takeaways.
Under the Town and Country Planning (Use Classes)(Amendment) (England) Order 2005, tThe old A3 (food and drink) use class is divided into three separate classes: restaurants and cafes; drinking establishments; and hot food takeaways. Planning permission will be required for restaurants and cafes to change to use as a bar, pub or hot food takeaway.
Planning permission is normally required for a material change of use. However, to prevent the system from being choked with unnecessary applications, the Town and Country Planning (Use Classes) Order 1987 (the UCO) provides that where a building or land is being used for a purpose within any class specified in the UCO, use for any other purpose within the same class is allowed automatically. The aim is to retain control over changes of use where this is warranted because of potential adverse effects; for example, where it is desirable to retain the old use or undesirable to allow the new one, or to avoid unnecessary arguments over what is "material".
The UCO also provides that certain (sui generis) uses do not fall within any use class. So, planning permission would be required for any material change to or from that use. To allow greater flexibility, the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO) grants planning permission for (among other things) changes between certain use classes, eg from A3 to AI use (shops). These provisions have remained largely unchanged since 1987. The government announced its intention to review the UCO in the Planning Green Paper of December 2001. One of the main issues arising out of the subsequent consultation paper concerned A3 use. In particular, planning authorities were worried about noise and other antisocial behaviour issuing from bars, and the effects of megabars and longer opening hours. Concern was expressed over the conversion of pubs into fast-food restaurants: since both uses fell within Class A3, no planning consent would have been needed. The paper also highlighted the difficulty of positioning internet cafes within the UCO. Changes Implementing the government's proposals, the 2005 Order introduces the most significant changes to the UCO in almost 20 years.
Under Class AI, use as a retail warehouse club (that is, a club in which goods are sold to members) is excluded from any use class and therefore becomes sui generis. An internet cafe, where the primary purpose is to provide facilities for public access to the internet, is included within Class A1. It will no longer be possible to change from the use for the sale, or display for sale, of motor vehicles to A1.
Class A3, formerly use for the sale of food or drink for consumption on the premises or as a hot food takeaway, is now split into three elements:
Class A3: Restaurants and cafes Use for the sale of food and drink for consumption on the premises.
Class A4: Drinking establishments Use as a public house, wine bar or other drinking establishment.
Class A5: Hot food takeaways Use for the sale of hot food for consumption off the premises.
Use as a night-club is excluded from any use class and becomes sui generis. The Town and Country Planning (General Permitted Development)(Amendment) (England) Order 2005 makes consequential amendments to the GPDO following the rearrangement of Class A3.
At present, the GPDO permits changes from A3 to A1 and A2 (professional and financial services). The new order will allow a change from the new A3, A4 or A5 to either A1 or A2, and from the new A4 or A5 to the new A3.
In principle, therefore, changes from restaurants and cafes to drinking establishments, and any change to or from a night-club, will require planning permission. Anyone wishing to take advantage of these existing A3 or GPDO rights will have to implement the change of use before 21 April or lose the right to make the change without planning permission. Circular 312005 advises that where an unimplemented planning permission for an A3 use is extant, this should also be interpreted (unless otherwise indicated) on the basis of the use class at the time of the permission. Thus, if the permission were received prior to 21 April, it would allow a new A3, A4 or A5 use. This will apply only to the first use of unimplemented permissions, since once implemented the permission is spent. . Potential problems A number of pitfalls need to be avoided. For example, the operation of the UCO and GPDO can be excluded by conditions in a planning permission (although the circular states that such conditions should be imposed only in exceptional circumstances). Also, planning permission might be required for associated building works; this might be refused if the planning authority do not approve the new use. This is one reason why the ability to change from a car showroom to an AI use was often more theoretical than practical. The new circular also confirms that: Main changes to use classes . Class A3 is divided into three elements: A3 restaurants and cafes; A4 - drinking establishments; A5 - hot food takeaways . Retail warehouse clubs and night-clubs are excluded from any use class.
Planning permission is required to change between a drinking establishment and a hot food takeaway . Planning permission is also required to change from a car showroom to Al use the initial use must be in existence in order to take advantage of the UCO, and that an un implemented permission will not suffice. A use does not have to fall within a use class; one that falls partly in one use class and partly in another is sui generis. In the consultation paper, the food and drink classes were qualified by being uses that "primarily" involve one use or another. That qualification has been dropped from the new A3 and A5, in contrast to the definition of internet cafes in A1. The omission could be significant where the use is mixed. Circular 212005 places reliance upon the fact that ancillary uses can be ignored: although serving drinks might be ancillary to a restaurant, it is unlikely that serving anything more than light snacks would be ancillary to a wine bar. The potential problem of mixed use premises (for example, part wine bar, part restaurant) not falling within any use class might have been avoided if reference had been made to the predominant or primary use. Potentially, a use could fall entirely within each of the new A3 and A4 classes if they overlap. Restaurants and wine bars are readily distinguishable. Although the difference between a restaurant and a pub or a wine bar will often be clear, is a gastropub still a pub and not a restaurant, and are coffee houses cafes or drinking establishments? Moreover, might there be a witching hour when wine bars are transformed into night-clubs? The courts have used the headings to the various use classes to aid interpretation. This will help, but difficulties are bound to arise.
It is important to remember that many of the changes under the GPDO are one way only. A change from A3 to AI is permitted, but not a reversion to A3. That could pose difficulties for premises that change to a restaurant from a wine bar or night-club, even temporarily. Although it is possible to have dual and recurrent uses on the same premises, it is unclear whether these could fall within separate use classes unless the two uses are physically and functionally distinct. Operators of premises where the use falls within A4 and A5 should exercise great care in changing the use, since any change that is more than trifling could affect the right to revert to the premises' normal use. Use classes in leases '{ Leases will often define the permitted use by reference to a use class. Generally, the drafting will ensure that the use class is frozen as at the date of the lease, so that the landlord does not lose control over changes if a use class is widened. Occasionally, the drafting requires all statutory references in the lease to be updated as they change from time to time. It can then sometimes be difficult to work out what is the equivalent provision in the latest legislation. The sale of food and drink faces the greatest changes. Take, say, a lease granted in 2000 with any use within A3. The lease preserves the meaning that A3 had in 2000. The tenant will be able to choose between the new A3, A4 and A5 without having to obtain landlord's consent, since all came within the old A3. However, some of the changes between the new use classes require planning permission (for example, a change from a cafe in the new A3 to a hot food takeaway in the new A5), and leases usually require a tenant to obtain the landlord's consent to any such application. Thus, the change in the UCO has not altered the scope of the permitted use under the lease, but it may have given the landlord a new degree of control over changes to it. At rent review, a lease with a permitted use of the old A3 might be more valuable than a modern lease, which is likely to have a narrower permitted use, defined by reference to one of the new classes A3, A4 or A5. Faced with this argument, the tenant should look at the lease provisions on obtaining planning permission: has the landlord acquired a new control that might depress the rent? Guidance Some help with problems of definition or interpretation comes from government guidance in Circular 0312005. However, the legal interpretation of both the UCO and the GPDO is a matter for the courts. The government's stated aim was to allow the maximum possible deregulation consistent with delivering planning policy objectives. That laudable goal seems to have been lost along the way. The outcry caused by the proposal to extend licensing hours may have had more than a little to do with this.
Town & Country Planning (Use Classes) Order [1972]
Town & Country Planning (Use Classes) Order [1987]
Town and Country Planning (General Permitted Development Order) 1995 (as amended)
Town and Country Planning (Use Classes)(Amendment) (England) Order 2005.
At present, the Use Classes are:
A1 Shops - Shops, retail warehouses, hairdressers, undertakers, travel and ticket agencies, post offices, pet shops, sandwich bars, showrooms, domestic hire shops, dry cleaners and funeral directors.
A2 Financial and professional services - Banks, building societies, estate and employment agencies, professional and financial services and betting offices. (Also bureau de change)
A3 Restaurants and cafés - For the sale of food and drink for consumption on the premises - restaurants, snack bars and cafes.
A4 Drinking establishments - Public houses, wine bars or other drinking establishments (but not a night clubs).
A5 Hot food takeaways - For the sale of hot food for consumption off the premises.
B1 - Business - Offices, research and development, light industry appropriate in a residential area.
B2 - General industrial
B3-B7 - Special Industrial Groups - See 'Use Classes Schedule'.
B8 - Storage or distribution - This class includes open air storage.
C1 - Hotels - Hotels, boarding and guest houses where no significant element of care is provided.
C2 - Residential institutions - Residential care homes, hospitals, nursing homes, boarding schools, residential colleges and training centres.
C2A - Secure Residential Institution - Use for a provision of secure residential accommodation, including use as a prison, young offenders institution, detention centre, secure training centre, custody centre, short term holding centre, secure hospital, secure local authority accommodation or use as a military barracks.
C3 Dwelling-houses - Family houses, or houses occupied by up to six residents living together as a single household, including a household where care is provided for residents.
6 April 2010 - A new class C4 (houses in multiple occupation) was created.
Town and Country Planning (Use Classes) (Amendment) (England) Order 2010 (SI 2010/653) Class C4 (houses in multiple occupation) is for use of a dwellinghouse by not more than six residents as a "house in multiple occupation". This effectively means that for planning purposes a dwellinghouse will be an HMO if it is occupied by between three and six unrelated occupants as their main residence, if they share basic amenities.
The following uses are excluded from Class C4 of the UCO 1987: social housing; care homes; children's homes; bail hostels; properties occupied by students which are managed by the educational establishment; properties occupied by religious communities; and properties occupied by the owner and up to two lodgers. Neither of these changes has retrospective effect. Where more than six unrelated people share a dwellinghouse, the use is still classified as sui generis. Sui generis uses cannot be changed to any other use without obtaining express planning permission from the local planning authority (LPA).
D1 - Non-residential institutions - Clinics, health centres, crèches, day nurseries, day centres, schools, art galleries, museums, libraries, halls, places of worship, church halls, law court. Non residential education and training centres.
D2 - Assembly and leisure - Cinemas, music and concert halls, bingo and dance halls (but not night clubs), swimming baths, skating rinks, gymnasiums or sports arenas (except for motor sports, or where firearms are used).
Sui Generis - Theatres, houses in multiple paying occupation, hostels providing no significant element of care, scrap yards. Petrol filling stations and shops selling and/or displaying motor vehicles. Retail warehouse clubs, nightclubs, launderettes, taxi businesses, amusement centres. Casinos.
-------------
Concern over antisocial behaviour by patrons of bars and nightclubs has led to changes to English planning law. These will come into effect on 21 April 2005 under the Town and Country Planning (Use Classes)(Amendment) (England) Order 2005. The old A3 (food and drink) use class will be divided into three separate classes: restaurants and cafes; drinking establishments; and hot food takeaways.
Under the Town and Country Planning (Use Classes)(Amendment) (England) Order 2005, tThe old A3 (food and drink) use class is divided into three separate classes: restaurants and cafes; drinking establishments; and hot food takeaways. Planning permission will be required for restaurants and cafes to change to use as a bar, pub or hot food takeaway.
Planning permission is normally required for a material change of use. However, to prevent the system from being choked with unnecessary applications, the Town and Country Planning (Use Classes) Order 1987 (the UCO) provides that where a building or land is being used for a purpose within any class specified in the UCO, use for any other purpose within the same class is allowed automatically. The aim is to retain control over changes of use where this is warranted because of potential adverse effects; for example, where it is desirable to retain the old use or undesirable to allow the new one, or to avoid unnecessary arguments over what is "material".
The UCO also provides that certain (sui generis) uses do not fall within any use class. So, planning permission would be required for any material change to or from that use. To allow greater flexibility, the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO) grants planning permission for (among other things) changes between certain use classes, eg from A3 to AI use (shops). These provisions have remained largely unchanged since 1987. The government announced its intention to review the UCO in the Planning Green Paper of December 2001. One of the main issues arising out of the subsequent consultation paper concerned A3 use. In particular, planning authorities were worried about noise and other antisocial behaviour issuing from bars, and the effects of megabars and longer opening hours. Concern was expressed over the conversion of pubs into fast-food restaurants: since both uses fell within Class A3, no planning consent would have been needed. The paper also highlighted the difficulty of positioning internet cafes within the UCO. Changes Implementing the government's proposals, the 2005 Order introduces the most significant changes to the UCO in almost 20 years.
Under Class AI, use as a retail warehouse club (that is, a club in which goods are sold to members) is excluded from any use class and therefore becomes sui generis. An internet cafe, where the primary purpose is to provide facilities for public access to the internet, is included within Class A1. It will no longer be possible to change from the use for the sale, or display for sale, of motor vehicles to A1.
Class A3, formerly use for the sale of food or drink for consumption on the premises or as a hot food takeaway, is now split into three elements:
Class A3: Restaurants and cafes Use for the sale of food and drink for consumption on the premises.
Class A4: Drinking establishments Use as a public house, wine bar or other drinking establishment.
Class A5: Hot food takeaways Use for the sale of hot food for consumption off the premises.
Use as a night-club is excluded from any use class and becomes sui generis. The Town and Country Planning (General Permitted Development)(Amendment) (England) Order 2005 makes consequential amendments to the GPDO following the rearrangement of Class A3.
At present, the GPDO permits changes from A3 to A1 and A2 (professional and financial services). The new order will allow a change from the new A3, A4 or A5 to either A1 or A2, and from the new A4 or A5 to the new A3.
In principle, therefore, changes from restaurants and cafes to drinking establishments, and any change to or from a night-club, will require planning permission. Anyone wishing to take advantage of these existing A3 or GPDO rights will have to implement the change of use before 21 April or lose the right to make the change without planning permission. Circular 312005 advises that where an unimplemented planning permission for an A3 use is extant, this should also be interpreted (unless otherwise indicated) on the basis of the use class at the time of the permission. Thus, if the permission were received prior to 21 April, it would allow a new A3, A4 or A5 use. This will apply only to the first use of unimplemented permissions, since once implemented the permission is spent. . Potential problems A number of pitfalls need to be avoided. For example, the operation of the UCO and GPDO can be excluded by conditions in a planning permission (although the circular states that such conditions should be imposed only in exceptional circumstances). Also, planning permission might be required for associated building works; this might be refused if the planning authority do not approve the new use. This is one reason why the ability to change from a car showroom to an AI use was often more theoretical than practical. The new circular also confirms that: Main changes to use classes . Class A3 is divided into three elements: A3 restaurants and cafes; A4 - drinking establishments; A5 - hot food takeaways . Retail warehouse clubs and night-clubs are excluded from any use class.
Planning permission is required to change between a drinking establishment and a hot food takeaway . Planning permission is also required to change from a car showroom to Al use the initial use must be in existence in order to take advantage of the UCO, and that an un implemented permission will not suffice. A use does not have to fall within a use class; one that falls partly in one use class and partly in another is sui generis. In the consultation paper, the food and drink classes were qualified by being uses that "primarily" involve one use or another. That qualification has been dropped from the new A3 and A5, in contrast to the definition of internet cafes in A1. The omission could be significant where the use is mixed. Circular 212005 places reliance upon the fact that ancillary uses can be ignored: although serving drinks might be ancillary to a restaurant, it is unlikely that serving anything more than light snacks would be ancillary to a wine bar. The potential problem of mixed use premises (for example, part wine bar, part restaurant) not falling within any use class might have been avoided if reference had been made to the predominant or primary use. Potentially, a use could fall entirely within each of the new A3 and A4 classes if they overlap. Restaurants and wine bars are readily distinguishable. Although the difference between a restaurant and a pub or a wine bar will often be clear, is a gastropub still a pub and not a restaurant, and are coffee houses cafes or drinking establishments? Moreover, might there be a witching hour when wine bars are transformed into night-clubs? The courts have used the headings to the various use classes to aid interpretation. This will help, but difficulties are bound to arise.
It is important to remember that many of the changes under the GPDO are one way only. A change from A3 to AI is permitted, but not a reversion to A3. That could pose difficulties for premises that change to a restaurant from a wine bar or night-club, even temporarily. Although it is possible to have dual and recurrent uses on the same premises, it is unclear whether these could fall within separate use classes unless the two uses are physically and functionally distinct. Operators of premises where the use falls within A4 and A5 should exercise great care in changing the use, since any change that is more than trifling could affect the right to revert to the premises' normal use. Use classes in leases '{ Leases will often define the permitted use by reference to a use class. Generally, the drafting will ensure that the use class is frozen as at the date of the lease, so that the landlord does not lose control over changes if a use class is widened. Occasionally, the drafting requires all statutory references in the lease to be updated as they change from time to time. It can then sometimes be difficult to work out what is the equivalent provision in the latest legislation. The sale of food and drink faces the greatest changes. Take, say, a lease granted in 2000 with any use within A3. The lease preserves the meaning that A3 had in 2000. The tenant will be able to choose between the new A3, A4 and A5 without having to obtain landlord's consent, since all came within the old A3. However, some of the changes between the new use classes require planning permission (for example, a change from a cafe in the new A3 to a hot food takeaway in the new A5), and leases usually require a tenant to obtain the landlord's consent to any such application. Thus, the change in the UCO has not altered the scope of the permitted use under the lease, but it may have given the landlord a new degree of control over changes to it. At rent review, a lease with a permitted use of the old A3 might be more valuable than a modern lease, which is likely to have a narrower permitted use, defined by reference to one of the new classes A3, A4 or A5. Faced with this argument, the tenant should look at the lease provisions on obtaining planning permission: has the landlord acquired a new control that might depress the rent? Guidance Some help with problems of definition or interpretation comes from government guidance in Circular 0312005. However, the legal interpretation of both the UCO and the GPDO is a matter for the courts. The government's stated aim was to allow the maximum possible deregulation consistent with delivering planning policy objectives. That laudable goal seems to have been lost along the way. The outcry caused by the proposal to extend licensing hours may have had more than a little to do with this.