Use Classes Order 1987 Q & A DCP Section 4.33

Q & A    4.33/10

I have a client who has purchased an old automatic telephone exchange building but has no clear new use in mind. Are there any use rights which may be used?

There would seem to be little doubt that a telephone exchange would be deemed to be sui generis i.e. it would not readily fall within any of the defined use classes in the 1987 Order. However, there would seem to be no authority to be cited on the subject. The main practical problem in converting such buildings is that they often have very limited curtilages creating problems in securing adequate access and parking. Also in many cases re-use is likely to create amenity problems for close neighbours.

My client operates a shop and recently partitioned off a small area (15% of the floor area) from which to sell hot and cold sandwiches. The separate area was required to conform with environmental health requirements. The local authority have served an enforcement notice, but does not the use fall as ancillary to the dominant retail use?

From what you say I would have thought that there would be no material change of use involved here as the primary character of the unit would remain as a retail use, especially taking into account that the sale of cold food for consumption off the premises is explicitly included in the shops Use Class. Of course the partitioning should not be such as to have created a separate planning unit, and the turnover derived from the sale of hot food should not be a significant amount of the whole.

Is there any clear legal basis for distinguishing between "residential colleges" (C2) and "non-residential educational and training institutes" (D1)? Can a residential college still offer courses to non-residential students, or would this count as a mixed use?

The Use Classes Order is not a legal basis for assuming that a change from a use falling within one class to a use contained within another, is necessarily a material one requiring planning permission.  In the instance you cite, I would have thought it unlikely that the introduction of a few non-residential courses would change the character of the existing use to the extent that a material change of use would result. However, manifestations such as increased traffic generation may be a factor in making any determination.

A small local shopping centre of about 30 units built in the 1970s has contained an unauthorised amusement arcade for the past three years.  It is now proposed to change the use of the arcade to an off licence, an A1 use.  Is planning permission required?

If the planning permission for the shopping centre indicated that the units in the centre were to be used for retailing then this permission prevails and reversion to retail may take place without a new application being necessary.

I intend to use a former electricity sub-station as a store for domestic goods and paraphernalia. The site is not within the curtilage of my house. The local authority are prepared to give me a B8 permission subject to personal use and no business to be carried on,  but this may be disadvantageous from the council tax point of view. Can a permission be given for a use, say within Class C3, which might attract a more favourable valuation?

A planning permission may be granted in any terms and need not cite any use class. Class C3 would not apply at all to your situation as its only purpose in law is to provide a freedom for a dwellinghouse to be used for limited institutional purposes. I would think that your local authority would be quite happy to grant a permission for domestic storage with the conditions that you mention, which might do more to satisfy the valuation authorities that a business rating was not appropriate.

We have applied to use a hotel as two small care homes with six residents. These would be achieved by horizontal sub-division. The development was registered as a change of use from C1 to C3. The local authority is now concerned that the proposed use would not be C3 as what would be produced is two flats. What is the correct approach?

Circular 13/87 at para.29 specifically states that for the purposes of the UCO interpretation of the term dwellinghouse is not limited so as to exclude flats. Flats are, however, excluded by the Scottish Order. Therefore, there is nothing in England and Wales to prevent a lawful "C3 care home" falling within Class C3(b) changing to a "flat" within the terms of Class C3(a). Of course, if the local authority does not want reversion to conventional flats it may apply an appropriate condition.

Is a call centre a B1 use or is it sui generis?

In a South Holland case an inspector was also unsure as to the correct classification. I would favour B1 as being the correct home for the use as a place where telephone calls are made or processed by office staff, although a place where members of the public may go to make calls could be A2.

A planning application is to be submitted to extend an existing launderette. Part of this extension will be used to provide an area where dry cleaning and washing machines are located, and which will be only accessible by staff and not the public. The operator of the launderette is advertising a collection and delivery service. Is there any established definition of the difference between a launderette and a laundry?

From your question I imagine that the problem is related to Use Classes Order classification. A 1991 amendment to the Use Classes Order brought the reception, washing and cleaning of clothes on the premises into the Shops class, although use as a "launderette" is still included in the sui generis list at Article 3(6). Such a distinction may be regarded by some as perverse since a use where members of the public bring their washing, and this is carried out by staff on the premises, is an A1 use. However, a place where members of the public bring their washing to do it themselves, is not a shop. Be that as it may, in the particular mix of activities in the case referred to by the questioner there would appear to be elements of a) a sui generis launderette use, b) an A1 cleaners, and c) a B1 or B2 laundry use (in the case of a the collection/delivery service).  Where none of these is dominant the whole planning unit could be considered as in sui generis use.

Are you aware of any operating definitions relating to plumbing merchants/centres where they are not considered to be A1 or sui generis ?

Such an enterprise, were it primarily a wholesale warehouse, but containing showcase kitchens/bathrooms to demonstrate various plumbing products to "the trade", could be classified as B8. However, the reality is that,  in the majority of cases, such centres are places where the use is mainly one of "sale, display or service...to members of the public". This would bring such a use squarely within Class A1. There are cases concerned with builder's merchants uses in general, where inspectors have come down in favour of such a use being sui generis, as there was no clear distinction between the retail and wholesale aspects. Clearly such a situation could apply equally to a plumbing centre type of use.

My authority is faced with an application for a LDC for use of a property as a C3 dwellinghouse. Planning permission was granted in 1986 for the use of this building as a C1 guest house with 5 let bedrooms with the owner occupying the sixth. The property changed hands in 1997 and an enforcement notice alleging change of use to a dwelling was upheld in 1999. At this time the inspector noted that the use was as seasonal self catering accommodation with shared facilities in the form of multiple occupation. Is there any level at which a house may be used for guest accommodation and still retain a primary dwellinghouse use?

For a Certificate to be granted it needs to be established that any use as a single dwellinghouse had been established for four years. Needless to say, the 1999 appeal decision does not help the applicant. However, if this matter went to appeal again, a new inspector would have to review all the evidence as to previous usage as then available. It may be argued that the use had been as a single unit let to groups of holidaymakers living together as a single household, and in this case the use would fall within Class C3. The only other mode of occupation argument available to the applicant would seem to be that there was a primary use as a private residence with ancillary bed and breakfast type letting of some bedrooms, but cases would suggest that there would be a material change of use if more than about 25% of available bedrooms were so used.

An urban local authority has allowed a model aircraft club to fly from and above a sports field between 0900 hours and sunset. Complaints have been received about noise which is disturbing the ability of the public to enjoy a large area of marshland SSSI. Does a model aircraft count as a motorised vehicle and should planning permission have been obtained?

A sports-field falls within the Assembly and Leisure Use Class D2, but this does not include uses involving motorised vehicles. I can find no definitive ruling on the subject, but it seems to be accepted practice that conventional aircraft are not "vehicles" for the purposes of Class D2, and therefore model aircraft are even less likely to be so classified. It appears that this use does not need planning permission.

My client has a lawful use certificate for maggot breeding. He now wishes to use the buildings for meat rendering. Am I right in assuming that Use Class B2 General Industry covers both uses?

In the past some argued that maggot breeding was an agricultural use, but the weight of opinion put it within Special Industrial Use Class B7 along with such offensive trades as meat rendering. This Class was abolished in 1995. As a consequence, as stated in the Amendment Order at the time, such uses as were B7 now fall within B2. Therefore it is likely that planning permission would not be required for the change you pose, unless the proposition is now accepted than one is dealing with a material change of use from agriculture to general industry.

Does a High Street photo processing shop fall within Use Class A1 Shops?

The answer is that although there is no definitive ruling or precedent it is normally accepted that such a use does not constitute a material change from a former shop. Although the activity relies to a large extent on a light industrial process, the argument is the primary character of the use remains that of  the retail sale of goods. Therefore, although a photo processing shop does not specifically fall within Class A1, for most practical purposes it may be so regarded. In fact the use falls far more comfortably into Class A2(c) "any other services which it is appropriate to provide in a shopping centre".

A school proposes to become a "specialist college in the performing arts" and to convert its sports hall into a large performance area with a 1,000 seating capacity. Would this constitute a material change of use?

The existing and proposed use would both seem to fall within Use Class D1, which includes educational activities, and therefore planning permission would not be required.

I have a building with a B1 light industrial use right and plan to use it to put in a renewable 'genset'. This is an electricity generator running on vegetable oil and sometimes tallow. The building is to be completely soundproofed and there would be no dust, fumes, ash grit, smoke, vibration or smell. I have been warned by the council that if I carry out this development there would be a material change of use from B1 to B2.

In order for a use to continue to be considered as falling within the B1 Class it would have to be capable of being carried out in a hypothetical residential area without the harmful effects that you say the generator does not possess. On this count, therefore, planning permission would not be required. It may be argued that the use of fat or tallow would have included this use within the former B7 use class, which was abolished and formally incorporated into B2 in 1995. However, it should be noted that B7 refers to uses involving the melting, refining or extracting of fat or tallow. In your case I would have thought that this process has already been undertaken and therefore would not have fallen within B7.

However, your particular use may not fall within the B1 or B2 classes at all because the generation of electricity does strictly comply with the definition of an industrial process specified in the Order.  If that is the case and your use was classified as sui generis, it would need to be argued that the operation of the proposed generator does not involve a material change from the existing use.

My authority has been asked whether permission is required to install an ATM within the retail shop of a filling station. The ATM is a compact version, free-standing and simply requires plugging into the electric supply. Is planning permission required?

The question is simply whether there has been a material change of use from a shop to a mixed use of a shop and the provision of financial services. I can find no case precedent but am convinced that the ATM would be considered ancillary to retailing. Therefore the primary retail use remains undisturbed.

A property has an established use as a hotel, and it has been accepted that a restaurant occupying a quarter of the ground floor area is ancillary. Recently the hotel owners have sent menus around the local area advertising a hot food takeaway service. Can enforcement action be taken?

It was established by Emma Hotels v Secretary of State for the Environment [1981] that facilities within a hotel, such as a bar or a restaurant, may be used by non-residents and remain ancillary to the primary use. However, a takeaway use would not have the same linkage in that it is not a facility normally found as part of a primary hotel use. For this reason I doubt that a take-way use could be considered ancillary to a hotel.

I have a situation where a shop unit within an enclosed shopping centre is to change from A1 to A2 use. Are the individual shops to be considered separate planning units or is the shopping centre itself a single unit?

This question was dealt with in a case concerning a proposal to erect a shopfront in the Metrocentre at Gateshead. At appeal it was considered that the whole of the Metrocentre was a building and that the shopfront was not development by virtue of being internal works. In an ensuing court case Church Commissioners v Secretary of State for the Environment [1995] the separate issue was addressed of whether an individual letting unit within the Metrocentre equated with the planning unit. It was held that this was the case and any question of whether a change of use had occurred should be considered accordingly. On this basis the change of use with which you are concerned would certainly require planning permission.

Would you consider that a nail and beauty salon comes within Use Class A1 or A2?

Such a use does not fall within the activities specified as falling within A1Shops, the closest being A1(e) which refers to hairdressing. As a nail or beauty salon is listed it cannot fall within A1, but fits comfortably into A2(c) "any other services …which it is appropriate to provide in a shopping centre…where the services are provided principally to visiting members of the public". It has been argued that health and medical services are excluded from A2, but even if beauty salons could be so classified, this restriction only relates to the professional services covered by A2(b).

I have a client who farms specialist stock and wishes to find a diversification niche market in "farm sales" of the frozen meat from these beasts. As there is no registered abattoir facility on the farm the animals must go off site for slaughter and preparation. Does the sale of this meat from the farm's own freezers qualify as farm sales which do not require planning permission?

In the past the answer to this question would have been that the sale of farm produce which had been adapted or processed was not ancillary to the agricultural holding on which it had been produced due to the intervention of an "industrial process". However, since the judgement in Millington v SSETR [1999] a more relaxed view has been taken. Note should be made of an appeal decision from Caerphilly last year (DCS No. 42354263) where, in a Lawful Development Certificate case an inspector stated that a farm shop selling meat was a perfectly normal activity for a farm engaged in beef, lamb or park rearing, and such an activity was lawful.

A neighbour of mine has recently converted the built in garage of his dwelling to a music room. The garage door has been removed and replaced by a brick wall including a large window. I am being troubled by the noise created by the playing of drums. It seems to me that this use goes beyond being ancillary to the use as a dwelling. Can you help?

A householder may convert an integral garage to any other form of domestic use, without a material change of use occurring. If the drum playing is unrelated to any form of business it is likely that it would be held to be a use "incidental to the enjoyment of the dwellinghouse" which the Town and Country Planning Act 1990 states does not involve development requiring planning permission. Planning permission would not normally be required for the changes to the garage door being permitted development by virtue of the General Permitted Development Order 1995. However, it is possible that control may be exercisable by your local authority if the house is relatively modern and a condition was applied to the original planning permission preventing use of the garage for any other purpose. Clearly you need to check this out.

An application for a Certificate of Lawful Use has been submitted in respect of a tyre depot on the basis that it is an A1 retail use. It is stated that the site has been continually used for the sale of tyres, exhaust systems and car batteries alongside the fitting of these products on the site. Is A1 classification correct or is the use sui generis?

This question has been the subject of dispute for many years and appeal decisions may be produced to aver that such a use is either A1, B1(c), B2 or sui generis! A variety of such cases are described at (20.1132). My own view is that a use of this type is sui generis being essentially composed of mixed retail and industrial activities. It is very disappointing that the host of interpretation problems  which have arisen with regard to the status of specialised uses, have not been dealt with in the current Review of the Use Classes Order for the DTLR (see Planning 21 September 2001 page 8). Planning appeal decision letters are an invaluable resource for pinpointing re-occurring problems of this sort, but are seldom investigated when legislative changes are discussed. GH

Planning permission was obtained to erect a garage/workshop type building in the front garden of a large house.  The ground floor consists of a  single parking bay with the workshop area doubling as a utility room containing a sink, fridge and washing machine Upstairs two rooms have been created which are used as a playroom and office, and a toilet has been installed. An enforcement notice has been issued by the local authority alleging use as a separate dwelling. Is it correct?

Assuming no planning conditions indicate to the contrary such a building may be used for any purpose incidental to the enjoyment of the dwellinghouse as such, as stated at section 55(3)(d) of the Town and Country Planning Act 1990. The advice given in Circular 10/97 at paragraph 2.81 is useful as the circumstances are set out whereby occupation may be regarded as a "single dwellinghouse" against which enforcement action may be taken. In summary, the Circular indicates that the normal facilities for cooking, eating and sleeping would have to be present and there would need to be evidence that the premises were in fact being used as a self contained dwelling comprising a separate planning unit.

Using this advice it is clear that the accommodation you describe would need to have some form of cooking facilities, and even so it would be problematic for a local authority to successfully allege a material change of use to a separate living unit unless that mode of occupation had actually taken place.

I was intrigued by the appeal case report (Planning 11 January 2002 p21) where a helicopter landing pad at a pub had been refused permission. Aviation colleagues have previously told me that a helicopter may, with the land owners consent and subject to CAA rules, land anywhere the pilot chooses in much the same way that a driver may park a car. If a landowner makes it known that he welcomes visitors who may arrive by helicopter, surely planning permission is not required?

Even if planning permission were required by virtue of the fact that engineering operations were proposed in the form of a pad, was the inspector entitled to add noise and potential danger to his reasons for refusal, particularly in view of the fall back position available to the pub to dispense with a purpose built hard surface?

As you say, the landing, parking and taking off of a helicopter may well be ancillary to a primary use of land, in the same way as the use of land for car parking. In this case the extent of the pub planning unit was not discussed in the decision letter, but the land was described as "pasture land" and a path was needed to gain access to the pub. From this I assume that the parties to the case were happy that the appeal site was not part of the planning unit and therefore a material change of use of agricultural land was involved.

Taking the hypothesis there was sufficient land within the curtilage of the pub to land a helicopter and that planning control could only be achieved by reason of the engineering operations involved, there is no reason why the inspector should not consider all the environmental implications that would stem from the use of the pad for the purpose for which it was designed. However, as you point out, in considering refusal any inspector would need to take account of the reasonable likelihood that the pub operator would go ahead and allow the landing of helicopters anyway, say in the existing car park or beer garden. If this was the case it may be reasoned that it would be better to allow the appeal proposal given the conditional mitigation that could be applied, rather than precipitate an environmentally damaging use which could not be controlled under planning legislation.

A farmer in our local authority area is parcelling out two of his fields as allotments. He claims he does not need planning permission as both uses are "agriculture". However, my authority is very concerned that as a result an attractive area of countryside will be harmed by a proliferation of tool sheds and associated clutter.  Do we have any control?

There is little doubt that this farmer's assertions are correct if the judgment in Crowborough Parish Council v Secretary of State for the Environment and Wealden District Council [1980] is followed.  Here the definition of agriculture in primary planning legislation was examined. It was ruled that both the local authority and the Secretary of State had been wrong to assert that the use of the land for allotments was a material change of use due to the greater intensity of use that would be involved together with the changes that would occur to the appearance of the land and the increased number of people visiting the site. The court held that what was being carried out on the land was horticulture, fruit growing and so on, which were included in the statutory definition of agriculture. Accordingly the wrong test had been applied.  Despite this judgement an inspector in a 1993 appeal case from Sheffield stated that "I agree that allotments do not fall within the statutory definition of agriculture". While this inspector did not reason his conclusion, he held that proposed allotments would be  an encroachment into green belt countryside which would be suburban in nature. It is difficult to reconcile these two positions, but clearly a court judgement is to be preferred and I cannot see how the Crowborough judgement is to be faulted. But the decision of the Sheffield inspector does articulate a real fear of the visual harm that may be caused to rural character by allotments, very much in line with your council's concerns. In the circumstances the only advice I can offer is to accept that there is no control over the change of use from agriculture to allotments but to consider how the spread of operational development such as sporadic sheds, can be prevented. Certainly none of the allotments individually would be large enough to qualify as an agricultural unit having permitted development rights available under Part 6 of the General Permitted Development Order 1995.

I am interested to establish the Use Class status of a hand car wash service, not being ancillary to another use such as a filling station. I assume that it would be sui generis but is this the case?

This use would seem to be akin to car valeting but limited in scope to external washing. The thrust of appeal decisions on the subject is that a valeting use should be classified as light industry provided that no noisy machinery or tools are employed which would bring the use within the B2 general industrial class.  This condition is unlikely to be so in the case you describe and I would favour classification as B1(c) given that the definition of "industry" in the Use Classes Order includes "cleaning". Only if the use does not fit comfortably within that class could it be considered sui generis.

A developer has moved the boundary of an existing waste management facility onto adjacent agricultural land, increasing the overall area of the site. The hard surfaced area of the site has been extended into this area, although no waste transfer operations are taking place on the extension itself. Does this constitute an extension of the planning unit and accordingly a material change of use?

I imagine that you are contemplating whether to take enforcement action now, or wait until the transfer operation commences. I cannot imagine there would be a problem in showing that what had taken place already was development requiring planning permission. But there is a case for waiting in that the requirements of any notice could then refer to the cessation of the waste operations themselves. This would then give your authority more complete control should there be a further breach.

I am advising the landlord of bank premises as to alternative uses which may be available to him. I am aware of the provision in the GPDO at Part 3 Class D which allows for a shop use of A2 premises "with a display window at ground floor level". In the current case there is a row of tall windows on the street frontage, but all are above head height and give light to a high ceilinged banking hall. The bank do display posters in these windows, but I doubt whether they could be of use to most mainstream retailers. Has there ever been any definition of "ground floor display window" that assists in this matter?

This question rarely arises, but a Lawful Development Certificate appeal decision from Preston illustrated in Planning 2 February 2001 p21 is of interest. Here an inspector reasoned that the windows at the premises concerned were not provided for display purposes, their prime purpose being to enable light to enter the building. From this assessment I am pessimistic that the windows in your case would be held to be display windows.

My client is a government body which provides an appeal service. It proposes to move to a building which has a B1 office permission. Although the majority of the work carried out on the premises is an administrative office use, the council has stated that the use is sui generis and therefore permission for a change of use is required. However, the landlord does not want to forfeit the B1 office use and so we consider that a flexible use should be sought. The council has stated that we could apply for a dual use (part 3 class E of the GPDO) but after 10 years the lawful use would be that in operation. Can we not apply for a flexible use where either B1 or a sui generis use can operate at any time in perpetuity?

The first issue here is whether this local authority’s assertion that your client’s proposed use is sui generis, is well founded. Looking at the review of relevant cases at 4.3341 it seems that governmental premises are likely to fall outside class B1(a) only when they contain specialised accommodation, such as committee rooms or chambers where the decision making functions of government are carried out rather than its day to day administrative processes. I do not know the precise nature of your clients use, but this point is well worth query before jumping through the hoop of flexible planning permission procedures. This aside, another legal aspect of this situation worth exploring is whether the existing B1 permission would in fact be lost were approval given and taken up for government offices. It would appear from the complex case law on this subject that a lot may depend on whether the original B1 use has been implemented. If not it seems possible that this permission may be acted upon at a future date.

Response

A simple solution might be to seek a temporary permission to coincide with the length of the lease. Under the provisions of section 57(2) of the Town and Country Planning Act 1990 there would be an automatic right to revert to the B1 use.

There is some confusion in my office as to which category of the Use Classes Order a tanning studio falls into. One view is that it would be an A1 use, while the opposing view is that it is a professional service and therefore an A2 use. Tanning studios are becoming much more commonplace and any views would be appreciated.

When this matter has arisen at appeal the view of the inspectorate has been that a tanning shop or studio is sui generis. Details of cases are to be found at 17.2111.  My own view is that A2 is the most appropriate class, although "health or medical services" are specifically excluded from the definition of professional services. Nevertheless, I do not think that a tanning use could reasonably be described as a health service. In any case the class also includes "any other services......which it is appropriate to provide in a shopping centre", and to my mind a tanning studio falls squarely within that description.

Planning permission was granted in the 1980s for a saw mill and timber manufacturing operation. New owners wish to obtain a view as to the authorized use of the land and buildings. My authority take the view that it is probably B2 provided the manufacturing operations were ancillary to the sawmill use. Do you agree?

The Use Classes Order definition of an industrial process covers activities such as sawmills and the manufacture of timber products. A sawmill is almost certain to fall within the general industrial class B2 rather than B1 light industry, although, looked at in isolation, the manufacture of timber products could fall within either category. In this case I think that it is the planning unit that has to be looked at, and if sawing and manufacture are carried out as an integrated process within one operational site this could well convey a right to use the whole for a fresh incoming B2 use.

My client runs a small guesthouse and wishes to be less committed. She has asked me to apply for permission to convert three en-suite double bedrooms into two suites containing bed-sitting rooms, bath/WCs and a small kitchen area. The intention is to stop providing evening meals and breakfasts. The guests would still have use of a communal lounge, their beds would be made and food could be provided for them to make their own breakfasts.

I feel that as communal services would still be available and the suites would be entered into from the house there is no material change of use, but a council is insisting that planning permission is required for self-catering flats. Do you consider that my client is providing enough of a service to maintain her guesthouse use, and if not what additional services should be provided?

There is little doubt that there would be a material change of this property were this clearly from a Class C1 type guest house to Class C3 type dwellinghouses, whether used for holiday purposes or not.  As you describe it the units created would be capable of independent residential use and the fact that there would be some "service" element would not necessarily detract from that status. My feeling is that your client’s case would be strengthened if, say, breakfast was provided but it is very difficult to be at all conclusive as the details of each case have to be determined on a matter of fact and degree basis.

The legal department of my authority has advised the owner of a garden centre in a rural area, that a public house licence is required to permit the sale of wine at the café associated with the centre. Would the granting of such a licence automatically require the associated submission of a planning application for change of use to a pub, or would it be treated as an ancillary use?

In itself the licensing situation would not play a part in this assessment and the answer revolves around the planning position. If the planning unit continues to comprise a primary use as a garden centre embracing an associated café/bar for customers, then the nature of the refreshments served would be of no consequence. Only if the café became a popular destination in its own right is it likely that the question of a material change of use could be raised. Then it could be asserted that planning permission would be required for a change from a garden centre to a mixed use comprising a garden centre and a café/bar.

I am trying to establish the Use Class status of a bureau-de-change. My argument is that it would fall within Class A1 as a retail use, because essentially what is taking place is the sale of foreign currency. What is your view?

I am afraid that there is a court judgment which does not assist your position. In Palisade Investments Ltd v SOS and Kensington and Chelsea LB [1994] it was conclusively held that a bureau-de-change fell within Class A2 (Financial and Professional Services). However, as is often the case, if the bureau-de-change was an ancillary service within a travel agency it would form part of an A1 use.

Many companies run care homes of six disabled residents living together as a single household in C3 dwelling houses. Carers having homes elsewhere, are employed to provide care 24 hours a day. They usually work shift patterns and during the night where there are six disabled residents, there are often two staff in the premises; one awake and the other "sleeping over" to be woken if necessary.

A local planning authority has given us their opinion that a carer should be counted as a C3 "resident" when staying overnight on a shift basis to give 24 hour cover. However, it is our view that this is incorrect and we know of numerous care homes where six disabled residents and 24 hour carers on the premises operate in C3 residential dwelling houses.

I would be grateful for your opinion this matter.

There have been a number of cases to discuss this point. From an overview of these it is clear that a decision as to whether a carer may be defined as "resident" or not, is a matter of fact and degree. My view is that in the circumstances you describe a care worker should not be included in the head count if ordinarily resident elsewhere. Overlaid on this is that the fact that even if it is considered that there is a small excess over the six person head count, this may well not be deemed to be a material change of use from a C3(a) dwellinghouse to the type of use  contained in class C2. This was underlined by the Court of Appeal decision in SOS v Waltham Forest LB.15/3/2002, and several other appeal cases.

Needless to say, this kind of imprecision in planning law is not very satisfactory and the confusion it has brought in train was obviously not foreseen in the drafting of the freedoms embodied in the C3 use class. It is not unreasonable for care providers who may be investing a considerable amount of money to have a reasonable degree of certainty that their detailed mode of operation does not conflict with planning law.

A client is considering buying an estate agent’s premises, continuing with that operation but using part of the ground floor as an internet café  This would contain eight computers where customers would be provided with refreshments. I consider than an internet café is a class A2(c) use but I cannot find any case to support this. Am I correct?

An internet café was held to be a sui generis use in a Westminster appeal case from 2000, but in the previous year in neighbouring Kensington an internet bureau was considered to fall within class A2.  In the Westminster case the inspector noted the "hybrid" nature of the internet café use, and this prompted his sui generis ruling. Therefore it is the café element in your client’s proposal that may be the main impediment to freedom from the need to apply for planning permission. However, in all such cases the ultimate test is whether there has been a material change of use from the existing to the proposed activity, and this has to be assessed on the individual circumstances of the case. Clearly your client’s case would be a lot stronger if it could be established that the serving of refreshments is merely an ancillary aspect of a primary use as an internet centre.

My authority is faced with a 100,000 sq.ft speculative industrial application. The applicants state that although there is no end user, the application is for class  B1 (single occupant) use only. Should the application be determined on the basis that any future use should fall within B1. Or should the principle operate that, by its very nature the development could not be B1 because of its large scale? In other words this individual development could not operate within a residential area without causing nuisance to residents.

This was an issue which initially arose shortly after the introduction of the B1 class in 1987. In 1989 a series of appeal decisions were made in relation to cases in west London and Surrey where various local authorities had sought to challenge the scope of the new class. In one example, it was argued that the sheer size of a proposed B1 development was incompatible with it being within the class, The SOS retorted that although the level of noise and traffic generated by such as development could take it outside B1, there was no justification for imposing any maximum floor space limit. He felt that there was no basis to rule that developments over a certain size and were not capable of being put to B1 use and observed that should the use go outside the criteria laid down for the class, enforcement powers were available.

This seems to me to be a sensible approach and I advise that your application should be accepted on its face value. There may possibly be a justification for limiting the use to a particular element of class B1, such as offices. But extreme care should be taken that such an approach is justifiable on planning grounds and does unduly restrict the benefit of what has been applied for, as advised in Circular 11/95 at paras. 35 and 87.

We have recently had a number of queries regarding the Use Class that nail salons fall within. The general feeling in the office is that they are A1 as they are similar to hairdressers. What is your view?

The Use Class status of the various types of "High Street" health and beauty establishments has long been a matter of contention. The case for inclusion within A1 is, as you say, that the class includes hairdressing. But it is normally argued that this very specific inclusion does not entitle decision makers to bring in the generality of personal care uses. There is a case for uses of this type to be included within Class A2(c) as "any other services…..which it is appropriate to provide in a shopping centre", but disagreement as to whether or not the whole of Class A2 is confined by its overall heading of  "Financial and professional services".  These doubts have led many to the view that health and beauty salons and similar uses are sui generis, and this has been the line taken at appeal in many cases, although  there are no cases that I am aware of specifically to deal with manicurists.

If the recommendations of the consultants appointed to look into the review of the Use Classes Order are adopted it seems likely that uses of this type will be included in a new "Mixed Retail" class.

My council is considering enforcement action against the storage of agricultural machinery which is available for hire to farmers in the area. The site enjoys B8 use rights and the operator is claiming that there has been no material change of use. Do you agree that the hiring out of equipment is in fact a sui generis use?

It must be established 1) whether the use which your council intends to enforce against is within Class B8 and, if not, 2) whether the change from the former use is a material one. Cases indicate that the characteristics of a hire depot are usually sufficiently removed from that of a storage and distribution use to take it out of the B8 class. A hire use may include the servicing, repair and testing of equipment and the frequent comings and goings of customers collecting and returning items, all not typical manifestations of a storage and distribution use. These characteristics may also be important when considering when a use is materially different from its predecessor. However, they may not exist in every case and a recent appeal decision illustrates the point. Here an LDC was requested for the hire of hydraulic access platforms where the lawful use was B8. An inspector noted that there was a very limited service element and that the platforms were taken to and collected from customers. In these circumstances, the inspector reasoned that there was no material change of use (DCS No. 43736657).

An application for a coffee shop, with 46 covers occupying 70% of the floorspace and with the rest used mainly as a serving kiosk, has fallen foul of local plan policy to retain 60% of A1 uses in the prime shopping centre. The operator now argues that without the covers the outlet is an A1 use as the sale of cold food and hot beverages does not fall within Class A3 of the 1987 Use Classes Order. I consider that the kiosk operation is an A1 use but because of the large percentage of floor space devoted to seating the use falls within class A3. But at what number of covers would the use move from A1 to mixed A1/A3 and then A3? How should authorities deal with such matters and are you aware of any examples where circumvention of local plan policies has been contrived in this way?

Although Circular 13/87 explains that a sandwich bar does not cease to be a shop because it sells hot drinks or a few customers eat on the premises, it does not make it clear where the distinction occurs between an A1 and an A3 use. It is therefore always a matter of fact and degree. Inspectors often attach more weight to overall perceptions than to any absolute mathematical formula, use different indicators to determine what use a unit is in, and set varying thresholds for the point at which a change of use to an A3 use or a dual A1/A3 use has occurred. Some rely on supplementary guidance specifying, for example, the percentage of turnover from a particular A3 activity before such a change is considered to have occurred. In other cases, the main purpose, character and appearance of the operation and surveys of the proportion of customers engaged in one activity or another may be useful pointers.

The difficulties with regard to the A use classes were highlighted in the recent review of the 1987 Order undertaken on behalf of the ODPM. I am not aware of any examples where local plan policies have been evaded in the way you describe.

For the last 4 years I have rented out rooms in a single dwellinghouse that I own for between seven and 14 people. Within the last year I have upgraded the property to provide 12 individual rooms with bathrooms, kitchens and beds. The authority is seeking access to inspect the property as it maintains that the property is not a single dwellinghouse and that its permission was required. I have always rented this property to more than 6 people and have never received any complaints. Can I retain the property as a single dwellinghouse with 12 people living in it under the Use Classes Order 1987 and if not what use do I need to seek permission for? In addition, if I do not live within the property or the authority’s area, can enforcement action still be taken against me?

Under Class C3 of the Order, a single dwellinghouse is defined as including not more than 6 residents living together as a single household. Thus from what you say, it would appear that the previous use of this property was not as a single dwellinghouse but as a house in multiple occupation, with residents presumably having their own bedrooms but sharing washing and cooking facilities. The recent changes have clearly resulted in a greater degree of independent living through the creation of self-contained units. In terms of the Order, these amount to a change of use to twelve separate dwellings. I therefore agree that planning permission is required. As owner of the building, enforcement action may taken against you regardless of whether you live elsewhere, including outside the local authority’s area.

The Town & Country Planning (Use Classes)(Amendment)(England) Order 2005 creates three new use classes in place of the former A3 use class.  New class A3 is defined as "use for the sale of food and drink for consumption on the premises", whereas new class A4 is defined as "use as a public house, wine-bar or other drinking establishment". The definition of the new A3 use class seems wide enough to embrace many wine bars and even some pubs, where the service of food is a significant part of the business.  So it would seem that planning permission may still not be required in future to convert a restaurant into a wine bar or even a pub, provided that the service of food is going to remain a significant part of the business.  I wonder if you or any of your readers have any comments on this proposition.

The essential query here is: how far can a use with the existing characteristics of a restaurant or café advance towards being a use which is more of a drinking establishment without planning permission being required? In answering this question it needs to be emphasised that the sole function of the present amendment is to take away the old 1987 Use Classes Order right enabling this change to take place without question. This still leaves decision makers to determine whether a material change of use has taken place as a matter of fact and degree, regardless of the definitions that have been used in the Order. Therefore in a case where a use is already of a hybrid type, say where the accent is on the provision of food but where customers may come in just for a drink at the bar and eat only if they wish, it may be difficult to say that a relatively small change of trading emphasis towards drinking is sufficient to be material. Therefore I agree with the questioner’s general proposition and expect a few disputes of the type that already occur in Scotland where pubs are a sui generis use.

What is the latest thinking on whether a change of use from two flats to one flat is material and so becomes development? Does it matter if it is reverting to a single house or if it is 3 flats to 2?

The conventional view has always been that as the conversion of two or more dwellings to a fewer number of units amount to an "extensification" of use within the same use class, it does not require permission. This has been supported by inspectors on appeal. However, in the controversial judgement in Richmond-upon-Thames LBC v SoSETR [2001], it was held that if such a change of use gives rise to planning considerations such as the loss of a particular type of small unit residential accommodation, that factor is relevant and should be taken into account in considering whether a change of use is material. The case concerned a decision by an inspector to issue a lawful development certificate for the use of a property as a single family dwellinghouse that had formerly been divided into seven flats. The inspector had reasoned that no permission was required by virtue of sec 55(2)(f) of the Town and Country Planning Act 1990, which provides that the use for any purpose within the same use class does not amount to development. However, the court ruled that this did not apply since the previous use of the building as flats did not fall within Class C3(a) of the Use Classes Order, as this refers to "use a dwellinghouse" in the singular. I am not aware that this point has been tested in a higher court. Applying this judgement to the two situations you mention suggests that permission would be necessary.

In 1998 one of my clients was granted permission for an unrestricted Class A3 use with a condition specifying a 2 year time limit. The permission was renewed three times before being refused in 2004. An appeal is proceeding. If this succeeds, is it likely that the unrestricted former A3 use will be granted or one of the new 'A' classes?

On appeal, the Secretary of State must consider the proposal afresh against the legislative background and circumstances prevailing at the time of the appeal’s determination. Permission can no longer be granted for the former use class as this has been replaced. But neither can the decision-maker unilaterally limit any permission if that would substantially alter the nature of the development proposed by the applicant. In this case, therefore, I would expect that clarification would be sought from the applicant of the proposed development, by reference to the new food and drink classes, and that a revised application description would be agreed. If necessary, this could be expressed in the alternative and would enable a split decision to be made. According to circumstances, it may be appropriate to define the scope of any permission by condition.

The owner of a former shop argues that permission is not required to use it for the sale of hot food as this is merely heated up and not cooked. However, since the amended use classes order does not make such a distinction, I consider that if hot food is principally being sold from the premises, permission is required. What is your opinion?

Circular 03/2005 explains the new food and drink classes which, as you say, do not differentiate between the sale of hot food that has been cooked on the premises and that which has been heated up. Paragraph 12 states that the courts have held that the first thing to consider when determining whether a change of use has occurred is the existing primary use of the land. An assessment of this will always turn on matters of fact and degree. The circular adds that a sandwich bar does not necessarily cease to be in the shops class merely because, for example, it also sells a limited amount of "food that is heated up". This was confirmed in a case from Bromley in 2002 (DCS No: 33831533). But where the primary purpose is for the sale of "hot food" to take away, a material change of use will have occurred to class A5, regardless of whether that food is cooked or heated up. However, I am not aware of any cases where this distinction has been discussed.

My client's business involves the sale, hire and servicing of trailers with a workshop comprising around 20 per cent of the overall floor area. The premises have permission for a "retail showroom and workshop". A condition stipulates that the workshop "shall only be used for purposes ancillary to the showroom and shall not be used for the general repair and servicing of motor vehicles". The planning authority says that the authorised use is sui generis. However, I consider that the permission would allow the unit to be used for general retail purposes. Am I right?

The first matter to consider is whether there would be a material change of use from one to the other. Given the small scale of the workshop, any change of use of the premises to general retail sales may not be material. Only where it is determined that this would be the case is it necessary to invoke the Use Classes Order 1987 to see whether it allows the change of use proposed. Unless the trailers are fully equipped for independent movement, they would not fall within the definition of a vehicle. Their sale would not therefore be automatically considered to be sui generis pursuant to Article 3(6) of the Order, which provides that the sale or display for sale of motor vehicles does not fall within any specified use class. But such a use does not fit comfortably within any of the uses deemed to fall in the A1 retail class, since there is a requirement that these should be for sale, display or services to visiting members of the public. So it seems probable that the use would be regarded as sui generis. The term "retail showroom" referred to in the permission is not defined in planning law. While the permission might well embrace the current use, it could also authorise general retail sales, particularly if it is not a personal permission and does not include a condition restricting the goods that may be sold.

Can you tell me within what Use Class a business calling itself a builders merchant may be classified?  MU.

This difficult question is discussed at length in Development Control Practice at 4.333. In summary if the business operates primarily for wholesale purposes it could be classified as B8. If it exists primarily for selling products to the general public it could be A1, and if a mixture of the two it may be considered to be sui generis. A recent appeal case of interest (DCS Number 100-048-441) saw a debate as to whether existing builders merchants premises could be used for retail purposes without the need for planning permission. GH.

How prescriptive is the list of impacts in the definition of a class B1 use given in the Use Classes Order 1987? The definition is clearly intended to exclude from the class any industrial use likely to cause pollution or disturbance of a kind that would harm a residential area. It therefore covers matters such as noise, fumes and dust. But it does not include light pollution or harm to visual amenity. I have two cases in mind. In one, a B1 operator has installed high-powered security lighting, which is annoying nearby residents. In the other, a B1 user has covered a large external yard with unsightly recyclable rubbish as part of its normal operating procedure. Is my authority able to argue that these factors take the uses out of class B1 and into class B2?

In the first case that you mention, the security lighting is clearly not an effect of the industrial process being carried on at the site. The lights are extraneous paraphernalia that may in themselves require permission. They have no bearing on whether the Activities on site are a class B1 use. The local planning authority should consider other ways of taking action, including those relating to statutory nuisance. The visual impact of an activity or process is not a factor in determining whether it falls within class B1. Only those impacts listed in the Order may be considered. In the second case, the open storage use is unlikely to be a breach of control unless it contravenes a planning condition. Serving a section 215 amenity notice may be ineffective since it is a defence for the owner to argue that the land's condition is attributable to and arises from its lawful use. If the yard is in an unsightly condition, you should try to negotiate with the operators to see whether they are willing to tackle your concerns.

An estate agency in a residential area benefits from a 1983 permission for office purposes, as defined by class II of the Use Classes Order 1972. To protect neighbouring residents' amenities, a condition prevents the office from being open outside specified hours. A room has been sub-let to a company that manages a business operating from another site and supplies heavy goods vehicles and drivers at all times of the day. This has resulted in the frequent coming and going of large goods vehicles, which are sometimes parked on the street outside the office for several hours. The local authority says that the use falls within class B1 of the current Order. What is your view?

Class II of the 1972 Order was defined as a "use as an office for any purpose". Unlike the uses falling within class B1 of the current Order, such a use is not subject to any consideration of its impact on residential amenities. The 1983 permission authorised the use of the building as an estate agents' office, which since 1987 has been deemed to fall within class A2. The sub-letting of the office for the administration of the business you describe will not have resulted in a breach of control provided the use complies with relevant conditions because it falls within the scope of the permission. This is regardless of the effect of any associated traffic on residential amenities. The parking of commercial vehicles on a public highway is not development if they come and go on a frequent basis.

While I agree with PM's conclusions in this particular case, it is not the use that may constitute development but rather any material change of use. PM implies that because the permission allowed "an office for any purpose", it authorises any kind of office use indefinitely, regardless of whether this falls within either class B1 or class A2 of the current Order. I do not think that this is correct. I accept that class E, part 3, schedule 2 of the General Permitted Development Order 1995 provides that occupiers may switch between any uses referred to in a permission for a ten-year period from the date it was granted. However, the fact that the legislators thought it necessary to introduce this provision implies that permission would be needed for any change of use once the ten-year period has expired, irrespective of whether the new use would have been allowed by the original permission. PL.

When deciding whether an existing business is A1 or B8 one of the considerations my authority uses is the percentage sales to the general public compared to the percentage on a wholesale basis. Are the terms "general public" or "wholesale" defined or considered in planning legislation, guidance or appeal decisions? My authority is unsure whether sales comprising a single bulky product to a tradesman to fit into someone else’s home, e.g. a bath to a plumber or wooden flooring to a joiner, should be considered wholesale. TL.

I am not aware of any definitions of the terms wholesale and retail in legislation or government guidance. Sections 4.3336 and 21.312 of Development Control Practice give useful guidance on this issue. The latter includes a helpful quote from a 1986 appeal decision in Lancashire (DCS number 037-755-311), "The sale of goods to people for their own domestic consumption and that wholesaling was the selling of goods in bulk for retail sale by others". A more recent appeal where such issues were considered is an enforcement one in Devon (DCS number 100-051-976) where premises authorized for use for wholesale storage and distribution of bulky agricultural goods were being used for retail purposes. Decisions on whether sales are wholesale or retail have to be made on the circumstances of each case. Factors to take into account include the type of goods sold, quantities, i.e. wholesale would normally be in large amounts, whether customers were restricted in some way, e.g. having to produce a business letterhead to be able to buy or payment is later settled by invoice, how and where the business is advertised, the layout of the premises, e.g. whether there is a "showroom" of a retail nature, and whether there are two different price structures for wholesale & retail customers. Regarding your query about a tradesman buying goods to fit into someone’s home, though I cannot cite an appeal decision etc to support the view, logic would seem to dictate that such sales would normally be wholesale. JH.

A 'nightclub' is sui generis under the Use Classes Order 1987, but what is a 'nightclub'?   If a hotel or a pub with a function room with an independent entrance uses that room for late night drinking, and music and dancing (using the current more liberal licensing laws) on two nights a week, with an entrance fee, does it mean the hotel/pub needs a planning application for a part change of use from hotel/pub to hotel/pub and night club?  PP.

Neither the Town and Country Planning (Use Classes) (Amendment) (England) Order 2005, which disaggregated the former A3 food and drink class, nor Circular 03/2005, which gives guidance on the amended Order, define a nightclub. The Oxford Dictionary defines a "nightclub’ as ‘a club that is open at night and provides refreshment and entertainment’, but a venue which charges for admission and does not have a membership structure might, in my view, still be considered a nightclub. Although a night club is sui generis and a hotel or pub is in a use class, a material change of use may not have occurred as the use takes place on just two evenings a week. You would have to assess the change against factors such as the proportion of the premises used for this purpose, the proportion of the week, the number of people attracted, the closing time and the impact of the use on the surrounding area. As hotels tend to have more "non-core" activities such as conferences, exhibitions and sales than pubs, it would seem less likely that a change of use will have occurred if the premises are a hotel than if they are a pub. Though relating to a social/drinking club and a somewhat old decision dating from 1986, an appeal in London (DCS reference: 047-962-294) would provide useful background to the issues your query raises.

The agent for an application to operate a car boot sale inside a large warehouse-type building in the countryside insists it is 'sui generis' and, as such, retail policies to require assessment of any impact on town and village shops cannot be applied. Do you agree with his assertions and, if not, what case law is there to support a different view ES.

The nearest relevant appeal I can find is an enforcement one in Essex where a change of use from a garden centre to an outdoor market was allowed as both were A1 (DCS No.056-512-100). The A1 use definition includes use "for the retail sale of goods other than hot food" and to me a car boot sale would fall within it. It is possible a car boot sale would have an acceptable retail impact, especially if it is, say, weekly. If your authority takes this view, it is important to impose suitable conditions to prevent the use changing to a conventional retail one. JH

New use classes legislation has introduced "Class C4: Houses in multiple occupation". Do class C4 properties benefit from permitted development rights under class 1 of schedule 2 of the General Permitted Development Order 1995 (as amended)? Also, can an application for an extension to a C4 property be submitted using a householder form and would a design and access statement be required?  MM

In the case of Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien [1983] it was held that in assessing whether a property was a dwellinghouse one had to examine whether it had the facilities which might ordinarily be expected in a dwellinghouse. Within that context I would not consider a house in multiple occupation to be a dwellinghouse for General Permitted Development purposes and in my experience that view was taken before the recent changes.

The General Development Procedure Order 1995 (as amended) uses the same definition of "dwellinghouse" as the General Permitted Development Order 1995 does. Whilst applications relating to conventional dwellinghouses and, under the new provisions applicable from 6 April, flats generally do not require design and access statements, given that the same definition is used in both orders, I would consider a statement would be required for alterations to a C4 property unless the floor area was not increased. Similarly, as a C4 property is not a dwellinghouse, a householder form should not strictly be used for alterations to a C4 property, but I would suggest that, unless use of the wrong form causes particular problems, authorities should take a pragmatic view and process an application for a C4 property although it might be submitted on a householder form.  JH.


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