Q & A 19.2/10
Our client occupies a village workshop which was permitted subject to a condition that the premises shall be used for a joinery workshop and for no other purpose within Class B1, B2 or B8 of the Use Classes Order. My client now wishes to use the premises as a craft workshop with a small ancillary sales and display area, and has submitted an application. No fee was submitted, having regard to the Fees Regulations which state that one is not required where the requirements of a condition take away rights otherwise given by the Use Classes Order or the General Permitted Development Order. The local authority assert that the application is in reality a section 73 application to vary or remove a condition, and a fee is necessary. Who is correct?
It seems that what your client proposes would not require planning permission save for the condition, provided the proposed sales element remains ancillary. On the face of it this is just the type of situation intended by the Fees Regulations at (5) or (6) and as advised by Circular 31/92 at paragraph 8 of the Annex, and no fee is required.
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.
The operator of a lawful business reclaiming various materials such as paper, metals, timber and car batteries lives in a former farmstead about a mile away. For over ten years he has regularly used a barn there for overflow storage of plant, equipment and the occasional vehicle associated with the business. As he has decided to relocate to larger premises, and no longer requires the barn in connection with his business, he is contemplating seeking a Certificate of Lawfulness for the barn’s existing use. I assume that the reclamation business is a Special Industrial Use. Since the barn has been used incidental to that use, provided the planning authority accepts that because of the ten year rule a lawful use has been established, would this be for storage or an industrial use?
It is difficult to comment on this without the full facts of the case and a clear understanding of the precise nature and extent of the activities involved. The special industrial classes B3 – B7 of the 1987 Use Classes Order were revoked in 1995. Such uses are now subsumed within Class B2 and it is possible that the lawful reclamation use would fall under this class. However, if operated as a scrap yard or involving the keeping of any notifiable quantity of hazardous substances, this would fall outside any specified use class and be considered sui generis.
In view of the barn’s distance from the business site and that it does not fall within the same planning unit, I do not think that it could be argued successfully that its use is incidental or ancillary to the reclamation use, such that any industrial use could be established. Rather, as a matter of fact and degree, the lawful use is likely to be for storage purposes only.
The owner of a 170 ha forestry plantation in Scotland, accessed via a private track off the public road, wishes to develop an educational resource for school children. The proposal includes a footpath, three small wooden shelters scattered in the woodland at points of nature conservation interest, wildlife habitat enhancement and free self-guided nature walks. The school visits would be no more than one a week. It has been suggested that this amounts to a change of use and that permission is required for the educational use of the entire plantation. But as forestry activity is no longer limited to timber production and to qualify for grant funding owners must provide for informal recreational use and other social benefits, do you agree that permission is not required in this instance?
Forestry is defined in planning law as meaning "the growing of an utilisable crop of timber". Although this does not include informal recreational or educational use, such uses may be carried out without the need for permission if they are de minimis or ancillary to the primary use of the land for forestry purposes. An assessment of whether a material change of use would occur is always a matter of fact and degree having regard to factors such as the scale, nature and effect of the proposed use. In this case, if the access arrangements are satisfactory and there would be no harm to local amenity or neighbouring living conditions, the use is unlikely to trigger the need for permission.