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Circular 1/1998

INTRODUCTION

1. The Town and Country Planning (Use Classes) (Scotland) Order 1997 (the UCO) was made on 18 December 1997 and comes into force on 2 February 1998. This replaces the Town and Country Planning (Use Classes) (Scotland) Order 1989 which has now been revoked. A copy of the new UCO is enclosed for local authorities only. This Circular which replaces SDD Circular No. 6/1989 explains the provisions of the new UCO and the changes which have been made to it. Where guidance is given amounting to an interpretation of the UCO, it should be borne in mind that only the Courts can interpret the law authoritatively.

2. This Circular also explains related changes which have been made at the same time to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. SODD Circular No. 2/1998, which is being published at the same time as this Circular, explains the amendments relating to above ground sewerage works. A copy of the Amendment Order is enclosed with this Circular for local authorities only.

SUMMARY OF CHANGES

3. The main changes which have been made to the UCO are:

3.1 use as a hot food take-away has been taken out of Class 3 (Food and Drink) and added to Article 3(5) making it sui generis (see paragraph 16);

3.2 Classes 7 to 10 (Special Industrial Groups B to E) have been deleted. The uses covered by these classes are now included in Class 5 (General Industrial) (see paragraph 31); and

3.3 Class 9 (Houses), previously Class 14, has been extended to allow limited use as a bed and breakfast or guest house (see paragraph 37).

4. The guidance in this Circular is updated to take account of the above changes. The section on Class 4 (Business), has been completely re-written to clarify the guidance, in particular:

4.1 that to be in Class 4 a building does not have to be capable of accommodating all 3 of the cases in that class (see paragraph 17);

4.2 that the "residential amenity test" does not mean that to be in Class 4 a building has to be located in a residential area and that it does not prescribe the range of material considerations to be taken into account when dealing with planning applications (see paragraphs 18 and 19);

4.3 the policy that only in very exceptional circumstances should Class 4 use not be permitted on industrial land (see paragraphs 20 to 27).

5. The permitted development right in Class 10(c) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, which allows car showrooms to change to shops without planning consent, has been amended to apply only to buildings with a floor area of 235 square metres or less (see paragraphs 41 and 42).

BACKGROUND

6. Development control under the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) extends not only to development but also to material changes in the use of buildings or other land. Planning permission is normally required for material changes of use but judgement of what constitutes a material change of use is a matter of fact and degree to be determined in each case. In order to relieve the planning system of a large number of unnecessary applications, Section 26(2)(f) of the 1997 Act excludes from the definition of development, and hence from planning control, any change of use where both the existing and proposed uses fall within the same class in an Order made by the Secretary of State. These classes are now set out in the Town and Country Planning (Use Classes) (Scotland) Order 1997 (the UCO).

THE AIM OF THE UCO

7. The UCO has 2 aims:-

a. to keep the number of use classes to a minimum while retaining effective control over changes of use which, because of environmental consequences or relationship with other uses, need to be subject to specific planning control; and

b. to ensure that the scope of each use class is wide enough to take in changes of use which generally do not need to be subject to specific planning control.

It serves no-one's interest to require planning permission for types of development that generally do not damage amenity. Equally, the Secretary of State is in no doubt that effective control must be retained over changes of use that would have a material impact, in land-use planning terms, on the local amenity or environment.

THE SCOPE OF THE UCO

8. Article 2 defines various expressions used in the UCO.

9. Article 3 provides that no development is involved where both an existing and a proposed use fall within the same class in the Schedule to the UCO. This applies both to buildings and land occupied with a building which is used for the same purposes. A use which is normally ancillary to a use in a class specified in the UCO is not excluded from the use to which it is ancillary merely because it is specified in the UCO as a separate use. This article also provides that where the use of land on a single site or on adjacent sites is within both Class 4 (Business) and Class 5 (General Industrial) and forms part of a single undertaking, this can be regarded as a single class and changes in the balance or mix of uses can take place provided that the area within Class 5 is not substantially increased as a result. Uses which fall outside the UCO altogether are also listed in this article. These uses are regarded as sui generis and changes of use to or from such a use will normally constitute development requiring planning permission. The list of exclusions is not, however, exhaustive as there are other uses which do not clearly fall within any use class.

10. Under Article 4 of the UCO planning permission is not required for the subdivision of premises, other than houses, provided that both the existing and proposed uses fall within the same class. Subdivision of a house to form 2 or more separate houses will continue to constitute development requiring planning permission.

11. Article 5 revokes the Town and Country Planning (Use Classes) (Scotland) Order 1989 and the Town and Country Planning (Use Classes) (Scotland) Amendment Order 1993.

CLASS 1. SHOPS

12. In addition to the retail sale of goods, the shops class covers a variety of other similar uses where a service is provided principally to visiting members of the public, eg post offices, travel agents, hairdressers, laundrettes, dry cleaners, etc. Premises for the sale of motor vehicles continue to fall outside this class and planning permission will therefore be required to change from a use within Class 1 to a use involving the sale and display of motor vehicles. Class 10(c) of the General Permitted Development Order grants permitted development for a change of use from a car showroom to a Class 1 shop. The Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.2) Order 1997, which comes into force on 2 February 1998, limits that permitted development right to buildings with a floor area of not more than 235 square metres (see paragraph 42).

13. Shops selling cold food, such as sandwiches, for consumption off the premises fall within Class 1. A sandwich bar does not cease to be in the shops class merely because it also sells hot drinks, or if a few customers eat on the premises. Shops whose primary purpose is the sale of hot food for consumption off the premises have been taken out of Class 3 (Food and Drink) and are now sui generis (see paragraphs 15 and 16 below). Post Offices, but not postal sorting offices, will be within the shops class.

CLASS 2. FINANCIAL, PROFESSIONAL AND OTHER SERVICES

14. The financial, professional and other services class is designed to allow flexibility within a sector which is continuing to expand and diversify. This class enables planning control to be maintained over proposals involving the conversion of shops for purposes other than for the retail sale of goods, while permitting free interchange within a wide range of service uses which the public expects to find in shopping areas, such as betting shops; the offices of lawyers, accountants and estate agents; health centres and surgeries of doctors, dentists and veterinary surgeons; where the services are provided principally to visiting members of the public.

CLASS 3. FOOD AND DRINK

15. The food and drink class groups together a range of uses where food or drink is sold for consumption on the premises - for example restaurants, cafes and snack bars. Class 3, which reflects the breaking down of the traditional boundaries between different types of premises, enables the catering trade to adapt to changing trends and demands with greater speed and certainty in premises where the potential environmental nuisances such as smell, traffic and parking have already been accepted. Planning authorities should not seek to restrict the freedoms granted by this use class unless they can clearly demonstrate that serious environmental problems, which are not capable of control under other legislation, would result. Public houses, whose primary purpose is the sale of alcoholic liquor for consumption on the premises, are outwith the scope of this class by virtue of Article 3(5) of the UCO.

16. Establishments selling hot food for consumption off the premises are no longer included in Class 3 and will, in future be classed as sui generis. This is because hot food take-away shops raise somewhat different environmental issues, such as litter, noise, longer opening hours and extra traffic and pedestrian activity, from those raised by other Class 3 uses. This does not mean that a restaurant whose trade is primarily in-house dining but which has a minor take-away cannot be in Class 3. Where take-away is a minor component of the business and will not affect environmental amenity it should be treated as de minimus, ie as not requiring planning consent. Consequential amendments have been made to Classes 10 and 11 of the General Permitted Development Order so that a change of use from a hot food take-away to Class 1 (Shops) or Class 2 (Financial, Professional and Other Services) will continue to be permitted development.

CLASS 4. BUSINESS

17. The business class includes the following uses:

i. offices (other than Class 2);

ii. industry which is not in Class 5; and

iii. research and development of products or processes;

provided that they can be carried on in any residential area without detriment to the amenity of the area due to noise, vibration, smell, etc. However, to be in Class 4 a building does not have to be physically capable of accommodating all of the uses within that class. Planning permission should not normally be required to change the use of a building or land from one to another of the uses within the business class. The 3 components of the class are, in that sense, interchangeable because it is judged that they will have broadly similar effects on the environment.

18. Membership of Class 4 is dependent on whether the use, in all its aspects, is one which could be carried on in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit. This "residential amenity test" has sometimes been interpreted as meaning that a proposed development did not fall within Class 4 if it was outwith a residential area. This is not the intention of the amenity test. It is designed as an absolute test which determines whether a development proposal is in Class 4 or not. It is in the form of a hypothesis, ie if the development was built and operated in a residential environment of any sort would it be detrimental to the amenity of that environment? The term "residential area" is simply used as an indicator for a standard of environmental quality which is sensitive to a wide range of emissions; it does NOT mean that the development must be located in a residential area.

19. Similarly, the amenity test is NOT intended to test the complete environmental acceptability of a proposal. It does not, therefore, cover all of the considerations which a planning authority may properly take into account in determining a planning application for a Class 4 development. It is quite possible that a proposal would be a Class 4 development by virtue of meeting the criteria set out in the test, but still be refused planning permission; for example, on grounds of traffic generation, design, density, loss of mature trees, etc. It is also possible that intensification of a use would lead to a development no longer satisfying the test's criteria and hence no longer being a Class 4 use. Such circumstances would constitute a material change of use and planning permission for the new use would be required.

Implications for Development Plans

20. Structure and local plan policies should not generally impose restrictions on the freedoms provided by the UCO and the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the GPDO). Therefore, development plans should not generally contain separate policies or land allocations for the office, industrial, and research and development uses within the business class. To do so would frustrate the basic aim of the class, which is to allow flexibility between these activities. This means that development plan policies should generally be worded "Business Use" or "Business Class" and should not normally refer to specific uses within the business class.

21. Development plan policies and land allocations should also be compatible with Class 12(a) of the GPDO which allows changes of use from general industrial (Class 5) to business (Class 4) without the need to apply for planning permission. Development plans may, therefore, include policies and land allocations for Class 4 on its own and for Classes 4 and 5 together. Any policies or land allocations for Class 5 should recognise that, while Class 5 is the preferred use, Class 4 development will also be acceptable.

22. To show that a particular class, or use within a class, has priority for a location or site, development plans may, for example, indicate that the priority uses for a given site are industrial processes in Classes 4 and 5. Such priorities can, however, only be indicative and implemented with the agreement of the developer.

23. In very exceptional circumstances, development plans may allocate land for general industry (Class 5) in order to safeguard a supply of land for industrial processes which are detrimental to amenity or a potential source of environmental pollution; or because the site is a scarce economic asset. For example, very exceptional circumstances could justify the allocation of a site for Class 5 use on the grounds that it was the only site in the plan area:

23.1 available immediately which could be accessed from the trunk road network without heavy goods vehicles passing through the town centre; or

23.2 capable of providing for the anticipated expansion of an existing major employer who would otherwise be unable to expand; or

23.3 of sufficient scale to accommodate industrial activity.

A similar approach may apply to specific uses within the business class (Class 4). In every case, a clear justification for the policy must be provided. The Department expects this provision to be applied infrequently in a manner which does not generally undermine the flexibility provided by the overall policy. It will, therefore, monitor structure and local plans to ensure that exceptions are fully justified by exceptional circumstances on a site by site basis.

24. Planning authorities should examine their structure and local plans to test whether they are compatible with the UCO and the GPDO. Where they are not, the plans should be altered at the first opportunity.

Implications For Development Control

25. Planning applications for business class (Class 4) development on land allocated for general industrial use (Class 5) should not be refused on the grounds that the land was reserved for general industry, unless such a refusal would accord with development plan policy (see paragraph 22). Additionally, under Class 12(a) of the GPDO, planning permission will not be required to change land or buildings in general industrial use to business use, unless constraints are imposed by a condition on a previous planning consent. In cases where such planning permission is required, planning authorities should not resist the proposals, unless there are clear planning reasons for doing so, eg traffic generation or design. In the case of an application for one use within the business class, permission should not be refused on the grounds that the land is allocated for the business class as a whole, or for a different use within that class, unless such a refusal would accord with development plan policy (see paragraph 22). Generally, it is for the developer, not the planning authority, to decide the type or types of business class activity for which the building should be designed.

26. Similarly, planning authorities should, in general, look favourably on planning applications for the removal of any conditions attached to existing consents which restrict changes of use within a use class. In addition, there is a presumption against the use of conditions or planning agreements (under Section 75 of the 1997 Act) which are designed to limit future changes of use which would otherwise be allowed by virtue of the UCO or the GPDO. This applies with particular force to the business class, which is specifically designed to provide greater flexibility in the use of land and buildings.

27. It may, very exceptionally, be appropriate for a planning authority, in determining a particular application, to impose a condition restricting the use to which land or buildings may subsequently be put. For example, in approving an application for industrial use within the business class, it might be appropriate to impose a condition which restricts subsequent uses to "industrial processes in Class 4", if the site is, for example, excellently located in relation to the trunk and principal road network. The justification might be that the site's large size, good location and excellent access make it a scarce economic asset which helps to minimise the environmental impact of goods vehicles and commuter traffic. A similar approach could be taken to safeguarding subsequent use of a Class 5 site.

28. If a proposed change of use is permitted development but other works such as building alteration or construction of a car park require planning permission, the change of use should not be an issue to be considered when determining the planning application.

29. Planning authorities will wish to ensure that the environmental impact of a proposal on the surrounding area is acceptable. Bearing in mind the permitted development right to change use from Class 5 to Class 4, the scope of Class 4 and the freedom of owners/occupiers to vary their use of the land or building without planning permission; the intensity of use of the development is likely to be a key factor in assessing environmental impact. Building and landscape design, site layout, parking and access are also likely to be important.

30. Many existing planning consents contain conditions which refer to classes within the 1973 UCO. For example, a planning consent may restrict land or buildings to a use within Class III (Use as a light industrial building for any purpose) of the 1973 UCO. Although a light industrial use now falls within the business class, existing undertakings are still bound by the terms and conditions attached to their planning consent. In considering, therefore, what changes of use may be allowed under the 1997 UCO, developers and planning authorities must have regard to the actual terms of the existing consent and any conditions attached to it. If they are in any doubt about the implications of the 1997 UCO, owners and users of buildings should contact the planning authority for advice on the range of uses allowed under their existing planning consent.

CLASS 5. GENERAL, INDUSTRIAL AND CLASSES 7 TO 10 OF THE 1989 UCO (SPECIAL INDUSTRIAL)

31. Research carried out in the late 1980s showed that the Special Industrial Use Classes (SIUCs), Class 7 to 10 of the 1989 UCO, were anachronistic and of little actual benefit. The industrial processes covered in the SIUCs have remained virtually unchanged in the UCO since 1948, while the industries themselves have gradually declined. A substantial body of new legislation has been introduced in recent years, including the Environmental Protection Act 1990 (which introduced integrated pollution control and local authority air pollution control as well as more stringent control over noise and vibration), the Water (Scotland) Act 1980 and the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993. The legislation which applies to SIUC processes is now considered to be sufficiently comprehensive to control potential pollution arising from the deletion of the SIUCs. In addition, the Government does not believe that the impact, in land use planning terms, of the processes covered by the SIUCs is sufficiently different from other industrial uses to justify retaining separate classes. Accordingly, the SIUCs have been omitted from the new UCO and the processes covered by those classes have been transferred to Class 5 (General Industrial). Consequential amendments have been made to Article 3(4) of the UCO and Class 18(5) of the GPDO.

CLASS 6. STORAGE OR DISTRIBUTION

32. The distinction between this class and the general industrial and business classes is based on the higher level of lorry and van movements which is likely to be associated with storage OR distribution depots. Retail warehouses, where the main purpose is the sale of goods directly to visiting members of the public, will generally fall within the shops class irrespective of the proportion of floor space used for storage.

CLASS 7. HOTELS AND HOSTELS

33. The hotels and hostels class includes hotels and boarding or guest houses except where the use is covered by Class 9, houses, (see paragraph 37 below). Premises licensed for the sale of alcoholic liquor to persons other than residents or persons other than those consuming meals on the premises fall outwith this class. This class also includes use as a hostel where no significant element of care is provided. (Article 2 of the UCO contains a definition of "care".) Normally the identity of the user or the type or person to be accommodated, by reference to age or other characteristics, is not a land-use planning consideration.

CLASS 8. RESIDENTIAL INSTITUTIONS

34. Included in this use class are, for example, hospitals and nursing homes (including hospices and maternity homes), boarding schools and residential colleges. Apart from educational establishments, it is the provision of personal care or support and treatment which separates uses in this class from uses in Class 7 (Hotels and Hostels). Article 2 provides a specific definition of "care" for the purposes of this class. The Secretary of State is aware of concern that residential care homes and nursing homes should not be permitted where they will place unacceptable demands on essential services. Planning authorities must, however, concentrate on land-use planning considerations when considering a planning application for a change of use to a use falling within this class.

35. Private and voluntary residential care homes have to register with the local authority where they provide a substantial amount of care or support. Registration can be refused on a number of grounds, including that the home would not provide adequate services or facilities reasonably required by residents or patients. The registering authorities may consult each other about the provision of health and social services for residents. Planning authorities should, therefore, concern themselves mainly with the impact of a proposed institution on amenity and the environment. They should also avoid giving the impression that, if planning permission is granted, registration is likely to follow automatically. It is important that intending developers should discuss their proposals with the registration authority before undertaking major commitments.

CLASS 9. HOUSES

36. The houses class groups together use as a house by a single person or any number of persons living together as a family and use as a house by no more than 5 persons living together as a single household. Flats are outwith this use class. In the case of small residential care homes or nursing homes, staff and residents will probably not live as a single household. That use will, therefore, fall into the residential institutions class, regardless of the size of the home. The single household concept provides more certainty over the planning position of small group homes, which play a major role in the Government's community care policy aimed at enabling vulnerable people to live in touch with the community. Planning authorities should include any resident care staff in the calculation of the number of people accommodated. The class includes not only families or people living together under arrangements for providing care and support within the community but also other groups of people such as students, not necessarily related to each other, who choose to live on a communal basis as a single household. The use of a house for other forms of "multiple occupation" will generally remain outside the scope of the UCO and planning authorities will still have to assess whether development is involved in each case on a fact and degree basis. Most sheltered housing developments will, however, fall within this class because they normally comprise a group of individual houses.

37. The new UCO extends Class 9 to include limited use as a bed and breakfast or guest house. The use is permitted for this purpose of a maximum of one bedroom where the house has less than 4 bedrooms and a maximum of 2 bedrooms where the house has 4 or more bedrooms. This will allow householders to earn an income from accommodating paying guests on a small scale, without significant adverse effects on the surrounding area. Where the threshold in this class is exceeded, planning permission will be required for a change of use to Class 7 (Hotels and Hostels).

38. A fact and degree approach is also needed in determining when the carrying on of business activities in a house requires planning permission. Planning permission for working at home is not usually needed where the use of part of a house for business purposes does not change the overall character of its use as a residence.

CLASS 10. NON-RESIDENTIAL INSTITUTIONS

39. The non-residential institutions class groups together buildings visited by the public for a wide range of purposes on a non-residential basis, eg museums, libraries, churches and church halls. This class is intended to include day centres (defined in Article 2 of the UCO), adult training centres and other premises for the provision of non-resident social services as well as non-residential schools and colleges.

CLASS 11. ASSEMBLY AND LEISURE

40. The assembly and leisure class comprises uses such as cinemas, dance halls and concert halls, in addition to all indoor and outdoor sports uses except motor sports and sports involving firearms. Many outdoor sports require the construction of associated buildings, such as clubhouses or viewing stands, the erection of which will continue to be subject to specific planning control.

CHANGES OF USE PERMITTED BY THE GENERAL PERMITTED DEVELOPMENT ORDER

41. Classes 10-13 in Part 3 of Schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (as amended) permit certain changes of use without the need for specific planning consent. The changes permitted are:-

* only where not more than 235 square metres of floor area will be used for storage or distribution.

# only where the total floor area of the building does not exceed 235 square metres.

42. The Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.2) Order 1997, which comes into force on 2 February 1998, introduces a restriction on the size of car showroom to which the permitted change to Class 1 (Shops) applies. This means that showrooms with a floor area of more than 235 square metres will require full planning permission for a change of use to Class 1. Some consequential amendments to take account of the changes to the UCO have also been made to Classes 10, 11 and 18 of the GPDO.

43. It is open to planning authorities to seek directions under Article 4 of the GPDO which, if approved by the Secretary of State, would require planning permission to be sought for these changes of use. In seeking the Secretary of State's approval for such a direction planning authorities should, at the same time, submit a statement of reasons as to why they consider additional control is necessary and an account of the publicity given to the direction, including a copy of any comments received.

GENERAL GUIDANCE

44. There are 2 further general points which should be borne in mind: Unimplemented Permissions

44.1 Firstly, the UCO can only have effect where a use has been implemented. For example, if premises are being used for a use within Special Industrial Group B (Class 7) of the 1989 UCO, a change of use to any other general industrial use covered by Class 5 of the 1997 UCO can be made without planning permission, provided there is no condition in a planning consent which restricts subsequent changes of use. Any physical works associated with the change of use may, however, require planning consent. On the other hand, there will when the 1997 UCO comes into force be a number of extant but unimplemented planning permissions for uses which are identified by reference to a use class within the 1989 UCO. Where, for example, planning permission has been granted for a use within Special Industrial Group B (Class 7) of the 1989 UCO but the planning permission has not been implemented, planning permission would be required before the premises could be used for any other general industrial use in Class 5 of the 1997 UCO. There should, however, be a presumption in favour of granting planning permission where the use in the unimplemented consent and the proposed new use fall within the same use class in the 1997 UCO. Planning authorities should also take account of the spirit of the UCO when considering planning applications for the removal of conditions which restrict changes of use within an amended use class. For example, if a building is currently restricted by a planning consent to a use within one of the Special Industrial Groups in the 1989 UCO, which would fall within the general industrial class of the 1997 UCO, there should be a presumption in favour of an application to convert the building to other uses within the amended class.

Future Changes of Use

44.2 Secondly, SDD Circular 18/1986 (paragraph 73) indicates that there is a presumption against conditions designed to restrict future changes of use which, by virtue of the UCO, would not otherwise constitute development. The Secretary of State would regard the imposition of such conditions as unreasonable, unless there was clear evidence that the uses excluded would have serious adverse effects on the environment or on amenity and would not be susceptible to other control. An exception to this can be made in the case of major retail developments where, because of the varying impact which different types of new shopping development can have on the viability of existing centres, it has become established practice for planning authorities to control through planning conditions or planning agreements (under Section 75 of the 1997 Act) changes of use between retail warehouses selling DIY products, furniture, carpets etc and stores whose primary purpose is selling food. Circular 18/1986 (paragraph 76) urges planning authorities to consider alternative, more specific conditions. If conditions restricting changes of use are justified they should be drafted so as to prohibit a change to a particular unacceptable use or uses, rather than in terms which require future approval of any change of use at all. Authorities should always give proper, adequate and intelligible reasons for the conditions they impose.

MANPOWER AND FINANCIAL CONSIDERATIONS

45. The changes to the UCO are not expected to have significant expenditure or manpower implications for local authorities.

ENQUIRIES AND FURTHER COPIES

46. Any enquiries about the content of this Circular should be addressed to Mr Stephen Bruce (Telephone 0131-244-7065). Further copies of the Circular and a list of current planning circulars may be obtained from The Scottish Office Development Department, Planning Division, Branch 1, 2-H, Victoria Quay, Edinburgh, EH6 6QQ (0131-244-7066 or 7825).

47. Copies of the Town and Country Planning (Use Classes) (Scotland) Order 1997 and the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.2) Order 1997 may be purchased from The Stationery Office Ltd, 71 Lothian Road, Edinburgh, EH3 9AZ (Telephone 0131-622-7050).

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