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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment Overview and Scrutiny Committee held on 24/04/2002
List of DTLR Questions and Proposed Waverley Responses - Use Classes Order



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Annexe 1

LIST OF DTLR QUESTIONS AND PROPOSED WAVERLEY RESPONSES –
USE CLASSES ORDER

Introduction

The Government's question and officer's suggested responses are shown in bold.

This paper attempts to summarise the Government's consultation proposals on changes to the Use Classes Order. The clarity of the paper is not helped by the fact that the Government appears to be uncertain about the outcomes of proposed changes and has put forward several options.

The report first addresses three main features under the following headings.

Key Principles
Local Flexibility
Restricting Changes of Use by Planning Conditions.

The report then explains in turn the current Use Classes Order and some criticisms of current classes before commenting upon options.

The report deals with the Classes in the following order:

· The "A" Use Classes;
· The "B" Use Classes;
· The "C" Use Classes;
· The "D" Use Classes; and
· Temporary Uses

Key Principles

1. The review of the Use Classes Order has been informed by one key principle, which the Government believe should govern any change to the current composition of the Order. This is that the UCO and GPDO provisions should be constructed in a way, which allows the maximum possible deregulation consistent with delivering planning policy and wider objectives, including protecting amenity. The consultation paper asks for views on this principle.

Question 1

Do you agree that the UCO and GPDO provisions should be constructed in a way, which allows the maximum possible delegation consistent with delivering planning policy and wider objectives, including protecting amenity?

Draft Response:

Agreed. It is felt, however, that the starting point and test to be applied to any changes should be:-

· Are the proposed changes easy to understand and will they lead to clarity in terms of operation?
· Will there be any undesirable consequences? (c.f. loss of manufacturing floorspace to offices after changes to UCO in 1987)
· How will they affect environmental quality? (Will the proposals encourage desirable change? Will they lead to improved “quality of life”? Will they ensure variety/vitality and mix of users, especially in town centres?)

Local Flexibility

2. A well constructed set of nationally applicable rules, which governs the ability to change use without planning permission, is likely to be appropriate for the majority of situations. However, the Government believe that local planning authorities should be able to introduce even greater flexibility by being able to relax the boundaries of the GPDO provisions to facilitate changes of use between classes in order to deal with particular local circumstances.

3. The consultation paper seeks views on whether local orders would help or hinder efficient planning. Local orders could give authorities some flexibility to relax national planning rules by extending permitted development rights locally to suit circumstances, for example to help authorities to be proactive in promoting sustainable development, particularly in helping rural businesses adapt to changing circumstances.

Question 2

Do you agree that local authorities should be able to relax the need for permission for changes of use in certain specified areas?

Question 3

Do you believe that this can be done through local orders as set out in the Planning Green Paper?

Draft Response:

Generally the introduction of local flexibility is considered appropriate. It should be possible to achieve this through Local Orders. It is doubtful, however, in Waverley, an area of development pressure, that controls would be relaxed but the option would be useful.

The concern with local flexibility is that it introduces more complication, potential confusion and inconsistency, with certain developments needing planning permission in one Authority area but not in another.

If it is proposed to use the Local Plan to achieve “Local Orders” this is likely to prolong the LP process when all efforts are being made to simplify and speed things up.

Restricting Changes of Use by Planning Condition

4. Circular 13/87 discourages the use of planning conditions to limit the uses into which a building could change within its class, since the widespread use of conditions would negate the certainty and freedom from detailed control envisaged by the UCO. The Government believe that the use of conditions should continue to be discouraged. However, it is recognised that, in exceptional circumstances, the use of conditions might be appropriate to address significant local problems where there is a clear justification for doing so. In order to ensure that the use of conditions is limited to exceptional circumstances, the Government propose that conditions should only be used where an authority’s local plan (or whatever might succeed this as a result of measures proposed in the Planning Green Paper) sets out appropriate policy establishing where such conditions would be applied.

Question 4

Do you agree that local authorities should be able to limit the scope for changes of use by the use of conditions only in exceptional circumstances?

Draft Response

It is agreed that conditions limiting a change of use within use class should only be imposed in exceptional circumstances.

Question 5

Do you agree that this should be limited to circumstances which have been set out in an authority’s local plan?

Draft Response:

Where there are significant local problems which need to be addressed, it is appropriate to use the Local Plan as a means of identifying the exceptional circumstances for using conditions to limit the scope of changes of use. It is, however, not always possible for the Local Plan to identify every circumstance and therefore it is considered important that the option to impose such conditions should not rely solely on a Local Plan policy setting out where such conditions should apply. This would be too restrictive. It is agreed, however, that in every case a condition is imposed there must be a policy justification but this would normally be one of the general environmental policies in the plan.




The "A" Use Class
5. Activities currently within the A Use Classes attracted most comment and concern during the research project. It is therefore not surprising that it is to this Class that the researchers recommended the greatest amount of change.

Objectives

6. The Government’s planning policy objectives relevant to these uses are:

• to sustain and enhance the vitality and viability of town centres – which includes city, town and district centres; and

• to safeguard and strengthen existing local centres, in both urban and rural areas, which offer a range of everyday community, shopping and employment opportunities

Concerns about the Current Uses within the A Class
Public Houses and Bars

7. The consultation paper explains that the greatest concern found by the researchers is with the A3 food and drink Use Class. This frequently relates to noise, particularly from bars. Problems of noise stem from the inadequate sound insulation; the playing of loud music to attract custom which is exacerbated by opening of windows and shop fronts and also the spilling of customers onto the pavements. A second major concern is an increase in crime and anti-social behaviour. A third is the hours of operation, which, although also the subject of licensing control, affect the degree of disturbance caused.

8. There are also other environmental concerns. Premises can be hard to service with refuse and cleansing vehicles leading to an increase in the amount of rubbish on the streets. There can also be problems with noise and air quality relating to the smells and fumes from ducts and ventilation shafts in food establishments.

9. It is important that the planning system is not used as a means of duplicating controls exercised by other control mechanisms. The licensing regime and local authority environmental health controls exist to deal with many of the behavioural difficulties sometimes associated with the consumption of alcohol.

Fast-Food Take-aways

10. Another major issue identified by the researchers concerns the conversion of public houses into fast-food restaurants under the A3 class. Under the current structure, pubs and restaurants come under the same classification. This allows fast-food chains to buy former pubs and convert them into fast-food restaurants without the need for express planning permission.

11. Pubs in peripheral locations can be attractive to fast-food developers as they usually have large car parks and are surrounded by open space needed to develop a drive-through facility. Many of the premises taken up by fast-food operators to date have been ones where the pub has closed down or been sold by the breweries on the basis that they are no longer viable. However, this is not always the case.

12. In addition to concerns about the loss of a local facility, there may be concerns over the impacts that a fast-food take-away will have with regard to traffic, noise, safety and air pollution. There are provisions within the environmental health legislation for dealing with the nuisance that can arise from cooking smells and extractor fan noise. However, the pattern of activity arising from take-aways can involve late night use and the congregation of groups of people in the vicinity, not dissimilar in some respects to public houses and clubs.

Sandwich Shops

13. Recent years have seen an increase in the popularity of sandwich shops, coffee shops, juice bars and soup bars. These establishments have grown around shopping and transport links and operators are continuing to look to purchase sites in
Warehouse Clubs

14. Warehouse clubs commonly offer a narrow selection of products within a wide range of product categories at wholesale prices. They tend to attract small businesses but are also available to members of the public who subscribe to an annual membership. There has been uncertainty in the past regarding warehouse clubs and where they fit within the UCO. In particular, the classification of warehouse clubs in A1 has been held to be contentious because the use is not wholly available to “visiting members of the public” as entry is limited to members only. Indeed, UK case law has endorsed the view that warehouse clubs are not a UCO Class A1 “shop”, but are in fact sui generis and would therefore require planning permission to change to A1.

Internet Shops/Cafés

15. These facilities vary considerably, from something akin to a high street financial services outlet (that is, a use providing a service to visiting members of the public and characterised by desks and computer terminals) to something more like a café (that is, a place for food and drink, with sofas and coffee tables, but with some computers). Most are small in scale and often ancillary to the main use of the premises, but a few in certain areas are large-scale, single-purpose operations which do not readily fit into the current UCO. Whilst the number of such facilities is not particularly significant, there is a need to clarify the way that Internet shops/cafés should be dealt with under the UCO.

Motor Sales

16. Movement of activity from a car showroom to A1 retail is currently permitted by the GPDO. Given the number of car showrooms in out of town locations, well placed for access by car, there is a concern that this flexibility allows the development of out-of-town shopping establishments with the potential for supermarkets to buy up former car showrooms.

Options for Change

17. The researchers recommended that, subject to a number of limitations, there could be scope for introducing greater flexibility within the A Use Classes by combining the current A1, A2 and A3 classes to form a single new “mixed retail” uses Class. They made this recommendation based on the principle that the mix of uses within a centre should be primarily determined by the market. They suggested that the inclusion of a range of activities within this mixed retail use – shops, post offices, small cafés/bars, financial services, banks and travel agents – would maximise the opportunities for the full use of premises.

18. However, the researchers also recommended that control should be maintained over certain uses which were likely to give rise to the greater impacts. In particular, they recommended the introduction of a maximum size threshold of 100 square metres of gross lettable area (GLA) for changes into or out of the new “mixed retail” uses class for the different activities that were formerly within the A3 Use Class (restaurants, pubs, cafés etc). Below this threshold, such establishments could be part of the new “mixed retail “use.

19. Above the size threshold, the researchers recommended that separate use classes should be set for establishments where the primary purpose was the sale and consumption of alcoholic drink, and establishments for the sale of food and drink primarily for consumption on the premises. Establishments for the sale of hot food to be taken away should be sui generis.

20. The researchers further recommended that:

• internet shops/cafés where the primary purpose is the sale of access to internet services should be within the new “mixed retail” use, or if they are above the size threshold and have as a primary purpose the consumption of food on the premises or the consumption of alcohol on the premises, to be classified according to their primary purpose;

• sandwich shops and coffee shops should be part of the new “mixed retail” use if they are below the size threshold and otherwise to be classified with uses where the primary purpose is the consumption of food on the premises;

• the provision for motor sales to change to shops as permitted development should be removed; and

• warehouse clubs should be included within the ‘Aa’ mixed retail class.

Option 1 "A" Uses

21. The researchers’ proposals would result in a new A Use Class as set out in Table 2.


22. The researchers did not carry out any research into the effect of setting the size threshold at 100 sq m GLA. The Government is considering this issue further and has asked for views on whether such a threshold is appropriate.

Draft Response:

The introduction of a mixed retail class causes concern as it covers a broad range of uses, some of which are less attractive to a retail area than others. There is a concern that, if unrestricted, the less attractive uses may become over-concentrated in a particular part of a shopping area.

The 100 sq m threshold appears rather arbitrary and the proposals do not allow for cases where a use in the new Class Act is under 100 sq m. Class Aa and Ab do not make it clear they exclude the sale of alcoholic drink. The proposal that the sale of hot food to be taken away is to be sui generis is welcomed as it assists clarity. Also the sale of motor vehicles, launderettes, taxi businesses, car hire, filling stations and scrap-yards being clarified as sui generis is welcomed.

Option 1 links Public Houses, Bars and Nightclubs in one Class Ac. This is not considered appropriate as it could lead to the change of use of Public Houses to Nightclubs without the need for planning permission. It is also not considered appropriate that warehouse clubs be included in the new mixed retail use but should be a sui generis use because of their character which may not be appropriate in certain locations. Nightclubs should be in the D Use Class category.

Option 2 "A" Uses

23. An alternative option suggested by the Government, based on that recommended by the researchers, would be to merge Use Classes A1 and A2 to form a new “mixed retail” use, whilst excluding A3 uses entirely from this new class. This would increase flexibility to change between shops and other services for visiting members of the public, but would ensure that local planning authorities could retain control over all establishments for eating and drinking (i.e. not just those over 100 sq m GLA).

24. In this and subsequent options, warehouse clubs have been classified as sui generis as their position in the “mixed retail” class could lead to inappropriate out-of-town shopping.

Draft Response:

It is considered appropriate that the old A3 uses are kept separate and that warehouse clubs are classified as sui generis.

Option 3 "A" Uses

25. A further option proposed, based on option 2, would be to include premises for the sale of food and drink primarily for consumption on the premises, within the new “mixed retail” use, whilst excluding from this new class premises where the primary purpose is the sale and consumption of alcoholic drink. This would increase flexibility still further, by the ability to change from, for example, a shop to a café, but would ensure that local planning authorities could retain control over pubs and bars which could have significant impacts on amenity.


Draft Response:

There is concern over the lack of control in changing a use from a shop to a café. Cafés, whilst not generating the problems of pubs and bars, can be inappropriate because of over-concentration of such facilities, general disturbance and fumes.

Option 4 "A" Uses

26. Options 2 and 3 retained the researchers proposed split of A3 into premises where the primary use is for food and drink and premises where the primary use is for the sale of alcohol. Option 4 would keep A3 as it currently is (but excluding take-aways) and would allow establishments to change between restaurants, cafés, pubs and bars without the need for planning permission.


Draft Response:

Keeping Class A3 is generally welcomed (but excluding take-aways).

Option 5 "A" Uses

27. In options 2, 3 and 4 hot food take-aways are considered to be sui generis. Option 5 would therefore be to adopt option 2, 3 or 4 but with the sale of hot food to be included within the sale of food class. This would avoid difficulties of definition (for example, where a fast-food restaurant includes eat-in and take-away facilities in equal amounts) but would not allow control over the potential adverse effects of the take-away trade.

Draft Response:

It is not considered appropriate to include take-aways in the sale of food class. Take-aways generate particular difficulties that have been identified and to provide effective control should be sui generis.

Question 6

Which option for Use Class A do you think would most meet the objectives set out with regard both to town and city centres and to local/neighbourhood centres? Would you prefer to leave Use Class A as it currently is (the “do nothing” option)? Would you prefer an alternative option not set out in this paper?

Question 6: Option 4 is favoured although there is concern with retail and financial and professional services being merged into one use as this could lead to an oversupply of financial and professional services in an area with the resultant loss of variety and mix of uses.
Providing coffee/sandwiches in shops (and banks/building societies) is becoming very “fashionable” in the larger cities and towns and is a good thing (providing the floorspace is limited in order to limit noise/disturbance) as it adds to variety and interest in town centres.
It may be appropriate to consider as an alternative two “mixed retail uses”:

a) mixed shops/sandwich/coffee shops up to 100 sq.m. and

b) mixed financial and professional services/sandwich/ coffee shops up to a limit of 100 sqm. This would help secure variety and mix of uses in town centres without the potential undesirable effects of loss of retail to financial and professional services.

Question 7

Why do you prefer your chosen option?

Question 7: Option 4 is favoured because it keeps food and drink uses in a separate use category providing greater control over such uses which can cause problems.

Question 8

If a size threshold were introduced in the way recommended by the researchers, do you think that 100sq m GLA would be appropriate? In your view, what would be the effect of setting such a threshold on the mix of uses in:-

a) town and city centres? And
b) local/neighbourhood centres?

Question 8: It is not considered that a 100 sqm threshold as proposed would be appropriate in all instances. It may be more appropriate in large towns and city centres but in small towns and local/neighbourhood centres it is not felt appropriate because of the generally small scale nature of units in such areas and the possible cumulative effects of a series of units charging to the ford and drink Use Class.



The "B" Use Classes
Objectives

28. The Government’s planning policy objectives relevant to these uses are generally to locate development so as:

• to promote more sustainable transport choices for both people and for moving freight;

• to promote accessibility to jobs by public transport, walking and cycling;

• to reduce the need to travel, especially by car;

29. More specifically for the different elements of the B use class the Government is seeking:

• Offices: to focus office development in city, town and district centres and near to major urban public transport interchanges;

• Research and Development: to facilitate the development of clusters of high-technology, knowledge-driven companies;

• Industry: to ensure that there is a supply of sites with a choice of means of access;

• Distribution: to promote sustainable distribution, including, where feasible, the movement of freight by rail or water by:

- locating distribution and warehousing facilities, particularly of bulky goods, away from congested central areas and residential areas and ensure adequate access to trunk roads; and


- promoting opportunities for freight generating development to be served by rail or waterways by identifying and protecting sites adjacent to such infrastructure.

Government Concerns about the Current Uses within the B Class
Class B1

30. The current B1 Use Class brings together into a single class a number of uses which it was considered would be capable of being undertaken “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”, although this definition takes no account of scale, traffic generation or parking problems. It provides considerable flexibility for development in an area where it can be difficult to differentiate between uses.

31. This flexibility was introduced following a review of the Use Classes Order in 1987 as a deregulatory measure. However, it has been suggested that the current composition of the B1 use class can act against the policy of promoting office development in town centres where there is readily accessible public transport infrastructure since it does not distinguish office uses from research and development and light industry.

32. There is a concern that this could encourage developers who receive planning permission for a science park, for example, to use that planning permission instead for office accommodation, which might attract higher rents. However, it could also be argued that the very fact that a science park can turn into office accommodation has led to more science parks being developed than would otherwise have been the case, since the developer has the reassurance that he could subsequently use the site for offices if the science park venture was not successful.

The B2 and B8 Use Classes

33. Property managers with a significant portfolio of industrial and storage space suggested, in the researchers’ survey, that the buildings in the storage and distribution Use Class (B8) in practice divided into two main types. The first of these comprised buildings that were similar to general industrial sheds and which occurred on most industrial estates (and so were similar to B2 use). The second type could be described as ‘high-bay distribution’. These buildings were often designed, built and located for the express purpose of handling a very large throughput using the most advanced and high-capacity storage, access and handling systems. It has been suggested that, due to the similarity in the use of space and impact of certain types of Class B2 use and part of the range of activity encountered within the B8 use class, there was scope for greater flexibility in the use of space by merging all or parts of these categories of use.

34. An alternative view, however, is that B8 uses may have very specific locational requirements, such as sites next to railway sidings, wharves or near motorway junctions and that such sites therefore need to be reserved or safeguarded for such uses.

Changes from B1 and B2 to B8

35. The researchers found that there were some problems emanating from the ability to change from B1 and B2 to B8. These included concerns over increases in traffic movements (should the total storage area increase) and the loss of jobs (as B8 uses were generally less employment intensive).


Flexibility to Change within the B Class

36. Under the current composition, permitted development rights allow changes between B1 and B8 (both to and from) and from B2 to B8, up to 235 m2 of floor space. The flexibility has been in existence for many years and has not provoked any strong comments. However, the researchers heard evidence that subdivision of units had been used as a means of overcoming area constraints, enabling incremental change to take place. Cumulatively, this could amount to a significant degree of change and the impacts much more pronounced.

Options for Change

37. Views on whether allowing more use to be made of the existing subdivisions of the B1 Use Class (for example by splitting them into separate use classes) would help or hinder the Government’s policy objectives are asked for. The consultation paper, in particular, asks for any examples of where the current composition of the B1 Use Class has had a direct affect (either desirable or undesirable) on the promotion of the Government’s policy objectives.

38. In advance of hearing views on the above, only two options are put forward. The first is the option recommended by the researchers. The second is a “do nothing” option.

Option 1 "B" Uses

39. The researchers recommended that those uses which could be categorised as primarily involving the production of artefacts (currently Class B1(c) light industry), should be separated from those uses categorised by the primary purposes of research and development (Class B1(b)) or use as offices (Class B1(a)), which should remain together. They also recommended that “other industrial processes appropriate in a residential area” should be renamed as “clean production”.

40. As a consequence of this change, the researchers recommended that provision for general industrial space (Class B2) to move without planning control should be limited to a move to clean production use only (Class B1(c)).

41. The researchers noted that there were some potential drawbacks to these recommendations. In particular, there would be a loss of some of the automatic flexibility from which the users of some Class B1 space currently benefit. However, the researchers felt that this was not an undue restriction. New premises could be given a planning permission that embraces office, research and development and light industrial use where the location was suitable and where the policy context based on a full range of economic and social as well as environmental considerations was supportive.

42. The researchers considered that the promotion of a science park rather than a general business park ought to be achieved through carefully specified and justified allocations within development plans, to be implemented through development briefs and Section 106 Agreements.


43. Table 7 illustrates the researchers recommended option.
Option 2 "B" Uses

44. Option 2 would be to leave Use Class B as it currently is. The advantage of such an approach would be to retain the current flexibility and simplicity of the existing B1 Use Class. It has been argued that maintaining the B1 Use Class would prevent the need for difficult decisions on which use (office, clean production or research processes) was primary in any particular site or building and which was ancillary, particularly given that these uses could fluctuate naturally over time.

Question 9

Do you think that allowing more use to be made of the existing sub-divisions of the B1 Use Class (for example by splitting them into separate Use Classes) would help or hinder our policy objectives as set out? It would be helpful if you could illustrate your answer with examples of where the current composition of the B1 Use Class has had a direct affect (either desirable or undesirable) on the promotion of our policy objectives.

Draft Response:

Question 9: The splitting of office and research and development from light industry (clean production) is favoured and it is considered would be more likely to help with the policy objectives by being able to exercise more control over where offices and R&D uses are located.

At present the ability to change from light industrial use to office has resulted in the provision of office accommodation with greater parking requirements and car usage being located in and out of town locations away from transport links.

Question 10

Do you think that either of the options set out above for Use Class B would meet the objectives set out? Would you prefer an alternative option not set out in this paper?

Question 10: Option 1 appears to best meet the objectives.

Question 11

Why do you prefer your chosen option?

Question 11: Option 1 is favoured for the reasons set out above.

The "C" Use Classes
Objectives

45. The Government’s main planning policy objective relevant to these uses is that:

• the Government intends that everyone should have the opportunity of a decent home. Its aim is to widen housing opportunity and choice and secure a better mix in the size and type of housing than is currently available, including for those in need of affordable and special needs housing.

Concerns about the Current Uses within the C Class
Definition of a Hotel and a Hostel

46. The researchers identified concern about the lack of clarity over the precise definition of a hotel and a hostel, making it difficult to differentiate between the two. Hostels have been treated as sui generis since 1994. This was initially introduced in order to help prevent the erosion of the character of traditional holiday resorts. In more recent years, the definition of a hostel has come into question where local planning authorities have sought to make provision for refugees. Hostels also provide an important source of affordable housing for young employees and students and their loss to tourist accommodation would be inappropriate.

Residential Institutions

47. It has been suggested that the definition of C2 use is too wide, encompassing uses as diverse as care homes for those with special needs, nursing homes for the elderly and halls of residence. These could have quite different impacts in terms of noise, transport and general levels of activity. There has also been the suggestion that this allows inappropriate development in residential areas.

Houses in Multiple Occupancy

48. The Government has received a large number of representations about housing in multiple occupancy and, in particular, student housing. Some people have sought additional planning controls as they argue that the occupation of a house by six students gives rise to different impacts from the occupation by a family. This can include impacts on noise, traffic, parking and the visual appearance of the building. People have also expressed concern about the effect on the character of an area where a large number of dwelling houses are occupied by students. This stems, in part, from the way the houses are maintained and managed by the landlord and, in part, from the behaviour of the occupants, neither of which are subject to planning control.

Homes for Care in the Community Patients

49. Another concern with the C3 Class over the last decade identified has been the practice of some local authorities buying up property for housing care in the community patients. Many local people have objected that this has affected the amenity of their area.

Short-Term Housing

50. Another issue that has arisen regarding Use Class C is the potential for loss of permanent homes to the provision of short-term lets for business or other visitors, including aparthotels and serviced accommodation through to time-share units. Developers have turned many flats into luxury temporary accommodation in the London area. The Court of Appeal recently found in a case concerning flats overlooking Hyde Park that this change of use did not constitute development under the C Use Class.

Options for Change

51. The researchers did not make any recommendations for changes to the C Use Classes. Their reasons for not doing so were, in part, confirmation that the UCO and GPDO work reasonably well and, in part, a belief that where there were concerns raised over the construction and definition of the UCO and GPDO, there was not an alternative that would clearly be better.

The consultation paper asks for views.

Question 12

Do you consider that a change to the C Use class would better meet the objectives set out above?

Draft Response:

It is agreed that there is no obvious change that could be made to the existing provisions that would improve the problems identified, other than to bring the use of a dwelling by students under control. This would be difficult, however, particularly in defining the use. As this is not a particular problem in Waverley, it is agreed no change is appropriate.

A further area that should be given consideration is to introduce a separate Use Class for affordable dwellings. There is reference to this in the consultation paper on Planning Obligations.

Question 13

If yes, what would you recommend and what do you consider would be the benefits?

Draft Response

No recommendations are made


The "D" Use Classes
Objectives

52. The Government’s planning policy objectives relevant to these uses are:

• To focus land uses which are major generators of travel demand in city, town, district and local centres, the type of centre it goes into depending on the nature and scale of the use and the catchment served.

• City and town centres will be most appropriate for those uses serving large catchments, such as museums, central libraries, art galleries, public and exhibition halls, cinemas, concert halls, theatres and casinos.

• District and local centres will be most appropriate for those uses serving a more local catchment, such as clinics, health centres, day centres, doctor’s consulting rooms, branch libraries and bingo.

• Some uses may be appropriate in either type of centre, such as swimming pools, gymnasiums and amusement arcades.

Concerns about the Current Uses within the D Class
Breadth of Classes D1 and D2

53. Concern has been expressed to the researchers about the breadth of Classes D1 and D2. These Use Classes can be seen as “default” categories into which uses are placed that are not specific to any other Class, rather than them being similar in nature and impact. The operators of buildings in these uses often require purpose-built buildings, and, until PPG6 encouraged their location in existing centres, those promoting leisure uses, in particular, tended to seek sites on retail warehouse parks or in edge-of-town locations with high car access and plenty of parking. Since PPG6 was issued in 1996, planning policy encourages these uses to locate in appropriate types of centres.

Nightclubs

54. The part of the D Use Classes that has caused the most concern is the inclusion within Class D2 of ‘dance halls’. The common concern was with nightclubs, which might come within Class D2, within Class A3 or could be sui generis.

Potential Loss of Cinemas

55. Concern has been expressed through the survey at the potential for the loss of cinema facilities to other uses in D2. The researchers found that in most towns, more traditional cinemas had closed in town centres and large multiplex cinemas had opened, often in out-of-town locations. The researchers felt that this was the result of consumer preference and the grant of planning permissions for modern, purpose-built facilities.

Theatres

56. A number of people have expressed surprise that theatres are classified as sui generis and not included in the same Class as cinemas. This classification was made following the 1987 review. It was introduced because of the special protection promoted by the Theatres Trust Act 1976 and the consequent requirement in the General Development Order for consultation with the Theatres Trust before granting planning permission on land which includes a theatre. The Theatres Trust is also a statutory consultee for development involving any land on which there is a theatre. However, as set out in the Planning Green Paper, the Government propose to reduce the number of statutory consultees so that only those bodies whose advice has health and safety implications or which operate another parallel consent regime (such as listed building, playing field or environmental consents) will be given statutory consultee status.

Gambling Premises

57. It has been suggested that a separate use class could be set up for premises whose primary purpose is gambling or, alternatively, that all gambling-specific premises should be sui generis. However, a separate use would only be justified if there were well defined land use planning reasons for separating gambling premises from other leisure uses. The Government is still considering options and no decisions have yet been reached.

Options for Change
Option 1 "D" Uses

58. The only change proposed by the researchers to the current composition of the D Use Class is that nightclubs above 100 square metres of gross lettable area should be specifically included in the A Use Class for premises where the primary purpose is the sale and consumption of alcoholic drink. Clearly, this option will be dependent upon what is decided for the treatment of pubs and bars in the A Use Class.

Option 2 "D" Uses

59. In response to the research report, it has been suggested that nightclubs are no more similar to traditional pubs than they are to other dance halls. Option 2 therefore proposes that nightclubs should be in a Class of their own. This could come either under the D Class (where change of use to D2 Uses could be permitted) or under the A Class (where change of use to pubs, restaurants or mixed retail use could be permitted). The Government would welcome views on which Class would be most suitable.

Option 3 "D" Uses

60. It has been suggested that since the uses in Class D are all so disparate, there is no benefit to be gained in distinguishing between D1 and D2 use. For example, it has been suggested that places of worship might have very similar patterns of visitors to cinemas and concert halls. Option 3 therefore creates just one assembly and leisure class. Table 10 illustrates this option.
Question 14

Which option for Use Class D do you think would most meet the objectives set out? Would you prefer to leave Use Class D as it currently is (the “do nothing” option”)? Would you prefer an alternative option not set out in this paper?

Draft Response

Option 2 is preferred.

Question 15

Why do you prefer your chosen option?

There is a wide difference between the different uses in the D Use Class. Whilst the split between D1 and D2 is perhaps not ideal it is not considered appropriate to merge the Classes. There is a distinction to be drawn between the classes in general use characteristics.

Question 16

What treatment do you prefer for nightclubs? Why do you prefer your chosen option?

Draft Response:

Nightclubs should, it is considered, be in a Use Class of their own. It does not matter particularly whether they are in the D Use Class or the A but the D Class seems more appropriate as it deals with assembly and leisure. Option 2 is therefore favoured.

Temporary Uses

61. Part 4 of the GPDO permits the temporary use of any land for any purpose for not more than 28 days in total in any calendar year (although some purposes are restricted to no more than 14 days in total) and the provision on the land of any moveable structure for the purposes of that use, unless:

• the land in question is a building or is within the curtilage of a building;

• the use of the land is for a caravan site;

• the land is, or is within, a site of special scientific interest and the use of the land is for:

(i) motor sports;

(ii) clay pigeon shooting; or

(iii) any war game

• the use of the land is for the display of an advertisement.

62. The following temporary uses are restricted to no more than 14 days:

• the holding of a market; or

• motor car and motorcycle racing including trials of speed.

Objectives

63. The provision for temporary uses without the need for planning permission is intended to be beneficial to the community, by providing for infrequent recreational and fund raising events to be held. In particular, the temporary use provisions can be of great benefit to the rural economy, for example, by allowing farmers’ markets and similar events to take place. There are clear benefits to planning authorities from avoiding the need for a very wide ranging but generally harmless (by their nature and/or by being intermittent or infrequent) group of activities to be subject to planning procedures.

64. The provisions in the GPDO do, however, contain some quite specific exceptions to the general freedoms provided. This reflects particular types of impact that might arise and the types of location that might be affected, for which the general freedom is not seen as being appropriate.

Concerns about the Current Temporary Uses Provisions
Car Boot Sale and Weekend Markets

65. The principal concern identified by researchers arising from the temporary use provisions is with car boot sales and weekend markets. If operators are inclined to hold markets on more days in a year than provided for in the GPDO there are practical difficulties in enforcing the provisions. Monitoring the activity, and distinguishing between the landowner, the operators and vendors to establish the identity of the responsible persons are onerous tasks.

66. In some cases, the problems are exacerbated by the operator having more than one site in the same general location, for example, with sites on different sides of the same village or even of the same road. By this device, the same operator can operate a similar market to attract customers from the same catchment area every weekend of the year.

67. Traffic is the most frequently reported problem with localised congestion, danger to other road users and pedestrians and inconvenience to residents through parking and noise all arising in some cases. Other concerns include considerable disturbance to local residents arising from the hours of working, litter, inadequate on-site facilities and the detrimental visual impact of these events in the countryside.

Motor Sports

68. The second most common problem is the inclusion of motor sports, including activities such as motor-cycling scrambling, stock-car racing and car racing. The primary objection to these was the noise they create. These activities can be seasonal and take place in the middle of summer so local residents could be subjected to noise for several weekends running.

Clay-Pigeon Shooting

69. Concern has also been raised about the noise this activity created, which can carry for up to three to four miles away.

Options for Change
Option 1 Temporary Uses

70. Option 1 is to retain the current temporary use provisions. Local planning authorities can already remove specified permitted development rights by means of a direction under Article 4 of the GPDO. Under an Article 4 direction, the removal of permitted development rights can be tailored to the particular needs of a site or area and can therefore be kept to a necessary minimum.

71. However, there are difficulties in adopting this approach. Most significantly, there may be an ongoing liability on the local planning authority to pay compensation where a subsequent application for planning permission is refused or granted subject to conditions. If Government amends the GPDO to remove certain permitted development rights (which would be the case under the following options), compensation may still be payable, but it is limited to the first twelve months after the change is introduced.

Option 2 Temporary Uses

72. The researchers acknowledged that there was a great deal of activity that took advantage of the permitted development rights which causes no harm to issues of acknowledged planning importance and indeed which might be desirable. However, having considered a range of options, the researchers concluded that only the complete removal of temporary use provisions would really address the problems adequately. They therefore recommend that the temporary use provisions be removed for all temporary uses currently under Class B of Part 4 of the GPDO and be replaced with a requirement that events organisers seek planning permission for a site on which they might wish to hold activities from time to time.

Option 3 Temporary Uses

73. In order to address the specific problems identified, but to retain the benefits of temporary use provisions, an alternative option would be to remove permitted development rights for temporary markets, all motor sports and clay pigeon shooting.

74. This option would provide local planning authorities with the opportunity to consider the planning implications for those activities which cause the most local controversy and disruption. However, both this option and option 2 would also remove permitted development rights for farmers’ markets, which are strongly supported by Government.

75. These options would not, of course, stop such activities taking place, since an organiser could still apply for planning permission. This might be on the basis of a certain number of activities on a specific site within a year.

Option 4 Temporary Uses

76. It has been suggested that reducing the number of days on which temporary uses can occur would help to reduce the impact. Option 4 is therefore to reduce the number of days on which temporary markets, all motor sports and clay-pigeon shooting can operate without planning permission to seven days in any one year. Whilst this would half the number of occasions on which such activity could take place, it would not allow local planning authorities to control the potentially adverse effects on those days when the markets etc were operating. In addition, it
Option 5 Temporary Uses

77. Option 5 would be to introduce a size threshold above which permitted development rights would be removed for temporary markets, all motor sports and clay-pigeon shooting. Different thresholds would need to be established for each activity. For example, a suitable size threshold for car boot sales could, perhaps, be based on the number of stalls, or “car boots”, or the expected number of people attending such markets. This would allow local planning authorities to control the larger activities which could be expected to have the greatest adverse impact. However, it would have difficulties in terms of enforcement, as well as in ensuring that whatever threshold was set did not catch fêtes or other one-off charitable events.

Option 6 Temporary Uses

78. Option 6 would be to introduce a notification procedure. Some local planning authorities have recommended a simplified notification system, whereby event organisers could ask the authority if they needed planning permission in advance. If the authority felt that the event would cause no harm, they could go ahead with it, whereas if there were any potential effects the authority could require planning permission. A significant problem with this idea is that if planning permission was required for a one-off event, it could take a long time to be authorised, putting the event into jeopardy. In cases where planning permission was refused, there would also be a need to ensure that any subsequent appeals were dealt with speedily. This option would reduce the level of certainty and clarity. Problems may also arise in deciding what action, if any, should be taken if the local authority is not informed of an event taking place.

Question 17

Which option for temporary use provision do you most favour? Would you prefer an alternative option not set out in this paper?

Draft Response:

The permitted development provisions for temporary uses generally do not cause a problem in Waverley. There is, however, the potential for difficulties as outlined above. It seems that the realistic options are either Option 1 (do nothing) or Option 4 (reduce the number of days to seven a year rather than 14 for the more potentially harmful activities). The other options are not considered practical or appropriate. Options 2 and 3 would be overly restrictive and, judging by experience to date, unnecessary. They would penalise responsible operators and increase bureaucracy for small organisations (eg. village fête organisers who would have to potentially apply for planning permission.) Options 5 and 6 are impractical. Option 5 would introduce fundamental problems with definitions and enforcement. Option 6 introduces a potentially confusing notification procedure that, in other areas of planning (e.g. telecommunications and agricultural development), has not worked well, is overly complicated and not particularly effective.

Question 18

Why do you prefer your chosen option?

Draft Response:

Option 4 is favoured as it introduces further safeguarding control but would still allow some flexibility and the operation of certain more one off events without the complication of having to seek planning permission.




















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