Significant changes to use classes system and permitted development rights (“PDR”) in Scotland are due to come into force through the new Town and Country Planning (General Permitted Development and Use Classes) (Scotland) Miscellaneous Amendment Order 2023/35 (“the Order”).
The Order amends the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (“the GPDO”) and the Town and Country Planning (Use Classes) (Scotland) Order 1997 (“the UCO”). The changes, which are due to come into effect on 31 March 2023, form part of a phased programme to review and extend UCO and PDR in Scotland.
While the Order deals with a number of issues, this update is focused on changes which are designed to support Scotland’s city, town and local centres and ensure their ability to be resilient and adaptable. There have been longstanding challenges facing Scotland’s city, town, and local centres, and these have arguably been heightened in recent times as a result of the pandemic and the challenging environment in the retail sector.
The amendments to the GPDO and the UCO made by the Order are part of the Scottish Government's phased programme to review and extend PDR in Scotland, and specifically relate to Phase 2 of that review programme.
A new ‘town centre’ Use Class
The UCO's use class 1 (shops) and class 2 (financial, professional and other services) will be replaced by a new use class 1A which combines former use classes 1 and 2.
While PDR currently allows for changes from class 2 to class 1 without applying for planning permission, there are no corresponding PDR allowing a change from class 1 to class 2. However, on the new class 1A coming into force, changes of use which would previously have involved a change between use classes 1 and 2 will no longer be considered development for planning purposes as they will. Changes between the previous two classes will therefore be possible without the need to apply for planning permission.
The amendments to the UCO will provide greater flexibility to change the use of buildings and will also allow for buildings to potentially have a range of uses within class 1A within a single use class.
New Permitted Development Rights
Positive news for the hospitality industry
Article 8(c) of the Order will insert a new class 11A into the GPDO. This new Class 11A will authorise changes of use to class 3 (food and drink) from new class 1A (shops, financial, professional and other services), use as a betting shop, use as a pay day loan shop and use as a hot food takeaway.
There is a limitation on these new PDR as they do not permit a change of use of a building, or unit within a building, where it is situated below any part of a dwelling or within 1 metre of a dwelling in order to limit the impact on residential amenity.
This new use class will make it easier to convert a variety of units into restaurants and cafes, potentially providing a boost to a hospitality industry which has faced a number of challenges in recent years.
Another positive change for the hospitality industry can be found in Article 7(1) of the Order, which will introduce a new class 9L into the GPDO. Class 9L will grant planning permission for the change of use of part of a public (i.e. adopted) road adjacent to Class 3 (food and drink) premises or a public house for the purposes of selling or serving food or drink supplied from those premises, or consuming food or drink supplied from those premises. Class 9L will also grant planning permission for the placing of furniture for use in connection with this purpose.
There has been a marked rise in outdoor seating areas being used by bars, restaurants and cafes across the country over recent years and the new class 9L will make it easier for these areas to be established. It is important to note that while the GPDO will grant planning permission for the placement of furniture under class 9L, it does not remove the need to obtain consent from the roads authority under section 59 of the Roads (Scotland) 1984 prior to placing an obstruction in the road.
It is also important to note that these PDR will not apply to roads which are not adopted.
Opportunities for small businesses and diversification of centres
A further PDR has been introduced by Article 8(c) of the Order, namely a new class 11B. Class 11B aims to facilitate the provision of small-scale class 4 workspaces.
Class 11B will grant planning permission for changes of use of a building, or unit within a building, to class 4 (business) use from new class 1A, class 3 (food and drink), use as a betting shop, use as a pay day loan shop and use as a hot food takeaway. These PDR are only available where the floor area of the building, or unit within a building, is no more than 300m2.
This new PDR is expected to provide opportunities for small businesses to set up and operate within their local communities, while also helping to diversify the range of businesses in the area. Moreover, the provision of small-scale workspaces can contribute to the regeneration of high streets and other commercial areas, enhancing the vitality of local economies. The new class 11B PDR therefore provides a significant opportunity for small-scale businesses to establish and operate in areas where suitable workspaces are limited, while also having a positive impact on local economies.
Repurposing car showrooms
Due to consequential changes arising from the introduction of the new Class 1A, Class 10 of the GPDO will now permit changes from use for the sale (or display for sale) of motor vehicles to use within what is currently class 2. This is subject to a limitation that the total floor area of the building must not exceed 235m2.
Positive changes to planning and development in Scotland
While there has been a number of radical changes to the English equivalents of the GPDO and UCO over the years, we have only seen relatively minor changes in Scotland. However, these changes have the potential to make a significant different to our town centres, by allowing greater flexibility without the burden of applying for and obtaining planning permission.
As always, the operation of the GPDO and UCO is subject to the terms of conditions attached to any relevant extant planning permissions. Planning authorities who may wish to exercise greater control over changes of use within town centres will have to consider, and justify, whether any conditions restricting the application of these changes should be attached to relevant planning permissions.
Article co-authored by Erin Crawley, Trainee Solicitor at CMS.