Planning pitfalls: changes of use and planning permission

It is vital for property owners and tenants to know when it is necessary to obtain planning permission to change the use of their property. Failure to obtain necessary permissions can have severe financial effects but the planning rules are not always straightforward. Here, Peter Ferguson, head of Planning at Harper Macleod, guides us through the regulations.

Overview

Property owners and tenants are often confused as to whether a proposed change of use of land or buildings requires planning permission. This confusion can lead to changes of use taking place without the required permission.

In some cases this can cause severe difficulties and financial hardship for owners and tenants as they may be prevented from continuing the new use unless and until planning permission is applied for and granted.

The planning system has a very detailed set of rules in place to determine which changes of use require permission. The difficulty for property owners and tenants is that the rules are spread across multiple different pieces of primary and secondary legislation – and the rules change. To the uninitiated, it can be difficult to establish and find the up-to-date versions and work out how they all fit together.

The Planning Act

The starting point is Section 26(1) of the Town and Country Planning (Scotland) Act 1997 ("the Planning Act") which provides that a material change in the use of buildings or land is "development". Under the Planning Act all "development" requires planning permission unless expressly provided otherwise.

The Planning Act then goes on to exclude changes of use where a proposed new use and the existing use are within the same class of uses as specified by a Government Order. Such changes of use do not require planning permission.

Use Classes Order

The Town and Country Planning (Use Classes) (Scotland) Order 1997 ("the UCO") is the current Government Order for this purpose. It sets out 11 different classes of uses and each class specifies a number of different uses which are covered by that class. For example:

Class 2 - Financial and Other Services.
Use for the provision of:
(a) financial services;
(b) professional services; or
(c) any other service (including use as a betting office);

So long as both the existing use and the proposed new use fall within the same class, planning permission will not be required for the new use. Planning permission is usually granted for a specific use rather than for a class of uses.

The 11 classes in the UCO don't cover all possible uses of land and buildings. If a particular use isn't covered by one of the classes then that use is said to be "sui generis" (of its own kind), in which case it is not possible to change to or from that use under the UCO.

Permitted Development

There are also some situations where there is no need to apply for planning permission for a change. Under the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ("the GPDO") planning permission is automatically granted for certain types of development. This is generally referred to as "permitted development".

The bulk of the GPDO concerns works which can be carried out as permitted development. This covers a range of works from minor extensions to houses, to the installation of telecoms equipment and pipes by statutory undertakers. Part 3 of the GPDO does however grant planning permission for certain changes of use. In general terms the permitted changes are where the proposed new use is considered to have the same or less of a potential impact on amenity than the existing use. For example, the GPDO grants planning permission for a change from Class 3 Food and Drink to Class 2 Financial Professional and Other Services.

Why are some changes of use allowed under the Planning Act and the UCO, while other changes of use are allowed under the GPDO?

There are two main reasons. First, the GPDO can be disapplied by the local planning authority in certain circumstances and to certain areas such as conservation areas. Second, it is easier and quicker for the Government to change the GPDO in response to developing policy than it is to change the Planning Act.

Conclusion

While the legislative regime for changes of use is comprehensive, it is complicated, fragmented and difficult for all but the most experienced planning professionals to follow.

Before implementing a change of use it is always worthwhile discussing this with a planning officer at the local planning authority and seeking their view, preferably in writing, and you should consider consulting a specialist planning solicitor.