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Change of Use – You must be joking

I am presently in the process of applying for a change of use to enable a client to use part of a 250m2 site for car valeting.

The existing use of the site, in accordance with the Town and Country (Use Class) Order is B1 Business. Specifically the site is used for car accident repair, this involves processes such as welding, grinding, panel beating, paint spraying and heat treatment of the finished article. The site is bounded to each side by other B1 uses and to the rear by the long gardens of dwelling houses. The area of new use will be along one of the side boundaries.

On advice of Planning Officers, we are changing the use on part of the site to Sui Generis (mixed use). The change of use is not so much the use, but the how the operation is carried out. In this case the Officer explained that the change of use is required because the process use’s a jet wash and a vacuum cleaner. Apparently the use of these two processes takes the class outside B1 into something that does not appear within the Use Class Order.

Now B1 is strange use, in the words of Star Trek “its light industry Jim, but not as we know it”. The established test of a B1 use is a business that can be carried out within a residential area and does not involve detrimental noise, vibration, smell, fumes, smoke, soot, ash, dust or grit. To be fair, the existing Accident Repair Garage would probably not pass this test. However I would suggest the new Car Valeting use probably would.

The only issue I would anticipate is noise and this can be suppressed using an appropriate enclosure around the electric motor of the vacuum and the water pressure vessel.

The first issue is, what the hell is Sui Generis? The strict latin interpretation is “of its own kind and something that cannot be included in a wider concept”, but in Planning language it is a use that fails to fall neatly into a specific use, as defined by the Use Class Order. The Officer’s decision is based upon reference to the Planning Gazeteer, a publication that does not appear to have any legal standing.

Now at this stage you must be asking, if you don’t agree with Officers view, why are you applying for Planning Permission? Why not apply for a Certificate of Lawful Development and argue the case within that procedure? The reason is because in this case I think the Local Planning Authority (LPA) will grant approval and if I am correct in my assessment the whole process will cost £335 and take 8 weeks to decide. Going through any other process will cost much more in terms of time and money. It is unlikely an application for a Lawful Development Certificate would be successful as this would be in contradiction of current thinking by Planning Professionals.

Having said that, if I thought an application for Planning Permission would be refused, applying for a Certificate of Lawful Development would probably buy another six to eight weeks of trading if the LPA are not too aggressive in applying their enforcement policy.

My point about this, in this particular case, I don’t think there is a change of use. But even this case has a twist, the existing site has a B1 use, but it would not pass the test of a B1 use, because in my opinion it would not be a business, which could be carried out within a residential area. Although the site in question is bounded by some residential properties, due to the length of the gardens the impact of the original site, I would suggest, would be nominal to these properties.

That said, the original use is more a B2 use than B1, but the new use of car valeting could hardly fall into a different use to the original site. It seems hard to believe that a use of cleaning the paintwork of cars could be considered more detrimental to the amenities of the residents than the original use where the paint, amongst other things, is mechanically removed.

Its like all planning issues, they are rarely simple and straightforward, but to be fair, the Development Control System will consider them all, even if you need to pursue your case all the way to the House of Lords.

And its for that reason I was happy to apply for permission for this so called change of use. In a perfect world we would argue the issue of whether a change of use has taken place, but it would be more costly in terms of time and money.

If I wanted to be critical I think the issue of change of use is a complex one and the amount of case law that encompasses the subject would support that statement. The Town and Country (Use Class) Order are very short relative to the complexity of the issue. Perhaps in this age of constant Planning Reform more effort should have been put into making this basic “bread and butter” subject either simpler or more comprehensive. Why not both I here you say? Come on, let’s keep it serious.

Author: Les Ryder

Categories: Development Control

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