Sui generis uses, drinking establishments with expanded food provision, and permitted development rights

United Kingdom Publication November 2020

Among the changes recently made to the Town and Country Planning (Use Classes) Order 1987, SI 1987/764 by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, SI 2020/757, is the addition to the list of sui generis uses of inter alia: ‘(q) as a drinking establishment with expanded food provision’. Is it intended to be a reference to the new temporary permitted development right under Class AA? Is there anything that explicitly spells this out?

First published by LexisNexis

The Town and Country Planning (Use Classes) Order 1987 (UCO 1987), SI1987/764, art 3 (Use Classes) at paragraph 6 states: ‘No class specified in Schedule 1 or 2 includes use—(q) as a drinking establishment with expanded food provision’.

Because the use identified is not included in a use class, it is therefore clear that this is a sui generis use.

This amendment to UCO 1987, SI 1987/764 was added by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations (UCO 2020), SI 2020/757, reg 10(7)(b) made on 20 July 2020, which came into effect on 1 September 2020.

The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015), SI 2015/596, Sch 2 Pt 3 (Changes of Use), under the heading 'Class AA drinking establishments with expanded food provision’, provides the following permitted development right:

‘AA. Permitted Development

Development consisting of a change of use of a building and any land within its curtilage—
(a) from a use falling within Class A4 of the Schedule to the Use Classes Order to a use falling within Class A4 (drinking establishments) with a use falling within Class A3(restaurants and cafes) (“drinking establishments with expanded food provision"); and
(b) from a use as a drinking establishment with expanded food provision to a use falling within Class A4 (drinking establishments).’

There are no conditions or limitations on the permitted development right. It is not a temporary right. This permitted development right was introduced on 23 May 2017 pursuant to the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order, SI 2017/619.

The fact that Class AA refers to ‘drinking establishment with expanded food provision’ in inverted commas indicates that the draftsman intended that this phrase was to be used as a defined term. The phase is to be found again in GPDO 2015, SI 2015/596, Sch 2, Pt 4 (Temporary Buildings and Uses), in new Class DA (Restaurants and cafes, drinking establishments and drinking establishments with expanded food provision to temporarily provide takeaway food), which provides as follows:

'Permitted Development

Development consisting of a change of use of a building and any land within its curtilage from—
(a) a use falling within— (i) Class A3 (restaurants and cafes) of the Schedule to the Use Classes Order; or (ii) Class A4 (drinking establishments) of that Schedule;
(b) a mixed use for any purpose within that Class A3 and Class A4; or
(c) a use as a drinking establishment with expanded food provision as defined in Class AA of Part 3 to this Schedule, to a use, at any time during the period beginning with 10.00 a.m. on 24th March 2020 and ending with 23rd March 2021 ("the relevant period"), for the provision of takeaway food.'

This temporary permitted development right was added by the Town and Country Planning (General Permitted Development) (England) (Amendment) Order (GPDO 2020), SI 2020/330, art 4 made on 23 March 2020, which came into effect on 24 March 2020. The right is subject to conditions at DA.1, and interpretation of the right is to be found at DA.2.

References:
Pioneer Aggregates (UK) Ltd v The Secretary of State for the Environment [1984] 2 All ER 358

One general principle of interpretation applied by the courts is that phrases used within the same piece of legislation, or within subordinate legislation, or sibling legislation are to be interpreted consistently, unless it is clear from the context that a contrary interpretation is to be applied. There is no contrary indication here. UCO 1987, SI 1987/764 and GPDO 2015, SI 2015/596 are parts of the statutory planning code. As Lord Scarman made clear in Pioneer Aggregates (UK) Ltd v The Secretary of State for the Environment, the planning code is a comprehensive code. UCO 1987, SI 1987/764, GPDO 2015, SI 2015/596, UCO 2020, SI 2020/757, and GPDO 2020, SI 2020/330, were made by the Secretary of State pursuant to powers in the Town and Country Planning Act 1990 (TCPA 1990). TCPA 1990 is to be regarded as the 'principal Act' (see section 91(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990).

The phrase 'drinking establishments with expanded food provision' appears in both UCO 1987, SI 1987/764 and GPDO 2015, SI 2015/596. The context in which this phrase is used is similar, namely it is describing a use of premises. In UCO 1987, SI 1987/764, this use of premises is said not to fall within a defined use class, and in GPDO 2015, SI 2015/596, it is provided that a change both from and to this use of premises can be lawfully made without the need for express planning permission. Given the fact that the phrase 'drinking establishments with expanded food provision' is a defined term in GPDO 2015, SI 2015/596 that pre-dates UCO 2020, SI 2020/757 and GPDO 2020, SI 2020/330, is included within sibling legislation made pursuant to the 'principal Act', was included in UCO 1987, SI 1987/764 and Class DA within months of each other, is part of the comprehensive planning code, and is used in UCO 1987, SI 1987/764 and GPDO 2015, SI 2015/596 in a similar context (with no contrary contextual indications), it is almost inconceivable that the phrase would have a different meaning in UCO 1987, SI 1987/764 to the definition given to it in Class AA.



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