In light of Mark E. Smith’s recent departure, over the weekend, I spent a few happy hours absorbed in The Fall’s back catalogue. Before I knew it, I was diverted by planning matters whilst listening to ‘Industrial Estate’; which includes the seminal line, (right up there with anything by Auden or Larkin in my book):

and we’d build a canteen, but we haven’t got much space

It is, of course, doubtful that Mark E. Smith gave any consideration to including a verse along the lines of “but, in the event we can find space, we should consult a planning professional to find out if such an addition would be considered ancillary to the existing use of our unit”; which would undoubtedly detract from the overall message.

Anyway, I digress, this link provides opportunity to highlight a matter that we are frequently asked to advise on, this being: Whether a change of ‘use’, such as the introduction of a canteen in an industrial unit or a café in a department store requires planning permission?

What’s the Answer?

In short, the classic lawyer response of “it depends” applies. Only a material change of use requires permission. In assessing materiality, the “depends” principally relates to the nature and scale of the activity in question.

In the example provided by The Fall, if they had the space, a canteen serving the industrial unit would typically be considered as ancillary to the existing use of the planning unit. In simple terms, the primary use of the industrial unit wouldn’t change as a result of the introduction of a canteen. Accordingly, such an addition wouldn’t require consent for change of use.

However, as the 66 previous band members of The Fall can testify, things can change. If, for example the scale of the ancillary use increased to a point where it became dominant over the permitted use, permission for a change of use consent would generally be required and the risk of enforcement action is heightened.

Our Experience

A typical problem area concerns Class 1 (Retail) units and whether or not the sale of hot food/drink to take away conflicts with the permitted use.

Scottish Government guidance succinctly states that just because a (Class 1) shop sells cold food for consumption off the premises, it does not cease to be Class 1 “merely because it also sells hot drinks or a few customers eat on the premises”.

Local Planning Authorities (“LPA”) across Scotland echo this advice, a good example being Edinburgh City Council’s ‘Guidance for Businesses’, the general content of which goes beyond Edinburgh specific matters and is a useful point of reference.

In enforcement appeals, a Reporter will scrutinise ‘the position on the ground’. Indicators such as extent of the physical and functional sub-division, floorspace, catering equipment, extent of menus, existing consents have all played a role in Reporters’ decisions on materiality.

Ultimately, each case will turn on its own particular facts and circumstances, which will require to be evidenced robustly in any appeal process.