We had a full house for our seminar in Glasgow last week on Use Classes suggesting that the 1997 Order still gives rise to tricky questions despite its age. One issue which still surfaces from time to time concerns botched attempts to exclude the application of the Use Classes Order through planning condition.
Although there is a presumption against exclusion of the UCO, it is quite legitimate where it is supported on planning grounds. But in order to achieve the desired effect, the condition must be absolutely clear in its meaning and intent.
From recent cases we have seen, badly drafted non-food retail consents are still in circulation although these tend to be of an older vintage. Where the planning condition purports to limit the type of goods which may be sold, typically to certain types of comparison goods, without expressly disapplying the UCO, then there may be opportunity for food retailing under Class 1.
It seems as if there has been a rash of similar cases down south over recent years. Often the original consent has been well drafted, but things have gone wrong with subsequent variations which have failed to reincorporate the original conditions.
Of course these things are rarely straightforward, and may still involve a battle with the planning authority. But at the very least a dodgy condition may provide a platform for some interesting discussions.
On October 3, 2011