Town and Country Planning (Use Classes) Order 1987 – Meaning of “ordinarily incidental”
[For otherwise related cases on different kinds of domestic use, see Waltham Forest London Borough Council v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 330; [2002] 13 EG 99 (CS) and R (on the application of Hossack) v Kettering Borough Council [2002] 14 EG 125 (CS).]
No planning permission is required, needless to say, if the answer is, no development.
Reference to the 1987 Order will, in principle, be necessary only if the first stage goes the other way. Thanks to regulation 3(3), permission will still not be required if the cinema use (otherwise Class D2) can be described as “ordinarily incidental to” the travel agency use (Class A1). It is here that Harrods may be relevant, since it was there decided that, when seeking the functional link between the two uses, you do not look at the particular shop but, rather, at what shops in general have as reasonably incidental activities.
Town and Country Planning (Use Classes) Order 1987 – Meaning of “ordinarily incidental”
Q A client operating a high street travel agency wants to know whether planning permission is required to create a viewing room where customers can watch documentary videos about locations of likely interest. What approach are the council likely to take in the light of the Court of Appeal decision in Harrods v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 412; [2002] 11 EG 154 (CS) (the helicopter landing pad case)?
A They will decide first of all, and without regard to the 1987 Use Classes Order, whether the new enterprise is a material change of use and, accordingly, a development within the meaning of section 55 of the 1990 Act. The question is one of fact and degree. Even if we are talking about a mini-cinema, the lack of any significant environmental effects (no box office queues presumably) will be a material consideration.
[For otherwise related cases on different kinds of domestic use, see Waltham Forest London Borough Council v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 330; [2002] 13 EG 99 (CS) and R (on the application of Hossack) v Kettering Borough Council [2002] 14 EG 125 (CS).]
No planning permission is required, needless to say, if the answer is, no development.
Reference to the 1987 Order will, in principle, be necessary only if the first stage goes the other way. Thanks to regulation 3(3), permission will still not be required if the cinema use (otherwise Class D2) can be described as “ordinarily incidental to” the travel agency use (Class A1). It is here that Harrods may be relevant, since it was there decided that, when seeking the functional link between the two uses, you do not look at the particular shop but, rather, at what shops in general have as reasonably incidental activities.
