The Scottish Government has published a Consultation on proposals to amend planning legislation to impose stricter controls over change of use of premises to betting and pay day lending offices. The proposals arise from concern over "levels of gambling and personal indebtedness and the prevalence of betting shops and premises selling high interest short term loans" and are part of the Scottish Government's Action Plan on Pay Day Lending and Gambling. The planning system is devolved to the Scottish Parliament while direct regulation of gambling and financial services is reserved to the UK Parliament.
Background
The Consultation proposes amendment of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (the UCO) and the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the GPDO).
Ordinarily a material change of use of premises constitutes "development" and will require planning permission. However:
- The UCO contains classes of defined uses of land and buildings. Where a building is used for a purpose within a particular class, the use of that building for any other purpose in the same class is not taken to involve development 1; and
- The GPDO grants planning permission for specified types or classes of development without the need for an application for planning permission. The GPDO grants planning permission for a change of use of premises from a use in Class 3 (food and drink) of the UCO or from hot food takeaways to a use within Class 2 of the UCO2.
Currently both betting offices and pay day lending (PDL) offices fall within Class 2 of the UCO (financial, professional and other services (including use as a betting office) which it is appropriate to provide in a shopping area and where the services are provided principally to visiting members of the public). As such, new betting or PDL offices can open without the need for a further planning permission when the premises already have planning permission for another Class 2 use (under the UCO provisions noted above) or for a Class 3 use or use as a hot food takeaway (under the GPDO provisions noted above). The effect is that the local authority has no control over the change of use to a betting shop or PDL. It is this that the proposals seek to change.
Betting offices
The proposal is to remove betting offices from Class 2 and add them to the list of land uses specified in Article 3(5) of the UCO. These uses are explicitly not within any use class of the UCO. Consequently, a change of use to a betting office would always require planning permission. The GPDO would also be amended to maintain current PD rights to change from a betting office to other uses. "Betting offices" would be defined by reference to the definition found in the Gambling Act 2005.
Pay Day Lending Offices
The same basic approach is proposed for PDLs, i.e. removing PDLs from Class 2 such that an application for planning permission for change of use to a PDL office is required while maintaining the current freedom to change from a PDL use. However the matter is complicated by PDLs being part of a much wider financial services sector and not wishing to restrict current UCO and PD rights for financial services other than PDLs. Two options are suggested:
- Exclusion option: maintaining the general reference to "financial services" within Class 2 of the UCO, but subject to defining PDLs that are excluded from Class 2; or
- Inclusion option: removing the general reference to "financial services" from Class 2, but defining particular financial services (e.g. banks, accountants or insurance services) that are still to be included in Class 2.
The Consultation highlights that there is no agreed definition of what constitutes a PDL and this may cause difficulty if the Exclusion Option is adopted. This is further complicated if the PDL use is ancillary to another use. The Inclusion Option has its own definition difficulties in that each financial service use that is not to be excluded from Class 2 must be identified. The Consultation acknowledges that this is likely to exclude some financial services that are not of concern.
Comment
Many people will support the policy aims underlying the proposals and the Scottish Government's commitment to tackling problem gambling and personal indebtedness within the available devolved powers. However, the proposed changes raise several interesting questions regarding use of the planning system to achieve these objectives:
- One of the advantages of the UCO is its simplicity. It operates largely on the basis that planners and developers know a pub or a financial services office when they see one. Defining what is or is not a PDL will be complex and open to dispute (remembering that the prize is being able to open without the need for a planning permission that the local authority might be reluctant to grant). The Consultation raises an image of planners, and then lawyers, pouring over financial services legislation to identify a "an entity with permission under part 4A of the Financial Services and Markets Act 2000 that includes accepting deposits"
- The Consultation states that it is the "over-provision or clustering" of betting and PDL offices that is having a negative impact on the "character and amenity of town centres and shopping areas and the wellbeing of communities". Looking at the current uses listed in Article 3(5) of the UCO (e.g. pubs or hot food takeaways) there is an obvious amenity concern. The planning system controls the opening or clustering of pubs not because of a general social concern over alcohol, but because of well-documented anti-social behaviour problems that may affect surrounding residential and business premises. It is not immediately apparent what negative character and amenity impacts are associated with PDL offices or the clustering of this particular financial services use.
- Similarly, and as the Consultation acknowledges, the planning system is not ordinarily concerned with controlling the particular services that may be sold from an office. Betting and PDL services are entirely legal and, it may be argued, in planning terms are as inoffensive as any other financial service use.
- The effect of the proposals would be to require an application for planning permission. The Consultation notes that justification for refusing such an application must come from the development plan and other material considerations and "will be reliant on local planning policy and evidence to support decisions". The recently published Scottish Planning Policy 3 refers to inclusion of development plan policies where a town centre strategy indicates that further provision of betting or PDL offices would undermine the character and amenity of centres or the well-being of communities. Again this indicates that town centre strategies, development plan policies and individual application decisions should be based on evidence of over-concentration of these uses and a resultant impact on the character and amenity of the particular town centre.
Responses to the Consultation should be submitted by 14 November 2014.
Footnotes
1 Town and Country Planning (Scotland) Act 1997, section 26(2)(f) and UCO, Article 3
2 GPDO, Article 3 and Schedule 1, Class 11
3 At paragraphs 67 and 70.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
