School’s Out…For Summer?

Doubtless in order to help improve the nation’s reading, ‘riting and ‘rithmatic, the nattily entitled Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 introduces permitted development rights for the change of use of buildings to schools.

But, somewhat ironically (given that ‘school’ uses are the subject matter) the DCLG decided to split these classes into two smaller classes.  So you get two separate classes of ‘school conversion’ permitted development rights – new Part 4 of Schedule 2 (temporary uses) Class C and new Part 3 of Schedule 2 Class K.

Two classes?  Yes, two classes.  And although they seem to share much of a common curriculum, there are some vital differences.

The Common Curriculum

As with other new PD classes, changes under either Class C or Class K are not permitted where the site is part of a safety hazard area, a military explosives storage area, a listed building or a scheduled monument.  Although frankly, if you think that opening a school within a safety hazard area or a military explosives storage area is a good idea, then perhaps you’re not the best person to be opening a school.

Both Class C and Class K relate to “the change of use of a building and any land within its curtilage to use as a state-funded school“.  In this respect I think that Classes C and K suffer from the same problem as the new Class J.  It may often be that a building and/or its curtilage match the planning unit.  But sometimes it won’t.  And when the building and its curtilage change use under either Class C or Class K, what use does that ‘residual’ planning unit have?

Schools created under either Class C or Class K must be state-funded schools (see C2(c) or K2(a)) and are not permitted to be used for any other purpose, including any other D1 use (C2(c) and K2(a) respectively).  Although they can be used for purposes ancillary to the primary use of the site as a state-funded school.

Wait, what?  Classes C and K say that use of the building can be for purposes ancillary to use of the site as a school, but Classes C and K only permit changes of use of the building (and curtilage) not the ‘site’ (although I’m unclear as to what that  ‘site’ might be and how that ‘site’ is in a ‘school’ use in a manner which enables the ‘building’ purportedly under Class C or K to be used ancillary to the school use of the ‘site’.  That sounds so torturous I think it’s bordering on Rumsfeldian).

Excluded Before Term Starts?

Although both Class C and Class K require the newly created schools to be ‘state-funded’ schools, Class C goes a little further and expressly includes Academy schools as being within Class C (see C3(i)).  But Class K doesn’t.  Are we to understand the lack of definition of ‘state-funded schools’ under Class K to be a deliberate exclusion of Academy schools from Class K PD rights?  It seems odd that Class C and Class K would treat Academy schools differently, but otherwise what is the reason for expressly referring to them in Class C but not Class K?

The Diverse Curriculum

So what are the differences between Classes C and K?

Let’s get the biggie out of the way.  Class C is the change of use of ANY building to a state-funded school, but it’s a temporary change and is expressly limited to one academic year, defined as being 1st August to the following 31st July.  And Class C provides that only one use of such a permission may be made in relation “to a particular site“.

Alright class, put down your texts.  Class C is permitted in relation to ‘a building’ but the limitation applies ‘to a particular site’.  I’m not the only one who spots the problem here, am I?  Remember that by virtue of Article 1(2) of the GPDO ‘a building’ includes part of a building.  So if I use Class C rights for the academic year in 2013 for (say) the first floor of a building, does the limitation on ‘the particular site’ prevent me from exercising Class C rights in the academic year 2014 for the second floor of a building?  Or maybe use different wings of a large building across different academic years?

After the one academic year a temporary school use ‘site’ (there’s that word again….) under Class C reverts to its previous lawful use.

By contrast, Class K is a (potentially) permanent change of use of a building previously in use in any use falling within classes B1, C1, C2, C2A or D2.  There is no express time limit on the change of use to a state-funded school under Class K, but the new Part 3 Schedule 2 Class L permits any school use arising under Class K to revert back to its previous lawful use (thereby preventing a Class K change of use being a one-way ratchet).

Another difference are requirements of prior notification.  Both Class C and Class K have prior notification requirements (of a sort).  Class K requires that the developer apply to the LPA for determination of whether prior approval is required for transport/highways impacts, noise impacts or contamination risks.  Paragraph N applies here as it does elsewhere so there’s a 56-day time limit for the LPA to work to.  But there’s no need (under Class K) for the school use of the site to be approved by “the relevant Minister” (i.e. the Secretary of State with policy responsibility for schools).

Conversely, Class C has no such prior notification requirement.  But before you can exercise Class C rights in relation to any given building, the site (that word again) must be approved for a school use by the “relevant Minister” (i.e. the Secretary of State with policy responsibility for schools) and such approval must be communicated by the “relevant Minister” to the LPA, along with the proposed opening date of the school.

So a small (say, 25 students) but permanent school (under Class K) is subject to formal prior notification requirements and possibly transport, highways, noise and contamination considerations but a large (1,000+ students) temporary school use (under Class C) is not subject to assessment of any transport, highways or noise impacts?  (Or contamination risks either.  You might not think that a site with contamination risks would be a contender for a temporary school use, but remember DCLG thinks you need to be told not to open a school in a safety hazard or military explosives storage area).

Well, it will only be one academic year that those 1,000+ students will be going (for five days a week) to a site with absolutely no transport/highways/noise impact considerations at all.  That won’t annoy residents at all.  Oh no.  They’ll totally understand.  And they won’t complain to the LPA at all.

About Scott Stemp
Barrister specialising in planning and criminal law

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