Conditions naming a superseded use class and section 73

A condition restricting use to a named former class, such as a condition restricting use to A1 retail, still operates even though Class A1 no longer exists in the Use Classes Order. The class was revoked for new purposes on 1 September 2020, but a condition imposed before then is read by reference to the Order as it stood when the permission was granted. So the unit sits in Class E on paper and is locked to shop use in practice, and the way out is a section 73 application.

Why the old condition still operates

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 replaced Classes A1, A2, A3, B1, D1 and D2 with Classes E, F1 and F2. What the amendment did not do is rewrite every condition on every extant permission.

A condition is part of a grant of permission made at a moment in time. When it refers to a use class, the ordinary approach is to read the class as it was defined at the date of that grant. Planning Practice Guidance takes the same line. The occupier who reads the condition today and assumes that "A1" now means the whole of Class E is reading the document wrong.

The condition does more than restrict the use. Depending on its wording, it may also exclude the flexibility the Use Classes Order and the General Permitted Development Order would otherwise give. In Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192, the Court of Appeal held that a condition limiting use to B1 "and for no other purpose whatsoever" was clear enough to exclude the statutory rights. Wording without that clarity may not go so far, which is why the exact text matters more than the summary in the officer's report.

Finding the condition in the planning history

Start with the public register, and do not stop at the most recent permission.

The restriction may sit on a 1994 permission for the original building, be carried through on a later variation, and be invisible in the decision notice the client actually holds. Search the address, then search the planning unit, because a condition attached to a wider site can bind a part of it.

• The full decision notice, not the summary line
• Any section 73 permissions since, which replace the earlier condition set
• The approved plans, where a use is sometimes fixed by annotation rather than by condition
• Any section 106 agreement, which can restrict use independently of any condition

Where the boundaries of what the council will assess are unclear, the question of how councils define the planning unit usually settles it before the application is made.

What the council assesses on a section 73 application

Section 73 of the Town and Country Planning Act 1990 allows an application for permission to develop land without complying with a condition previously imposed. The authority considers only the question of the condition. It cannot reopen the principle of the development, and it cannot change the description of development on the original permission.

That narrowness is useful. The officer is not entitled to revisit whether the shop should have been built. The proper question is whether the restriction on use remains necessary, and the planning consequences if it goes.

A successful section 73 grants a new permission, sitting alongside the original rather than replacing it, with a fresh condition set. Check that set carefully. Authorities routinely re-impose old conditions in modern wording, and occasionally add ones that were not there before.

Evidence supporting removal

The council imposed the condition for a reason, and the file usually says what it was. Most fall into three groups: protection of retail frontage or a primary shopping area, control of traffic and parking generation, or amenity protection from hours, noise or cooking smells.

Answer the reason directly.

Where the reason was frontage protection, show what the policy now says. Many authorities have loosened town centre frontage policies since Class E arrived, and an adopted local plan that no longer resists a change within Class E is the strongest material before the officer.

Where the reason was highway generation, a short transport statement comparing the trip generation of the permitted use with the proposed one does the work. Where it was amenity, an hours condition or an extraction scheme is often a proportionate replacement for a blanket use restriction, and moving from a restriction on class to a restriction on impact is a trade most officers will take.

Vacancy helps but does not decide anything on its own. Marketing evidence over a reasonable period, at a realistic rent, with the agent's particulars and enquiry record, carries more weight than an assertion that nobody wants a shop.

Drafting the replacement condition

Offer the council a condition rather than a vacuum. An application to delete a condition outright invites a refusal, while an application to substitute a narrower one gives the officer something to grant.

Draft it to control the actual harm:

1. Identify what the original condition was protecting.
2. Write a condition that protects that and nothing more, using impact rather than class where possible.
3. Avoid referring to a use class at all in the new wording, or the same problem recurs in ten years.
4. Give a reason that matches national policy tests for conditions.

Where the concern is intensity rather than category, a condition on floor area, hours or customer numbers usually works better than a class restriction. The question of when doing more of the same becomes development is a useful frame when drafting that kind of control.

An illustrative example

A 1996 permission for a parade of units restricts each to Class A1 and no other purpose. The client wants to open a dental practice, which is Class E(e) and would need no permission but for the condition. The section 73 application argues that the adopted plan no longer protects this secondary frontage, submits footfall observations and marketing evidence for the vacant unit, and offers a replacement condition limiting opening hours and requiring no hot food preparation. This example is illustrative.

Fees and the decision period

A section 73 application carries a flat fee set by the national fee regulations, which are indexed annually from 1 April. Check the current schedule before submitting rather than relying on a figure from last year.

The determination period is normally eight weeks for a minor application. A planning statement setting out the condition's history, its original purpose, the current policy position and the proposed replacement wording is usually the only supporting document needed, with technical evidence added where the reason for the condition was technical.

Note that section 73 cannot be used to extend the time limit for implementation. Where the underlying permission is close to expiry, deal with that separately and first.

Appeal options if it is refused

An appeal against refusal of a section 73 application runs under section 78, with six months from the decision for most applications. Written representations suit these appeals well, because the issue is narrow and documentary.

The inspector considers the same narrow question the council did. That focus tends to favour a well-prepared appellant, since a council that cannot articulate a current policy reason for a condition written under a superseded Use Classes Order is in a weak position.

Where a refusal turns on the acceptability of a specific new use rather than on the condition itself, a full application for the change of use may be the cleaner route, even though it reopens more ground.

Browse all 66 PlanScope report types to see what a section 73 application on your site is likely to need.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.