Conditions that remove Class E flexibility

A permission for a shop does not necessarily allow a gym, even though both sit in Class E. Whether it does turns on the conditions, and specifically on whether any of them excludes the operation of the Use Classes Order in terms clear enough to have that effect. Most conditions that people believe restrict use do no such thing, and a fair number that were intended to restrict use fail on the drafting.

For anyone advising on a lease, a purchase or a change of operation, this is the single most valuable check in the planning history.

How a condition can limit a permission to one named use

Movement between uses within the same class is not development, so it needs no permission. That is the effect of the Use Classes Order read with section 55 of the Town and Country Planning Act 1990.

A condition can take that freedom away, but only if it is drafted to do so. The settled position from the case law is that a condition seeking to exclude the operation of the Order, or to remove permitted development rights, must do so in unambiguous terms. A condition that merely describes the use permitted does not achieve it.

That distinction explains why so many conditions are weaker than their authors intended. A condition reading "the premises shall be used as a restaurant and for no other purpose" is often treated as insufficient to exclude the Order, because it describes the use rather than excluding the statutory freedom to change within the class. A condition reading "the premises shall be used only as a restaurant within Class E(b) and for no other purpose, including any other purpose in Class E of the Schedule to the Town and Country Planning (Use Classes) Order 1987, notwithstanding the provisions of that Order or of any order revoking and re-enacting it" is doing the job properly.

The tests a restrictive condition has to meet

Conditions are only lawful if they satisfy the six tests set out in national planning guidance. They must be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects.

A use-restricting condition is most vulnerable on necessity and precision.

Necessity asks what harm the restriction prevents. Where a council restricts a Class E unit to retail because it wants to protect a shopping frontage, the reason should identify that policy and explain why the other Class E uses would cause harm. A condition imposed as a matter of routine, with a reason that recites policy without analysis, is exposed.

Precision asks whether an enforcement officer could tell, on site, whether the condition was being breached. Terms such as ancillary, local, high quality and appropriate are imprecise in conditions even though they are perfectly usable in policy.

The reason given for the condition matters as much as the wording. Authorities must give reasons, and a reason that does not engage with the specific harm makes an application to remove the condition easier to argue.

Wording that succeeds and wording that fails

The fourth row is worth dwelling on. Personal permissions restrict the benefit of a permission to a named person or business, and national guidance treats them as appropriate only rarely, since planning permission normally runs with the land. They surface in cases where the acceptability of the use depends on who is running it, and they carry an obvious problem on sale.

The fifth row shows the more durable approach. Activity-based conditions do not depend on the Use Classes Order at all, so they survive changes to it. Restrictions on hours of opening, on deliveries, on external plant, on the sale of particular goods and on the number of covers are all enforceable without touching the class question, and they are how experienced officers achieve what a badly drafted class exclusion fails to achieve. Conditions controlling operation are also how highway concerns are usually managed, and the way drive-through units are classified and conditioned shows the pattern clearly.

Check the decision notice before the lease

The practical discipline is straightforward and routinely skipped.

1. Obtain the full planning history for the unit rather than the most recent permission alone, since conditions on an earlier permission can still bite if that is the permission being implemented
2. Read every condition on every extant permission, including those described as compliance or informative
3. Identify which permission the current use is operating under, because that is the one whose conditions apply
4. Check for a section 106 agreement, which can restrict use in terms a condition never could and which does not appear on the decision notice
5. Check whether an Article 4 direction affects the premises
6. Where anything is ambiguous, consider a lawful development certificate for the proposed use under section 192 of the 1990 Act

A certificate is the only formal way to confirm that a proposed use would be lawful, and on a substantial letting its cost is small relative to the risk. It also gives the incoming tenant something to rely on, which is often what gets the transaction over the line.

Where the unit forms part of a larger property, establish what the planning unit is before anything else, because the answer decides which permission and which conditions are engaged. How authorities identify the planning unit is the starting point for that analysis.

Removing a restriction under section 73

Section 73 of the 1990 Act allows an application for permission to develop without complying with a condition previously imposed. The authority may grant permission subject to different conditions, or refuse.

Four points shape the strategy.

The application is determined on the condition, not the whole scheme, so the underlying permission is not reopened in the way an appeal against a condition can reopen it. The authority may impose new conditions, which occasionally leaves an applicant worse off, so read what is proposed before accepting a decision. A successful application creates a new permission sitting alongside the original, so the planning history needs to be clear about which one is implemented. And section 73 cannot be used to extend the time limit for implementation.

The evidence that persuades is policy-based rather than commercial. Show that the harm the condition was imposed to prevent either no longer arises or would not arise from the specific alternative use proposed, that the development plan position has moved since the original permission, and that any residual concern can be dealt with by an activity-based condition instead. A vacancy history and marketing evidence help where the restriction is the reason the unit cannot be let.

Powers introduced by the Levelling-up and Regeneration Act 2023 add a further route for varying permissions, so check whether the relevant provisions are in force before settling on section 73.

Appeal prospects and recording the position

An appeal against a use-restricting condition is decided on whether the condition satisfies the six tests and whether it is justified by the development plan and material considerations. Inspectors are more willing than councils to conclude that a restriction is unnecessary where the harm is not evidenced.

The point to weigh is which appeal you are bringing. An appeal against a refusal of a section 73 application keeps the focus on the condition. An appeal against a condition imposed on an original grant is wider, and the whole permission can come back into play.

Whichever route you take, record the outcome in a form a purchaser or lender can read: the decision notice, the conditions as they now stand, any certificate obtained, and a short note identifying the permission being implemented. That note belongs with the title documents, and it saves the next adviser the work you have just done. Where a supporting case is needed, a Planning Statement that takes each condition and each test in turn is what officers can write a recommendation from. Similar analysis applies wherever a use sits awkwardly between classes, as self storage does.

Enter your postcode on PlanScope to see which reports a change of use application 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. A lawful development certificate is the only formal way to confirm that a use is lawful. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.