Conditions that survived the 2020 use class reforms

A planning condition restricting a unit to old Class A1 still restricts it to shops, six years after Class A1 ceased to exist. The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 revoked Classes A1, A2, A3 and B1 on 1 September 2020 and replaced them with Class E, but they included saving provisions so that references in earlier permissions keep the meaning they had when those permissions were granted. The reforms released units that were unconditioned. They released almost nothing that was tied.

That is the single most misunderstood point about the 2020 reforms among investors, and it is usually discovered after an offer has been made.

Why a condition outlives the class it refers to

A planning condition is part of the permission it sits on. It takes effect from the date of that grant, and it continues to have effect according to its terms until it is varied, removed or the permission is superseded. Nothing in an amendment to the Use Classes Order changes an existing permission.

That is why a 2014 permission for a retail unit, conditioned to Class A1 only, still limits the unit to retail sale of goods. The class has gone from the Order. The words in the condition have not, and the saving provisions in the 2020 Regulations were drafted precisely so those words keep their original sense.

The same applies to conditions expressed in other ways. A condition restricting use to "a shop within Class A1 and for no other purpose including any other purpose in Class A", a condition tying occupation to a named operator, and a condition restricting hours or deliveries all survive the reforms untouched. The broader picture on those is set out under conditions restricting use class or occupier.

Section 106 obligations survive in the same way, and they are harder to change than conditions because they require a deed of variation agreed with the council.

How a revoked class reference is read

Conditions are construed objectively, as a reasonable reader would understand them, in the context of the permission as a whole including the reasons given for the condition. The Supreme Court set out that approach in Trump International Golf Club v Scottish Ministers in 2015, and it is the starting point for any argument about what a condition means.

Applied to a revoked class, the reading is straightforward. The words identify a category of use that had a defined content on the date of the permission, and that content is what the condition captures. A reference to Class B1(a) means offices as that sub-class was defined, rather than the whole of Class E.

Where it gets interesting is at the edges of the old definitions. A condition limiting a unit to Class A1 does not obviously exclude a use that was sui generis in 2014 but is now within Class E, and a condition limiting a unit to "Class A1 (retail)" with a stated reason about maintaining an active shopping frontage may be read more narrowly than one with no reason given.

Three practical rules follow.

1. Read the whole decision notice, including the reason for the condition, rather than the condition in isolation.
2. Identify the definition of the class as it stood at the date of the permission, from the version of the Order then in force.
3. Where the answer is arguable, get it confirmed rather than relying on it, because a lease priced on an optimistic reading is a liability.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it, and remember that a lawful development certificate under section 191 or 192 of the Town and Country Planning Act 1990 is the only formal way to confirm that a use is lawful.

Finding the conditions that bind your unit

Conditions are not always where you expect them. Work through four sources.

Every decision notice for the address, in date order, from the council's planning register. The operative conditions are usually on the most recent permission that has been implemented, but earlier ones can still bite where the later permission was for something narrower.

The permission for the whole building or the whole estate. A unit in a parade or a retail park is often governed by conditions imposed on the original scheme, and those conditions will not appear in a search on the unit's own address. Search by map and by the parade's address range.

Any section 106 agreement, which is normally published as a separate document on the register and may restrict occupation, uses or hours independently of the conditions.

And any Article 4 direction covering the frontage, which removes permitted change rather than imposing a condition but has a similar practical effect.

Where the history is incomplete, or where the current use does not match any permission you can find, the use may have become lawful through the passage of time, or a former lawful use may have been lost. The second possibility is covered under how a lawful use can be lost.

Section 73 to vary or remove a condition

The route to changing a condition is an application under section 73 of the 1990 Act for permission to develop without complying with it. A successful application results in a new planning permission, sitting alongside the original, with the condition removed or reworded.

Four limits on what section 73 can do.

It cannot change the description of development. Where the description itself is the problem, a fresh application is needed.

It cannot be used to extend the time limit for beginning development. Section 73(5) says so expressly, and a section 73 permission granted after the original time limit has expired is of no use at all.

It only reopens the condition applied for. The council considers that condition and the planning considerations relevant to it, rather than redetermining the whole scheme, although in practice policy changes since the original grant will be brought into the assessment.

And it does not touch a section 106 obligation. Where the restriction sits in a deed, the route is a deed of variation or, after the relevant period, an application under section 106A.

Section 96A applications for non-material amendments are a separate and much narrower route, and they cannot be used to remove a condition that goes to the substance of the permission. The Levelling-up and Regeneration Act 2023 also introduced a new section 73B power to vary an existing permission, and its commencement should be checked against the current position before relying on it.

The evidence that supports removal

The strongest argument is that the reason the condition was imposed no longer holds. So start with the reason on the decision notice.

A condition imposed to protect an active shopping frontage is answered with evidence about the frontage now: vacancy rates along the parade from your own survey, the mix of uses, footfall if you have it, and the adopted local plan's current policy on that frontage, which in many authorities is more flexible than the policy in force when the condition was imposed.

A condition imposed for highway reasons is answered with the current highway position, which may have changed through a new junction, a controlled parking zone or a change to the road hierarchy.

A condition imposed to control amenity impacts is answered with an assessment showing the impacts can be managed by a different and less restrictive condition. Offering a replacement condition is usually more effective than asking for outright removal, because it gives the officer something to recommend.

Two further points that carry weight. Marketing evidence showing a unit has been actively available in the restricted use for a sustained period, with the terms offered and the enquiries received. And the six tests for conditions in national policy: a condition that is no longer necessary or reasonable fails those tests, and saying so explicitly gives the officer the policy hook for a recommendation.

A short planning statement setting all of that out against the reason for the condition does most of the work on a section 73. The wider document set for a change of use, where one is also needed, is covered under the evidence pack for a change of use application.

Timescales, consultation and the time limit trap

A section 73 application for a minor development is determined in eight weeks, with the same publicity and consultation as any other application. Neighbours will be notified, and a condition imposed after objections in the past will attract the same objectors again.

Budget the fee, the eight weeks and a realistic chance of a committee referral where the original condition was contentious. On a leasehold acquisition that timetable usually needs to sit inside a conditional contract rather than being attempted afterwards.

The trap to avoid is the interaction with time limits. A section 73 permission relates back to the original permission for the purposes of the time limit, so it cannot buy more time to implement. Where a permission is close to expiry and also needs a condition varied, take advice on the sequence before applying.

What to check before taking a lease

Five things, before heads of terms are signed.

• Every decision notice for the unit, the parade and the building, with all conditions read in full.
• Any section 106 agreement affecting the premises.
• Whether an Article 4 direction covers the frontage.
• Whether the current lawful use matches a permission, or rests on time or on a certificate.
• Whether the use you intend falls within the same class as the permitted use, on the definition in force at the date of the permission.

Where the answer to any of those is uncertain, the commercial answer is a condition precedent in the lease requiring the planning position to be resolved, with a defined long stop date. Where the intended use sits within Class E and the unit is unconditioned, the flexibility is real, as with offices to laboratories within Class E. Where a condition names a revoked class, assume it still binds until a section 73 says otherwise.

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