Dual use and alternating between two lawful uses

Some premises carry two lawful uses at once, and the owner can switch between them without applying for anything. That is a valuable asset, and it is also fragile. A use can be lost by abandonment, extinguished by a new building, or removed by a condition on a later permission, and the loss is usually discovered at the worst moment: when a tenant wants the other use and a lender wants proof.

The starting point is that the Use Classes Order does not help you here. It permits changes between certain classes. It says nothing about premises that already hold two separate lawful uses, and the right to alternate comes from the planning history and the facts, not from the Order.

How a dual or alternating use arises

Four routes, and they behave differently.

A permission granted in the alternative. The decision notice authorises use for one purpose or another, often with a condition regulating which is operating. This is the cleanest position, because the document says so.

A composite or mixed use established as a matter of fact. The planning unit has two primary activities, neither ancillary to the other, and both have subsisted long enough to be lawful. Within a composite use the relative intensity of the components can vary without a material change of use, which is where the practical flexibility comes from.

Two uses each lawful in its own right, one of which is currently dormant. The earlier use was never abandoned, so returning to it is not development. This is the most common and the most contested.

An unimplemented permission sitting alongside an existing lawful use. You have a consent for use B and you are carrying on use A. Implement B and you may lose A, depending on what was built.

Evidence that both uses subsist

Where the position rests on facts rather than on a decision notice, the evidence has to be documentary and continuous. Councils and inspectors look for the same things.

• Lettings and licences, with dates and the permitted user clause
• Business rates entries and the valuation description over time
• Accounts and invoices showing income from each activity
• Booking diaries, delivery notes, staff rotas and timesheets
• Utility consumption patterns that match the claimed pattern of use
• Dated photographs of the premises in each use
• Statutory declarations from people with direct knowledge, supported by the documents rather than standing alone

Gaps are what kill a case. A three year run of invoices followed by silence for six years, then a claim that the use continued, will not be accepted. Where the record is thin, the guide to evidencing a lawful use where the history is silent sets out what a council will work with.

Loss of one use through abandonment

A lawful use can be lost. The courts assess abandonment on four factors: the physical condition of the property, the length of the period of non use, whether there has been any intervening use, and evidence of the owner's intention.

None of those is decisive on its own. Five years of non use with the plant still in place, rates still paid and a stated intention to restart it is a much stronger position than eighteen months of non use with the building stripped, re roofed as something else and marketed exclusively for another purpose.

Intention is where owners help themselves or hurt themselves. Marketing particulars describing the premises as suitable only for the other use, planning applications for something incompatible, and internal board minutes recording that the activity has ceased permanently all count against you. So does a rates removal request.

Abandonment is also not the only way to lose a use. Where a new building is erected covering the site, the uses of what was there before are extinguished with the old building, and the lawful use of the new building is whatever the new permission authorises. That principle catches redevelopment schemes regularly: demolish and rebuild, and the old alternative use goes with the rubble.

Conditions that remove a second use

Read every condition on every permission affecting the premises, including the oldest.

Conditions that restrict use to a single named purpose, that remove the flexibility the use classes would otherwise give, or that tie occupation to a named person or body, all cut across an alternating use. A condition limiting a unit to use as a farm shop, on a permission that was implemented, defeats a later claim to a general retail use even though both sit in the same class. The note on conditions that remove Class E flexibility explains how that works within a single class.

Watch section 73 permissions too. A variation creates a new permission with a fresh set of conditions, and conditions get re imposed in modern form, sometimes more tightly than the original. Implementing the section 73 permission means living under the new conditions.

Practical management to keep both alive

If the flexibility matters to your asset value, treat it as something to be maintained rather than assumed.

1. Operate both uses at least periodically, and record when, with documents that are dated and independent.
2. Keep plant, fittings and layout for the dormant use in place and serviceable where you can.
3. Keep the rating entry and the description aligned with the position you want to maintain.
4. Write marketing material that refers to both uses.
5. Note in your file, at the time, that the dormant use is intended to restart, and say why it is paused.
6. Avoid applying for permissions that presuppose the dormant use has ended.

Point one is the practical heart of it. A hall used for worship on Fridays and as a community venue on Saturdays has a dual use that nobody can seriously dispute. A hall used for worship for ten years, with a claim that a community use also subsists because it happened in 2014, does not.

Certificates that confirm the position

Two applications do the work here, and they are the most underused tools in this area.

A certificate of lawful existing use or development under section 191 of the Town and Country Planning Act 1990 establishes what the lawful use is now, and it can confirm a composite or dual use. The burden of proof is on the applicant, on the balance of probabilities, and a certificate once granted is conclusive for the purposes described in it.

A certificate of lawfulness of proposed use or development under section 192 does something more useful for an owner planning ahead: it confirms that a proposed use would be lawful. So if you hold a lawful use B that is currently dormant and you want certainty before signing a lease, apply under section 192 for confirmation that reverting to B would not require permission. It is cheaper than a full application, the fee is lower, and a refusal tells you the position before a tenant is committed.

Prepare the supporting statement properly. A Planning Statement that sets out the planning unit, the history, the conditions, the evidence and the legal basis, in that order, is what a certificate application needs. Bare assertion with a bundle of receipts attached gets refused.

Where a fresh permission is safer

Sometimes the honest advice is to stop relying on history.

Apply for a new permission where the dormant use has been dormant for years, where the building has been altered for the other use, where the conditions are ambiguous, where a lender or purchaser needs documentary certainty, or where the two uses need different servicing, parking or extraction arrangements that were never assessed. A permission for a mixed use, or for use A or B in the alternative, gives you a decision notice to show people.

The trade off is that a new application opens the whole scheme to current policy, and current policy may be less generous than the position you already have. Take the certificate route first where the evidence supports it, and keep the application in reserve. For agricultural buildings the analysis runs differently again, because those buildings sit outside the use classes altogether, as the note on agricultural buildings and the absence of a use class explains, and short term flexibility can sometimes be obtained through the permitted flexible change for temporary uses.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice; take advice on the planning history and the evidence before relying on a dual use.