Movements within Class E and what still needs consent

A unit lawfully in Class E can change to any other Class E purpose without planning permission. A shop can become an office, a gym, a nursery, a dental practice or a cafe, and the council has no say in it. That is the effect of article 3(1) of the Use Classes Order, and it is the most useful thing a commercial occupier can know before signing a lease.

What it does not do is make the fit-out free of consent. Almost every occupier who moves inside Class E still needs permission for something, and it is usually the flue, the shopfront or the plant.

What Class E covers

The 2020 amendment collapsed the old A1, A2, A3, B1 and parts of D1 and D2 into a single commercial, business and service class from 1 September 2020. In outline it covers:

• retail sale of goods other than hot food
• sale of food and drink mostly for consumption on the premises
• financial and professional services, and other services appropriate to a commercial locality
• indoor sport, recreation or fitness, principally for visiting members of the public
• medical or health services, principally for visiting members of the public
• a creche, day nursery or day centre
• offices, research and development, and any industrial process that can be carried on in a residential area without detriment to amenity

Hot food takeaways, pubs and bars, cinemas, concert halls, bingo halls, dance halls and live music venues are outside the class and are sui generis. So is a general industrial use in Class B2 and storage or distribution in Class B8.

Why a movement inside the class is not development

Section 55 of the Town and Country Planning Act 1990 makes a material change of use development. Article 3(1) of the Use Classes Order then provides that where a building or land is used for a purpose in a specified class, use for any other purpose in the same class is not to be taken to involve development.

Notice the wording: not development at all. This is not a permitted development right that has been granted. It is a statement that no development occurs, which is why the change needs no application, no notification and no prior approval.

That distinction has a practical consequence most occupiers miss, and it comes up in the next section but one.

The works that still need permission

Moving from a shop to a restaurant unit inside Class E needs no change of use application. Everything below may still need consent in its own right.

A new or altered shopfront is operational development affecting the external appearance of the building and usually needs planning permission, particularly in a conservation area or on a listed building.

An extraction system for a commercial kitchen is the classic trap. The flue is external plant, it is visible, and it generates noise and odour. Councils assess it on amenity grounds and normally want the specification, the termination height and the odour control set out in a ventilation and extraction statement before they will accept it.

Air conditioning condensers, refrigeration plant, ATMs, external seating on the highway, security shutters and cycle stands all sit in the same category. Signage is governed separately under the advertisement control regulations, and an illuminated fascia normally needs express advertisement consent.

One statutory oddity is worth remembering. Section 55(2A) of the 1990 Act makes the creation of a mezzanine floor in a building used for retail development where the floorspace created exceeds 200 square metres, so a mezzanine in a large store is an application even though nothing about the use has changed.

Conditions, not Article 4 directions

An Article 4 direction cannot stop a movement within Class E, and a surprising number of officers and agents believe otherwise.

An Article 4 direction withdraws permitted development rights granted by the General Permitted Development Order. A change within a use class is not development, so there is no right to withdraw. Councils that want to keep a unit in retail use therefore have to do it a different way: by imposing a condition on the original planning permission restricting the use to a named purpose.

So the first document to read is not the local plan. It is the planning history for the unit. A condition saying the premises shall be used as a retail shop and for no other purpose removes the flexibility entirely, and changing it requires an application under section 73 to vary the condition.

Conditions of that kind have to be justified, and a condition restricting use without a clear planning reason can be challenged. But while it stands, it binds.

Article 4 directions still matter elsewhere in the system, notably for the prior approval routes from Class E to residential, and for householder permitted development in conservation areas.

Proving the unit is lawfully in Class E

The flexibility depends on the existing use being lawfully within Class E. Three situations cause difficulty.

A unit that was last used as a hot food takeaway is sui generis and cannot move into Class E without permission, regardless of what the old A classes used to say. A unit with a long-abandoned use may have no lawful use to rely on. And a unit whose use was never authorised in the first place may be lawful through the passage of time, or may not.

The evidence to gather is documentary and dated: leases and licences, rates records, accounts, photographs, trading records and staff information covering the relevant period. Where the picture is unclear, a certificate of lawfulness for an existing use under section 191 of the 1990 Act is the way to settle it, and a certificate for a proposed use under section 192 confirms that the change you intend involves no development.

The planning unit matters too. Where a building contains several occupiers, the lawful use is assessed unit by unit, and our note on how councils decide what the planning unit is covers how those boundaries are drawn.

When more of the same becomes a change of use

Class E flexibility does not protect a change in the character of the use. A small office occupied by four people that becomes a call centre operating three shifts has not changed use class, but it may have changed the character of the use enough to amount to a material change.

The test is one of fact and degree, and it looks at intensity, hours, vehicle movements, noise, deliveries and the effect on neighbours. Intensification arguments are difficult for councils to win, but they succeed where the change is dramatic and the evidence of effect is clear. We have set out how those cases work in a separate note on intensification.

The related risk is a mixed use. Add a trade counter to an office, or a manufacturing element to a shop, and the unit may end up in a mixed use that is sui generis and outside the class altogether.

Before you sign

Work through five questions in order.

1. What is the lawful existing use, evidenced rather than assumed?
2. Are there conditions on any permission restricting the use of the unit?
3. Does the intended use fall within Class E, or is it sui generis?
4. What operational works does the fit-out need, and which of those need planning or advertisement consent?
5. Will the intensity of the intended use differ materially from what went before?

Put the answers in a short Planning Statement if any application follows. Most landlords will not have them, and a lease signed on an assumption about use class is an expensive way to find out.

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 or works are lawful.

Enter your postcode on PlanScope to see which documents a commercial fit-out or change of use is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.