Moving within Class E and the condition that can stop you
Class E lets a shop become an office, a gym or a nursery without an application. A single condition on a permission granted decades ago can take that flexibility away, and it is often buried in the planning history.
Class E of the Use Classes Order covers shops, restaurants and cafés, financial and professional services, indoor sport and fitness, medical and health services, nurseries and crèches, offices, research and development and light industry. Moving between any of them is not development, so no planning application is required and the authority has no say in it.
Until it does. A condition on an earlier permission can restrict a unit to one named use, and where it is worded clearly enough to have that effect it overrides the flexibility the Order would otherwise give you. Finding that condition is a half hour job before you sign a lease and an expensive problem afterwards.
Why movement within a class is not development
Section 55(2)(f) of the Town and Country Planning Act 1990 provides that a change of use within the same class specified in the Use Classes Order is not development. Article 3(1) of the Order gives effect to that. No development means no application, no fee, no consultation and no conditions.
The practical consequence is wide. A former bank becomes a gym. A travel agent becomes a dental practice. A shop becomes a day nursery. None of them needs permission for the use, and an authority that dislikes the change has no mechanism to resist it unless something else bites.
Two boundaries are worth keeping in mind. The use has to fall wholly within Class E, so uses that are sui generis, such as hot food takeaways, drinking establishments, cinemas, nightclubs and betting offices, are outside it. And the planning unit matters: where a building contains more than one planning unit, each is assessed separately, as set out in upper floors above a shop as a separate planning unit.
Conditions that cut across the Order
A planning condition can lawfully restrict the use of a building more tightly than the Order does. Where a permission was granted for a specific use and the authority wanted to control what came next, the decision notice may say so.
The effect depends on the wording. The courts have taken the view that clear and express words are needed to remove rights that would otherwise be conferred, and a condition that does no more than describe the use permitted may not prevent a later change within the same class. A condition saying the premises shall be used as a shop and for no other purpose, including any other purpose in Class E, is a different proposition from one saying permission is granted for use as a shop.
This is a point where the precise wording decides the answer, and where a short opinion from a planning solicitor is money well spent on anything other than a short lease. Do not rely on a letting agent's view.
Conditions are not the only restriction. A section 106 obligation can restrict use and binds the land. A restrictive covenant in the title is a private law matter the planning system ignores, but your lender will not. And an Article 4 direction can remove permitted development rights for changes out of Class E, such as the residential conversion route.
Finding the condition before you sign
Search the authority's online planning register by address and by the addresses either side, because historic permissions for a parade are often registered against one unit number. Then work backwards.
- Read every decision notice, not the summary line on the register.
- Note any permission for the original construction or conversion of the building, which is where use restrictions usually sit.
- Check whether any later permission superseded or varied the condition, and whether that later permission has been implemented.
- Look for a section 106 agreement attached to any permission, and read the schedules.
- Where the register is incomplete, which is common for permissions before the 1990s, ask the authority for a formal planning history search.
The register is not always right. Scanned notices go missing, conditions are transcribed incorrectly, and the register entry occasionally describes a use the permission does not actually authorise. Where the lease is long or the fit out expensive, a certificate of lawfulness of the existing use under section 191 of the 1990 Act settles the question with a document rather than an opinion.
Physical works that still need permission
The use may be free. The works are usually not. Any external alteration can require permission in its own right, and the ones that come up on every fit out are a new or altered shopfront, roller shutters, external plant and condensers, flues and ducts, new openings, and anything on a listed building or in a conservation area.
Mezzanines deserve a separate mention. Under section 55(2A) of the 1990 Act, the creation of a mezzanine floor in a building used for retail is development where the gross floorspace created exceeds 200 square metres. Below that figure it is not. Gyms and showrooms frequently propose mezzanines without realising the threshold exists.
Access works, including changes to levels at the entrance, ramps and new doors, are often permitted but worth checking where the building is listed. Internal works alone, with no external change and no listed building, generally need no planning consent at all.
Shopfronts, extraction and servicing
A change from a quiet office use to one producing cooking smells, noise or late activity brings environmental health into the picture even without a planning application. Statutory nuisance powers under the Environmental Protection Act 1990 operate independently of planning permission.
Where a kitchen or treatment space needs mechanical extraction, the duct usually has to rise above eaves level on the elevation it discharges from, and that is development. A ventilation and extraction statement covering the system, the discharge point, odour control and the acoustic treatment of the fan is what the environmental health officer will ask for, and supplying it with the application is quicker than supplying it after an objection.
Servicing changes too. A use that takes three deliveries a week is different from one taking two a day, and where the loading arrangement is on a highway the highway authority will take an interest if any application is made. A short transport statement quantifying trips, deliveries and staff numbers usually settles it, and the point applies equally to the light industrial and office uses that sit inside Class E(g).
Using section 73 to remove the restriction
Where a restrictive condition exists and the use you want is blocked by it, the route is an application under section 73 of the 1990 Act for permission to develop without complying with that condition.
What to expect. The authority can only consider the condition in question, not reopen the whole permission. If it grants, a new permission is issued carrying the other original conditions, and the earlier permission remains in existence. There is publicity and consultation, a fee, and a determination period of eight weeks for most cases.
The case to make is why the restriction is no longer necessary, which usually rests on the reason given for the condition at the time. A condition imposed to protect a retail frontage in a busy centre reads differently when half the parade is vacant. A condition imposed to control parking demand can be answered with survey evidence. Set the argument out in a Planning Statement that quotes the original reason and answers it directly.
The Levelling-up and Regeneration Act 2023 inserted a further route, section 73B, for permissions that are not substantially different from an existing one. Check on legislation.gov.uk whether it is yet in force before relying on it, because the provisions in that Act have been brought into force in stages.
Refusal of a section 73 application can be appealed to the Planning Inspectorate in the usual way, and the appeal considers only the condition.
What to record for the landlord and the lender
At the end of all this, you want a document rather than a conclusion. A certificate of lawfulness of proposed use under section 192 confirms that the use you intend would be lawful, and it is granted on the planning merits of lawfulness alone rather than on policy.
Keep the certificate, the decision notices relied on, any section 73 permission, the building control completion certificate and the licensing position in a single file. Lenders and incoming tenants ask for exactly that set, and assembling it five years later from a council archive is slow.
Where the lease is being negotiated, a clause requiring the landlord to disclose the planning history and to warrant that no condition restricts the permitted use shifts the risk to the party who should already know the answer.
PlanScope drafts the planning statement behind a section 73 application and flags the facts it still needs. 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; check the position with your local planning authority or a qualified professional before relying on it.
Frequently asked questions
Can a planning condition really override the Use Classes Order?
Yes, where it is worded clearly enough. The courts expect express words to remove rights that would otherwise apply, so a condition that simply describes the approved use may not prevent a later change within the same class. A condition excluding other purposes in the class by name usually will. The exact wording decides it.
How do I find out whether a restrictive condition exists?
Search the authority's planning register by address and by neighbouring addresses, read every decision notice rather than the register summary, look for the permission that created or converted the building, and check for any section 106 agreement. Where records are incomplete, ask the authority for a formal planning history search before committing to a lease.
What does a section 73 application actually decide?
Only the condition you have applied to vary or remove. The authority cannot reopen the rest of the permission. If granted, a new permission is issued carrying the remaining original conditions, and the earlier permission continues to exist. There is publicity, consultation and a fee, and refusal can be appealed to the Planning Inspectorate.
Does a mezzanine need permission in a Class E unit?
In a building used for retail, creating a mezzanine is development where the gross floorspace created exceeds 200 square metres, under section 55(2A) of the Town and Country Planning Act 1990. Below that figure it is not development. Gyms, showrooms and storage uses regularly propose mezzanines without checking the threshold first.
Is a certificate of lawfulness worth the cost?
On anything beyond a short lease or a modest fit out, usually yes. A certificate under section 191 for an existing use or section 192 for a proposed one converts an opinion into a document that a lender, an assignee or a purchaser will accept. It also protects against later enforcement based on a condition nobody spotted.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.