Moving within Class E: the evidence to keep
No application, no decision notice, no record. Build the evidence file at the time of the change, while the documents are to hand and the people who know still work there.
Moving from a shop to an office, or an office to a clinic, within Class E is not development, so there is no application, no decision notice and no record. Three years later a buyer's solicitor asks how the building came to be in its current use, and the honest answer is that somebody changed it and nobody wrote anything down. Build the evidence file at the time of the change, when the documents are to hand and the people who know what happened still work there.
Why a lawful change still needs a record
Five situations force the question, and all of them arrive without warning.
A sale or a refinancing, where the lender's solicitor raises a planning enquiry and will not complete without an answer. A lease assignment, where the incoming tenant's advisers want the same comfort. A rent review, where the permitted use affects value. An enforcement enquiry prompted by a complaint, where the council asks the owner to demonstrate lawfulness. And a later application under Class MA of Part 3 of Schedule 2 to the GPDO 2015 for a change from Class E to residential, which has qualifying conditions about the period of prior use and a vacancy requirement.
That last one catches people. A landlord who changed the use in a hurry, without recording the date, may be unable to prove the building has been in Class E use for long enough when the residential conversion becomes attractive.
What actually proves the previous use
Planning lawfulness is a question of fact. The evidence has to show what was actually being done on the land, by whom, and over what period.
Start with the planning history. Decision notices, officer reports and any conditions attached to earlier permissions are on the council's public register, and they are the first thing an adviser will look at. A condition restricting the use to one part of Class E changes everything about this analysis, which is why the note on conditions restricting use class or occupier is worth reading before you rely on Class E flexibility at all.
Then look for the operational record. Occupation agreements, trading records, staff rotas, delivery notes, service contracts, waste collection agreements and maintenance invoices all show a business in operation on a date. None of them is conclusive alone, and together they build a picture that is hard to dispute.
The gap that matters is the change itself. Record the date the previous use ceased, the date the new use began, and what physical works accompanied it, because an interval between the two raises a question about abandonment, covered in how a lawful use can be lost.
Rating records, leases and utility accounts
Three document types do most of the work in practice.
Rating list entries carry a description of the hereditament, such as shop and premises, offices and premises or workshop and premises, together with the effective date of any alteration. That effective date is often the cleanest independent evidence of when a use changed. Treat it as strong evidence rather than proof, because the rating regime and the planning regime are separate and a valuation officer's description is not a planning determination.
Leases and licences show what the occupier was permitted to do and from when. A lease with a permitted user clause naming the actual use, dated and executed, is good evidence. A lease that recites a generic Class E user clause is weaker, because it shows what was allowed rather than what happened.
Utility accounts and metered consumption show occupation and sometimes the character of it. A tenfold rise in electricity consumption on the date a workshop moved in is the kind of detail that persuades an officer who is otherwise sceptical.
Photographs and dated evidence
Photographs are undervalued. Take them at the point of change, not afterwards.
The set worth having is short. The shopfront or entrance showing signage and opening hours. The interior showing the fit-out and equipment in use. Any external plant, flue or extract installed. And the rear or service area showing storage and waste arrangements. Keep the original files rather than compressed copies pasted into a document, because the embedded capture date is part of the evidence.
Published street-level imagery from mapping services is the other resource officers themselves use, since it gives a dated external view going back years. Note the capture date shown and take a screen capture, because imagery is refreshed and the older view may become harder to reach.
When to apply for a certificate
Two sections, and the choice is about timing.
Section 192 of the Town and Country Planning Act 1990 covers a proposed use. Apply before the change, describe precisely what will happen, and the council either confirms the proposed use would be lawful or explains why not. That is the better route where there is any doubt about whether the intended activity falls inside Class E at all, for instance where a food business might be sui generis as a hot food takeaway rather than a restaurant in Class E.
Section 191 covers an existing use or operation. The applicant carries the burden of proof on the balance of probabilities. The courts have held that an applicant's own evidence can be enough where it is precise and unambiguous and there is nothing to contradict it, so a carefully drafted statutory declaration from someone with direct knowledge is worth more than a thick bundle of ambiguous paperwork.
Fees for certificate applications are set in the fee regulations and differ between the two sections and between development types, so check the current schedule rather than assuming.
What landlords and lenders ask for
Institutional landlords and lenders want three things, in this order.
Confirmation that the current use is lawful, ideally through a certificate. Confirmation that no condition on any earlier permission restricts the use or the occupier. And confirmation that any physical works accompanying the change had the consents they needed, including building regulations approval, listed building consent where relevant, and advertisement consent for new signage.
Advertisement consent is the one most often missed. A new fascia sign on a changed unit is frequently outside the deemed consent limits, and an unlawful sign is a separate enforcement risk from the use.
Building the file and keeping it
Keep one file per unit, and put these in it:
- The planning history printout with decision notices and any conditions.
- Dated photographs of the unit before and after the change.
- The lease or licence, and the rating list entry with its effective date.
- Utility account records covering the change period.
- A short signed note from the person who managed the change, setting out the dates.
- Any certificate of lawfulness obtained, and the evidence submitted with it.
Store it where the next owner's solicitor can be given it in one go. A landlord who can produce that file answers a planning enquiry in an afternoon rather than in six weeks.
Where an application is needed after all, a short Planning Statement setting out the use history and the policy position does the job, and the wider approach is covered in the evidence pack for a change of use application. 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
Why does a lawful change within Class E need evidence at all?
Because there is no decision notice to produce when a lender, a buyer, an incoming tenant or an enforcement officer asks. It also matters for Class MA prior approval, which has qualifying conditions about the period of prior Class E use and a vacancy requirement that a landlord may later need to prove.
Is a rating list entry proof of the planning use?
It is strong evidence rather than proof. The description of the hereditament and the effective date of an alteration are often the cleanest independent record of when a use changed, but the rating regime and the planning regime are separate, and a valuation officer's description is not a planning determination.
What is the standard of proof for a lawful development certificate?
The balance of probabilities, with the burden on the applicant. The courts have held that an applicant's own evidence can be sufficient where it is precise and unambiguous and there is nothing to contradict it, so a carefully drafted statutory declaration from someone with direct knowledge carries real weight.
Should I apply under section 191 or section 192?
Section 192 covers a proposed use and is the better route where there is doubt about whether the intended activity falls inside Class E, for example whether a food business is a restaurant in Class E or a sui generis hot food takeaway. Section 191 covers a use that has already started.
Does new signage need separate consent?
Often yes. A new fascia sign on a changed unit is frequently outside the deemed consent limits in the advertisement regulations, and it is the consent most often missed when a unit changes hands. An unlawful advertisement is a separate enforcement risk from the question of the use itself.
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.