Moving within Class E: what still needs permission

Moving from one use to another inside Class E does not need planning permission, because section 55(2)(f) of the Town and Country Planning Act 1990 says a change of use within the same class is not development. A shop can become a restaurant, a gym, a nursery, a clinic or an office with no application, no fee and no decision notice.

What that does not do is make the project consent free. The physical works usually need permission, an old condition on the building's permission can override the freedom entirely, and the environmental health team will arrive on its own schedule regardless of what the Use Classes Order says.

What the 2020 amendment put into Class E

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 took effect on 1 September 2020 and collapsed the old shop, financial and professional services, restaurant, office, light industrial, clinic, crèche and indoor sport classes into a single commercial, business and service class.

Class E now runs from E(a) to E(g):

• E(a) display or retail sale of goods, other than hot food
• E(b) sale of food and drink for consumption mostly on the premises
• E(c) financial services, professional services and other appropriate services
• E(d) indoor sport, recreation or fitness, not involving motorised vehicles or firearms
• E(e) medical or health services other than at a practitioner's home
• E(f) crèche, day nursery or day centre
• E(g) offices, research and development, and light industrial processes that can be carried out in a residential area without detriment to amenity

Movement between any of these is free. What did not go into Class E is as important: hot food takeaways, drinking establishments, cinemas, concert halls, bingo halls and dance halls are all sui generis, so a restaurant becoming a takeaway is a change of use that needs permission. Nurseries with a residential element and most sui generis leisure uses sit outside too.

The works are the application

Almost every real change of occupier involves building work, and section 55 treats external and structural works quite differently from the use.

A new shopfront needs permission. An extraction duct running up the rear elevation needs permission. Air conditioning condensers on a flat roof, a flue, a new door opening, an altered fascia, external seating with a structure over it, and any advertisement beyond the limited deemed consent all need their own approval. Internal alterations generally do not, with the exception of a mezzanine floor in a building used for retail where the added floorspace exceeds the threshold in section 55, and any works to a listed building.

The pattern that produces enforcement notices is a lawful use change carried out alongside unlawful works. The council cannot stop you opening a restaurant in a former bank. It can require you to remove the extract duct you put up the back wall without permission, which in practice stops the restaurant.

Plan the works as an application from the start, and expect a Ventilation and Extraction Statement for anything involving cooking.

Conditions that survive the freedom

The most common reason a Class E movement fails is a condition on an earlier permission. Councils have restricted uses by condition for decades, and a condition limiting a unit to retail sales, or excluding food and drink, or tying an office to a named occupier, continues to bite after the 2020 changes. A condition referring to a use class that no longer exists still has effect according to its terms.

So the first thing to do before signing a lease is to obtain the planning history for the unit and read every decision notice, including those for the wider development if the unit sits in a retail park or a converted building. The condition you are looking for is often on a permission from twenty years ago and is not referenced anywhere in the letting particulars.

Where a condition blocks the use, the route is an application under section 73 to vary it, which is determined on planning merits and is refusable. Budget the time.

Article 4 directions cannot stop movement inside Class E

This point is widely misunderstood, including by some agents. An Article 4 direction withdraws permitted development rights granted by the General Permitted Development Order. Movement within a use class is not permitted development, it is not development at all, so an Article 4 direction cannot prevent it.

What Article 4 directions do reach is the separate right, under Schedule 2 Part 3 Class MA, to change from Class E to residential use through prior approval. Many councils have made directions removing Class MA in town centres and on industrial estates, and those directions are effective. Similarly, Article 4 directions removing the Class E to state funded school or to temporary flexible use rights are real.

If a council officer tells you an Article 4 direction prevents your shop becoming a gym, ask which permitted development right the direction withdraws. The answer will usually reveal that the direction is about something else.

What arrives anyway

The planning position is only one of four or five regimes, and the others are not affected by Class E at all.

Building regulations apply to a material change of use and to the works, with Approved Document B fire safety and Approved Document M access most often driving the cost. Food business registration, a premises licence for alcohol or late night refreshment, and a pavement licence for outside tables all run on their own timetables. Environmental health will take an interest in cooking odour, plant noise and refuse storage whether or not you needed planning permission.

Noise is where a lawful change of use most often ends in a statutory nuisance notice. A Noise Impact Assessment using BS 4142:2014+A1:2019 for plant, carried out before the equipment is specified, is far cheaper than replacing a condenser after complaints. Where the unit sits above or beside flats, assume the neighbours will complain and design for it.

Transport is the other one. A change from an office to a nursery or a gym alters trip generation and arrival patterns even though the use class did not change, and where an existing condition or a highway agreement controls parking, a short Transport Statement may be needed for the works application.

Evidencing the existing lawful use

You cannot move within Class E from a use that was never lawful. If the unit has been operating as something the planning history does not support, the starting point is not Class E freedom but a lawful development certificate under section 191 of the 1990 Act, evidenced by rates records, leases, accounts, utility bills and dated photographs.

The same certificate is worth having even where the position looks clear. A certificate of lawful proposed use under section 192 confirms that the intended use falls within Class E and needs no permission, which is the document a funder or a landlord will ask for. It costs a fee and a wait, and it removes the argument.

Where the fit-out needs a planning application anyway, deal with both in one go, with a short Planning Statement that sets out the lawful use, the Class E position and the works being applied for.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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