Occupying a unit with no established lawful use

Establishing lawful use of a commercial unit matters before you sign the lease, not after. If the unit has no planning history and nobody can say what its lawful use is, you are taking on the risk that your intended trade is a material change of use requiring permission, and that an enforcement notice could follow. The formal answer to the question is a certificate of lawfulness of existing use or development under section 191 of the Town and Country Planning Act 1990, which is the only way to settle it with the council.

Vacant units in older parades are the common case: a shop that became a storeroom, then a workshop, then nothing, across forty years and three owners, with no application ever made.

Why the lawful use decides what you can do

Permission is needed for a material change of use. Whether your proposed use is a material change depends entirely on what the use lawfully is now. So the baseline is the whole question.

Two examples of how the answer swings. If the unit's lawful use is within Class E of the Use Classes Order, you can move to any other Class E use without an application, which covers shops, financial and professional services, cafes and restaurants, indoor sport, medical uses, creche provision and light industrial compatible with a residential area. If the lawful use is a hot food takeaway, that is sui generis, and a move out of it to a Class E use is permitted by the GPDO while a move into it is not.

And if nobody knows what the lawful use is, you cannot answer either question. A landlord's description in the heads of terms is not evidence. The rating list description is a clue, not a determination. Only the planning position matters, and that is a matter of fact and law.

The practical risk is not usually a dawn raid. It is that the council declines to accept your later application because the described existing use cannot be substantiated, or that a neighbour complains about noise and the officer who attends discovers the use was never lawful. Our note on cash and carry to trade counter and the retail tests shows how the question bites when the existing use is contested.

Where to look for the planning history

Start with the council's online planning register, searched by address and by the addresses either side, because a historic application may have been registered against the whole building or a different unit number. Search by postcode too, and by any former street name.

Then go further back. Online registers often start in the mid-1990s, and anything earlier sits in paper files or microfiche. A written request to the planning records team, naming the address and the period, usually produces a list, sometimes for a fee. County record offices hold older building control and planning files for some districts.

Other sources worth the hour:

• The local studies library, for street directories showing occupiers year by year
• Historic Ordnance Survey maps, which label works, warehouses and similar
• Goad plans and other historic retail mapping held in local collections
• Aerial photography, useful for establishing when a building or extension appeared
• The council's own conservation area appraisal, which sometimes records former uses street by street

Rating records, directories and the evidence that persuades

Where the planning register is silent, the lawfulness of a use is proved by evidence of what has actually happened on the land. Councils weigh it on the balance of probabilities, and the quality of the evidence decides the outcome.

The evidence that carries weight, roughly in order:

1. A sworn statutory declaration from someone with direct knowledge across the relevant period, such as the former occupier, a long-standing employee or a neighbouring trader
2. Business records showing continuous trading: accounts, VAT returns, purchase invoices with the delivery address, wage records
3. Rating records showing the description and the dates of assessment
4. Utility bills and meter readings showing consumption consistent with the claimed use
5. Leases and licences for the period, with the permitted use clause
6. Photographs, ideally dated, showing signage, fit-out and stock
7. Trade directories, advertisements and dated website archives

What does not persuade: a single statutory declaration from the applicant alone with no corroboration, a bundle of undated photographs, or an assertion that the use "has always been there". Gaps are fatal where continuity is the point, so the evidence has to cover the whole period rather than its start and end.

The time limits for immunity

The enforcement time limits were amended by the Levelling-up and Regeneration Act 2023, and the relevant commencement date determines which limit applies to a particular breach. Check the current position on legislation.gov.uk and in the Planning Practice Guidance rather than relying on the familiar four and ten year shorthand, because a breach that began before the change may be treated differently from one that began after.

For a commercial change of use the practical test has not moved: ten years of continuous use, without a material break, and the applicant has to prove it.

Applying for a certificate

The application goes to the local planning authority on the appropriate form, with a fee, a plan, and a statement of the use claimed with the evidence annexed. Three drafting points.

Describe the use precisely and in the terms you need. A certificate for "use as a shop" is less useful than one that describes the use, its hours, the floorspace involved and whether any part is ancillary. The description on the certificate is what you will rely on later.

Address the whole unit. Where part of the premises has a different lawful use, say storage ancillary to a retail use on the ground floor, the certificate should say so, because a council will otherwise certify only what the evidence supports.

Deal with the gaps honestly. An application that conceals a two-year vacancy and is caught loses credibility across the whole bundle. A declaration that explains a break, and why it did not amount to abandonment, is stronger than one that pretends the break never happened.

Refusal of a certificate is appealable to the Planning Inspectorate, and the appeal is determined on the evidence. A section 192 certificate, for a proposed use, is the alternative route where you want certainty about a use you have not started.

When the evidence is thin

Three honest options, none of them free.

Apply for planning permission for the use you want, on the basis of the most likely lawful use, and accept that the application is determined on its merits. For many Class E to Class E moves this is unnecessary; for a move into a sui generis use it was going to be needed anyway.

Apply for a certificate for a modest claim you can prove, then build from it. A certificate for a storage use is worth having even if you wanted retail, because it establishes a baseline.

Or negotiate the risk into the lease. Rent-free until a certificate issues, a break clause triggered by refusal, a landlord warranty on the use with an indemnity, or a condition precedent to completion. A landlord who refuses all of these is telling you something about the planning position.

Where the intended use brings plant, extraction or late hours, the planning risk compounds. A unit with an uncertain lawful use and a proposed commercial kitchen needs both a Ventilation and Extraction Statement and acoustic evidence before the council will engage, and our note on cold stores and refrigeration plant noise covers the assessment the environmental health officer will want.

For a leisure or activity use in a former shop, the same questions arise in a different order, as our piece on indoor golf and simulator venues in vacant retail sets out.

One thing I would always do before exchange: ask the council's duty planning officer, in writing, what their records show for the address. It is free, it takes a fortnight, and a reply saying no records held is itself useful evidence of how the application will need to be built.

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This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.