Planning obligations on a change of use application

A section 106 change of use application can still carry planning obligations even where not a single square metre of new floorspace is created. The trigger is not construction. It is whether the change in use generates a planning impact that needs to be controlled or mitigated, and whether a condition can do the job instead. For a small business converting a shop to a restaurant or an office to a gym, that usually means one or two narrow obligations rather than the contributions package a housing scheme faces.

Start by asking the officer which obligation they want and which policy requires it. Half the requests that arrive early in a case do not survive that question.

When a change of use attracts obligations

Four situations produce obligations on a change of use with no new build.

The first is where the acceptability of the permission depends on a restriction that has to bind the land rather than the applicant. Limiting a use to a narrower activity than the use class allows is the common example.

The second is where mitigation has to be secured in perpetuity and off site. Habitats mitigation is the clearest case: where a conversion creates new dwellings in a catchment subject to nutrient neutrality or recreational disturbance mitigation, the council will normally require a legal agreement even though nothing is being built.

The third is where the new use generates a demand the council meets through infrastructure, such as a travel plan with a monitoring sum, or a contribution towards on-street parking controls.

The fourth is affordable housing on a conversion creating dwellings above a policy threshold. That is why prior approval routes matter so much commercially, and why councils resist them: a prior approval under the General Permitted Development Order cannot secure affordable housing in the way a full application can.

Restricting the future use through an obligation

The most frequent obligation on a change of use is a restriction on what the premises can become next. Movement within Class E does not need planning permission, so a permission for a shop to become a gym also permits the gym to become a nursery, a clinic or an office. A council that has assessed noise, parking and hours for one of those uses may want to prevent the others.

Two instruments are available. A condition can remove the ability to change within the class, and a section 106 obligation can achieve a similar result as a covenant binding the land. The Planning Practice Guidance treats conditions restricting future permitted changes as something to be used sparingly and with clear justification, so expect the officer to need a reason tied to the evidence rather than a general preference.

Where the concern is the cumulative effect of similar uses in a street, the policy driver is usually a clustering or concentration policy, as discussed in our note on clustering policies for takeaways and betting shops.

Where a condition would do the same job

This is the argument worth having, because conditions cost nothing and agreements cost money and time. Guidance is clear that a condition should be used in preference to an obligation where it can achieve the same planning purpose.

Conditions can usually handle:

• Opening hours, delivery hours and hours of plant operation.
• Restricting the floor area given to a particular activity.
• Requiring and then approving a management plan, an extraction scheme or an acoustic report.
• Limiting customer numbers or covers.
• Removing specified permitted changes of use, with justification.
• Requiring works such as cycle parking or a bin store before first use.

Obligations are needed where money changes hands, where an obligation has to run with the land in a way a condition cannot achieve, where something must be done off site on land the council or a third party controls, or where the commitment is positive and continuing over years.

If the council asks for an agreement to do something a condition could do, say so in writing and ask them to identify why a condition is inadequate. The answer is sometimes administrative convenience, and that is not a planning reason.

Contributions where there is no new floorspace

Community Infrastructure Levy liability is calculated on net additional floorspace, so a change of use within an existing building with no extension often produces no chargeable amount, and the in-use building rules can reduce the figure further where the building has been in lawful use for the required period. Check the charging authority's schedule and the in-use evidence you can prove, because the evidential burden sits with the applicant.

Section 106 contributions are a different matter and are tested against regulation 122 of the Community Infrastructure Levy Regulations 2010: necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. A request for a general contribution towards town centre upgrades, unconnected to any impact of your change of use, does not meet that test.

Illustrative example: a 140 square metre shop converting to a hot food takeaway, where the council initially sought a streetscape improvement contribution and a travel plan sum. The streetscape request was withdrawn once the applicant asked which impact of the change of use it mitigated. A litter management obligation and conditions on hours and extraction were agreed instead. The circumstances are illustrative and used to show how scope narrows.

Indexation and monitoring fees apply to obligations on small schemes as much as large ones, a point covered in our note on deferred contributions and indexation.

Occupier restrictions and whether they hold

Applicants sometimes offer a restriction to a named occupier to get a permission through, and councils sometimes ask for one. Permission normally runs with the land, and a personal permission is treated as a rare departure from that.

Think carefully before offering one. A permission tied to your company is worth very little on sale or assignment, and a lender may treat it as a defect. Where the council's concern is the character of the operation rather than the identity of the operator, a description of the activity in the obligation is more durable: hours, floor area split between activities, whether alcohol is served for consumption on the premises, whether deliveries are made by the operator.

Enforceability also matters. An obligation is enforceable against the owner and successors in title, so a tenant applicant will normally need the freeholder to join the deed. Sort that out at the start. Getting a freeholder's solicitor engaged after the committee resolution is where change of use timetables collapse.

What it costs and how long it takes

Expect the council's legal costs, your own legal costs, and a monitoring fee for each obligation requiring monitoring. Councils publish their legal fee bases and monitoring charges at varying levels of detail, so ask for the figures early rather than discovering them at engrossment.

On time, a simple unilateral undertaking with one restriction can be completed in a few weeks. A bilateral agreement involving a freeholder, a mortgagee and a council legal team commonly takes longer than the determination period, which is why officers ask for heads of terms before committee.

For short term occupation, a temporary permission can avoid the whole exercise. That route and its limits are set out in our note on meanwhile use and temporary permissions.

Negotiating the scope down

Five moves work, in roughly this order.

1. Ask which adopted policy requires each item and read it.
2. Test each item against the three limbs of regulation 122 in writing.
3. Offer a condition wherever a condition can do the work.
4. Where a contribution survives the tests, argue the scale by reference to the actual impact of your use rather than to a formula written for new build.
5. Offer a unilateral undertaking with tight drafting rather than waiting for the council's draft agreement.

Where a scheme creates dwellings and an affordable housing request follows, the Affordable Housing Statement has to engage with the policy threshold and the reasons a conversion cannot deliver on site, rather than asserting that none is possible.

And keep the correspondence. A clear written record of what was asked, what policy was relied on and what was agreed is the material an appeal statement is built from if the request is pressed and you refuse it.

This is general guidance, not legal advice, and policy requirements vary between authorities, so check the position with your local planning authority and a qualified professional before relying on it. PlanScope produces AI-assisted drafts of the supporting documents a change of use application needs, structured to UK planning policy. Enter your postcode to see which reports your site needs.

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