Pop-up shop planning: what temporary use rights allow

Pop up shop planning turns on a point most landlords get backwards. Duration is almost irrelevant. A material change of use is development whether it lasts six weeks or six years, and there is no general exemption in the planning system for a short-lived use of a building. The 28 day right that people reach for applies to the use of land, not to buildings, so it does nothing for a vacant shop unit.

What makes most pop-ups lawful is something else entirely: Class E. Since 1 September 2020 a very wide range of commercial, business and service uses have sat in one class, and moving between them is not development at all.

What a temporary use actually is in planning terms

There is no such thing as a temporary use right for a building in the way the phrase is usually meant. The three things that make a short-term occupation lawful are these.

It is not a material change of use, because the new activity falls within the same use class as the lawful existing use, or is so similar in character that no change of use arises.

Or it has the benefit of a permitted development right, which in the case of buildings means one of the change of use classes in Part 3 of Schedule 2 to the General Permitted Development Order 2015, read in its current form.

Or it has a temporary planning permission, granted with a condition limiting the period.

Anything else is unauthorised, and the fact that it was only meant to last a month is not a defence. It may affect whether the authority thinks enforcement is expedient, which is a different question.

Where Class E does the work

For a vacant shop, the practical position is that a great deal is already permitted.

Class E covers retail sale of goods, the sale of food and drink consumed on the premises, financial and professional services, other services appropriate in a commercial locality, indoor sport and fitness, medical and health services, creches and day nurseries, offices, research and development, and light industrial use. A pop-up gallery, a market-style retail unit, a coffee shop, a workspace, a yoga studio and a sample sale are all within it.

So a shop unit in Class E can be occupied for any of those without an application, and there is nothing to notify. Our note on escape rooms and experience venues in retail units works through where a more unusual offer sits.

Two exceptions to watch, both of which take the occupation outside Class E:

• A drinking establishment, which is sui generis under article 3(6) of the Use Classes Order 1987 as amended. A pop-up bar needs permission. The route is set out in our note on micro-pubs in former shop units.
• A hot food takeaway, also sui generis, so a street food unit with hot food to take away is a change of use.

A venue for live music performance and a nightclub are in the same position. And where the offer mixes categories, for example retail during the day and ticketed events in the evening, the classification follows the substance rather than the label, which our piece on community cafes and social enterprises explores.

Where a permitted right is limited by something else

Class E freedom is subject to three things that override it.

A condition on the original permission, which continues to restrict the use even where it names a class that no longer exists. Read the whole permission history for the unit rather than the last decision notice alone.

A lease covenant, which is a private matter but will still stop the occupation.

And the fact that Part 3 change of use rights have been amended repeatedly, including the introduction of the commercial to residential route and the revision of the flexible use provisions after the 2020 class reorganisation. Read the current consolidated text of Part 4 and Part 3 rather than a note written before September 2020, because the provisions people remember as the pop-up right were largely overtaken by the class changes.

Works, signage and shopfront changes

The use may be free. The works rarely are.

Anything that alters the external appearance of the building is development: a new door, a servery hatch, a roller shutter, a flue, an external condenser, a change to the glazing. Internal works to an unlisted building generally fall outside development under section 55(2)(a) of the Town and Country Planning Act 1990, but a listed building needs consent for internal alterations that affect its special interest.

Signage is separately controlled under the advertisement regulations. Some classes of sign have deemed consent, some need express consent, and vinyls across a large shopfront in a conservation area will often need an application. Temporary signage for a short occupation is still signage.

Where the building is listed or in a conservation area, plan for lead time on the works consents even where the use itself needs nothing.

Conditions and licences that still apply

A lawful use does not clear the other regimes, and a pop-up operator working to a short timetable usually underestimates these:

1. Licensing. Alcohol sales, regulated entertainment and late night refreshment need a premises licence or a temporary event notice under the Licensing Act 2003, and a temporary event notice has its own attendance limit and notice period.
2. Food registration with the local authority, which has a minimum notice period before trading.
3. Fire safety duties on the responsible person under the fire safety order, including a risk assessment for the occupied layout rather than the previous one.
4. Building regulations, which can be engaged by a material change of use or by the works, particularly on means of escape and accessibility.
5. Business rates, where relief schemes change and the liability sits with the occupier.

None of these is a planning matter, and none of them is optional.

Returning the unit to its previous use

This is the part landlords ask about last and should ask about first.

Where a temporary planning permission has been granted for a limited period, section 57(2) of the 1990 Act allows the previous lawful use to be resumed when the permission expires, provided that previous use was itself lawful. That is a real protection and it is worth relying on deliberately: if you are applying for a temporary permission, establish and record the lawful existing use in the application, because that is the use you get back.

Where the occupation was within Class E, nothing changes and the unit simply returns to whatever Class E use comes next.

Where the occupation was unauthorised, there is no automatic right of reversion and the authority may take a view on what the lawful use now is, which is the worst of all outcomes for a landlord trying to sell or refinance.

When an application is unavoidable

Apply where the pop-up is sui generis, where a condition blocks the use, where the works need consent, or where the operator wants certainty for a funder.

A temporary permission application is not heavy. A short Planning Statement covering the proposed use, the hours, the duration sought, servicing, waste, noise management and the arrangements at closing time will carry a modest proposal. Ask for a period that matches the lease and the fit-out cost, because a six month permission on a unit that took two months to fit out is not worth having.

One honest uncertainty. Authorities differ widely in how they treat short-term uses, and some are actively supportive of meanwhile use on a struggling high street while others are not. A short pre-application enquiry, naming the unit and the proposed activity, is the reliable way to find out which one you are dealing with.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it, and remember that a Lawful Development Certificate is the only formal way to confirm that a use is lawful.

Enter your postcode on PlanScope to see which reports a change of use or meanwhile use on your unit is likely to need.

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