Sui generis use or a use inside Class E: what changes

Whether your premises are sui generis or Class E decides how much freedom you have without touching the planning system. A use inside Class E can change to any other use inside Class E without planning permission, because the Use Classes Order says that a change within a class is not development. A sui generis use sits outside every class, so almost any change into it or out of it needs an application.

That distinction is worth money. A unit in Class E(b) as a cafe can become a gym, a clinic, an office or a shop over a weekend. A hot food takeaway cannot become any of those without permission, and a cafe cannot become a takeaway without permission either.

What Class E now contains

The 2020 amendment to the Use Classes Order swept the old A1, A2, A3, B1, D1 and D2 categories into a single commercial, business and service class.

Two points about E(g). It is the only part of the class with a qualifying test written into it, so a noisy process is not in E(g) merely because someone calls it light industrial. And an office is in E(g)(i) where it is not a service provided principally to visiting members of the public, which is the line between an accountant's shopfront and a back-office floor.

Uses deliberately left outside any class

The uses left sui generis were left there because their impacts are different in kind from a shop or an office. The list in the Order includes hot food takeaways, drinking establishments including public houses and wine bars, drinking establishments with expanded food provision, cinemas, concert halls, bingo halls, dance halls, live music venues, theatres, nightclubs, casinos, betting offices, pay day loan shops, launderettes, petrol filling stations, taxi and vehicle hire businesses, scrapyards, hostels and waste disposal installations.

Some of those moved out of a use class in 2020. Pubs, cinemas and live music venues were previously in classes of their own and are now sui generis, which means a pub cannot become a shop or a restaurant without permission. That was the intended effect.

Why a takeaway sits outside Class E

Because hot food for consumption off the premises brings a set of impacts that the drafters chose not to give free movement to: cooking odour, late-night activity, litter, delivery moped traffic, and health considerations that many local plans now address directly through policies on hot food takeaways near schools.

The practical effect for an operator is that changing a cafe into a takeaway is a full application, judged against those policies, and it will need evidence on extraction and odour, on noise from plant and on the hours of use. A Ventilation and Extraction Statement is normally the determinative document, and the difference between assessing odour and assessing air quality is set out in our note on air quality assessment or odour assessment.

Note the reverse is not symmetrical. Changing out of a sui generis use into something else is still a change of use needing permission, although Part 3 of Schedule 2 to the General Permitted Development Order grants permitted changes for certain specified movements, so check the current Order before assuming an application is required.

Movement within Class E without permission

Where both the existing and proposed uses fall inside Class E, no application is needed. Three things can still stop you.

A planning condition. If the permission that authorised the current use restricted it to a specific purpose, for example a condition limiting the unit to use as a retail shop and for no other purpose within the class, that condition binds and has to be varied under section 73.

A section 106 obligation. Obligations can restrict use just as conditions can, and they survive changes of ownership.

A lease covenant, which is a private matter but just as effective at stopping the change.

There is also a practical trap: physical works. Moving from an office to a gym without permission is lawful as a change of use, but new plant on the roof, a new shopfront, an extract duct or a change to the elevations may each need permission in their own right. Planning permission for the works can end up being the application you thought you had avoided.

Where the move is out of Class E into residential use, Class MA of Part 3 offers a prior approval route subject to conditions including a vacancy period, a floorspace limit and the matters the authority may consider. It is a permitted development right with real qualifying criteria, not a free change.

Mixed and ancillary uses

Most disputes are about whether a secondary activity has become a use in its own right.

A restaurant selling a few meals for customers to take away is still E(b), because the takeaway element is ancillary to the main use. Once a third of the turnover comes from hot food to take away, a separate counter has opened and the queue is on the pavement at 11pm, the planning position has probably changed to a mixed use, which needs permission.

The test is fact and degree, and the evidence a council will look at includes floor area given over to each activity, turnover split, staff time, opening hours, layout and advertising. Keep records if you want to argue the point later, because an enforcement officer visiting in year four will look at what is happening in front of them.

Illustrative example: a unit trading as a cafe in a suburban parade, with seating for 24 and a small hatch selling hot food after 6pm. Two years later the seating is down to eight covers, the hatch queue occupies the frontage, moped deliveries operate until midnight and the extraction has been upgraded. The lawful use is still recorded as E(b). On those facts the council is likely to regard the primary use as a hot food takeaway, which is a material change of use requiring permission, and the extraction works add a second breach.

Evidence of the lawful use

Establish it before you rely on it. The sources that carry weight:

1. The planning history for the address, including every decision notice and its conditions, which the council's online register usually holds.
2. A Lawful Development Certificate under section 191 for an existing use, which is the only formal confirmation available. Section 192 covers a proposed use.
3. Rating records, council tax records and licensing records, which help establish what was happening and when.
4. Invoices, accounts, staff rotas, photographs and advertising material with dates.
5. Statutory declarations from people with direct knowledge, where documents are thin.

A certificate costs a fee and takes weeks, and it is worth it where a lease, a sale or a lender depends on the answer.

Establishing your class before signing a lease

Run this check before heads of terms are agreed, not after.

Confirm the lawful use and its class. Read every condition on the most recent permission for the unit, and look for restrictions on hours, on ancillary uses, on delivery times and on plant. Check for a section 106. Check whether the premises sit in an area with a local plan policy restricting the use you want, for example a frontage policy protecting retail or a policy on hot food takeaways near schools. Then look at the physical works you will need and whether those require permission on their own.

Where an application turns out to be necessary, a Planning Statement that sets out the use class analysis, the relevant policies and the evidence of the existing lawful use is the document officers use to frame the whole case.

Browse the full list of report types to see what a change of use application usually needs alongside the drawings.

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.