Use Classes Order 2020: what a condition still restricts

An old use class condition after 2020 still restricts the unit. The amendment that created Class E on 1 September 2020 revoked Classes A1, A2, A3, B1, D1 and D2 and moved pubs and hot food takeaways to sui generis, but it did not cancel a single planning condition. If a 2004 permission says the premises shall be used as a shop within Class A1 and for no other purpose, that restriction is still on the title of the planning permission, and the council will enforce it.

This catches investors buying parades and small commercial blocks on the assumption that Class E delivers free movement between retail, café, office, gym and nursery use. Sometimes it does. Often there is a condition in the way, and finding it is a 20-minute job that saves a six-month argument.

What the 2020 amendment did

The amending Regulations took effect on 1 September 2020. Classes A1, A2 and A3, the old B1 business class and the D1 and D2 institutional and assembly classes went. In their place came Class E, covering retail, food and drink on the premises, financial and professional services, indoor sport and fitness, medical and health uses, creches and nurseries, offices, research and development and light industry. Class F1 took learning and non-residential institutions, Class F2 took local community uses.

Pubs, wine bars and other drinking establishments, hot food takeaways, cinemas, concert halls, bingo halls, dance halls and live music venues became sui generis, outside any class. A transitional period ran into 2021 so that permitted development rights written against the old classes continued to operate while the General Permitted Development Order was updated.

Movement within Class E is not development, so no application is needed and no fee is payable. That is the whole of the flexibility, and it is substantial. What it does not do is override a condition, a section 106 obligation or a lease.

Why a condition naming a revoked class still bites

Nothing in the 2020 Regulations removed or modified existing conditions. A condition is part of the permission, and it continues to have effect according to its terms until it is varied or discharged, or until the use it restricts is superseded by a lawfully implemented different permission.

The drafting usually falls into one of three shapes, and they behave differently.

The first wording is the common one and it is the hardest to get round, because the operative words are "and for no other purpose". Those words describe the permitted activity. Whether the class label still exists in the Order is beside the point.

The second wording is where the honest answer is that it depends on construction, read in context and against the reason given for the condition. Some practitioners argue the reference incorporates the Order as later amended, so a Class A1 restriction now reads as a Class E restriction and the unit is free. Councils generally do not accept that, and an enforcement officer who disagrees with you is a problem whether or not you are ultimately right. The point has not been settled in a way that lets anyone advise with confidence, which is a reason to resolve it formally rather than rely on it.

How the condition is read against the classes in force when it was imposed

The starting point is the reason for the condition. A condition imposed in 1998 restricting a unit to Class A1 because the authority wanted to protect retail frontage was aimed at keeping a shop. Read in that context, the restriction is about shop use, and a gym in the same unit breaches it even though both now sit in Class E.

Where the reason given is something else entirely, for example parking or servicing, the argument runs differently. A condition imposed to control traffic generation, drafted by reference to a class, may be arguable where the new use generates the same or fewer trips. That is a planning argument for a section 73 application, not a reason to change use and hope.

Officers look for the reason because the Planning Practice Guidance on conditions requires one, and a condition without a stated reason is weaker. Pull the decision notice rather than the summary on the register, because reasons are often omitted from online summaries.

The section 73 route

Section 73 of the Town and Country Planning Act 1990 allows an application to vary or remove a condition. It is the normal route, it carries a flat fee rather than one based on floorspace, and it produces a new permission with the condition altered.

Three points matter in practice.

1. The application is determined against current policy, not the policy that applied when the condition was imposed. For a retail frontage condition in a town centre that has since lost half its shops, that is usually helpful.
2. A section 73 permission is a new permission, and the authority can reimpose other conditions and update the wording of existing ones. Read the draft decision before it is issued.
3. The reason for the original condition has to be addressed head on. A Planning Statement that sets out what the condition was for, why that purpose no longer applies or is no longer necessary, and what the new use will do instead, is the document that decides it.

Where the condition also removed permitted development rights, there is a fee consequence worth knowing: an application needed only because rights were withdrawn by condition or by an Article 4 direction attracts no fee. The same principle applies to other withdrawn rights, as our note on air source heat pumps and permitted development limits illustrates.

Lawful development certificates as the alternative

Where you believe no permission is needed, because the condition does not bite or because the use has already changed and become lawful through the passage of time, a Lawful Development Certificate is the formal way to establish it. Section 191 covers an existing use or breach of condition, section 192 covers a proposed use.

A section 192 certificate is the clean answer to the ambiguous second wording above. You apply for a certificate that the proposed use is lawful, the authority determines it on the facts and the law, and you get a binding answer without changing the use first. It costs less than enforcement proceedings and takes less time than litigation.

The burden of proof is on the applicant, and for a section 191 application based on the passage of time it rests on evidence: rates records, utility bills, accounts, sworn statements, dated photographs. Thin evidence produces a refusal that then sits on the register for the next purchaser to find.

Leases and user clauses that reference old classes

A lease permitting use "within Class A1 of the Town and Country Planning (Use Classes) Order 1987" is a contract, not a planning instrument. Whether it now permits the full range of Class E uses depends on how the clause is drafted and when, and the general approach to construing contractual references is not the same as the planning one.

This is a legal question for a property solicitor and it is routinely the binding constraint rather than the planning position. A tenant with planning freedom and a restrictive user clause has gained nothing. Check the lease before the planning register, if anything, because the lease is harder to change.

Restrictive covenants on the title can do the same thing, and they survive planning permission entirely.

Checking a unit's condition history before you buy

Four searches, in this order.

• Every planning permission affecting the unit on the authority's register, including the oldest, with the full decision notices rather than the summaries.
• Any section 106 agreement, which may restrict use independently of any condition and is not discharged by a section 73 application.
• Article 4 directions covering the area, which can withdraw Class MA and other permitted development rights, although they cannot touch movement within Class E because that is not development at all.
• The lease and the title, for user clauses and covenants.

Where the parade was built as a single development, the controlling condition is often on the original estate permission from decades earlier rather than on anything recent. That is the document most purchasers never order.

Follow reform as it happens on the planning law timeline, and browse the report types that a section 73 or certificate application typically needs. Class MA and the other Part 3 rights have been amended more than once, so check the current text of the General Permitted Development Order before relying on any summary of it.

This is general guidance, not legal advice. A Lawful Development Certificate is the only formal way to confirm that a use or works are lawful. 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.