Use class risks: what property owners and tenants need to check before changing use

Most commercial tenants will be aware that their lease contains a ‘Permitted Use’ clause that restricts how they may use the property during their tenancy. This helps landlords to control the activities happening on the premises, reduce disturbances arising from noise or smells created by business activities and / or manage competition between similar local businesses.

However, planning permissions can also contain restrictions regarding how a property is used. This is for similar reasons as equivalent lease restrictions, to reflect concerns a Local Planning Authority may have about the impact of different activities on the local environment and community. 

These planning conditions will last indefinitely, unless the condition is varied or the development permitted under the original permission is replaced. A purchaser or new tenant may unknowingly ‘inherit’ these conditions when acquiring a property or lease (notwithstanding that a use in breach of planning permission may acquire immunity via the passing of time and the end of the enforcement window, see below).

Undertaking activities at a property in breach of relevant planning conditions could lead to enforcement by the Local Planning Authority against anyone with an interest in the property, including a freeholder, leaseholder and/or mortgagee. The Local Planning Authority can decide which party to enforce against.

Additionally, a condition within planning permission restricting use can also thwart reliance on some permitted development rights due to article 3(4) of the General Permitted Development Order 2015. However, the exact wording of the planning permission condition is determinative and appeal cases have succeeded in some instances where a condition attempting to limit the use was not found to successfully remove permitted development rights. Early legal advice is important in these cases.

Class E was introduced in September 2020 as part of a major reform to the Use Classes Order. It created a single, broad use class covering shops, restaurants, offices, gyms, nurseries, health centres, and more. The aim was to simplify planning rules and give flexibility to high street businesses.

However, the previous commercial use classes are still relevant in some scenarios. Older leases or planning permissions may refer to the previous use classes replaced by use class E, such as class A1 (shops) or class A2 (financial and professional services) and may need updating or amending. 

Express consent from landlords or the local planning authority may be required before changes within use class E can take place depending on how the lease terms or planning permission condition is phrased.

The previous use classes also appear in statute. For example, certain permitted development rights have not been updated and refer to the previous commercial use classes.

Local planning authorities and neighbouring properties are not the only third parties who may be interested in the lawful use of a property.

Third-party regulatory bodies may require properties to be authorised for use within particular use classes before certain licences or accreditations are granted.

Alternatively, some finance arrangements (including mortgages) or building insurance may specify the permitted use of the property. 

Changing a use without formalising the position with the local planning authority and / or communicating the change to other interested parties may lead to unintended consequences, and advice should be sought beforehand.

In most cases, there is a ten-year period for the Local Authority to enforce against a breach of condition relating to permitted use. If the change of use is to use as a single dwelling house, the period is generally ten years, but can be four years if the use started before 25 April 2024 – transitional arrangements then apply (s 171B(2)(a) of the TCPO 1987). After the unlawful use has been carried out for the required amount of time, the breach becomes immune from enforcement. 

Evidence to support that the breach has been occurring for this time may be requested by a Local Authority if enforcement action is being considered. Additionally, the use which is in breach of planning cannot be concealed from the Local Authority: if the Local Authority concludes that the breach was concealed, then the enforcement window will start to run from the date the unlawful use was discovered (not when the use started to take place). A recent appeal decision confirms that any such concealment must be deliberate positive concealment, so simply keeping a low profile does not constitute concealment.

You have options if you are subject to an enforcement investigation for breaching a use class condition and are within the enforcement period. For example, it may be possible to regularise a breach of planning control by making a retrospective planning permission application, obtaining a certificate of lawful existing use and / or arguing that the condition on use was not lawful or should be removed via a s 73 application.

If you have concerns about the permitted use of your property and would like expert advice, contact our planning team.