All property, land and buildings used for commercial purposes are subject to planning controls. These planning controls are not simply concerned with physical changes to land and buildings, but also its use.
In this article, our commercial property solicitors explain what planning use classes are, the current use classes and the steps you need to take to successfully obtain planning permission for change of use.
In this article we consider:
- What are planning use classes?
- When does change of use require planning permission?
- When does changes of use not require planning permission?
- Current Use Classes
- Same use class - Town and Country Planning (Use Classes) Order 1987 (as amended)
- Permitted development – General planning development order (GPDO) 2015
- Changes not constituting ‘development’
- Material change of use
- Changes of use and building regulations
- What can I change without planning permission?
- What happens if I make changes without planning permission?
- What happens once planning permission has been granted?
- Do I need planning permission to run my business from home?
- What happens if my application for planning permission has been unsuccessful?
- What are the time limits for local authorities to take planning enforcement action?
- Summary
What are planning use classes?
Planning use classes are categories of property usage referenced in legislation and are designed to control the use of land and buildings for particular purposes. Planning permission is usually required to determine which use class applies to a property. It is possible to change the use class of a property which may be required where an interested party wishes to use the property for a different purpose.
When does change of use require planning permission?
Planning permission is required for the carrying out of any ‘development’ of land.
Current law defines ‘development’ as the ‘carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land.’
There is a requirement for planning permission to be obtained where there is a material change of use of any building or land. This is subject to a number of exceptions and modifications.
When does changes of use not require planning permission?
Planning permission for a change of use may not be required where:
- It is within the same use class (Town and Country Planning (Use Classes) Order 1987) (as amended)
- It is a ‘permitted development’
- The changes do not constitute a ‘development’
These topics are described in more detail below.
Current Use Classes
Significant changes were made to the classification scheme of different uses of property in 2020. Under the Town and Country Planning Act Amendment Regulations 2020, the use classes set out in the Town and Country Planning (Use Classes) Order 1987 were revised and reorganised. The new use classes, which came into effect on September 1, 2020, are as follows: Class E: Commercial, Business, and Service - this new use class combines many previous use classes including A1 (Shops), A2 (Financial and Professional Services), A3 (Restaurants and Cafes), B1(a) (Business), B1(b) (Research and Development facilities), B1(c) (Light Industrial) use classes, D1 (clinics, health centres, nurseries, crèche, day care), and D2 (gymnasiums and Indoor recreations not Involving motor vehicles or firearms).
Class F.1: Learning and Non-Residential Institutions - this new use class covers non-residential educational uses (school, education and training centres), museums, art galleries, public and exhibition halls, places of worship and law courts.
Class F.2: Local Community - this new use class includes small-scale community facilities such as local shops mostly selling essential goods. It also covers community halls, outdoor sport and recreational spaces / activities, indoor or outdoor swimming pools or skating rinks.
Class B2: Industrial
Class B8: Storage and Distribution - this covers storage or distribution centres, including warehouses.
Class C1: Hotels and Hostels - this includes hotels, boarding houses, and hostels.
Class C2: Residential Institutions: this covers buildings providing residential accommodation and care for those in need of care, such as nursing homes, residential care homes, and hospitals, as well as residential schools, colleges or training centres
Class C2a: Prisons, young offenders" institutions, detention centres, secure training, custody and holding centres, secure hospitals, secure local authority accommodation, military barracks.
Class C3: Dwelling-houses - including single-family houses, apartments, and other residential dwellings.
Class C4: Houses in Multiple Occupation (HMOs) ie small, shared houses occupied by three to six unrelated individuals.
Same use class - Town and Country Planning (Use Classes) Order 1987 (as amended)
A change of use within the same use class does not constitute development and does not require planning permission.
For example, planning permission is not required for a change of use from a Post Office to a Funeral Director as both uses fall within the same class (Class E Commercial, Business and Servjce). Equally, no permission would be required for a change from a School to a Museum (Class F:1 Learning and Non-Residential Institutions ).
This is limited to the permission required for ‘use’ and it may still be necessary to obtain permission if there are any alterations to the building or land (such as change to signage, extensions, etc).
Uses that are not explicitly included in the order are often referred to as sui generis (which means in a class of their own). The order gives some examples of sui generis uses, such as: theatres, amusement arcades, centres or funfairs, launderettes, taxi businesses and betting offices. Following the 2020 amendments, activities from previous use classes were reclassified as sui generis such as: public house, wine bar and drinking establishment (A4), Hot Food Takeaway (A5), cinemas, concert halls, bingo halls and dance halls and live music venues (D2)
In most cases, sui generis uses cannot be changed to any other use (including any other sui generis use) without express planning permission.
Permitted development – General planning development order (GPDO) 2015
Certain material changes of use do not require planning permission as deemed planning permission is granted by a general planning development order (GPDO) made in 2015. This is known as ‘permitted development’.
Schedule 2 to the order includes a table which prescribes all of the permitted developments. It is notable that, where a deemed planning permission is given to move from one class to another, it is not permitted to reverse the change without obtaining specific planning permission.
Changes not constituting ‘development’
Legislation specifies that the changes detailed below do not constitute development and, as a result, do not require planning permission:
- A use incidental to the enjoyment of a dwelling house
- A use for agriculture or forestry
- A change of use within the same use class
Material change of use
What is material change of use? There is not a statutory definition of 'material change of use' but, instead, examples of development that constitute a material change of use are given. These include the following:
- The use of a single dwelling house for two or more separate dwelling houses
- The deposit of waste on land where the height of the waste exceeds the nearby ground levels
- The display of advertisements on the outside of a building that are not normally used for that purpose
When assessing whether there is a material change of use, it is practical to determine - what is the primary use of the building or land? This is fundamental to establishing whether the proposed use is a material change of that primary use. Uses that are not primary (ancillary or incidental) do not normally involve development.
Changes of use and building regulations
Building regulation approval may be required if, as part of the change of use, there are physical changes to the building. The Building Regulations apply in England and Wales to ‘building work’ relevant to change of use.
This includes:
- The construction of a new building or extension
- Work required where there is a material change of use of the whole building
- Where there are certain changes to the energy status or performance
Subject to some limited exceptions, the Building Regulations apply to all types of building, including domestic, commercial or industrial.
What can I change without planning permission?
There are certain changes or renovations that you may be able to make without applying for planning permission, including under permitted development rights for commercial properties. Examples include:
Internal alterations: you can make internal changes to a commercial property, such as redesigning the layout or removing non-load-bearing walls, without requiring planning permission.
Change of use within the same category: you may be able to change the use of a commercial property within the same category without planning permission.
Small extensions: Certain small-scale extensions to commercial properties may be allowed under permitted development rights, provided they meet specific criteria regarding size, height, and location.
Installation of certain equipment: The installation of certain equipment, such as air conditioning units or ventilation systems, may be permitted without planning permission, as long as they meet specific guidelines and do not adversely affect the external appearance of the building.
Changes to signage: In some cases, alterations or changes to signage on commercial properties may be allowed without planning permission, as long as they adhere to certain size, design, and location restrictions.
What happens if I make changes without planning permission?
If you make changes to your property without obtaining the necessary planning permission, you may be in breach of the planning regulations. The consequences of carrying out unauthorised development can vary depending on the circumstances, but potential outcomes include:
Enforcement action: The local planning authority has the power to take enforcement action if they become aware of unauthorised development. This can include issuing an enforcement notice, which typically requires you to either rectify the unauthorised changes or revert the property back to its original state within a specified timeframe. Failure to comply with an enforcement notice can result in legal proceedings and potential financial penalties.
Planning application refusal: If you later decide to apply for retrospective planning permission after making unauthorised changes, the local planning authority may refuse the application based on the non-compliance with planning regulations. This may require you to either undo the changes or modify them to meet the requirements before reapplying.
Difficulty in selling or financing the property: Unauthorised development can create complications when selling or financing the property. Prospective buyers or lenders may be hesitant to proceed with a property that has unresolved planning issues, which could impact its market value and restrict your options.
Loss of permitted development rights: Continued disregard for planning regulations can result in the loss of permitted development rights that would have otherwise been available to you. This means that future changes or extensions to your property may require planning permission even if they would have been allowed under permitted development rights.
It's important to note that each case is unique, and the local planning authority has discretion in how they handle unauthorised development. If you have made changes without planning permission, seek professional advice.
What happens once planning permission has been granted?
Planning permission is granted on the date that is specified in the decision notice. This is separate from a resolution to grant permission, which should not be relied upon. It is important to note that, even though planning permission has been granted, there is a period after it has been granted that it could by challenged by way of judicial review.
Planning permissions may be granted subject to certain conditions (for example it could limit the time that deliveries to the property are permitted to be made). It is common for there to be a date by which the change or development must be started. This is commonly three years from the date of the grant in England.
Do I need planning permission to run my business from home?
It is not always necessary to obtain planning permission to run a business from home. This does depend on the type of business and the property in which you live. Planning permission is highly likely to be required if:
- The building will no longer by used mainly as a private residence
- The activities of the business would be unusual in a residential area
- There will be disturbance to neighbours (such as noise or smells)
It is possible to obtain a certificate of lawful use for a proposed activity which, if granted, sets out that it will not constitute a change of use and is lawful. If your home is rented or mortgaged, you should check with your landlord or mortgage provider whether their consent is required to run a business from your home to avoid any Issues further down the line.
What happens if my application for planning permission has been unsuccessful?
Next steps and appeals process
If your application for planning permission has been unsuccessful, there are several next steps you can consider:
Review the reasons for refusal: Carefully read the decision notice provided by the local planning authority to understand the specific reasons for refusal. This will help you determine if any changes or adjustments can be made to address the concerns raised.
Seek pre-application advice: Contact your local authority or legal advisor to discuss the reasons for refusal and seek guidance on potential modifications or alternatives that could address the issues raised. This can help you assess the chances of success for a revised application.
Submit a revised application: If adjustments can be made to address the concerns raised, you can submit a revised application. Ensure that any changes made are in line with the local authority’s guidance and policies. It may be helpful to provide a detailed response addressing each of the reasons for refusal in your revised application.
Appeal the decision: If the refusal was unjustified or there were errors in the decision-making process, you have the right to appeal to the Planning Inspectorate. This is an independent body that handles planning appeals. The appeal process involves submitting additional evidence and making a case for why your application should be approved. It is strongly recommended to seek professional advice from a planning solicitor to maximise your chances of success.
What are the time limits for local authorities to take planning enforcement action?
The time limits for local authorities to take planning enforcement action can vary depending on the specific circumstances and the type of breach. The general time limit for most breaches of planning control is four years from the date of substantial completion of the development. There are exceptions to this rule, and some breaches may have longer or shorter time limits.
The 4-year rule
The four-year time limit for planning enforcement action is based on Section 171B of the Town and Country Planning Act 1990 (as amended). This time limit applies to breach of planning control consisting of:
- unauthorised operational development such as building, engineering, mining, demolition or other works to land or buildings without planning permission.
- unauthorised change of use of a building to a single dwelling house.
The four-year period starts from the date of substantial completion of the development. Substantial completion basically means when the development has reached a point where it can be considered as practically finished and usable for its intended purpose. After the four-year time limit has passed, the local planning authority may lose the ability to take enforcement action against the breach.
10-year rule
The 10-year rule applies to any other breach of planning control. This includes the contravention of planning conditions and changes in the use of a building or land (other than a change of use of a building to a single dwelling house).
Exceptions to the rules
It Is Important to note that the above time limits do not apply, and the planning authority can take enforcement action at their discretion where:
- There has been a deliberate concealment of the breach of planning control.
- Where earlier enforcement action has been taken within the required time limit but has later proved to be defective (also known as the ‘second bite’ provision.
Listed Buildings
Listed buildings are properties that have been designated as having special architectural or historical significance and are protected by law.
For listed building enforcement, there is no general time limit like the four-year rule that applies to most breaches of planning control. Instead, enforcement action can be taken at any time, regardless of how long ago the breach occurred.
This means that if there has been an unauthorised alteration, demolition, or any other type of harm to a listed building, the local planning authority can investigate and take enforcement action even if the breach happened many years ago. The absence of a time limit is due to the legal protection and significance ascribed to listed buildings. Their preservation and conservation are considered paramount, and as such, the authorities have the power to intervene and enforce the regulations surrounding their protection at any time.
Certificate of Lawfulness
If you would like peace of mind regarding proposed or existing developments or use of land or buildings, your local authority has the power to issue a formal legal document known as a certificate of lawfulness or Lawful Development Certificate (LDC). Obtaining a certificate of lawfulness can provide protection against future enforcement action.
There are two types of certificates of lawfulness: a Certificate of Lawfulness of Existing Use or Development (CLEUD) and a Certificate of Lawfulness of Proposed Use or Development (CLOPUD).
- Certificate of Lawfulness of Existing Use or Development (CLEUD): This certificate confirms that a particular use or development has been continuously in existence for a specified period (typically 4 or 10 years) without any enforcement action taken by the local planning authority. It helps to establish that the development is immune from enforcement action due to the passage of time.
- Certificate of Lawfulness of Proposed Use or Development (CLOPUD): This certificate confirms that a proposed development is lawful and does not require planning permission. It can be useful in situations where there may be uncertainty about whether a proposed development falls within permitted development rights or requires planning permission.
Obtaining a certificate of lawfulness can be a complex process, and often involves providing evidence, such as photographs, plans, and statutory declarations, to support the application. If you are considering making an application, we strongly recommend getting in touch with one of our expert planning solicitors to maximise your chances of approval.
Summary
Planning rules can be a bit of a minefield. If you are thinking of making changes to your land or property, and are unsure whether planning permission is required, it is always worth consulting with an experienced commercial property solicitor. As the saying goes, it’s better safe than sorry. If you are concerned that you have carried out development that may constitute a breach, don’t panic. Depending on how long the breach has continued without enforcement action, you may be able to Invoke the 4- or 10-year rule depending on your circumstances and obtain a certificate of lawfulness. If, on the other hand, your planning application has been rejected, you may be able to resubmit or appeal with the help of an experienced professional. Here at Harper James our friendly commercial property team have specialist planning expertise, knowledge and Insight to help you navigate this complex but Important area of law.
