Recapping the key changes

Use Class E amalgamated the majority of the uses that had previously fallen with Use Classes A (shops, financial and professional services and cafés/restaurants), B1 (offices, R&D, and minor industrial processes), and D (clinics, health centres, nurseries, and gyms), under the single new ‘commercial, business and service uses’ class. Whilst Class E took much of the spotlight, there were other changes, including pubs and takeaways becoming sui generis, and various D1 uses being split into new Classes F1 (learning and non-residential institutions) and F2 (local community uses).

Immediate reactions

The introduction of Class E wasn’t universally welcomed - the government had to defend a judicial review challenge against the amendments to both the Use Classes Order and the PD rights. This was eventually dismissed by the Court of Appeal in December 2021.

New PD rights for changes of use between Class E and residential (Class C3) also proved controversial, with a number of authorities quick to bring in Article 4 Directions preventing use of the PD rights, although clear pressure from the Secretary of State has resulted in the Directions covering more limited areas.

How much flexibility is there really?

For sites with permissions pre-dating the changes and specifying historic uses (such as A1 or B1), provided the specified use had commenced by September 2020, they are now (generally) treated as Class E.  Changes of use within Class E are therefore possible without planning permission, provided there are no express conditions or planning obligations restricting changes of use, and no physical works are needed that require planning permission.

In June 2022, the Planning Advisory Service (PAS) commissioned a study assessing the impacts of Class E on town centres and high streets. Highlights of this work were shared in February 2023. Although the survey data was limited, feedback from local planning authorities did indicate some uptake in adaptation of existing premises with an increase in cafés and restaurants as well as some additional office space, and acknowledged the potential for unrestricted Class E development to support vitality, including returning vacant commercial units into active use.

The survey also highlighted some potential unintended consequences, such as the loss of ‘active’ frontages, and potential impacts on residential amenity from new restaurant and café uses.

Many pre-existing planning permissions, though, contain conditions restricting use, or are subject to  restrictive planning obligations, and this can limit the ability to fully benefit from Class E.  This issue was recently considered by the High Court in Lazari Properties 2 Ltd v Secretary of State for Levelling Up, Housing and Communities and the London Borough of Camden [2023] EWHC 2026 (Admin) in respect of the commercial units within the iconic grade II listed Brunswick Centre.  The operative permission for the property included a condition stating that a maximum of 40% of the retail floorspace in the centre (excluding certain spaces) was permitted for Class A2 and A3 uses as defined by the Use Classes Order ‘or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order’.  The owner applied for a Lawful Use Certificate to confirm that the whole shopping centre now fell within Class E, so there was no need to comply with the condition.  In rejecting the claim, the court found that precise limitations in the condition, when read as a whole with the permission (and the wider planning history) addressed concerns in respect of specific uses (A2 and A3) as defined at that time, and so the site was still bound by them, notwithstanding the introduction of Class E. The court also rejected the suggestion that this was a flexible permission (and so the condition only remained relevant for a 10 year period). 

Maximising future flexibility

Whilst it is possible to secure permission for unfettered Class E use, it is clear that local authorities remain willing and able to impose planning conditions limiting the ability to freely change within Class E uses, as well as restraining PD rights. This can be driven by local plan policies (many of which pre-date the changes), associated with town and retail centres, but equally there is a sense that in some cases, it is seen as avoiding uncertainty over the impacts of uncontrolled changes of use.

There are many ways in which the broad range of uses offered through Class E can be beneficial for developers with existing underperforming buildings and for those seeking new developments, but careful consideration of the existing planning position, and active dialogue with local authorities, remains essential to manage and avoid unwanted restrictions.

Based on an article published in the Estates Gazette on 3 October 2023 ‘Grading use class E’