As with 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 England the planning regime provides for a basic planning requirement prescribed in law, but which is subject to variable orders which provide for exemptions and modifications. This can allow the governments of the day to tighten or relax planning requirements to suit needs. The consequence is that when changing use of a commercial property, it is important to seek appropriate legal advice in order to understand whether permission will be required.
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?
- Same use class – Town and Country Planning (Use Classes) Order 1987
- Permitted development – General planning development order (GPDO) 2015
- Changes not constituting ‘development’
- Material change of use
- Changes of use and building regulations
- What happens once planning permission has been granted?
- Do I need planning permission to run my business from home?
- What are the time limits for local authorities to take planning enforcement action?
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.
For an overview of different types of classes please refer to our guide to commercial property use classes.
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.’
As is evident from the above, there is, as a starting point, a fundamental requirement for planning permission to be obtained where there is a material change of use of any building or land. This is, however, 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)
- It is a ‘permitted development’
- The changes do not constitute a ‘development’
These topics are described in more detail below.
Same use class – Town and Country Planning (Use Classes) Order 1987
This order includes 15 classes. A change of use within the same use class does not constitute development and, accordingly, 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 A1 Shops). Equally, no permission would be required for a change from a Public House to a Wine Bar (Class C4 Drinking Establishments).
However, it should be noted that 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.
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’
The Town and Country Planning Act 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.
- 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 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. However, 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, it should be considered whether any consent is required to be given by the landlord or mortgage provider.
What are the time limits for local authorities to take planning enforcement action?
In the majority of matters, enforcement action for development cannot be taken after:
- 4 years of substantial completion for a breach of planning control consisting of operational development
- 4 years for an unauthorised change of use to a single dwelling house
- 10 years for any other breach of planning control (any other change of use)
The above time limits do not prevent enforcement action being taken in the following circumstances:
- 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)
- There has been a deliberate concealment of the breach – in which case the local planning authority may either serve a notice of enforcement outside the time limit or instead apply for a planning enforcement order