Change of Use, Class E, existing permissions and limitations

Section 55(2(f)) Town and Country Planning Act 1990 (TCPA90) provides that:

“The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.”

The ability to change the purpose of a building or land from one purpose within Class E to a different purpose may, however be limited in practice. This will depend on the facts of the case. Issues that might arise are as follows:

• A planning permission may contain a condition that prevents premises being used for any purpose other than the use referred to in the condition or permission. This would prevent a change to a different purpose within Class E relying on section 55(f) TCPA90, and express planning permission would be required. 
• A planning permission will continue to bind the building or land even if the purpose is changed. A permission may contain conditions that make it incompatible with the proposed purpose, for example, a condition that relates to a shop use may state that the opening hours are to be 8am to 6pm; such a restriction might be impractical for an office use. A section 73 TCPA90 permission may be required to vary the permitted hours. 
• A building’s configuration might not be suitable for a specific use; whilst internal alternations can be made that would not amount to development (section 55(2)(a) TCPA90), it may be necessary to make external alterations to the building to make it useable for the new purpose, for example, a restaurant use may require kitchen extract equipment and external ventilation to be installed. Such external alterations are likely to require planning permission.
• A section 106 TCPA90 planning obligation may contain obligations that limit the ability to use the premises for the desired purpose or make it impractical to so use it, for example, employment and skills obligations that bind the occupational phase of a development may require target numbers of employees to be drawn from the council’s area; this may be difficult to achieve for a specialist research and development user.