Planning essentials case update: Does your existing permission prevent you from relying on Class E?

The Town and Country Planning (Use Classes) Order 1987 (the UCO) allows changes of use within the defined use classes without seeking planning permission. New Class E, introduced in September 2020, combined various classes to provide flexibility and help introduce new uses into traditional retail. However, the ability to change use can be controlled through various means – including planning conditions. Therefore, ability to rely on Class E can be affected by existing permissions.

The High Court recently confirmed that a shopping centre remained bound by a 2003 planning condition which restricted the centre’s use, such that it could not benefit from the flexibility of Class E. The case serves as a helpful reminder on how Courts interpret planning permission conditions (see: Lazari Properties 2 Limited v Secretary of State for Levelling Up, Housing and Communities 2023 [EWHC] 2026 Admin).

Planning permission had been granted for an extensive refurbishment of a shopping centre in London. Condition 3 stated that up to 40% of the floorspace could be used for Use Classes A2 (Financial and Professional Services) and A3 (Restaurants and Cafes) meaning that at least 60% of the floorspace was to be used for A1 (Shops) (based on the use classes as they existed at the time).

An informative explained that the condition was imposed to safeguard the retail function of the centre (i.e., by prioritising shops via A1 and preventing the proliferation of restaurants through A3).

The Court had to consider whether the new Class E superseded the restriction in Condition 3 – such that the shopping centre would no longer be bound by the 40% floorspace restriction for uses A2 and A3.

In reaching its decision, the Court reviewed the basic principles of interpreting a planning permission by reference to other cases, namely that one should:

• consider how a reasonable reader would interpret the condition in the context of the permission as a whole (i.e., in light of the other conditions), having regard to the natural and ordinary meaning of its wording; and
• establish the planning purpose that was sought to be achieved by the condition, including by considering the planning history of the site and the reason for the condition.

The Court had to ask itself – did the wording of Condition 3 (when considered in the context of the whole permission and the local planning policy which sought to safeguard retail use) show an intention to exclude the UCO?

The Court determined that, whilst there was no express exclusion of the UCO, based on the above principles Condition 3 contained a clear limitation on the extent of A2 and A3 uses such that the condition did exclude the UCO amendments. The shopping centre could therefore not benefit from the flexibility of Class E and instead remained restricted by Condition 3.

This is a useful reminder of how historic planning conditions can still restrict a site. Developers looking to benefit from the flexible Class E use should check that their sites are not hampered by conditions restricting use classes. Applicants should also bear this in mind when negotiating conditions with a local planning authority – the case clearly demonstrates that it is the wording of a condition (in its overall context) that will dictate how the condition is interpreted and, as such, what future uses will be permitted on site.