As the COVID-19 lockdown continues, restaurants and pubs in England have been thrown a potential lifeline in the form of a temporary extension to permitted development rights which allows pubs and restaurants to be used for the sale of takeaway food.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 came into effect on 24 March 2020 and will remain in force for a year until 23 March 2021. The order allows a temporary change of use to the provision of takeaway food, from an existing use falling within Class A3 (restaurants and cafes), Class A4 (drinking establishments), a mixed use for any purpose within Class A3 and A4 or Class AA (drinking establishments with enhanced food provision).
Restaurants and pubs that utilise this permitted development right will be operating within a new Class DA: “Restaurants and cafes, drinking establishments and drinking establishments with expanded food provision to temporarily provide takeaway food”.
No doubt many restaurants and pubs will be keen to restart trading under these permitted development rights so they can provide takeaway food services, but what steps should they take before they do so?
1. Check for lease restrictions
A restaurant’s or pub’s lease may prohibit takeaway sales. A tenant should check the use restrictions in its lease and if the lease prohibits takeaway sales then it will need to approach its landlord to vary any restriction to permit the sale of takeaway food. When agreeing or documenting any variation to the lease terms, both parties should be wary of any potential knock on effects on rent review or renewal.
2. Check for existing planning restrictions
If the current planning permission for A3 or A4 use imposes a condition that specifically prohibits takeaway use then the new use class DA does not usurp this and so any takeaway use would still breach planning permission.
3. Consider trading practicalities
Operating during the current pandemic will hardly be business as usual. If any employees develop symptoms they, and any others who have been in contact with them, will need to self-isolate, causing staff shortages. If members of the public will be attending the property to pick up food, the pub or restaurant will have a statutory duty to take care that visitors are reasonably safe while on site under the Occupier’s Liability Act 1957. An establishment should follow the government guidelines of Public Health England, including the cleaning of surfaces and the provision of hand-washing facilities.
Pubs and restaurants will also need to consider whether their current layout adequately facilitates takeaway food services, particularly in light of government guidelines on social distancing and hygiene. If not, will alterations be required to the property and will the landlord’s consent be required for such alterations? Further, will there even be a workforce available to carry out any such alterations in the current climate?
4. Inform the Local Authority
Whilst planning permission is not required for the temporary change of use to new class DA, businesses that wish to do so are required to inform their Local Planning Authority if their premises will be selling takeaway food during the one year permitted period.
Hot on the heels of the permitted development order come reports that March was the best month on record for UK supermarkets, with a particularly notable 67% increase in alcohol sales. It is perhaps therefore no surprise that pubs and breweries are lobbying for the government to go one step further and allow them to sell takeaway alcohol from their premises, particularly given that off-licences have been designated “essential services”.
With the advent of new use class DA, it certainly seems possible that the government could grant a similar permitted development right to allow pubs and breweries to operate effectively as off licences This has been resisted by the government so far but, as we all grapple with the effects of COVID-19 day by day, time will tell what further measures are introduced to try and keep businesses afloat.
In the meantime, the permitted development order amendment may certainly, on the face of it, alleviate some of the challenges facing the hospitality industry but whether pubs and restaurants can really maximise its potential will depend on how their leases are drafted, their relationships with their landlords and whether it is operationally feasible for them in the current climate.