25 March 2020

The Prime Minister’s announcement that the public should stay at home to slow the spread of coronavirus is having a far-reaching effect on the restaurant industry. To help mitigate this the government has relaxed planning rules so that pubs, cafes and restaurants can operate as food takeaways.

The legal position in relation to a ‘change of use’

Under the Town and Country Planning Act 1990 as amended (the 1990 Act), planning permission is required for the carrying out on land of any development under section 57(1) of the 1990 Act. Development is defined as the ‘carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land’ under section 55(1) of the 1990 Act.

A change of use of land or buildings generally requires planning permission if it constitutes a material change of use, however, permitted development rights (PD rights) allow (subject to some exceptions) certain changes of use without the need to apply for planning permission and these are set out under Part 3, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO). PD rights can also be removed by local authorities by way of an Article 4 Direction.

A change of use to food takeaway

Until yesterday, 24 March 2020, there were no PD rights in place that allowed a change of use from a restaurant (known as an A3 class use) or a drinking establishment (an A4 use) to a hot food takeaway (an A5 use). A business would have needed to submit a full planning application to authorise that change. That application would ordinarily take eight weeks to determine. Last week the government announced that it would introduce a PD right through secondary legislation that allowed the temporary change of use of a restaurant, cafe or drinking establishment to a food takeaway in England. That legislation is now in force.

The detail

The definition of the ‘provision of takeaway food’ includes use for ‘traditional’ hot food takeaway, being the sale of hot food for consumption off the premises (the definition within Class A5 of the Use Classes Order) and ‘any use for the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises’. 

This right to change the use of premises is time limited for 12 months and expires on 23 March 2021. 

The local planning authority needs to be notified of this change of use, but that notice can be given retrospectively (i.e. after the change of use has occurred) to allow establishments to use this right immediately. 

The use of the premises prior to the change of use to food takeaway will be reinstated after the use as a food takeaway has ceased.

Other points

The sale of alcoholic beverages will continue to be subject to existing licensing laws which is separate to the planning regime.

Given the rapidly evolving situation in the UK due to the coronavirus outbreak, it is important that the government takes pragmatic steps to ensure there is more flexibility for businesses to be able to adapt and continue to operate.

Further changes

We will continue to monitor any further changes that are announced that affect the planning system and provide updates, noting in particular that the guidance issued by the Planning Inspectorate is constantly being updated in relation to the impact on existing appeals. If you have any queries on this or planning issues generally, please contact Gary Soloman or Sarah Sutherland.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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