Solicitor Kayleigh Chapman, from Blandy & Blandy’s planning & environmental law team, explains the new Class DA Permitted Development Right allowing restaurants, cafes and bars to serve takeaway food.
On March 20, 2020 the Prime Minister announced that in light of the COVID-19 crisis all bars, pubs, theatres and restaurants had to close from the night of Friday, March 21, 2020.
No date has been given for when that measure will be relaxed and such businesses will be able to open to the public again.
In light of this move the Government announced that measures would be implemented to allow such businesses to operate as take-away food operators. Such measures would enable businesses to continue to operate thus protecting jobs and assisting the economy in such difficult times.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 (‘Order’) was made on March 23, 2020.
This Order inserted a new permitted development right into the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘2015 Order’). The provisions of the order came into force at 10am on March 24, 2020.
The new permitted development right is provided in Class DA of the 2015 order. It provides that:
“Development consisting of a change of use of a building and any land within its curtilage from-
(a) a use falling within-
(i) Class A3 (restaurants and cafes) of the schedule to the use classes order; or
(ii) Class A4 (drinking establishments) of that schedule;
(b) a mixed use for any purpose within that Class A3 and Class A4; or
(c) a use as a drinking establishment with expanded food provision as defined in Class AA of Part 3 to this schedule,
to a use, at any time during the period beginning with 10am on March 24, 2020 and ending with March 23, 2021 (‘the relevant period’), for the provision of takeaway food.”
Class DA therefore allows the change of use from restaurant, cafe, pub or bar to a use for the provision of takeaway food.
This change of use is subject to a number of conditions.
The main condition is that the developer must notify the relevant local planning authority of the change. Whilst there is no requirement to give that notification prior to the change it is best practice to do so.
The conditions also confirm that the change of use does not affect the use class which the property/unit fell under prior to the change of use and that following the expiry of the ‘relevant period’ (or following cessation of the provision of takeaway food) the use will revert to the previous lawful use.
The relevant period is currently anticipated to expire on March 23, 2021. Depending on the development of the COVID-19 crisis that period may be extended.
Considerations for the developer
Prior to notifying the local planning authority or changing the use of your business to the provision of take away food you should consider the following:
Does the underlying planning permission for the current lawful business have any conditions imposed which prevent the use of the building as a takeaway? If so you will be unable to benefit from Class DA permitted development right. This is because Article 3(4) of the 2015 order expressly excludes the exercise of permitted development rights where they conflict with a condition imposed on a planning permission.
If you are not prevented from exercising the permitted development right as there is no condition preventing the change of use you should next consider whether the terms of any lease prevent the change of use.
Finally, you should consider whether there are any licensing requirements to carry out the takeaway use.
There will no doubt be additional commercial considerations beyond the scope of this article. Our specialist planning, commercial property and corporate and commercial teams would be happy to advise as required.