If you are considering buying or leasing a new outlet you must make sure that the building has planning permission for your intended use – or that such planning permission can be obtained.

The other situation in which the right planning use is important is where you might have opened an outlet as a business falling into one planning category and then as the business develops it might begin to encompass elements of another category. For example: a coffee shop may find that a large part of its business becomes hot takeaway food, which is a separate category for planning purposes. Or a restaurant finds after opening a small dance floor this becomes more popular than the food offering.

This article looks at the different categories of planning permission applicable to the hospitality and leisure sector and what amounts to a change of use.  It also considers the planning issues that can arise for operators as businesses develop and the potential commercial implications of these.

Use Classes

Planning law (Town and Country Planning (Use Classes) Order 1987) puts buildings into categories known as “use classes”.  The most relevant use classes to the leisure sector are:

  • A1 Shops
  • A3 Restaurants and cafes
  • A4 Drinking establishments
  • A5 Hot food takeaway
  • C1 Hotels
  • Sui Generis – uses that do not fall within other use classes are included here e.g. nightclubs.  If your property is mixed use e.g. part restaurant (A3) and part takeaway (A5) this is also classified as sui generis.

When is planning permission required?

Planning permission will be required for a material change of use in a property or for the carrying out of any development on the land.  For example if you wish to change your pub into a shop then planning permission would be required.

However, no planning permission is required:

  • For a change of use within the same use class, as this does not constitute development For example: if you wanted to change an Italian restaurant into a coffee bar no permission would be required. However, alterations to the premises to facilitate the change of use may require planning permission
  • Where legislation permits a change from one use class to another specified use class (Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596)).  The legislation permits, for example, a takeaway to be changed into a shop, restaurant or cafe without permission (although prior approval from the Local Planning Authority may still be required and an Article 4 Direction may restrict these rights).

More details on use classes and permitted changes 

What is a material change of use?

When deciding whether or not your business activities amount to a change of use the planners will look at the planning unit, the primary or dominant purpose for which it is being used and whether any other uses are incidental or ancillary.  Uses that are ancillary will generally not cause a material change in use. However it depends on the scale and nature and what amounts to an ancillary use is a question of fact in each case.

In determining whether or not a material change of use has taken place the Local Planning Authority (LPA) will look at relevant factors such as:

  • the turnover of the various elements of the business
  • the floor space used for each element
  • increased traffic/noise
  • what customers primarily come in to the outlet to do.

For example  a restaurant with only a small amount of takeaway is classed as A3 (restaurant). However if that take-away trade increases beyond the point at which it is ancillary to the restaurant business a case a change of use may occur to a mixed A3 and A5 (hot take-away) which would be sui generis and would therefore require planning permission.

Another example is where a pub (A4 drinking establishment), introduces a dancing element. Whether the dance floor remains ancillary to the drinking will be a question of fact and degree.  Many operators will try to keep the dancing element ancillary to the main use so that it does not cause a change of use to D2 (dance hall) or sui generis (mixed A4/D2) requiring planning permission.

The implications of getting it wrong

It is important to get the correct planning permission for your outlet and to monitor the development of your business to ensure that no material change has taken place which would require planning permission.

When buying a site, or considering a costly refurbishment involving a change of use, you should consider engaging a good planning solicitor early on who can advise you on how best to proceed.

As an alternative some operators will adopt a “wait and see” approach to planning hoping that no one will notice that their coffee shop has become a hot food takeaway or that their restaurant is now ostensibly a dance venue. However, not having the correct planning permission may have the following consequences:

  •  risk of enforcement proceedings which may require cessation of use, and if not complied with, is a criminal offence where the offender is liable upon conviction to an unlimited fine;
  • breach of lease – any breach of planning permission is likely to put you in breach of your lease; and
  • premises licence – when you come to renew your premises licence the local authority will look at the “authorised use” for the premises when deciding whether to grant or refuse your licence.

Ignoring planning issues can be an expensive mistake.  For further advice on your specific situation please contact Freeths’ planning and environmental specialists: Robert Bruce or Jennifer Roe