Covid-19: A guide to the new takeaway planning rules

Covid-19: A guide to the new takeaway planning rules

As part of its response to the coronavirus health crisis, Government regulations have now come into effect to allow cafés, restaurants and public houses to provide a takeaway service.

The following link will take you to an on-line copy of the regulations. I have set out below a guide to what you need to know and do.

http://www.legislation.gov.uk/uksi/2020/330/made/data.pdf

Who does it apply to?

1.  England only. For the situation in Wales see further below.

2.  The following types of business

– cafés

– restaurants

– drinking establishments, such public houses, wine bars and other drinking establishments, whether or not you previously provided a food offering

– or a business operating a combination of the above from a single site.

3.  If the above applies to you and if the second bullet point immediately below, on property specific restrictions, does not apply to you, then you can skip to the section below on ‘What does the new change allow’.

4.  The change in regulations does not apply to

– nightclubs, hotels which include a bar or, private members’ club

– any premises which are already subject to a property specific planning restriction preventing their use as a takeaway.

5.  If the latter might apply to your property, then please take note of the following:

6.  The change in national regulations does not supersede property specific restrictions.

7.  Property specific restrictions will only exist where planning permission was granted by the council to use the premises as a café, restaurant or drinking establishment, subject to a condition prohibiting its use as a takeaway. So, your first step will be to carefully read through your copy of that planning permission. If it is not clear whether your property is subject to a restriction, then contact your council planning department or seek independent professional advice.

8.  If your property is subject to a property specific restriction, then you can apply to the council for the restriction to be lifted. The formal process of making a planning application is lengthy. Under current circumstances you might find it could take the council up to six months to reach a decision. A better alternative is to approach them for informal advice and to seek ‘a letter of comfort’ that they will not take action against what would be a breach of planning control, for the duration of the national, temporary permitted change. If you need support to do this, then it is a service I can provide.

9.  If you cannot secure a letter of comfort and remain keen to operate a takeaway service, then see further advice below in the two sections on ‘operating without consent’.

What does the new change allow?

10.  The use of the building and any land within its curtilage for the provision of takeaway food, for example, use of the car park by a mobile catering unit.

11.  It allows the sale of food and drink to customers collecting from your premises and also for home delivery.

12.  The food may be hot or cold.

13.  The food when sold may be suitable to be consumed, reheated or cooked by consumers off the premises.

When does it apply?

14.  The change came into effect on 24 March 2020. So, now!

15.  The change is temporary and ends 23 March 2022.

16.  Your permitted days and hours of operation are not changed by the regulations.

17.  Please note, if the council as local planning authority require your business to close for certain periods, for example, on a Sunday or between the hours of 6pm and 8am or between 10pm and 7am, then the property is still subject to whatever those restrictions are.

18.  Property specific restrictions on days and hours of operation will only exist where planning permission was granted by the council to use the premises as a café, restaurant or drinking establishment, subject to a condition restricting opening days and hours. So, your first step will be to carefully read through your copy of that planning permission. If it is not clear whether your property is subject to a restriction, then contact your council planning department or seek independent professional advice. See also paragraphs 8 & 9 above.

Is there anything else I have to do?

19.  Anyone who wishes to make use of this change in regulations must notify the council planning department.

20.  This notice should be provided in the name of the person in charge of the business (the owner or premises manager).

21.  This can be done by email or letter. Keep a copy for your records.

22.  You can either tell them in advance of the change taking place, or after it has started.

23.  The regulations do not say how quickly you must tell the council. I would suggest you do so as soon as you reasonably can.

24.  See also below ‘what is not covered here’.

What is not covered here?

25.  Regulations governing the handling and preparation of food for sale. Please contact your local council food hygiene team for advice on anything you may need to do before you start providing a takeaway service.

26.  Licensing of the sale of alcohol is not affected by this change in planning Regulations.

27.  Other Government requirements and guidance on operating a business during the current health crisis.

What happens after 23 March 2022?

28.  When the temporary period of change comes to an end then the provision of the takeaway service must stop and the premises go back to operating the way they did before.

29.  In planning law, the use of the property will not have changed and whatever the lawful use was before will be the lawful use again.

30.  Therefore, if you wanted to continue to provide a takeaway service then you would require full planning permission from the Council to do so. I would strongly recommend making such an application for planning permission at least six months before the end of the temporary period. I can act for you in making such an application, and provide advice beforehand on how likely it is you would get permission.

Operating without consent: What if I start operating a takeaway service and it then turns out my property does not benefit from this change in regulations?

31.  Think about how much you need to invest in providing the service. If you have any doubts about whether your property benefits from this change in regulations then seek advice from your local council planning department. Do so preferably by email, but be aware they may take three weeks or longer to reply. If you only speak to someone over the phone then immediately afterwards make a note of the date, time, who you spoke to, their job title and a brief summary of what you discussed.

32.  Alternatively, you can seek independent professional advice from a suitably qualified property professional. I can provide this service.

Operating without consent: Can the council take action to stop me if I don’t have the correct authorisation?

33.  I do not expect local planning authorities to take immediate action against anyone who starts operating a takeaway service, unless it is causing substantial harm to another party, such as a nearby resident, or it raises significant highway safety issues.

34.  The change is only permitted for one year and when the health crisis has ended then the government may be unlikely to renew the change.

35.  If the council planning department approach you to say they believe you do not benefit from this change in regulations and threaten to take planning enforcement action if you do not stop, then it is important you do not ignore them.

36.  Listen carefully and politely to what they have to say. Make a note of who they are and how they can be contacted. Tell them you prefer to seek independent professional advice before answering any of their questions or deciding what you will do. Keep any correspondence they send you (by post or email) and any documents they give you. Then, immediately seek independent professional advice from a suitably qualified property professional. I can provide this service.

37.  If you are not approached by the Council and you are able to operate without causing a nuisance to any neighbours, especially residential neighbours, and without causing any highway safety issues, then you may wish to consider seeking planning permission so you can with confidence continue to operate a takeaway and or home delivery service. It would probably be best to make such an application in late 2021 / early 2022. I recommend you seek independent professional advice now, from a suitably qualified property professional. I can provide this service and can prepare and submit the planning application on your behalf.

In Wales

Why is Wales different?

38.  Planning regulations are devolved to the Welsh Assembly and there are a number of differences now between the English and the Welsh systems.

Is operating a takeaway service an option in Wales?

39.  Yes. In fact, in most respects the situation is more straightforward in Wales.

40.  If you run the following types of business then you can also sell hot food for consumption off the premises

–  cafés

–  restaurants

–  drinking establishments, such public houses, wine bars and other drinking establishments, whether – or not you previously provided a food offering

–  or a business operating a combination of the above from a single site.

41.  This was already the situation in Wales, and therefore the Welsh Assembly have not needed to make any changes to the regulations in Wales, as has had to be done in England.

42.  However, if your premises are also already subject to any property specific restrictions then those will also continue to apply.

43.  For restrictions preventing you from offering a takeaway or home delivery service, please see paragraphs 7 to 9 above.

44.  For restrictions limiting your days and hours of operation, please see paragraph 18 above.

45.  If you are operating without all the planning consent you should have, please see paragraphs 31 to 37 above.

Published 26 March 2020. Updated 15 November 2020.