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.

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.

Flintshire Council Deposit Plan Consultation 2019

Do you live or work in Flintshire? How will proposals the Council has put forward affect you? The Flintshire Council Deposit Plan sets out how the Council think land should be developed or protected over the next decade.

Are you a developer or landowner looking for an opportunity to bring land forward for development or re-development? Are you an individual or community concerned about how the proposals will affect you?

Comments on the Deposit Plan must be submitted to the Council by Monday 11 November 2019. If you think what it says may affect you then you have no time to waste.

The Deposit Plan includes details of where the Council wants to see major new housing development over the next ten years. Sites to be confirmed in the new local plan include

159 at Well Street, Buckley

182 in Connah’s Quay (32 at Broad Oak Holding and 150 at Highmere Drive)

170 at Northop Road, Flint

406 at Mold (160 at Maew Gwern and 246 between Denbigh Rd and Gwernaffield Rd)

298 at Holywell Rd, Ewloe

288 at Ash Lane, Hawarden

80 on the Wrexham Rd, Abermorddu

105 at Cae Isa, New Brighton, and

186 on the Chester Rd, Penymynydd.

If you want to know more, visit the Council website:

If you want professional help to try and get something changed in the plan, then I may be able to help. Call me and let’s talk it through.

How Liverpool City Council is changing its’ approach to flats and HMOs

This will be of interest to those who invest in property, to turn it into a house in multiple occupation (HMO), and or to sub-divide it into flats, whether that be from existing houses, pubs, offices or other commercial buildings, and to those who know people who do so, in City of Liverpool only (different rules apply in Sefton, Knowsley, Halton and Wirral).

Why is Liverpool introducing changes?

The City Council’s current planning policies are about twenty years old and they need to be updated. On the subject of HMOs in particular the Council feels it does not have the tools it would like to ‘manage’ the impact such uses can have. As the number of HMOs have increased in recent years, especially but not exclusively in the student housing sector, residents in areas that have seen a particular increase in the number of HMOs have not been happy. They report problems with on-street car parking, poor refuse storage and inconsiderate behaviour. Some HMOs have not been run well and have tarnished the reputation of the whole sector. The City Council feels compelled to adopt a more interventionist position, to protect those neighbourhoods where the number of HMOs may harm their character and to raise the standard of accommodation where HMOs are allowed.

What is changing?

The Council is bringing forward new planning policies to help steer development across the City over the next 15 years. These will replace the City’s current planning policies. Among these proposed new policies are two of particular relevance to property investors.

The first (draft policy H10) is on the subject of the conversion of buildings to dwellings and the sub-division of existing dwellings, to create flats and HMOs. It would introduce 22 detailed criteria against which planning applications will be assessed. To give you a flavour, some of the subjects covered in those criteria include

  • minimum space standards, light and ventilation standards, and acoustic insulation
  • refuse storage, off-street car parking, access to rear yards and or gardens
  • impact on neighbours and character of the area.

The other policy (draft policy H11) is specifically about HMOs and sets out those areas where a new HMO would not be allowed if it would breach a 10% threshold for the area. These are areas where the Council consider the number of HMOs is having or would have an adverse impact on the character of an area. Nine such areas have been identified, three of which have already exceeded the 10% threshold.

These policies would apply when planning permission is required, which normally is for HMOs with more than six persons. Those with six or less do not need planning permission if they are being created out of a single dwelling (house or flat). The Council also wishes to control these smaller HMOs. To do so it is going to introduce something called an Article 4 Direction, which is a legal instrument that will drop the threshold at which planning permission is required from more than six to more than three.

The Council has already introduced one of these Article 4 Directions. It affects the Dales Neighbourhood Area and came into effect on 19 July 2018. A copy is not available on the Council website (as at 17 January 2020). Some information is available on the Council website, including a map of the area affected.  The following link will take you to the page, and then scroll down to find ‘Guide for landlords of HMO properties in the Dales roads, L15’

Which areas will be affected by these changes?

Some of the changes being brought forward by the Council would apply across the City.

For example, most parts of draft planning policy H10 would apply to HMOs and flats across the City.

The nine areas where Article 4 Directions may be introduced and where there would be a limit on the number of HMOs are identified in the document containing the emerging policy. There are three areas where the limit has already been reached, they are

  • The ‘Dales’ Neighbourhood (already the subject of an Article 4 Direction, see above)
  • Smithdown Road / Gainsborough-Wellington Roads / Picton Road / Cranborne Road, and
  • Kensington Fields.

The nine areas were identified on the basis of evidence collected across 2016-2017 and the Council will be updating the evidence to see whether any changes need to be made to the number and extent of the areas.

When will these changes happen?

These changes have been a long time coming (getting on for two and a half to three years, or more) and that might encourage some people to think that perhaps they’ve gone away. But they have not, and things are moving forward ….. slowly.

The progress toward the adoption of the new policy document has been delayed again and I don’t think it will happen much before the end of 2021. It might even be 2022.

However, while the emerging policy cannot carry the same weight as current policy, the Council can still take it into account. At this stage the emerging policy should be more ‘advisory’ than ‘compulsory’, but beware, in practice both planning officers and planning committee are already starting to use the emerging criteria to judge the acceptability of applications.

Work on introducing more Article 4 Directions is underway. The timing is not linked to progress on the new planning policy document. It too is a lengthy process and it might not be introduced until late 2021 or early 2022.

Want to know more?

The draft planning policy can be found on the Liverpool City Council website. The most up to date version (as at 26 March 2020) can be found in a document called the Draft Schedule of Main Modifications (6 March 2020).  This sets out how the Council now propose these policies should be set out, following some discussion with the emerging Local Plan Examination Inspector about the version of the policies which were set out in the Submission Draft Liverpool Local Plan January 2018.  The following link should take you straight to the schedule of main modifications.

Once you have the document open, you will find policy H10 starts on the 83rd page, and policy H11 on the 91st. The list of nine areas where additional restrictions on HMOs will apply are on the 94th page. Sorry, but the Council did not see fit to number the pages.

The associated maps are still to be found in the Submission Draft Liverpool Local Plan. It is not easy to find this document on the Council website. The following guide should help you get there.

First, the following link should take you to the Helen Wilson Consultancy Ltd web page for the Liverpool Local Plan (Helen is the Examination Programme Officer).

Toward the bottom of that webpage look for the title in blue text (next to a + sign) that says ‘Examination Documents List’.

You should be able to click on the blue text and a drop down box should appear. Within the text in that drop down box look for any text in red. It may say something like ‘Liverpool documents list 9 3 2020’. That red text is another link, so click on that.

That should open for you a page entitled ‘The Liverpool Local Plan Examination Documents List’. On that list you are looking for document ‘CD1’ (in blue underlined text) called ‘Submission Draft Liverpool Local Plan May 2018’. The ‘CD1’ in blue is a link. Click on that.

That should, finally, open for you a ‘pdf’ version of the ‘Submission Draft Liverpool Local Plan January 2018’ (yes, ‘January’, but trust me, that is the right one!). It may take a few seconds to download and open.

The maps identifying the three areas where the Council say the ten per cent threshold has already been exceeded are shown on pictures 7, 8 & 9, across pages 142 to 144.

The Council have not made it easy to find them, so well done if you did!

You can find out more about the corporate, strategic approach Liverpool City Council is taking to HMOs in a report presented to Cabinet back on 21 April 2017. The link below should take you to that report.

Open the Public reports pack and go to document page number 97.


[Updated 26 March 2020]







New rules on pre-commencement conditions

From 1 October 2018 new rules come into effect in England affecting the use of pre-commencement planning conditions. Architects, surveyors and small house builders in particular will need to be aware of the new procedures, as well as others involved in securing planning permission and in development.

Pre-commencement planning conditions have long been popular with councils keen to ensure further detail they want control over are submitted to them for approval.  Developers have complained the procedure stalls progress on development, especially when the matters the subject of the condition are not critical to the early stages of work on site, for example, why should ground preparation work be held up by a condition requiring details of the roofing material for a house.

New regulations* now require councils to seek the agreement of applicants to any pre-commencement conditions they think are necessary. In practice these may mostly be sorted out by informal agreement. Alternatively, there is a formal process which can be instigated.

The council can serve formal notice of its intent to impose a pre-commence condition and the applicant then has ten days, and no more, in which to respond. Failure to respond (in time) will be taken as acceptance of the condition. The other three options open to an applicant are

1. Provide written confirmation of agreement

2. Provide written comments, which will be a trigger a round of negotiation after which the council will need to serve a further notice, and so on until either an agreement or an impasse is reached, or

3. Provide written confirmation they do not agree.

In the event of no agreement being reached the council must then decide whether to

– Grant permission without the pre-commencement condition

– Seek written agreement with the applicant to an alternative form of words, or

– Refuse to grant permission.

The last point in particular is worth noting. Careful judgement will sometimes need to be exercised over how best to respond to the notice.

If in the short term it seems better to accept the condition to get the permission, it will still be possible to return later to seek to pursue an application without the condition. If this scenario seems likely then it is probably better to stay silent in response to the notice than to say something which appears to convey acceptance of it, because that could later be used against you.

You can find more information and guidance on the use of pre-commencement conditions as part of the government national planning practice guidance, via the following link:

 * The Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018

Are you ready for permission in principle?

Are you ready for permission in principle?

A new type of planning application comes into effect in England from 1 June 2018.  It will be possible to submit an application to the local planning authority for ‘permission in principle’ for housing proposals. What is this and might it be of benefit to you?

It is a way of confirming whether a proposed small scale housing scheme is acceptable in principle before incurring the costs associated with the preparation of the detailed information that may be required to show the impacts of the scheme are also acceptable.

The government have created this new type of planning application to help improve the supply of new homes on small sites (fewer than 10 homes).  It is an alternative to submitting an application for ‘full planning permission’ or for ‘outline planning permission’.  It is a ‘lite’ version of an application for outline permission and if successful it must then be followed up with an application for ‘technical details consent’, which will be a lot like an application for approval of ‘reserved matters’.

Compared to the existing types of application, less information is required to support an application for permission in principle.  It will only need to be accompanied by a site location plan and a description of the development that covers both the use proposed and the amount of development. It can therefore be a cheaper option if the other two alternatives would require funds to be spent producing other information to accompany the application.

It will be useful in cases where

– there is an element of doubt about whether a proposal for small scale residential development, or the scale of a scheme, would or would not be acceptable in principle, and

– seeking to find this out via either of the other two options would incur costs you would rather avoid until you have more certainty on the acceptability in principle, and

– you want the certainty a formal permission will give you compared to an informal opinion from the Council in response to a request for pre-application advice.

How often the permission in principle route will be useful is hard to say. There are a number of things to bear in mind and two leading issues are

First, this is a completely new concept and no-one yet knows how local planning authorities will deal with an application with so little information. Will they take a positive approach or will they be more inclined to issue a refusal because, for them, that seems the less risky option?

Second, getting permission in principle will not guarantee getting consent for the technical details. Gritty issues may still need to be dealt with, from managing flood risk and safeguarding protected wildlife, to achieving safe means of access and avoiding undue loss of privacy for neighbours.

Further government guidance is expected which will give applicants and local authorities greater certainty over how this new system should operate.

Permission in principle is not expected to replace applications for full and outline permission, or requests for pre-application advice. Far from it. It may prove to be a relative rarity. But there will be some cases where it will provide a better alternative and it is therefore a useful addition to the developer’s tool box, even if you find you only need to use it every once in a long while.

More information on permission in principle can be found on the following websites

Planning guidance from Ministry of Housing, Communities and Local Government

The regulations are to be found in the Town and Country Planning (Permission in Principle) (Amendment) Order 2017

Permission to land?’, an article by Jamie McKie at law firm Dentons, provides a legal overview.



Liverpool City Council to consult on emerging local plan

Liverpool City’s emerging local plan is about to reach a key stage with critical implications for developers and landowners in the City, especially those with an interest in securing permission for alternative uses for their property now or in the future.

The City are about to publish for a six week consultation period the submission draft local plan. This is the version of the plan as the Council would hope to adopt it. In fact, it is likely to be subject to further change. After the consultation it must be submitted for independent examination by a Planning Inspector, who will consider both the Plan and any objections to it. The Inspector is likely to recommend a modification to the Plan if he considers an objection is justified.

Those parts of the submission draft plan to which there are no (substantive) objections and which align closely with national planning policy are more likely to remain as they are. It is national planning policy that such parts can be given more weight than other parts of the emerging plan, when making decisions on applications for planning permission. Therefore, if there are no objections to a policy then the council will feel justified in using such a policy to refuse planning permission or to grant permission subject to controls they could not otherwise impose.

For example, if the submission draft local plan continues to include a property in an area allocated for employment and if there are no objections to the relevant policy that does so, then the council are likely to feel they are in a stronger position to refuse any application for a non-conforming use, unless the application can meet any exception criteria the new policy may impose.

The consultation is both an opportunity to prevent or to tone down harmful policies and to promote sites for development in line with the aspirations of owners and developers.

If you are a landowner or developer whose investment may be affected by the emerging local plan then you need to consider now what you need to do to protect that investment. But it is not all bad news. The consultation may also be an opportunity to promote a site for a particular use or development.

The local plan consultation is scheduled to take place over February to March. The precise dates have yet to be formally announced. I do not expect they will vary significantly from the scheduled timetable. There is a strict deadline for the submission of comments. This is constrained by government regulations. Late material cannot be admitted. It may seem like a reasonable amount of time, especially as the consultation has not yet started, but it will go all too quickly.

St Helens delays new local plan

St Helens Council has announced it will not now publish its draft local plan until the summer of 2018.

The new plan will be the lead land use planning document for St Helens, once it is adopted. It will set out how much new development for housing, employment and retail will be needed in the Borough. It will also set out those policies against which individual planning applications for all types of development will be assessed.

The draft plan will be published for a final consultation before it is then sent to the Planning Inspectorate for independent examination. If it passes that then, depending on how long that process takes, the council may be in a position to adopt the plan in 2019.

The last version of the plan was the subject of a consultation exercise over last Christmas. Despite the timing more than 5,500 responses were submitted to the council from local residents, businesses and landowners. This alone will no doubt have generated a lot of work as the council reviews each and every one and considers whether and how to change the emerging plan in response, or why not to do so.

The delay though is due to factors beyond the council’s control. The government intends to introduce new national planning guidance in early 2018 that will change the way in which councils in England must calculate how much housing to plan for. The St Helens draft plan will be expected to follow this guidance. The additional work generated will further delay the publication of the draft plan.

When the plan is published for consultation next summer it will be the last chance to comment on it before it goes for independent examination. It will therefore be of interest to anyone with a property interest in the St Helens area, or who is thinking of investing in a development in that area or with an interest in how the area may change in the coming years.

For more information on the progress of the plan go to St Helens Council’s website, via this link [].

Battling barn conversion bureaucracy

It is supposed to be easier, in England, to get planning consent to create new homes out of agricultural buildings, even modern ones. But it may not always feel that way.

There are signs many local authorities are still putting high hurdles in the way of schemes. Recent research published in Planning reveals a picture they describe as showing that refusal rates remain stubbornly high. This is despite attempts by the government to relax planning rules with the intention of boosting the supply of new homes in rural areas.

The new rules were supposed to streamline the process, remove some of the uncertainty and lighten the burden on developers. Known as ‘prior approval’, the conversion is considered to be acceptable in principle, provided certain conditions are met and subject to the prior approval of certain details by the local district or unitary council. Given the usual difficulty in trying to secure planning permission for new homes in rural locations, the up-front acceptability in principle looks promising. However, many schemes are coming unstuck when the council say the scheme does not meet the conditions or they refuse to grant prior approval because of a problem with one of the details for which prior approval is required.

In part this may be down to council’s continuing to take a tough stance on anything that involves more homes in rural locations. In part it may also be down to a lack of appreciation by applicants and their agents of what is needed to meet the relevant conditions and to secure prior approval for the specified details. The most common reasons given by councils for refusing prior approval relate to location and siting, structural integrity, that the site was not last used for agriculture and curtilage related issues.

It is easier to get consent for a conversion than it used to be, but not every site and not every building will be suitable. To know if you have a good prospect and if so then how to navigate it with the minimum of fuss through the planning process requires you to do your home work, to prepare properly. Time to get some good town planning advice?

‘Barn conversions – the latest picture’, Planning, 3 November 2017, page 16

Planning application fees to rise by 20%

The fee to be paid to a local authority when a planning application is made is due to go up shortly.

The government announced some months back its intention to raise planning application fees in England. Initially the rise was expected back in July but it was delayed by the general election.

The government have now published the required draft regulations, which must be laid before Parliament before the change can be introduced. The change will affect the fees for all types of application, not just those for applications for planning permission. They will affect all types of development which are currently subject to a planning application fee.

The precise date for the change has yet to be announced. It may happen before the end of the year.

The increase is intended to help local authorities invest in their local planning service, to improve performance. The government is expected to require that local authorities ‘ring fence’ the funding to ensure it does go to local planning departments and is not siphoned off for use by other services.

Most authorities are expected to use the money to increase staffing levels. The increase could be enough to fund up to five new staff for each authority across England. Authorities can use the funding how they see fit and, for example, some money could be used to improve IT systems, so teams can work more efficiently. That would be just as well, because there are about 300 local authorities in England and if they wanted just two more staff each that would be a lot of people to find. Most planning work is undertaken by professionally qualified town planners, and there are not 600 of those sitting around kicking their heels waiting for a chance to work in local government. Where the extra staff will come from is therefore far from clear.

So get ready to soon pay more for your planning applications, but you may have to wait a while longer before you see services improve.