Finding the right restaurant site – through the eyes of a lawyer

Although it is possible these days to find out a lot about a property from the comfort of your own office using tools such as Google Maps and Street View, I try to accompany restaurant clients on site inspections prior to them making an offer on premises.  Clients find that it is an especially useful way of revealing potential legal issues from the outset, thereby avoiding delay and potential costs.

When looking around prospective sites, restaurant operators will understandably focus on commercial and practical matters such as ‘the look and feel’ of the premises; the trading performance of previous or nearby occupiers; pedestrian flow past the premises or the proximity of car parking or customer draws such as cinemas, supermarkets and other nearby retail or restaurant uses. 

While making an assessment as to the suitability of premises and after establishing whether the property has the requisite A3 planning use, operators should also, however, be carrying out their own appraisal of the site covering legal and compliance issues such as:-

Emergency Escape – Capacity numbers are regulated depending on customer travel distances and the means of escape.  This is a specialised area where advice should be obtained from fire safety or building regulations consultants.  Very roughly though, a property with only one escape (which also serves as the entrance) will not be able to accommodate more than 60 covers.  You should also ask yourself how, aside from the main entrance, will customers be able to escape from the premises in case of an emergency?  If there is a separate means of escape, what is the escape route and does the landlord or seller have the requisite rights itself over that route? 

Extract Duct and Machinery – After permitted trading hours, the most contentious part of any restaurant operation is the extraction of cooking fumes or odours or the operation of machinery that causes noise and vibration.  When inspecting a property, therefore, you should ascertain whether any existing duct or plant has planning as well as assessing whether such ducting or plant is actually lawful.  It is customary, for instance, for ducting to extract fumes and odours at above roof level.

If there is a duct running up the building, an assessment will need to be made whether there are adequate rights in place in any lease to install the duct in that position.  If there is an existing ‘low level’ extraction system, you should question whether it is lawful in the first place and also whether there is a fall back option in the event that enforcement action is subsequently taken against the retention and use of the extraction system in that position. 

External Seating – As well as proving popular in the summer months, outside seating can be a valuable way of providing greater visibility to a restaurant.  Ask yourself, however, whether it is within your landlord’s control to grant you rights to use any external seating or whether the area is instead public highway requiring the grant of a pavement licence from the local highway authority? Also query whether the seating area is authorised under planning and whether any existing premises licence covers the sale and consumption of alcohol on that area. 

Disabled Access – There are particular obligations in relation to disabled access when a building is refurbished or built.  You may need to consider things such as including ramps to allow wheelchair access where there is a stepped entrance and the provision of disabled toilets on the ground floor and disabled lifts.  There may also be a requirement for entrance doors to be no less than 800mm wide which may be material where you are looking at taking a listed building which may not previously have been used as a restaurant and where it may not be possible to obtain listed building consent to widen existing doorways.

Toilets – Clients will usually want to maximise the number of covers that can be accommodated.  Account will need to be had of the kitchen and other back of house areas and the number and positioning of toilets can sometimes become a make or break issue.  It will be a requirement of environmental health and building control that specified minimum numbers of lavatories are provided and capacities will be calculated by reference to the number of toilets available for customer use.  As a basic provision, for new or refurbished restaurants there should be one toilet and two urinals for up to 100 male customers and four toilets for up to 100 female customers, with it being assumed that there is a 50/50 customer split between males and females.  Separate staff facilities will also need to be considered.

Alterations – The layout can be a vital feature of a restaurant.  When inspecting a property, assumptions may, for instance, be made that a structural dividing wall can be removed to open up a room or that an additional staircase could easily be added between the ground floor and basement. You should proceed with caution before making these assumptions as the majority of leases prohibit structural alterations.  This may be something, however, that can be expressly negotiated with the landlord as part of the deal where you are taking a new lease.

Parking and Deliveries – Look at the roads to the front and back of the property.  How will deliveries be made?  If there is restricted parking or unloading to the front, deliveries may need to be made to the rear and, if so, does the lease provide for the necessary rights for this?  Also, if you are dependent on any nearby public car park for deliveries, are there restrictions on the access of HGVs to that car park?

Landlord’s Works – If you are taking over second hand restaurant property or premises that have previously been used as a restaurant, think ahead as to the likely issues that you may encounter on your fit out.  Is the fit out going to be intrusive enough to warrant works to identify, insulate and remove asbestos? If a property has previously been used for another use, such as a shop, and is to be used as a restaurant for the first time, does it have a gas supply and is the electricity supply sufficient for all of your kitchen and air conditioning equipment?  If any asbestos works or works to upgrade services are required there may be a strong argument that these are ‘shell’ works that should be carried out by the landlord or at least at its cost. 

The above considerations are obviously not exhaustive but highlight various considerations that you should bear in mind when judging the feasibility of a potential site. The earlier that these types of site specific issues can be identified the better so as to limit the exposure to otherwise unforeseen costs and delay.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

 

For further information, please contact Philip Shotter at