Restaurants and Permitted Development Rights Update

The decline in the viability of some pubs coupled with changes in eating habits in general, have meant that many of our restaurant clients have in recent years been taking on former pub premises.  From a planning use perspective, this had always been a straightforward process as a change in use from a pub use (within Class A4 of the Town & Country Planning (Use Classes) Order 1987 as amended by the 2005 Use Classes Amendment Order (the “Order”)) to use as a restaurant within Class A3 of the Order had always been permissible under permitted development rights without the need for planning permission.

No longer an automatic Change of Use

As a result of the Town & Country Planning (General Permitted Development) Order 2015 (the “2015 Order”) which came into effect in April 2015, the procedure to change the use of a property from Class A4 to a use within Class A3 has now been made more complicated as notice needs to be served on the local planning authority of an intention to change the use of the premises and a period of 56 days needs to elapse, during which time it is envisaged that the local planning authority will, in turn, give notice of the intended change of use to the local community, with any third party being allowed this 56 day period in which to make a nomination for the property to be listed as an Asset of Community Value (“ACV”).  If such a nomination is made during this period planning permission will be required for the required change of use (subject to there being a right to oppose the nomination).

The good news – planning permission may not be required for a change from a retail use

While our restaurant clients are generally now aware of these changes - and the complications that have been introduced to what was previously a very straightforward process - there is a further change brought about by the 2015 Order which restaurant operators may not be so aware of and which may actually facilitate the opening of new restaurant premises.

The 2015 Order now permits changes of use from existing A1 or A2 (financial and professional services offices) uses to an A3 use without the need for planning permission provided that:

• the new A3 use does not exceed 150 square metres (1,614 square feet); and
• prior approval is obtained from the local planning authority.

This may, of course, be of interest to a restaurant operator looking to take on smaller restaurant premises but may equally be of relevance where there are A1 or A2 premises adjacent to existing but maybe undersized A3 premises where it may be possible to combine the premises into an acceptably sized A3 unit with the change of use of the A1 or A2 unit to a restaurant use now being dealt with by way of a prior approval application.

We are starting now to experience changes of use being obtained in this way.  However, changing use under this process to a use within Class A3 should not be regarded as a formality and the following should be borne in mind:

• the prior approval application process still takes a period of approximately 8 weeks (which is effectively the same length as a full planning application);
• a formal application still needs to be submitted to the planning authority with supporting information such as:

o a noise and odour impact assessment;
o details as to the proposed opening hours at the premises;
o an assessment of the impact on transport and highways;
o an impact assessment on existing A1 uses in the vicinity;
o information as to sustainability; and
o design details relating to the external appearance of the property.

Whilst any restaurant operator considering obtaining a change of use in this way will still need to go through the same process of preparing an application with all supporting documentation, the view from the planning consultants that we have been working with is that it would generally always be preferable to make an application for prior approval under the 2015 Order rather than a full planning application as the chances of a favourable outcome are perceived to be higher with a prior approval application.

So far as this impacts on agreements for lease that a restaurant operator may be negotiating with the landlord, it naturally follows that the planning conditionality wording covering the change of use ought to be amended to cover the tenant either obtaining (a) planning permission or (b) prior approval, the final decision as to which application to pursue to be decided by the tenant at its discretion. 

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 on pshotter@glovers.co.uk