Commercial Real Estate Partner Thomas White, and Trainee James Hibbert, share their expert opinion below.
In the current climate, and in order to protect the public against risk of infection from coronavirus, businesses selling food or drink for consumption on site have been unable to do so, meaning there has been a sway towards these shops, restaurants, and pubs etc branching into takeaways. Most of these businesses have either taken it upon themselves to be able to deliver their food to the consumer directly, or through one of the many delivery apps which are becoming more and more ubiquitous.
The basis of this comes from the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020, which came into force on 24 March 2020, and enabled permitted development rights for restaurant/cafes (Use Class A3) and pubs (Use Class A4) to temporarily change their use to fast food takeaway, which falls within Use Class A5. This is for a 12-month period up until 23 March 2021, and means they do not need to first obtain consent from the relevant planning authority. This new permitted development right is called (Use Class DA).
This temporary change is subject to the local authority being notified of the change of use, and also that the use reverts back to the original one at the end of the time period mentioned, or earlier if the provision of takeaway food ceases. This temporary change does not affect the existing use of the property.
The permitted development right has not, so far as we are aware, been extended to the serving of alcoholic drinks, which will remain subject to the current licensing rules. It will depend whether they have an “off-licence” enabling them to sell alcohol for consumption off the premises.
The use of the property, so far as planning legislation is concerned, is one aspect. The other, which must be considered, is the terms of the lease – assuming this is a situation where the freehold is owned by somebody other than the business operating the takeaway – as that will contain details in respect of the use permitted. A tenant will need to ensure that their use of the property in this way is permitted under the terms of the lease, otherwise it may find itself in breach. Depending on the wording of the user provision in a lease, a landlord does not have to be reasonable in considering any request for a change of use, even temporary one, and the landlord may be entitled to charge a premium for such consent. There are further considerations which a landlord will need to have, beyond just whether they are minded to allow the tenant to temporarily enjoy a (temporary) change to the user clause in the lease.
For example, noise nuisance or the additional emission of smells and smoke. With takeaways being more and more utilised, there is an increase of delivery drivers who will be coming and going from the premises, they might be parking outside or even on the pavement, and that brings with it disruption to those around it. The landlord may have tenants who live in the building, or otherwise occupy parts of the building / freehold. Those tenants may not be happy with the landlord acquiescing to this, and may put the landlord under pressure not to agree to relaxing the use. Further, does the tenant need to take additional steps to prevent emissions if the service offered differs from what the tenant provided previously?
A further argument may be that the landlord is complicit in creating nuisance to neighbouring properties. It is not unusual for freehold titles to include general obligations not to cause nuisance to neighbouring properties. Well advised neighbours may look to enforce; the disruption to them, whilst temporary, is still due to last for a year.
This will, of course, turn on the given facts of any situation and if you are either a tenant wishing to look at this as a possibility of the use of your lease or a landlord coming under pressure from their tenant to agree to this, and wish to discuss this further, please do not hesitate to get in contact with Thomas White, at [email protected] or on 020 7725 8045 or your existing contact within Seddons.