Have you got the right planning permission for your business?

When you look at buying or leasing a new site for your business you need to make sure that the building has planning permission for your intended use - or that such planning permission can be obtained. You should also be aware of planning requirements if you open a business falling into one planning category, and then as the business develops it begins to encompass elements of another category. For example a coffee shop may find due to demand that a large part of its business becomes hot takeaway food - which is a separate category for planning purposes. This article looks at the different categories of planning permission and what amounts to a change of use.  It also looks at the planning issues that can arise as businesses develop, and the potential commercial implications of these.

Use Classes

Planning law (Town and Country Planning (Use Classes) Order 1987) puts buildings into categories known as "use classes".  Relevant use classes, for example, relevant to the leisure sector are:

• A1 Shops
• A3 Restaurants and cafes
• A4 Drinking establishments
• A5 Hot food takeaway
• C1 Hotels

Sui Generis - uses that do not fall within other use classes are included here e.g. nightclubs.  If your property is mixed use e.g. part restaurant (A3) and part takeaway (A5) this is also classified as sui generis.

When is planning permission required?

Planning permission will be required for a material change of use in a property or for the carrying out of any development on the land.  For example if you wish to change a pub into a shop then planning permission would be required. However, no planning permission is required:

• For a change of use within the same use class as this does not constitute development. For example if you wanted to change an Italian restaurant into a coffee bar no permission would be required. However, alterations to the premises to facilitate the change of use may require planning permission; or
• Where legislation permits a change from one use class to another specified use class (Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596)).  For example the legislation permits a takeaway to be changed into a shop, restaurant or  café without permission (prior approval from the Local Planning Authority (LPA) may still be required and an Article 4 Direction may restrict these rights).

Click here for more details on use classes and permitted changes

What is a material change of use?

When deciding whether or not your business activities amount to a change of use the planners will look at the planning unit, the primary or dominant purpose for which it is being used and whether any other uses are incidental or ancillary.  Uses that are ancillary will generally not cause a material change in use, however it depends on the scale and nature and what amounts to an ancillary use is a question of fact in each case. In determining whether or not a material change of use has taken place the LPA will look at relevant factors such as the turnover of the various elements of the business, the floor space used for each element, increased traffic/noise and what customers primarily come in to the outlet to do. For example a restaurant with only a small amount of takeaway is classed as A3 (restaurant) however, if that take-away trade increases beyond the point at which it is ancillary to the restaurant business, a case a change of use may occur to a mixed A3 and A5 (hot take-away), which would be sui generis and would therefore require planning permission. Another example is where a pub - A4 (drinking establishment) - introduces a dancing element. Whether the dance floor remains ancillary to the drinking will be a question of fact and degree.  Many operators will try to keep the dancing element ancillary to the main use so that it does not cause a change of use to D2 (dance hall) or sui generis (mixed A4/D2) requiring planning permission.

Implications of getting it wrong

It is important to get the correct planning permission for your outlet and to monitor the development of your business to ensure that no material change has taken place which would require planning permission.  When buying a site or considering a costly refurbishment involving a change of use you should consider engaging a good planning solicitor early on who can advise you on how best to proceed. As an alternative some retailers/operators will adopt a "wait and see" approach to planning hoping that no one will notice that their coffee shop has become a hot food takeaway or that their restaurant is now ostensibly a dance venue.  However, not having the correct planning permission may have the following consequences:

• Risk of enforcement proceedings which may require cessation of use and if not complied with is a criminal offence where the offender is liable upon conviction to an unlimited fine;
• Breach of lease - any breach of planning permission is likely to put you in breach of your lease; and
• Premises licence - when you come to renew your premises licence the local authority will look at the "authorised use" for the premises when deciding whether to grant or refuse your licence.

Contact

Ignoring planning issues can be an expensive mistake.  For further advice on your specific situation please contact:

Robert Bruce - Planning Partner 

Jennifer Roe - Planning Associate