Covid-19 – Can I Operate a Takeaway from My Existing Business Premises?

On 20 March 2020 the UK government announced that all pubs and restaurants were to close with immediate effect, staggering business owners up and down the country.

Since then, many of these businesses have adapted to provide ‘socially distanced’ takeaway food whilst they remain otherwise closed to the public.

Can I Operate A Takeaway From My Existing Business Premises?

What commercial premises may be used for is determined by two distinct and separate sets of rules:

1. Restrictions under Planning Law
2. Restrictions contained in the legal documents under which you own the property, whether freehold or leasehold.

Restrictions on Use under Planning Law

Planning ‘Use Classes’ are contained within the Town and Country Planning (Use Classes) Order 1987, which is regularly revised. You may need to contact your Local Planning Authority or search the online planning portal in order to find out the existing planning use class for your property.  Changing the authorised use may require planning permission from your Local Planning Authority, although  certain changes are allowed without.

The Use Classes are divided into groups.  Uses falling under Part A are types of professional service provided to the public and businesses such as the sale of goods or services in shop premises. Each lettered class is then subdivided with the divisions setting out more specific uses.

Food and Drink Use Classes

Hot food takeaways in England fall under Use Class A5 and cold food takeaways normally fall within Use Class A1.  Class A3 covers premises where food is sold and consumed on the premises i.e. restaurants and cafés. Drinking establishments such as pubs fall within Use Class A4.

New Right Under Temporary Covid-19 Provisions

A new right has been introduced to support food and drink businesses that have been required to close their premises to the public.

The Covid-19 provision allows restaurants, cafes and pubs that usually operate under Use Classes A3 and A4 to instead operate as takeaways for a temporary period.  Those businesses may offer hot and cold food for consumption away from the premises for the period from 24 March 2020 until 23 March 2021. Businesses should notify their Local Planning Authority and the property must go back to its previous authorized use after 23 March 2021.

It’s interesting that the government have put a year on this timescale and perhaps gives an indication of how long we may realistically expect the hospitality trade to remain restricted.

Additional Requirements For “After Hours” trading

It is worth noting that a separate license may be required if hot food and drink is to be supplied ‘after hours – usually 11pm to 5am – under the Licensing Act 2003.  Government guidance on ‘late night refreshment’ hasn’t been recently updated, but if a license for ‘late night refreshment’ is required, then trading without one may constitute a criminal offence.

Restrictions On Use In A Commercial Lease

Most business premises are occupied under a commercial lease which will usually contain a clause restricting the tenant’s use of the property to the ‘Permitted Use’ authorized by the landlord.  This is entirely separate from the Use authorized by the Local Planning Authority and it is invariably the tenant’s responsibility to check that the use permitted by the landlord covers the tenants intended purpose and is authorized by the Local Planning Authority also.

It may be that the Permitted Use in the lease is:

• Wide enough to encompass a use other than that which the tenant originally intended; or
• Tied to a definition of the Town and Country Planning (Use Classes) Order 1987 which allows for future amendments to be incorporated, thus automatically including the Covid-19 provisions; or
• Able to be changed by the tenant without the landlord’s consent

Tenants should check the provisions in their leases and seek professional assistance to clarify any areas of doubt.  Technically, tenants remain under an obligation to comply with the restrictions within their lease unless they can come to an alternative agreement with their landlord.  The commercial reality may well be that over-zealous landlords may struggle to enforce a breach of the user provisions but during these particularly stressful times, knowing that the issue has been properly addressed can buy peace of mind.

Restrictions On Use Attaching To Land & Buildings

If you own your business premises outright or subject to mortgage, there may still be restrictions on what the premises may be used for.  These are most commonly contained in the registers of title held at Land Registry or referred to in documents which are listed in the registers.

Breach of restrictive covenant usually gives the party with the benefit of the covenant the right to take action for damages via the Lands Tribunal.

If you’re not sure whether this applies to your premises, you can download a copy of your registered title from the government Land Registry portal for a small fee.

If you have any questions or queries relating to this blog, our Commercial Property lawyers are always on hand to answer any queries which you may have on freephone 0800 011 6666 or by email at legal@timms-law.com.

 

11th May 2020
Matthew Light