As the restrictions imposed on everyday life in response to the COVID-19 pandemic continue to evolve, licensing and planning law specialist Jamie Childs examines what operators of licensed premises should consider when contemplating changing the use of their premises.
Operators of licensed premises continue to consider the ways in which their businesses may adjust in response to Government restrictions relating to the COVID-19 pandemic. In some cases businesses may consider more drastic responses such as, for example, changing the use of all or part of their property to residential and abandoning trading in such a location. Other responses may include diversifying the offering a licensed premises may provide such as introducing a takeaway offering.
In very general terms, planning permission will be required for external alterations or material changes of use to premises unless permitted development rights apply or the change of use is to another use within the same use class. If premises are listed then listed building consent may be required (including for internal works) if proposed works would affect the character of the building as one of special architectural or historic interest.
If an operator of a licensed premises is considering altering its offering – including changes to layout – then consideration should also be given to updating the premises licence or securing a Temporary Event Notice (“TEN”) for any temporary activities considered.
The following are some of the key matters which operators should consider when contemplating changing the use of their licensed premises:
- Operators should review the title to their premises and any lease to see whether the changes that are being considered would be within the scope of the permitted use of the premises.
- Existing planning permissions (and any related section 106 planning obligations) should also be reviewed for the same reason. Planning conditions and planning obligations can restrict the ability to take advantage of permitted development rights in certain circumstances. If the intended change of use is beyond the scope of the current planning permission or would breach a planning condition or planning obligation then an application or a new or varied planning permission should be considered.
- Consideration should be given to taking advantage of permitted development rights to avoid the need for a planning application. For example, many operators have already taken advantage of the new temporary Class DA permitted development right to change the use of Class A3 restaurants and cafes, Class A4 drinking establishments or drinking establishments with expanded food provision to provide for takeaway food provision until 23 March 2022. This permitted development right is subject to certain conditions such as notifying the local planning authority that the premises will be used for the provision of takeaway food.
- Operators should also be aware that the Government fundamentally reformed the use classes system at the beginning of September 2020 and as a result uses such as a public house, wine bar, drinking establishment, drinking establishment with expanded food provision, hot food takeaway where food is consumed mostly off the premises, live music venues, theatres, night-clubs, casinos and cinemas (amongst other uses) all now fall outside any recognised use class. This means that movement to or from any such use may now require planning permission unless such a change is not considered a material change of use.
- Those operating licensed premises may also look to take advantage of recent changes to the Licensing Act 2003 to secure a pavement licence to allow removable furniture to be placed on part of the highway adjacent to the premises in connection with the sale or service of food or drink supplied from the premises. This is a change we wrote about earlier in the year here.
- The Licensing Act 2003 has also been amended to allow premises licences which only permit the on-sale of alcohol to be treated as if they were varied to allow off-sales until 30 September 2021 (or earlier in certain circumstances). These changes also vary conditions on premises licences which already do allow on or off-sales but are subject to conditions relating to the time when such off-sales may be made, restricting off-sales in open containers or preventing sales for delivery to allow such activities for as long as the licence authorises off-sales (again, to 30 September 2021 (or earlier in certain circumstances)).
- As indicated above, operators may also consider an application for a TEN as a less risky and costly way to diversify their offering. Subject to restrictions on the number of TENs that can be used in each calendar year in general terms a TEN may permit a licensed event for up to 499 people which lasts no more than 168 hours with a minimum of 24 hours between events.
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