Towards the end of 2021 the Government announced that it was making certain temporary permitted development rights introduced in response to the COVID-19 pandemic permanent. Planning and licensing law expert, Jamie Childs, examines the implications of this announcement for owners and operators of licensed premises.
The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021 (“2021 Order”) was made on 16 December 2021 and came into force at the beginning of January 2022.
The 2021 Order introduced a permanent permitted development right to provide one moveable structure within the curtilage of a pub (including those with expanded food provision) or other premises which is used for the sale of food or drink mainly to members of the public who consume that food or drink on the premises.
In general terms, this new permitted development right is expected to be welcomed by owners and operators of licensed premises as it provides clarity over the siting of such structures on their premises, flexibility to use moveable structures to expand operational floor space and may allow the conventional planning application process (and its associated costs and potential delays) to be avoided.
If they are contemplating using these new permanent permitted development rights, owners and operators of licensed premises should be aware of the following restrictions on the use of this right:
- The moveable structure must be used for the purposes of operating the pub (including those with expanded food provision) or premises being used for the sale of food or drink primarily to customers who consume that food and drink on the premises.
- This permanent permitted development right cannot be used where the land on which the moveable structure is to be sited is, or forms part of, a listed building, scheduled ancient monument or is within the curtilage of such structures. There is a separate, temporary, permitted development right which may be able to be used where the moveable structure would be sited within the curtilage of a listed building which may allow such structure to be sited for up to 120 days in a year. This separate, temporary permitted development right is subject to a prior approval process and a number of additional conditions and limitations.
- The moveable structure cannot be sited within two metres of the curtilage of any adjacent land which is used for residential purposes (including hotels, residential institutions and houses in multiple occupation).
- The height of the moveable structure cannot exceed 3 metres and the footprint (being the total area of ground covered by the building or moveable structure) cannot exceed the lesser of 50% of the footprint of the building or 50 square metres.
- The moveable structure cannot be used for the display of an advertisement.
- Premises licences should be reviewed to see whether the licence would need to be updated to allow the moveable structure to be used in the way desired. Whilst there are no conditions or limitations in the new permitted development right in relation to noise or hours of operation these are matters which may be regulated under a premises licence (or indeed a planning permission affecting the premises).
- Existing planning permissions and planning obligations in any section 106 agreements affecting the premises should be reviewed for any planning conditions or obligations which may prevent the use of this permitted development right. Similarly the title of the premises or any lease of the premises should be reviewed to ensure there are no covenants which may prevent the siting and/or use of a moveable structure on the premises.
- Owners and operators of licensed premises should also remain wary of any Article 4 directions which local planning authorities may make to restrict the operation of this permitted development right.
Howes Percival has a dedicated Leisure and Tourism team who have been advising clients in the leisure and tourism industry for over 25 years. Howes Percival’s team includes solicitors specialising in regulatory, property, employment, planning, licensing, intellectual property and commercial law so are well equipped to advise owners and operators of licenced premises on any legal issues they have.
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