Can I get that pint to takeaway, mate?

In our team chat this last week I discovered that some of the southerners in my team have their local Boozers on deliveroo.@^ Now they may have missed the point in popping out to the pub, until the world changed and the pub's closed.  

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 was made on 23 March 2020 and came into force the next day, on the 24 March 2020.  

Those of us with memories slightly longer than a week, will remember this was made at a time when pubs, bars and restaurants were still open; we were just being actively discouraged from using them due to the need to [socially] (physically)*% distance.  This changed overnight on 24 March 2020 with the "lockdown" provisions coming into force and 

• restaurants and public houses, 
• wine bars or other food and drink establishments including within hotels and members’ clubs 
• cafés and canteens*&^

were required to close.

The provision of this new permitted development right was publicised by the government some time before the formal lockdown came into place as a means, you would hope, of trying to assist the hospitality industry which, even before any formal closure were suffering the effects of a diminished footfall in their businesses from the precautions already in place.

The 2020 Order, hyperlinked above introduces a new Class DA in Part 4 of Schedule 2 of the GPDO 2015.

It allows any building to change from a Class A3 (restaurants and cafes), Class A4 (drinking establishments) or Class AA (drinking establishment with expanded food provision) to a use for the provision of takeaway food.  (Apologies, headline and graphic aside, the PD right is for food only, the ability to distribute booze is a licensing question).

Such buildings can only be used as such during the period beginning with 10.00 a.m. on 24th March 2020 and ending with 23rd March 2021.

Those wishing to do so must notify the local planning authority if the building and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period.  Such is the national crisis at present that the government have also amended Article 4 and prevented all LPA's from removing the temporary right in their areas (as many have been doing over the last decade in relation to HMO's).

The use class before the change is not affected and the use of the building and any land within its curtilage reverts to its previous lawful use at the end of the relevant period or, if earlier, when the developer ceases to provide takeaway food.

All sounds good, right?  Responsive from the government, what's not to love?

What if you can't use the permitted development right?

Richard Harwood QC was quick to point out on twitter that the new PD does not apply if a condition on a permission prevents takeaways.  Before heading down the takeaway option check your planning permission.

It is also worth remembering Paragraph: 017 Reference ID: 21a-017-20190723 of the NPPG that conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.  

It may therefore be arguable that there are conditions which prevent the operation of the new PD right and conditions which are not effective in doing so - if you're here then you've found a job for a lawyer...

Enforcement 

In addition, and whilst slightly disconnected, the Secretary of State for Housing, Communities and Local Government has issued a WMS on enforcement which reminds local planning authorities that they should take a positive approach to their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the coronavirus.

Given the current situation local planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting deliveries of food and other essential deliveries during this period, having regard to their legal obligations.

Whilst this WMS looks at logistical wholesale deliveries, the spirit is in not over-enforcing breaches which could be seen to be in the public good during a restricted period.  It is not explicitly relevant to takeaway/leisure enforcement but is useful guidance as to the spirit of the next few months nonetheless.

So what?

The new PD potentially provides the owners of these premises with both an opportunity and a potential pitfall.  The opportunity is that they will have the chance to trial a home delivery service which many local planning authorities would never have approved - either for fear of upsetting neighbours, or for fear of displacing waiting and restaurant jobs.  Whilst of course keeping some staff employed and not seeing their businesses succumb to the the pandemic.

If the service can be run well (and quietly!) the PD will end on 23 March 2021 but operators will have had an opportunity to demonstrate that this can be a useful diversification for them, as well as a valuable community service. That will provide valuable evidence to support a subsequent planning application to continue the delivery service after the temporary exemption ceases.  The pitfall lies in the sensible operation of the service; those obstructing traffic outside their premises, noisy conversations in the street, noisy late night collections and deliveries etc. will generate complaints and prejudice forever any chance of getting a permanent change of use application through once the PD right has expired in 2021.

@^ spolier alert - this PD right is for food, not drink, to be an alcohol delivery service you need a licensing lawyer not a planning lawyer.

*% we seem to have adopted this terminology which is friendlier than the idea of socially distancing.

*&^ an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence is excluded from the requirement to close so it would appear that the Mess is still open?

These changes will provide vital flexibility to pubs and restaurants and will ensure people are able to safely stay at home while still supporting some of the great local businesses across this country.”