Everyone knows the way a property is used is governed by planning controls. Each use has its own class – as set out in the Town and Country Planning (Use Classes) Order 1987 – and there is even a grouping for property that fits into no particular class, ‘sui generis’, which is roughly translated as ‘unique’.
In order to change the use of a business premises, the property owner or business operator is often required to obtain planning permission. This is the red tape many fear, as it potentially leads to the need to instruct planners and architects to prepare statements and plans, and the local authority will then spend time considering the applications and any representations made by neighbouring residents and businesses. All of this results in time and money being spent before the owner/operator can lawfully change the use of the premises and commence (or possibly even re-commence) trading.
However, this is not always the case. Sometimes premises can run other uses that are supplemental to the main business – on the basis that they are ancillary to the main use or that the change is not material. A common example of this is cafés and coffee shops. It has long been a grey area as to what use class a coffee shop can operate under. Should they operate under an A1 use class (shop) or an A3 use class (café/restaurant), or perhaps a mixed use of the two?
Coffee shop owners often take leases of units that already have a class A1 lawful use and continue to operate using this, on the basis that the majority of people are buying goods and taking them away. However, it appears local authorities are deciding to scrutinise this practice more closely.
Difference of opinion
Recently, an international chain of coffee shops has faced threats of eviction by the London Borough of Hackney as it has been operating a unit previously run by an independent bookseller with a class A1 lawful use. Harrow Council claim coffee shops are taking advantage of this grey area and running what are essentially cafes under an A1 use. Ultimately the decision is down to the local authority and many have different opinions.
When taking on a new shop lease to run a coffee shop, it is always worth checking the local authority’s position and preparing evidence to submit (if required) to prove the proportion of customers purchasing goods to take away over customers eating and drinking in. This evidence can include floorspace taken up by tables and chairs, proportion of revenue from takeaway goods over eating in, or number of customers who purchase goods for off-site consumption over eating in, or any other data to convince the local authority that an A1 use is correct.
Another tool business operators can utilise to avoid the requirement to submit a planning application for a change of use is the permitted development rights scheme, under the Town and Country Planning (General Permitted Development) (England) Order 2015. Wales, Scotland and Northern Ireland have separate orders. Under this, several changes of use will not require planning permission as they are classed as ‘permitted development’. Many also have conditions to these rights.
One such change of use that will be relevant to coffee shop operators if their local authority has told them they cannot operate under an A1 use class is a permitted change of use from class A1 to class A3. This can be utilised up to a maximum floor space of 150 square metres and is subject to the prior approval of the local authority relating to the adverse impacts of the change of use on the surrounding area. This permitted development right cannot be used in relation to a listed building. It may also be restricted by any directions the local authority has made pursuant to Article 4 of the Order. It is always worth checking this.
The government is continuing to introduce planning protections for pubs, in light of evidence showing a significant decline in the number of pubs across the country. A pub owner/operator can no longer benefit from permitted development rights to convert the premises into a retail use.
A new permitted development right was inserted into the order earlier this year to allow pub operators to change the use from class A4 (drinking establishments) to a use falling within use class A4 with an ancillary A3 use operating. This new right is known as a drinking establishment with expanded food provision and should help pubs to diversify their business and operate restaurants without the need to apply for express planning permission.
Check your facts
An owner or operator who wishes to expand or diversify their business or operate an entirely different type of business may be able to avoid planning permission by taking advantage of permitted development rights or by arguing that the change of use is not material. However, a failure to implement a use without checking with the local authority could lead to enforcement action being taken if the local authority believes planning permission should have been sought. This could cause further delays to the new business and loss of revenue while trading is ceased and a planning application is prepared. There are numerous grey areas and matters that are determined by the local authority’s discretion and so proper advice and consultation is key.