Whether a food and drink use is a "café", "sandwich shop", "hot food takeaway" or something else, is important, to whether planning permission is required for its operation.

Food and drink uses

When you buy a coffee, or a sandwich for lunch, you are unlikely to ponder the question: "what use class does this establishment fall into?". And rightly so – you are only interested in your cheese toastie and/or flat white.

In Scotland, cafés fall into use class 3 (Food and Drink) as premises used "for the sale food or drink for consumption on the premises" and sandwich shops are use class 1 (Shops) – premises used "for the retail sale of goods other than hot food" and "for the sale of cold food for consumption off the premises". Hot food takeaway shops are sui generis use (i.e. not within any use class). Changes of use between Class 1, 3 and sui generis uses would generally require planning permission.

The position in England is slightly simpler now that Class E has come in and sweeps up both sandwich shops and cafés into one use class, but hot food takeaway is still a sui generis use. The Scottish Government is consulting on changes which could result in a similar position in Scotland.

This may not seem controversial, but when you look at different "coffee shops" (e.g. Pret, Starbucks, Caffe Nero), the distinction is less clear. For example, several traditional "sandwich shops" will offer hot food takeaways (e.g. toasties, soups or pastas), or will have some tables to allow people to sit in. Likewise, your typical cafés can offer hot and cold food and drink takeaways, and many now sell branded keep-cups, water bottles etc.

These uses are fine if they are "ancillary" to the principal use. So hot food takeaways and people sitting-in are ok if they form a small part of the sandwich shop's trade. Likewise, if a café offers hot and cold food takeaway or starts selling keep-cups, this would not necessarily take it outside use class 3 if that forms a small proportion of custom.

But if there is a truly mixed trade – e.g. 50% takeaways, or 50:50 hot:cold food takeaway – then the use may be sui generis and planning permission would generally be required.

Considerations for operators

  • it's about the actual use, not what you call it
  • when acquiring new premises, consider whether the proposed use is in a different use class from the existing use and therefore requires planning permission; and get advice on the risk of that permission being refused.
  • existing premises – have there been significant changes to the use, especially those introduced during the covid-period relaxations in planning control; and be careful of "creep": responding to customer demand is good business practice, but incremental changes can add up.