When you go for a pint of beer, glass of shiraz or some fancy foaming, smoking cocktail and are suddenly peckish and go to reach for the menu, you are unlikely to question the lawfulness that there is food available.
But in planning terms, there is an important distinction between the "local boozer" or more traditional pubs, gastropubs, wine bars and bar-diners.
Since 2021, "drinking establishments" in England (e.g. public houses, wine bars etc.) are no longer classed within Use Class A4. Instead they have been moved to a sui generis use – "a class of their own".
At the same time there was introduced a new sui generis use category: "drinking establishments with expanded food provision".
Accordingly Pubs (in the “local boozer” sense), bars, cocktail bars etc. are all sui generis uses. As is a pub or bar with expanded food provision (sui generis).
Restaurants are Use Class E(b) (sale of food and drink mostly for consumption on the premises).
In Scotland Class 3 uses include restaurants, cafes and "establishments where food and drink is consumed on the premises". "Public houses" are a sui generis use, and presumably that would include other drinking establishments such as wine bars. There is no equivalent use category of "drinking establishment with expanded food provision". It will therefore be a process of judgment whether the principal use is eating (class 3) or drinking (sui generis).
Permitted Development Rights
Previously permitted development rights applied to allow changes from the former Class A3 (restaurant) use to Class A4 (pubs/bars) or A5 (hot takeaway) uses without the need for obtaining planning permission.
However, since the use classes reforms shook things up, this is no longer available. There is now permitted development rights (Class AA) allowing pubs/drinking establishments to open a restaurant or similar within their premises. It is important to note, however, that this does not move the "pub with restaurant" into Use Class E as a restaurant (and therefore affording the premises the full remit of commercial uses under that Class E).
In Scotland, there are no permitted development rights to change to or from a public house. It is unclear at which point the expansion to provide food would constitute a material change of use and would require planning permission.
A grey area?
But what about, say, the gastropub, or, perhaps a restaurant which contains a bar that is used for just drinking – i.e. the other way around from that sui generis case: a "restaurant with expanded drinking provision"?
Most gastro pubs now are principally set up for dining services (perhaps with a “bar area” that also allows food to be consumed when you've got the dogs present). But there are often no bar stools etc. and you have to find a table or its standing leaning against the bar.
Another example is a restaurant near an office block. During the day and most of the week, it only deals with dining customers (breakfast, lunch and dinner). But on Thursday and Friday evenings it is frequented by people from the nearby offices, especially in the Summer, for drinking to the extent that the substantial majority, if not all, of customers would be standing enjoying drinks. Given the number of drinking customers, few would be seated eating food.
In Scotland the answer is perhaps easier given the food and drink would be consumed on the premises and it should remain within Use Class 3. But in England, where would it fit into the Use Classes Order?
- is it a restaurant (class E(b)) with an ancillary “drinking establishment” element?
- is it a hybrid of restaurant (Class E(b)) and drinking establishment? And therefore "mixed use" (sui generis)?
- Is the addition of a “bar” element to the restaurant a non-material change in practice?
- Although unlikely, is there a different planning unit at all?
The answer will depend on the facts and circumstances of each establishment given the level and intensity of the use. Factors may include:
- the percentage of sales to drinking customers compared to dining customers
- the frequency / pattern of the "drinking establishment use"
- whether the drinking use has a local amenity impact (e.g. if drinkers are standing outside where food would not be consumed by dining customers)
- whether people can enjoy their drinks at the dining tables or whether they are kept separate from the dining area.
Those factors are clearly not exhaustive and it is for a decision maker to determine what factors are given what weight in determining what use class this establishment should be categorised as and, if there is a material change of use from the restaurant use. If there is an impact on amenity then its more likely to be considered material.
If it is considered, on the facts, that the drinking use of the restaurant is a material change of use and permission was not obtained, then the use could be subject to enforcement.
This is an example of how changes in business operation and/or customer demand can potentially lead to planning issues. If office workers start to increasingly use a restaurant for drinking only, and its popularity increases, then the restaurant could unwittingly find itself operating within a different use class (sui generis) and potentially liable to enforcement action.
It similarly applies to gastropubs. Some may have gone so far towards operating as a restaurant that they could no longer call themselves a "drink establishment with expanded food provision", but would rather fall within Use Class E(b) (restaurant use), despite the external look of a "pub". This would require planning permission.
Where there are concerns or significant shifts in customer patterns / demands we would advise legal advice is obtained to ensure that businesses are operating lawfully within the planning regime.