The Scottish Government's Chief Planner, John McNairney, has published a letter urging planning authorities in Scotland not to undertake planning enforcement action which will result in unnecessarily restricting public houses and restaurants providing takeaway services on a temporary basis during the current exceptional circumstances.
This relaxation of the existing rules is to be reviewed after three months, with the intention that the rules are returned to normal once the immediate urgency has subsided. It is useful, therefore, to consider the standard position for hot food takeaways, public houses, bars and restaurants to ensure that businesses are not caught unwittingly by enforcement action when the relaxation of the rules is withdrawn.
Use Classes in Scotland
Under current legislation, hot food takeaways, public houses and bars are classed as sui generis (simply meaning 'in a class by itself') in terms of the Town and Country Planning (Use Classes) (Scotland) Order 1997 ('the Use Classes Order').
This means that they do not fall into a specific use class. Restaurants, cafes and snack bars, where hot food is intended to be consumed on the premises, fall within Class 3 of the Use Classes Order.
There is a distinction in the legislation between businesses selling hot food to be taken away, and those selling cold food to be taken away. For example, a sandwich shop selling cold food for consumption off the premises will fall within Class 1 of the Use Classes Order, which covers shop use. If the sandwich shop also sells hot drinks, has one microwave oven, or has a small amount of seating on offer within the shop, for example, these uses are considered to be 'ancillary' to the business' primary use as a shop. Ancillary uses such as the examples given may not require planning permission, but this will depend upon the scale of the activity involved.
If there is to be a change of use from a shop (Class 1) to a hot food takeaway outlet (sui generis), or from a restaurant, café or snack bar (Class 3) to a hot food takeaway outlet, planning permission is required for such a change of use, unless it can be evidenced that the additional use is ancillary to the primary use class.
Enforcement Post-Coronavirus
As enforcement activity by the local planning authorities is discretionary, the decision as to whether a change of use has occurred will depend upon the individual circumstances of the case, although consideration may be given to the concentration of such uses in the local area, the scale of the activities, character and appearance of the property, the impact upon vitality and viability, the effect on amenity and any potential road safety and parking problems.
Home Delivery Options
In terms of shops or restaurants/cafes offering home delivery options during the outbreak, no specific reference has been made to this in the Chief Planner's letter. As such, local planning authorities could still consider enforcement action, in which case, they will consider the primary use of the premises and whether the additional use as a delivery service is ancillary to its everyday use. This will involve a similar assessment to one which would be conducted to understand whether a change of use has occurred.
Tenants
If you are a tenant renting premises under a commercial lease, remember to check that the terms of the lease permit you to deviate from your primary use class. If the terms are silent or do not offer any guidance in the event of a worldwide pandemic, check with your landlord before taking any steps to change the use of your business.
