Legislation on changing use

The problem The Government intends to restrict the ability of a restaurant owner to convert his or her premises to a pub or take-away, or vice versa, by requiring that planning permission be obtained first. In many cases, councils are likely to refuse permission. If you are thinking of changing the use of your premises, what should you do?#

Planning permission is not required to change the use of a property if both the existing and the proposed use fall within the same class of use identified in the 1987 Use Classes Order (UCO).

Currently, it is possible to switch between uses as a restaurant, pub and take-away without obtaining planning permission because all three fall within use class A3 of the UCO.

In addition, the 1995 General Permitted Development Order (GPDO) automatically grants planning permission for a change from any A3 use to either use class A2 (professional and financial services) or class A1 (retail).

In response to growing concern about the uncontrolled proliferation of pubs and take-aways, the Government has announced plans to subdivide the existing use classes within class A3. Restaurants and caf‚s will remain within this class but a new class, A4, is to be created for pubs and bars, while take-away outlets will fall within use class A5.

Under the Government's proposals it will still be possible to change from use as a take-away or pub to a restaurant without an express grant of planning permission. However, it will not be possible to convert a restaurant to these uses, or to switch between use as a pub or take-away, unless planning permission is obtained.

Also, it may be more difficult in future to rely on the GPDO to, for example, change to retail without planning consent.

It is anticipated that the necessary legislation to effect these changes will be introduced this summer.

Expert advice

Anyone contemplating moving from one A3 type of use - say, as a restaurant - to a take-away service should act now to avoid having to apply for planning permission for a change of use.

Not only will an application involve costs and delay, but it may be difficult to obtain permission, given the social concerns that have prompted the changes in law.

Documentary evidence of both the timing and nature of the change in use should be retained so that, if necessary, it can be proved that the change took place prior to the introduction of the new legislation.

Landlords granting new leases and tenants contemplating a change of use also need to consider carefully the wording of their leases.

Many leases restrict the use of premises by reference to a class use described in the UCO (for example, A3). Some make it clear that any future changes to the UCO should be ignored for these purposes, but others simply contain a general provision to the effect that references to legislation include any future amendments or modifications.

Depending on the precise wording, it is arguable that the holder of a lease restricted to A3 use may, in future, not be able to convert to a bar or take-away without obtaining the landlord's consent, because these will no longer be an A3 use.

While this would give the landlord greater control over the use of the premises, it may have an adverse effect at the next rent review. The tenant, on the other hand, should consider whether to bring forward any proposed conversion plans to avoid the need for landlord's consent.

Check list

• Make sure you understand how your existing use will be categorised once the changes come into effect.
• Implement any conversion plans now, before the legislation takes effect, to avoid having to apply for planning permission.
• Consider the restrictions on use in your lease and whether this will be affected by the new classes.

Beware!
The precise nature of the existing use can be difficult to define when a business is operating more than one use. The only way to establish conclusively how your local council will categorise the existing use is to make an application for a Certificate of Lawful Existing Use of Development. Obtaining such a certificate normally takes a few months.

Contacts
Mark Harnett, Fladgate Fielder
020 7323 4747
www.fladgate.com