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Legislation, regulation and your business

07 June 2011
Legislation, regulation and your business

If your business does not have the correct planning permission, or the nature of the operation changes, you could find yourself in hot water. Legal expert Debra Kent explains how to stay on the right side of the law.

If your business does not have the correct planning permission, or the nature of the operation changes, you could find yourself in hot water. Legal expert Debra Kent explains how to stay on the right side of the law

THE PROBLEM

To operate a café, food shop, restaurant, catering use or hotel you will need a number of consents and permissions. Under planning law, a valid planning permission is required - but not all planning permissions are equal.

THE LAW

If you do not have a valid permission, or you act in breach of a planning condition, the local planning authority (LPA) can take action against you.

EXPERT ADVICE

Restaurants and cafés are within Use Class A3 under the 1987 Use Classes Order (as amended in 2005, 2006 and 2010). Class A4 permission is required for drinking establishments such as pubs and wine bars. Hot food takeaways need Class A5 permission.

Further planning permissions and building regulation consents may be needed if works are to be carried out. If the business is within a listed building, any potential alterations that would affect its character would require a listed building consent.

Businesses can grow and change. A sandwich bar with A1 permission might wish to include the sale of hot food for customers to eat off the premises but (unless ancillary), this requires A5 permission.

An A3 use permitting restaurants and cafés does not allow for takeaway food (unless ancillary). Also, a restaurant cannot change to a pub or wine bar unless A4 permission is obtained.

It is a good idea to look closely at the conditions attached to the permission or any relevant planning agreement.

Common conditions that may cause difficulties or incur expense include restrictions on delivery times, opening hours and parking. There may be limits on noise from air conditioning, people leaving late and the use of recorded music. Controls over the vents that can be used to control food smells and the location of rubbish stores are also not unusual.

All can adversely affect your business. If there is a breach the LPA can enter the property and investigate, and also serve a planning contravention notice to obtain further information. It can also serve a temporary stop notice requiring the alleged breach to be immediately stopped for a period.

The LPA has discretion whether or not to then take enforcement action. It must take into account the public interest and whether the breach "unacceptably affects public amenity or the existing use" of the property.

The Human Rights Act 1998 may be relevant as the private interests of the person breaching planning law must be balanced against the public interest.

Enforcement action for trivial or technical breaches which cause no harm to the amenity of the area is usually inappropriate.

The authority should not delay taking planning enforcement action whilst negotiating or remedying the breach of planning control.

If urgent action is required, a stop notice can be served, which prohibits the offending activity almost immediately.

A breach of condition notice can be served if relevant.

For anticipated breaches, the LPA may seek an injunction - although this is unusual.

CHECKLIST

â- Consider the implications of any planning conditions or restrictions

â- Think about the planning implications of any substantive works - especially if the property is in a conservation area or listed building - or any serious changes to business operations

â- Check compliance with your lease and loan agreement.

BEWARE

Non-compliance with an injunction could cause a person to be sent to prison for contempt of court.

Not complying with planning enforcement/stop notices could be a criminal offence, with the potential for hefty fines.

There is also the risk of having to close your business or change its operation in a significant and possibly loss-making way.

A landlord may also be entitled to determine your lease for breach of planning law. Your bank may be able to take action for breach of the loan agreement or mortgage.

It is clearly important to understand exactly what you can and cannot do at your property, particularly before spending any money on changes.

contact

Debra Kent is a partner at Charles Russell LLPdebra.kent@charlesrussell.co.uk

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