Legal advice: New use classes
Are you clued up on the new use classes? Here's what you need to know.
By Keith Miller of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
On April 21, 2005, regulations came into force in the area of planning law which will have a considerable effect on the licensed trade during the next few years. Much has already been written in The Publican and other trade and professional publications about the changes and their likely impact, but I will concentrate this week on the planning aspects and deal at a later date with how property documents, especially leases, may be affected.
The part of the new law which will most affect Publican readers is the division of the "use class" known as A3 into three new classes:
- Restaurants and cafés - confusingly, still to be A3
- Drinking establishments - A4
- Hot food takeaways - A5.
A5 can be changed into A4 or A3 without planning consent; A4 can be changed into A3; and any of them can, as before, be changed into A2 (financial and professional services) or A1 (shops and internet cafés). Changes the other way - even an internet café to an A3 restaurant or café - would need the consent of the local planning authority.
What does this mean in practice? Looking particularly at the new A3 and A4 categories, if you intend to alter your premises from a restaurant into a pub, you will need planning permission. But nowadays, most pubs, wine bars, bar-and-grills or just bars - whatever they are called - sell both alcohol and food. In some, meals are served in a defined and separate area with tables, while the drinkers are accommodated in a bar area. But in many, such as All Bar Ones, drinkers sit at tables alongside customers eating meals. In others, the mix might alter during the day from mainly table meals to predominantly wet sales.
How will you know whether you run A3 or A4 premises? You would expect the answer to be one of degree. Some guidance notes say that where it is evident that the primary use is the purchase and consumption of alcoholic liquor, "the use will normally be A4, irrespective of the square footage which may be given over to dining as an additional service, or the revenue derived from that function."
First, it seems clear that there should be no need to worry if you carry on with what you have been doing. Some commentators say that existing A3 premises will keep their right to multiple uses, but that is unlikely to be correct.
Say, for example, that you buy an existing restaurant, but set out mainly to attract drinkers, while offering food, such as bar snacks, as an incidental service. Or you buy a food-led pub and aim to reduce the proportion of tables or areas serving food to an extent where the food sales become ancillary to the wet trade. You will almost certainly, in those circumstances, need to apply for planning permission.
If your fit-out is worth spending money on, it is worth getting it right. Your architect may not be a specialist, so ask them to take advice from a planning consultant. The consequence of flouting the law is that later you may be served with an enforcement notice telling you to go back to the previous use. If you ignore that you could incur a substantial fine or even imprisonment. Quite who will police the running of premises, I do not know. Perhaps councils will combine the job with snooping on smokers and gum-chewers.
One way round the problem, for larger premises, may be to establish separate planning units. By this I mean that you might have a pub building used for A4 purposes, next to a separate building run as a restaurant, with a distinct consent for new A3 use. In a city context, you might have a ground floor pub, with an upper floor eating establishment, separately accessed - each with its own permission. This only applies, however, in particular scenarios.
Your next question may be: why is all this happening? Social policies are the reason - for example, the control of town centres. "Vertical drinking" is seen as bad, allegedly leading to anti-social behaviour. The intention is to stop the automatic conversion of food-led premises to wet-trade bars, which was not previously subject to development control. I expect that most enforcement action will arise in the wake of complaints, either from the police or the public, regarding drunkenness at premises nominally A3 but where customers have been able to buy alcohol without food.
The policy is not entirely in isolation:
- There is a distinction in the proposed anti-smoking laws between premises mainly used for the sale of food (to be smoke-free) and those primarily selling drinks, which will initially be exempt. Therefore it will be necessary to know into which category your premises fall for that legislation.
- Then the new Licensing Act will require (again under pain of a fine or imprisonment) any change in the operation of premises covered by a premises licence to be approved by the licensing committee to a variation of the licence, with the submission of a new operating schedule.
- Overall, there is the new planning policy "Positive Planning for Town Centres: A Plan-Led Approach", which asks local planning authorities to consider the likely impact of leisure developments, including issues of anti-social behaviour and the effect on local residents.
So control is the watchword. At least you can sneeze without permission - unless of course you are contravening health and safety laws!
