With emergency COVID-19 legislation allowing restaurants to repurpose themselves as takeaways, commercial property specialist, Caroline Entwistle, considers the conditions that must be complied with to make this temporary change.
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Adapt to survive
Many restaurants are having to reconsider their current operating practices and many are adapting their business model so as to ensure they continue to bring in revenue during the period of lockdown.
This makes great business sense – after all, a business that can adapt to consumer demand and overcome challenges is more likely to survive than those which cannot. And once again, the Government has enacted emergency legislation that enables this, allowing restaurants and cafés to trade as takeaways, which is a change of use under planning legislation.
However, legally, converting to a takeaway is not an automatic shift; there are conditions to comply with. If you are considering taking advantage of this temporary change, here are some important points to remember.
Inform the local authority
In order to take advantage of the emergency legislation, the restaurant or café is required to inform the local authority of their intention to use the property in this way.
The change is time-limited
This legislation lasts for a period of 12 months from March 2020 only. Thereafter, for any business to continue to trade as a takeaway, where it was not doing so previously and did not have planning permission to trade as a takeaway, it must make a traditional planning application for change of use.
What does the lease allow?
Lease – whether the lease allows the tenant to use the property as a takeaway is a question of fact; not all leases will. We would recommend that the tenant engages with the landlord in the same way as the local authority, to confirm the intention to use the property as a takeaway and effectively seek consent to this temporary change of use.
The Government’s guidance stresses that “Serving of alcoholic drinks will continue to be subject to existing licensing laws.”
Premises licence – this is very different to the authorised use of a property and must be considered by tenants very carefully before alcohol is sold as part of the takeaway service. Particular consideration should be given to the terms and conditions imposed in the individual premises licence – this may or may not allow the sale of alcohol for consumption off the premises and may impose, amongst others, time restrictions.
If all is in order, the tenant will also need to consider the obligations relating to the sale of alcohol to persons under 18 years of age. It is likely that any current policies which the tenant may have to comply with these obligations would be unsatisfactory in relation to the sale for consumption off-site and may need amending.