RAI Trade Members Compton Solicitors offer expert advice on: Covid 19: Restaurants operate as Takeaway
Emergency Legislation for Restaurants:
An Emergency Exempted Development Act has been passed lifting planning restrictions to allow restaurant businesses adapt to the closure of their sit-in restaurant premises by operating as takeaway businesses.
For the period of this emergency:
“development consisting of a change of use from use for the sale of food for consumption on the premises to use for the sale of food for consumption off the premises” is to be considered as exempt development.
Can your restaurant operate a takeaway?
The emergency legislation waives the requirement for restaurant owners to apply to their Local Authority for planning permission to operate as a takeaway or delivery service only, with no restaurant dining facilities, for a specified period.
Once the emergency period has ceased, the use of the premises for takeaway will no longer be exempted development.
What if your restaurant planning permission prohibits takeaway? The provision of takeaway services from a restaurant has long been an issue for many restaurant owners. While many planning permissions strictly prohibit or condition the use of a restaurant as a takeaway facility, other planning permissions remain silent on the matter.
The emergency legislation does not expressly deal with those restaurant planning permissions that have a specific planning condition prohibiting the use of the premises as a takeaway service. If your restaurant planning contains this type of restriction the change of use exemptions may not apply.
However, on the 29 March 2020, the Government provided guidance under Section 28 of the Planning and Development Act 2000 and confirmed that the Local Authorities should take an accommodating and flexible approach. A breach of such condition is to be considered as “of a minor nature” and not subject to enforcement.
This is helpful for restaurant owners as they may be able to rely on the discretion of enforcement authorities during these unprecedented times.
Does your restaurant planning permission allow for ancillary takeaway facilities in normal circumstances?
For those planning permissions that are silent on the subject of takeaway, the argument is often made that takeaway services should be deemed an ancillary use, as long as the primary business as that of a sit down restaurant is not lost.
However, if one looks at the Dublin City Development Plan the two activities are clearly defined.
A restaurant is defined as ‘a building where the primary function is for the sale of food, meals/refreshment for consumption on the premises’ whereas a takeaway is ‘a premises used for the sale of hot food for consumption off the premises’. The word primary in the restaurant definition should allow ancillary use.
In recent planning permissions, we have seen Dublin City Council take a strong view in relation to the attachment of conditions restricting takeaway facilities. Dublin City Council also confirmed by way of a section 5 declaration (applicant can ask it’s Local Authority if a particular development is or is not an exempted development) that takeaway use and related home delivery service at a Chinese restaurant in Dublin 5 was not an exempt development and therefore planning permission was required.
Should Planning Authorities review the concept of ‘Takeaway’?
The Dublin City Development Plan and other development plans countrywide have stated that the overconcentration of takeaways is something which must be strictly restricted in order to (1) promote a heathier and more active lifestyle and (2) protect the surrounding area from noise pollution and other disturbances that come from your typical late night takeaway.
The development plan does not take into account new developments and advancements in the restaurant industry. The world of takeaways has expanded from the idea of people congregating and creating a possible hub for antisocial behaviour. The takeaway market now includes a wide range of high street restaurants and other outlets, who deliver their dining menu directly to the customers home via delivery services and click and collect facilities.
Restaurants may not be able to reopen and operate as they previously did, and the changing nature of food service will have to be addressed practically.
If you have any queries in relation to operation of your restaurant during this difficult time, please contact Lorraine Compton or Fiona Tonge for any further information required.
Release prepared with the assistance of Simon Clear, Planning Consultant.
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