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Can I just do it?

Coronavirus / 28 May 2020

My friend Jim is filled with hope and enthusiasm. With the restrictions arising following COVID-19 slowly being eased he has been making plans for re-starting and operating his business again. Jim has a shop and a restaurant. Our virtual chat yesterday evening went something like this:

With non-essential retailers looking set to be able to re-open in mid-June I hear that the Government has provided new guidance on making premises safe for employers, employees, self-employed entrepreneurs like me, customers, visitors and contractors.

Yes, it has. You should read it as it gives recommendations and guidance on how you should and can make your premises COVID secure.  I’d also recommend that you get in touch with Kathryn Gilbertson, our Regulatory expert who is advising many organisations on the ‘new normal’.

I am going to make changes to the shop by altering the layout and configuration of the premises. I might also have to think about changing the partitioning to enable customers to flow in and out of the shop easily without coming into close contact with each other. It is going to cost a lot of money, work and time to get all this done but I must get cracking this weekend. Can I just do it?

Hold your horses, Jim. You might not be able to just do it. You must check the lease to your premises first to see what alterations are permitted without your landlord’s prior consent. Take a look in the alterations provisions of your lease. Most leases prohibit a tenant from carrying out structural and non-structural alterations to the premises and the tenant must obtain the landlord’s prior written approval and consent before carrying out any works. Such consent and approval usually need to be formally provided under a Licence for Alterations. The same might apply to the de-installation and installation of partitioning and demountable partitioning.

You must also check with your local authority whether your proposed alteration works will require you to obtain building regulations approval.

So it might not be as easy or straightforward as I envisaged.  What about my restaurant? Some friends of mine who also run restaurants have been running take-aways from their restaurants during the lockdown whilst I have just been sitting in my flat and crying into my hanky.  I might start doing that too.  My bank balance is bleak.

Yes, there is a temporary extension to permitted development rights which allows restaurants to be used for the sale of takeaway food. The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 came into effect on 24 March 2020 and will remain in force for a year until 23 March 2021; and it permits a temporary change of use to the provision of takeaway food, from an existing use falling within Class A3 (restaurants and cafes), Class A4 (drinking establishments), a mixed-use for any purpose within Class A3 and A4 or Class AA (drinking establishments with enhanced food provision).

Restaurants that utilise this permitted development right will be operating within a new Class DA defined as “Restaurants and cafes, drinking establishments and drinking establishments with expanded food provision to temporarily provide takeaway food”.

However, before you jump on to that bandwagon you must check the Permitted Use under your lease of your restaurant premises. Your lease may prohibit takeaway sales and if that is the case then you will need to approach your landlord to vary any restriction to permit the sale of takeaway food. Hopefully, your landlord will be reasonable and pragmatic and provide any consent and variation to the lease promptly because the sooner you are able to re-start business from your premises and getting an income from it the less he will have to worry about your ability to pay the rent.

Anything else I need to consider?

Yes, do also check the current authorised planning use of your premises because if the current planning permission for A3 or A4 use imposes a condition that specifically prohibits takeaway use

then that current use overrides the new permitted development right and any takeaway use would still breach planning permission. If there is no prohibition then you will be fine.

What about putting tables and chairs outside the restaurant. Summer is almost here and if restaurants can re-open this summer I will need to have seating available outside to maintain social distancing and still have enough covers to make re-opening the restaurant financially worthwhile. Can I just do it?

Check who owns the land outside your restaurant. You will need to obtain a “Sit-Out Licence” to place tables and chairs on privately owned land outside your restaurant if that land does not form part of your leased premises.

So whilst there are some changes I can put in place there will be many which I will need the permission of my landlord or some other third party before I can just do it.

I am afraid so.

In the meantime, the night is young so how about a virtual gin and tonic to lift our spirits. A large one with a slice of apple and lime. Can I just do that?

Yes, you can.


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