Takeaway – Is it really sunny side up and over easy?
I recently met my friends Frank and Jemma for a catch up Last year, Frank and Jemma moved out of London to a little market town to start their dream of opening a café offering locally sourced and homemade food to their local community. Whilst 2019 had been a great start, 2020 has been tough for them, as with a lot of hospitality business owners. We had a chat about the potential options to keep their business going during the pandemic. They have been considering offering their breakfast and lunch menu items as takeaway. Our conversation went something like this:
Is it easy for us to start offering our customers our menu items as takeaway for collection from our café?
This year the Government has relaxed the planning permission rules enabling pubs and restaurants (including cafés)to offer takeaway food to customers without the need to apply to the local authority for planning permission for change of use There are, however, a few rules which must be followed:
- This is for hot takeaway food only; and
- Only includes the sale of non-alcoholic beverages; and
- All food must be consumed away from your premises.
You will need to inform your local authority’s planning department of your intention to start providing takeaway food and or drink. You will need to check, but most local authorities require you to notify their planning teams of the change, your current permitted use and the start/end date you wish offer takeaway food.
Our landlord isn’t going to mind if we start offering takeaway to our customers as so long as we still pay the rent on time is he?
You must check your lease. The lease you signed will set out what you can and cannot do in the property, and defines the permitted use. If your lease restricts the usage to A3 (recently changed to Class E), then you will likely need your landlord’s consent before selling takeaway food. Such consent will usually need to be in writing and may well also require a deed of variation if the change to the lease is to be permanent.
How do I check my lease and get consent? Will there be any additional costs?
You can either check the Permitted Use and covenants in your lease or instruct a solicitor to review the lease and confirm the position. If consent is required for change of use, then you could be asked to pay your landlord’s legal fees. You could consider two different consent options, a deed varying the lease terms to include the permitted usage for takeaway for the residue of your lease, or a side letter to the lease allowing the change in permitted use for a temporary specific period of time only. If possible, have an informal friendly chat with your landlord in the first instance to discuss your proposals.
What happens if I need to make small alterations to the premises so I can offer takeaway safely?
Check your lease to ascertain if you need your landlord’s consent to carry out the alterations. Most leases will set out what alterations you can carry out without consent, what is prohibited and what will require landlord’s formal written consent by way of a licence for alterations.
Can we keep offering takeaway from now on, or will we eventually need to apply for planning permission?
The current relaxation of the planning rules is only in place until 23 March 2021. If you would like to continue offering this service to your customers after that date, you will need to make an application to your local authority’s planning team unless the rules change again.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org