Re: Ancillary Takeaway to a Resturant - Public forum - Planning Advisory Service (PAS)
Open group
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Started - July 2012
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Last activity - Today
Re: Ancillary Takeaway to a Resturant
I am trying to advise a member of the public were the threshold is regarding how active a takeaway can be before it requires formal consent. There seems to be very little guideance on the matter with the stock phrases "each case is different" and "its all a matter of fact and degree" coming up. The building was originally a pub (classA4) and so its new use as a resturant (class A3) does not need formal consent. A planning application was made to seek approval for some minor alterations work. That plan showed a dedicated takeaway facility in part of the building with its own access and exit. Behind a 4.5m long counter is the joint food preparation and cooking area for both the resturant and the takeaway. The planning application carried no statement detailing the relationship between the takeaway and the resturant. The LPA claim its ancillary but keep changing the criteria to assess this and of course there is nothing in the application to offer any guidance. Has anyone come up against a similar problem or know of relevant caselaw?
Stephen - you might try this question with more success in our enforcement forum. I can't move it for you, I'm afraid.
Stephen. Essentially (and unfortunately) it is always going to be a matter of 'fact and degree'. Every primary use will be able to accommodate a number of incidental or ancillary uses without this resulting in a material change of use. In some instance this might result in a 'mixed use' arising where neither one is subordinate to the other, and this in itself might amount to development. It is not so important what the physical characteristics of the premises are (although it could be indicative of a change), it is how it is actually used on a day-to-day basis. There will be lots of relevant case law around, DCP Online might be a good place to start. Mike
Stephen. Working out what is ancillary will often come down to how much floorspace is devoted to each part of the business or the amount of money each part takes. If the takeaway was taking up more than 50% of the floorspace or generating more than 50% of the income it would be difficult to argue it was ancillary. Of course the local planning authority may draw the line lower at for example 40%. The fact that the takeaway element in this instance has a separate access and exit from the restaurant may also imply that it is separate from and not ancillary to the restaurant, despite the uses sharing the same kitchen. It may be that what in effect you have are two equal uses which could arguably then move the business into a 'sui generis' category as there is no overall primay use that falls within the appropriate use class for restaurant use. Keith Oliver Director - Fusion TP