The Welsh Government (WG) is currently consulting on proposals to amend Use Class A3 (Food & Drink). Despite it being almost 15 years since England separated food and drink uses out into three use classes (A3 to A5), in Wales all food and drink uses have remained within a single Class A3 use. This now appears set to change, with new proposals currently under consideration.
The proposals form part of a wide-ranging consultation (running until 28 September 2018) that is considering changes to the Use Classes Order (UCO), 1987 (as amended) and the General Permitted Development Order (GPDO), 1995 (as amended). The consultation proposals are aimed at streamlining planning legislation in Wales for small and low impact developments, to reduce the burden on local planning authorities and to provide greater clarity for stakeholders.
Throughout the consultation document, WG has also set out its intention to revise the UCO to reflect the differences in impacts between uses that currently fall within the same use class. There are also changes proposed to permitted development rights affecting a wide variety of areas from householder development, statutory undertakers and the demolition of buildings, to far more specialist matters such as, the temporary protection of poultry and captive birds (advice required anyone?). The intention is that once the consultation process has been fully considered, the existing UCO and GPDO will be united into one new piece of consolidated legislation.
Whilst the consultation is wide-ranging, it is the proposed amendments to Use Class A3 (Food & Drink) that are attracting the most attention. The proposal is that the A3 Use Class will be split into three new ones; A3 (Cafes & Sandwich Bars – subject to opening hour restrictions), A4 (Restaurants and Drinking Establishments) and A5 (Hot Food Takeaways including drive through facilities). Perhaps to keep those planning consultants and commercial agents who work on schemes either side of Offa’s Dyke vigilant, the proposed new use classes and their associated permitted development rights do not match the equivalent uses classes that are already well-established in England (e.g. A3 ‘Restaurants and cafés’; A4 ‘Drinking Establishments’ and A5 ‘Hot Food Takeaways’).
The below table summarises the proposed new food & drink uses in Wales and the proposed permitted development rights:
In addition, it is WG’s intention to specifically exclude the consumption of food on the premises from the description of the A1 Use Class (Retail). WG acknowledges that many large high street department stores have cafés and therefore there is a recognition that consideration will be required as to whether such café uses remain ancillary to the main use, or whether the store constitutes a mixed use.
Over the years, the UCO and GPDO have been subject to multiple amendments and revocations (not all of which apply to Wales). Revisiting and consolidating the legislation into a single new starting position should provide greater clarity. It also aligns with the findings of the recent Law Commission Review of planning law in Wales.
Lichfields recognises that the diverse nature of food and drink uses that are currently all banded within the same A3 Use Class can give rise to significantly different impacts. For example, there can be issues associated with noise, traffic/footfall, litter, operating hours and even antisocial behaviour. Our own experience has shown that in many instances, the process of obtaining planning permission for an A3 use is often unnecessarily difficult because of concerns surrounding the wide range of potential occupiers and impacts that could arise. Moreover, in approving A3 uses we are aware of instances where local planning authorities in Wales seek to attach onerous conditions to limit what kind of ‘food & drink’ activities are permitted, or even to attach more restrictions that limit the permission to an intended occupier. This can be problematic, especially where applications are being taken forward for vacant properties that have no end-user lined up at the time of applying. As such, there is clearly merit in seeking to address the current situation and having more clearly defined use classes for diverging and diversifying food and drink uses would help in this respect.
Identifying whether a unit falls within a particular use class or has a mixed use has not always been easy. It requires consideration as to what is the nature of the primary use and whether other uses are merely ancillary, or not; it typically also involves questions that are a matter of fact and degree. Notably, WG’s proposed approach is seeking to remove the grey areas and make it easier to categorise separate food and drink uses that often have many similarities, albeit different impacts.
However, the proposed use of limited opening hours to provide an objective definition of an A3 use appears arbitrary. This approach also does not reflect WG’s push within TAN4 and emerging PPW to provide a varied night-time economy and improve the high street, as any cafés or coffee shops that seek to remain open beyond 7pm would instead fall within a different use class and therefore require a new permission. This would present potential problems, the obvious examples being the bureaucratic burden of further planning applications and associated costs to businesses, difficulties with enforcing breaches of planning and the stifling of entrepreneurial spirit. In addition, the highly subjective nature of what would constitute ‘limited sales for consumption off premises’ for an A3 use is not helpful as it lacks clarity and fails to remove the uncertainty that WG is so keen to avoid.
Another concern relates to the proposed Use Class C4 (Restaurant and Drinking Establishments). It is proposed that both public houses and restaurants fall within the same class, although this use class - unlike the existing arrangements or proposed A3 and A5 uses - would not include permitted development rights. The reason for this is given as being to safeguard public houses ‘in communities where their loss would unacceptably affect the local amenity’. The impact, though, would be far further reaching; necessitating a planning application for the change of use of any restaurant or drinking establishment (whether vacant or occupied) to an alternative retail use, regardless of its location. This reduces flexibility to allow for the creation of more vibrant and attractive retail and commercial centres; something which national policy has consistently promoted.
The proposed changes to the food and drink use class would create one of the more stringent controls on town centre land use, is at a time when the high street is increasingly under pressure and justifying the need for fewer and not more obstacles to commercial enterprise. Furthermore, the proposals would result in an increased requirement for applications for planning permission for changes of use. This would increase the workload of planning departments, contrary to recent Welsh Government announcements that have emphasised the need to alleviate pressures on them.
Having had since 2005 to consider the impacts of amendments to use classes covering food and drink in England, WG has sought to provide a bespoke approach that addresses the problems that the English system has faced. At a time when town centre businesses need more confidence to justify investment, perhaps the long-established system of use classes in England and related permitted development rights (including related case law) may have been a more appropriate route to follow, rather than seeking to re-invent the wheel.
Should you wish to discuss the implications of the consultation further we would be happy to assist.