NEXSTART: Change of Use of Businesses – Nightclubs to Pubs

By June 30, 2020BLOG

Synopsis.

A question has been raised as to whether nightclubs can re-invent themselves as pubs or bars, in order to be able to re-open on 4 July 2020.

They can do so. There is nothing in the Coronavirus Regulations or the Guidelines to prevent this. Their premises licence would need to cover them for all the hours and activities that they propose.  They must comply with all relevant COVID-19 Secure Guidelines and have an appropriate risk assessment for their active business model. They may be breaching planning control and this would be an issue for the local planning authority, who may consider it expedient to serve a planning enforcement notice.  No offence is committed until such a notice is served and breached.

No particular relaxation of any law or regulation is required to achieve this position. Information and guidance for all law enforcement officers may be necessary to prevent inappropriate enforcement against businesses who attempt to adapt.

Analysis.

Hospitality businesses are anticipating a major relaxation of emergency restrictions on 4 July 2020.  The deregulations will apply to pubs, restaurants and other businesses described in the Government’s COVID-19 Secure Guidelines

https://assets.publishing.service.gov.uk/media/5eb96e8e86650c278b077616/Keeping-workers-and-customers-safe-during-covid-19-restaurants-pubs-bars-takeaways-230620.pdf

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 will be amended in time for 4 July.  The current Regulations in force are the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 No. 350 ( 26/3/20) as amended by the fourth amendment, the Health Protection (Coronavirus, Restrictions) (England) (Amendment No. 4) Regulations 2020 (SI 588) in force 13 & 15 June 2020.

Regulation 4 sets out the requirement to close premises and businesses during the emergency period.  Regulation 4 differentiates between a business that is required to cease selling food and drink and close the parts where food and drink are sold for consumption on the premises, (Schedule 2, Part 1, including pubs and bars), and a business that is required to cease trading altogether, ( Schedule 2, Part 2, including nightclubs).  This is how pubs and bars have been able to continue their businesses to provide takeaways throughout the lockdown period.

The meaning of “public house”, “bar” and “nightclub”  are not defined, and are terms primarily derived from the planning regime; specifically the Use Classes Order. The original Order was the Town and Country Planning (Use Classes) Order 1987, amended many times, and notably by the Town and Country Planning (Use Classes) (Amendment) (England) Order 2005 to split original Class A3 (Food and drink)  into Class A3 (restaurants and cafes); Class A4 ( public house, wine-bar or other drinking establishment) and Class A5 (sale of hot food for consumption off the premises)[1]. Further amendments were made by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2017, of a detailed nature, but not particularly relevant for current purposes.

Nightclubs have always been in a separate planning use class, described as “sui generis” (literally: “in a class of its own / of its own kind”). For planning purposes, this means a class of uses that do not fall within any of the other specified classes. Sui generis uses also include theatres, hostels, petrol filling stations, scrap yards, casinos, and more.

The use classes are used primarily to identify the use of land, and to make judgments as to when a material change of use has occurred, which is a form of development that, on the face of it, requires planning permission. Some changes of use between use classes are “permitted development”, for which no planning permission is required, and these “PD” rights are clearly set out in the Use Class Orders. There is no permitted development right between a nightclub and a pub.

Developing land, including changing its use, for example from a nightclub to a pub is not automatically against the law, or an offence. It is described as a “breach of planning control”. Local planning authorities ( the same thing as the Council/ local authority) are entitled and empowered to enforce against breaches of planning control. The planning authority must judge the breach, and make a decision as to whether it is expedient to enforce. If there are no planning or environmental impacts, then it is unlikely to be expedient.  If the impacts are assessed to be unacceptable, then the planning authority may serve a planning enforcement notice, which will set out the steps required to remedy the breach.  A breach of the terms of that enforcement notice constitutes an offence.  It would be up to the planning authority to decide whether to prosecute, and that decision would also have to pass the public interest test.

This means that there is no immediate consequence to a change in use of land, such as from a nightclub to a pub, and consideration of the impacts of that change would be for the planning authority.  No other authority has any power to intervene on this planning issue.

The other control over land uses by premises such as pubs and nightclubs is, of course, the licensing regime. The Licensing Act 2003 does not differentiate between particular types of premises, but only between activities conducted there. These are described for the purposes of the law as “licensable activities”, and we are familiar with those. Businesses that benefit from a premises licence authorising one or more licensable activities can conduct any of them in accordance with their licence terms and conditions. Unless particular conditions on the licence say otherwise, then a business can reinvent itself from nightclub to bar to pub to a restaurant or any combination that can utilise the permitted licensable activities.

For the purposes of the Coronavirus Regulations and COVID-19 Secure Guidelines, any business that opens in accordance with the relaxation of lockdown restrictions must comply with the prescribed health and safety requirements. The Regulations and Guidelines do not prevent businesses from amending their style of operation from one planning use class to another.  The Regulations list types of businesses that have been judged to pose particular risks to public health from potential transmission of the coronavirus, based upon the activities usually associated with those businesses and their ability to mitigate contact between their patrons.  The least risky can open the soonest; the riskiest operations must wait until the virus is under better control.  If a business wishes to remodel itself from a riskier to a less risky operation, then it is fully entitled to do so.  This is no different from pubs and restaurants remodelling themselves to become takeaways during the emergency period. The Regulations and the Guidelines are all about risk from the virus, and there is no other basis for imposing restrictions upon businesses. On the contrary, the Government has made it very plain that they want businesses to be able to operate wherever possible, where risk can be acceptably managed.

If a nightclub is able to operate as a bar or a pub, within the terms and hours given in its licence then it may do so for the purposes of the Coronavirus Regulations, when they are relaxed as anticipated, on 4 July.  Similarly, if a theatre is able to operate as a restaurant, it could do so, and other examples may appear. These re-invented businesses would have to comply with the COVID-19 Secure Guidelines for Pubs and Restaurants (23 June), and any other applicable Guidelines, and would have to complete risk assessments based upon their active business model.

If the change in planning use caused a problem, this would be an issue to be taken up by the local planning authority, who would be very likely to indicate their concerns before taking the formal step of serving an enforcement notice.  It would be sensible to discuss these proposals for a change in business style with the local planning authority (planning department at the Council) before making these changes.

A change from one business style to another does not automatically trigger any necessary intervention from any other enforcing authority. If that change gives rise to impacts in practise, then those could be addressed in the usual way. Licensing impacts are addressed primarily through the Licensing Act 2003, with advice, warnings, or a review application if serious. Health and safety impacts would be addressed through the most appropriate regime by the officers tasked with that regime.

It is worth quoting from the Explanatory Memorandum of the Planning & Business Bill expected to pass through Parliament on Monday 29 June:
“As the economy starts to re-open, the Government wants to do all it can to support recovery, help businesses adjust to new ways of working and create new jobs. This Bill introduces a number of urgent measures to help businesses succeed in these new and challenging conditions over the coming months, and to remove short term obstacles that could get in their way.”

This is the mindset that should inform any approach to regulating business at this difficult time.

[1] http://www.legislation.gov.uk/uksi/2005/84/made