Commercially occupied | How does the change in the Use Class Regulations impact your dark kitchen?

Planning Permission and Dark Kitchens 

The Planning (Use Classes) (Amendment) (England) Regulations 2020 (''the regulations'') introduced a new Use Class E which amalgamated the previous Class A1, A2, A3 and B1.

This means occupiers are free to move within this new Use Class E without planning permission, subject to any existing planning condition and, of course, any lease restrictions.

Drinking establishments, cinemas and hot-food takeaways have been removed from the Use Classes order and are now sui generis uses, meaning planning permission is needed to change to or from these uses

Takeaway and delivery services, with the COVID-19 pandemic, have become prevalent. Delivery companies and restaurants are opening ''dark kitchens'' where their sole purpose is to prepare meals for takeaway/delivery. These have allowed food start-ups to test the market and retain cash flow during the lockdowns. Despite being staffed and stocked, a customer cannot order or collect directly.  

How does the change in the regulations impact dark kitchens?

The previous Use Class B1(c) included ''a food preparation place with no sales to members of the public''. This Use Class is now included in the Use Class E(g)(iii). This covers any industrial process that is carried out in a residential area without causing detriment to the area's amenity.

To convert an existing retail or restaurant space that falls within Use Class E to a use in E(g)(iii) does not require planning permission, if there are no external works being undertaken. However, where the use of land does not fall within the set classes, they are said to be sui generis.  If the local authority deems dark kitchens to be sui generis, planning permission would be required.  For this reason, those planning to set one up should always discuss the use class with the local planning authority first as different boroughs have taken different approaches and designated different use classes for commercial kitchens.

The increasing popularity of dark kitchens has led to greater scrutiny over their use.  Perhaps most publicly, Deliveroo in 2019 operated dark kitchen facilities, one of which operated out of a storage space. Camden Council issued enforcement action alleging the unauthorised change of use to a sui generis commercial kitchen. The kitchen was deemed as sui generis but Deliveroo were awarded temporary planning permission subject to conditions. Some of the conditions included restricting the time in which deliveries to customers could take place, restricting the mode of transport and restrictions to combat the noise, and odour emanating from the site. It is important therefore to regularise the planning position and check that all consents needed are in place.

How can the change benefit you?

The advantage of the change in the regulations is that many retail and leisure occupiers can bypass the need for planning permission if they are changing into a Use that falls within the new Use Class E. This allows for more flexibility on the high street, reflecting the changing needs of the high street.

It is important to note that planning permission is still required if any external alterations are required, for example to install an extract.

Should you need advice please get in touch with us. We have helped many clients in the sector achieve their business objectives and our team has a wide breadth and depth of knowledge.