Delivery dilemmas: Is it time to consider your delivery operations?

Westminster Council has taken the first steps to amend policy in respect of restaurants that make use of delivery services in order to capitalise their sales.

Policy changes, which are due to be implemented in Spring 2018​​, will require restaurants and fast food outlets to apply for a separate planning permission to enable them to make use of delivery services where that service is no longer a ‘secondary use’ for example if this service has proved more popular than the traditional sit down meal.

Understanding the implications of a change in the businesses’ traditional trade from a sit down meal to a delivery service will be key for operators moving forward, particularly those within the

Westminster area being the forerunner for this change. Each case will need to be reviewed on the individual facts, if the delivery service has or takes over the primary role of the business as a restaurant or fast food outlet, then the operator will need to make a formal planning application to ensure this continuing use is lawful.

Failure to do so will result in Westminster Council taking enforcement action, and with an enforcement action having already been taken against Nando’s in Westbourne Grove, the threat of enforcement action should not be taken lightly.

The change in planning allocation for this type of service may also mean that operators occupying a property under a lease are suddenly in breach of the user provisions in the lease as well as in breach of planning permission. A deed of variation may be required to ensure compliance which will inevitably involve legal fees and negotiation between the parties.  

There may also be a provision preventing a tenant from seeking planning permission for the property without obtaining the landlord’s prior written consent which will again involve a level of negotiation and legal fees.

A breach of the lease covenants can leave a tenant open to forfeiture action by its landlord.

Currently these policy changes affect only Westminster. However, the chances are that other councils will follow suit and impose these changes moving forwards.  

This will mean that restaurants and fast food outlets across the country may ultimately need to review their operations and consider whether the delivery service has taken over as the dominant use and take necessary action.

Caroline Entwistle is a senior associate in the commercial property team at law firm Royds Withy King​. www.roydswithyking.com​​