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Outdoor hospitality and temporary uses

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Last year the Government provided greater flexibility for businesses to hold outdoor events on land without the need for a planning application, while people or businesses such as pubs wishing to set up marquees would also be exempt. The number of days allowed for such temporary events increased from 28 to 56, and in November Government extended this provision until 31 December 2021.

The Government also introduced measures to support restaurants, drinking establishments such as pubs and cafes to serve takeaway food when they were otherwise closed due to coronavirus restrictions. These measures will continue to apply until March 2022.

Further to these announcements, the Ministry for Housing, Communities and Local Government (MHCLG) has now cemented the flexibility on moveable structures with secondary legislation in England.

New Class BB “moveable structures for specified usesThe Town and Country Planning (General Permitted Development) (England) (Amendment) (Coronavirus) Order 2021 (legislation.gov.uk) enables the temporary provision of any moveable structure without planning permission within the curtilage, and for the purposes, of:

  • A building operated under article 3(6)(p) such as a pub, wine bar or drinking establishment or (q) drinking establishment with expanded food provision;
  • A building operated under Class E (b) for the sale of food and drink mostly undertaken on the premises; or
  • Within a historic visitor attraction which is defined as a listed building accessible to the public for enjoyment and educational purposes.

The statutory instrument, laid before Parliament on 15th April, came into force the consecutive day on 16th April and is effective in England only until 1st January 2022.

In a letter dated 15th April, Robert Jenrick MP (Secretary of State for MHCLG) set out that to support businesses to open safely: “the government legislated to enable them to set up outdoor shelters and marquees without planning permissions”. For instance – in line with the existing rules for outdoor smoking areas – shelters, marquees and other structures erected by hospitality and other businesses can have a roof but need to have at least half of the area of their walls open at all times whilst in use.

Robert Jenrick has further encouraged local authority leaders to ensure that this guidance is applied proportionately and consistently to support businesses to reopen safely and to avoid overzealous interpretations of the rules.  He further notes that if a disproportionate regulatory approach is taken, it risks driving residents into unregulated activity and premises which may be far less covid-secure and/or illegal.

The Explanatory Memorandum accompanying the new legislation sets out that this measure does not remove the obligation to apply for listed building consent under the Planning (Listed Building and Conservation Area) Act 1990 where the provision of a moveable structure would require such an application.  Therefore, the provision of any moveable structure must not cause the alteration, demolition or extension of a listed building in any manner which would affect its character as a building of special architectural or historic interest.

The rights do not apply within the curtilage of a scheduled monument or if the moveable structure is for the display of an advertisement.  It is further unclear whether the permitted development rights are overruled by existing restrictive planning conditions that could apply to existing restaurants, bars and visitor attractions.

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