Restaurants operating as hot food take aways

Restaurants operating as hot food take aways

Postby blaydo » Thu Jun 17, 2010 5:58 pm

We own a legit fully authorised hot food Take Away in an area that has over 20 restaurants and cafes. More and more of these places are operating hot food take away and delivery services and none of them have any mention of this in their planning permissions. In fact most have specific conditions when they got their planning that "there shall be no take away element involved". Some however got their "restaurant" permissions so long ago that I cannot access their details on the council's website. However I'm quite sure theres no mention of take away, I just don't know if it's mentioned in their conditions.

I reported four of these places to the council around eight months ago, places of which I had photographic evidence, menus, flyers etc. and I stated that there was no mention of "take away" in their planning and that as a use class "take away" required specific permission. I got a letter back saying that all four places had been advised that the primary use of their premises did not allow for the preparation of hot food for consumption off the premises. Two months later I got a follow up letter saying that a recent inspection on these premises showed no sign of take away use. Sure enough 3 of the 4 places had actually stopped however one continued and even stepped up their advertisements for take away sending flyers to households in the area. I wrote back to the council and sent them this latest advertisement showing that this place had no intentions of stopping this unauthorised use despite having been advised by them to do so six months previously. As this was dragging on and I hadn't heard back from enforcement for over two months, I wrote again and asked them what action was being taken and this was the response I got back:

After further consideration, the Planning Authority have concluded that the take away/delivery facility is subsidiary to the main restaurant use, and therefore is not unauthorised.

Accordingly, there is no further action open to the Planning Authority in this regard.


Can anyone advise me what might be going on here? They originally acknowledged the fact that restaurants required specific permission to operate as hot food take aways and told four places to stop, now all of a sudden they're saying it's ok as a subsidiary use?. To me this sounds ridiculous, if this was the case what's there to stop any premises with planning permission for a restaurant to open up as a McDonald's or Abrakebabra style restaurant and operate a hot food take away service "subsidiary" to the main restaurant use?
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Re: Restaurants operating as hot food take aways

Postby Tayto » Thu Jun 17, 2010 6:28 pm

blaydo wrote:................ all four places had been advised that the primary use of their premises did not allow for the preparation of hot food for consumption off the premises. ..............
After further consideration, the Planning Authority have concluded that the take away/delivery facility is subsidiary to the main restaurant use, and therefore is not unauthorised.

Accordingly, there is no further action open to the Planning Authority in this regard.


Can anyone advise me what might be going on here?


I would hazard a guess that the owner of the restaurant in question must have enlisted the services of a planning consultant/architect to assess the inquiry in relation to the existing planning permission and site zoning. They may have submitted a response to the LA, which was then assessed and the premises was found to be in compliance. Good luck to them.

The primary use of a McDonalds-type restaurant is as a take-away facility. A planning application for one on a particular site would be assessed on that basis. What's the problem with that?

In any case, if you wish to proceed further with your inquiries, why not hire a planning consultant or architect to advise you?
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Re: Restaurants operating as hot food take aways

Postby blaydo » Thu Jun 17, 2010 7:21 pm

Tayto wrote:I would hazard a guess that the owner of the restaurant in question must have enlisted the services of a planning consultant/architect to assess the inquiry in relation to the existing planning permission and site zoning. They may have submitted a response to the LA, which was then assessed and the premises was found to be in compliance. Good luck to them.


Possibly, but my question is can restaurants now operate hot food take away services without any mention of such in their planning? As is the case with this particular restaurant.

Tayto wrote:The primary use of a McDonalds-type restaurant is as a take-away facility. A planning application for one on a particular site would be assessed on that basis. What's the problem with that?


I wasn't talking about a new application, I was asking what's to stop any existing restaurant from turning into a McDonalds type restaurant and claiming take away as a subsidiary use to their main restaurant permission.

Tayto wrote:In any case, if you wish to proceed further with your inquiries, why not hire a planning consultant or architect to advise you?


I will of course, but I thought I'd ask here first because there may be no point me pursuing this if it's now the case that anyone with a restaurant can indeed operate a take away service.
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Re: Restaurants operating as hot food take aways

Postby Tayto » Thu Jun 17, 2010 7:57 pm

blaydo wrote:Possibly, but my question is can restaurants now operate hot food take away services without any mention of such in their planning? As is the case with this particular restaurant.



I wasn't talking about a new application, I was asking what's to stop any existing restaurant from turning into a McDonalds type restaurant and claiming take away as a subsidiary use to their main restaurant permission.



I will of course, but I thought I'd ask here first because there may be no point me pursuing this if it's now the case that anyone with a restaurant can indeed operate a take away service.


The first thing to do is look at the planning conditions. If there is no condition specifically prohibiting take-away facilities then a standard "sit-down" restaurant may make the case for providing a delivery service which would be subsidiary to the main use granted in the permission. This may be found to be acceptable by the LA, particularly if the use is permitted in the site zoning (as described in the area Development Plan).
The Planning Enforcement Department decide, on a case-by case basis, when the line has been crossed and the permitted "restaurant" has undergone a change of use and no longer complies with the original permission.
In the case you mentioned, they decided that a change of use had not occurred.
In the other cases, they decided it had. There's obviously a fine line between the 2 uses and it's the LA that make that judgment.

Anyway, I think we all know that the real problem is that people aren't spending money anymore and your rivals are trying to make a living just like you. Don't expect the LA to solve that problem.
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Re: Restaurants operating as hot food take aways

Postby PVC King » Thu Jun 17, 2010 8:27 pm

I'm with Tayto on this; unless there are express conditions it would be a very difficult route to enforce any simple planning use class differential that may exist. Your route would probably involve a planning consultant writing a number of letters to the council; they'd sit on them or try to fob you off. You'd then have a choice on whether to hire a legal team and the planning authority ho you wouls seek specific performance from would in the interests of 'gathering further information' kick it to adjournment after adjournment.

I can think of far more productive investments for most restaurants mostly in the area of targetted specials aimed outside your patch to bring trade into the area.
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Re: Restaurants operating as hot food take aways

Postby tommyt » Fri Jun 18, 2010 11:10 am

To start, go photoopy your UD file (the file reg ref will be on your correspondence from the local authority) in the planning office and see how it has been dealt with.

There is High Court precedent in this area relating to a chinese in Ballina where the judgment stated that adding a take away was 'an intensification of use amounting to a material change of use'. The case name escapes me but will be known to any planning barrister or experiened consultant. I remember the main turning point in this case was increased vehicle movements in a residential area.

Be warned though, Bringing this matter to a conclusion will be relatively expensive in my opinion.
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Re: Restaurants operating as hot food take aways

Postby wearnicehats » Fri Jun 18, 2010 11:26 am

I wonder where a company like "Restaurant Express" sits with regard to this issue. I would imagine that a large number of restaurants on their books don't have take-away permission
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Re: Restaurants operating as hot food take aways

Postby Andrew Duffy » Sat Jun 19, 2010 1:42 am

PVC King wrote:I can think of far more productive investments for most restaurants mostly in the area of targetted specials aimed outside your patch to bring trade into the area.


Hear hear. Compete on quality rather than by seeking monopoly, perhaps?
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Re: Restaurants operating as hot food take aways

Postby blaydo » Sat Jun 19, 2010 8:06 pm

Andrew Duffy wrote:Hear hear. Compete on quality rather than by seeking monopoly, perhaps?


I don't think that's what PVC King was talking about, he was talking about investments to bring people into the area.

Quality doesn't come into it when you're in a tourist area and you're the last shop on the way into the town. By the time they get to us they've passed a half dozen unauthorised take aways and tourist don't know who has the best quality. Locals know we have the best quality and prices, thank you for your input but we've nothing to improve there. There are other authorised take aways in the town, I'm not seeking a monopoly, I'm protecting my business which because was a legit take away cost us a fortune for the lease and a fortune in rent and rates. Some of these places are cafe bars with late licenses and take in a hell of a lot more than we do, do you think they'd be ok with me opening up a competing cafe bar next door to them with no planning permission?

We've not reported small shops with hot food counters or the many restaurants who do take aways but don't advertise the fact. We've reported businesses that are much bigger than ours and who were totally taking the mick, directly targeting our business when they were already making a fortune with their primary use. In fact all the owners we reported have a number of restaurants and cafe bars, we're not trying to screw people who are just scraping a living. I just want to be clear about that even though I honestly didn't think I'd need to explain this on a planning forum, I presumed the general consensus here would have been that everyone should just abide by planning laws.
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Re: Restaurants operating as hot food take aways

Postby Tayto » Sat Jun 19, 2010 10:12 pm

blaydo wrote:......... There are other authorised take aways in the town,......................
..............., I presumed the general consensus here would have been that everyone should just abide by planning laws.


1. You could get together with the other "legit" owners and lobby the Councillors to take action.
2. You could get together with the other owners and seek the advice of a planning consultant. An initial (probably free of charge) meeting would give you an idea on how to proceed or if you had a worthwhile case. Bring the information you've gathered including copies of the planning permissions of the prime suspects.
3. You could continue to gather evidence yourself in support of your case, submit it to the LA and wait for Planning Enforcement to do it's job.

It's already been said that there's a grey area between a primary permitted use an an acceptable subsidiary use. Each case is different. How do you expect anyone on a forum to make a definitive judgement on whether or not somebody's complying with a permission or not, without knowing all the details and specific wordings of the legal document- the Planning Permission? It's not possible.
You've mentioned 5 different type of businesses - restaurants, take-aways, shops, cafe bars and even "restaurant-take-aways", some of whom advertise their take-away service, some who don't.
You seem to be certain that very few operate in compliance with their planning permission. If you submit the evidence that proves this, then you will be highly likely to get the result you want. On the other hand, if you dont get the required result, well then it may be that the suspects were indeed complying and abiding with the Planning laws.
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Re: Restaurants operating as hot food take aways

Postby blaydo » Sun Jun 20, 2010 12:19 am

I'm very sorry Tayto, my last post was entirely directed at Andrew's suggestions that I should improve quality rather than stopping people who are breaking planning laws. It certainly wasn't directed at you or any of the other helpful posters on this forum. I might have some follow up questions if you don't mind..
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Re: Restaurants operating as hot food take aways

Postby Tayto » Sun Jun 20, 2010 1:51 pm

blaydo wrote:... I might have some follow up questions if you don't mind..


No problem, fire away.
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Re: Restaurants operating as hot food take aways

Postby blaydo » Sun Jun 20, 2010 8:09 pm

I remember reading an article in the news paper years ago (I still have it but not handy) where they discussed two similar cases in Dublin City taken by the same take away to An Bord Pleanála. One was against a Spar convenience store and the other against a restaurant. The Board ruled in favour of the Spar convenience store saying that it was acceptable in this day and age that someone could run into a convenience store on their way to work to buy their bits and pieces and grab a quick hot snack. However if I remember correctly, there was strict limitations set down for the percentage of the area dedicated to hot food in convenience stores. They compared this to the other case against the restaurant where the board ruled that it was not acceptable for the restaurant to conduct any take away sales. They said this was different to a convenience store which should be just that, convenient.

This was years ago though and things may have changed so I will of course have to discuss this with a planning consultant, but I've also been trying to find out as much as I can myself. For a convenience store, the usage as a "shop" is quite clearly defined in the Planning and Development Regulations where it states that hot food take away is acceptable as a subsidiary use. It also clearly outlines all the things a "shop" can and cannot do. However for the life of me I can't find a definition for "restaurant" or even "cafe" or details of what they can and can't do. They didn't seem to be in the same document, unless I missed it. Has anyone any ideas where I could find this information?

Slightly off topic here but a very interesting article about the 2005 amendment of the definition of "shop" to stop them from being able to turn into off-licences without the need for planning: http://www.algoodbody.ie/ezineleisure/article.asp?14+84
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Re: Restaurants operating as hot food take aways

Postby Tayto » Tue Jun 22, 2010 3:23 pm

blaydo wrote:........ However for the life of me I can't find a definition for "restaurant" or even "cafe" or details of what they can and can't do. They didn't seem to be in the same document, unless I missed it. Has anyone any ideas where I could find this information?.............


Your Local area development Plan should contain a "definition of use classes".
A typical one is here, which includes a simple restaurant definition. ;
http://www.dlrcoco.ie/planning/DevPlan04/Chapter15.pdf .

For legal definitions, ask a solicitor.

Or look at The Intoxicating Liquor Act 2000, Part 5, para. 26 section 4:
http://www.irishstatutebook.ie/2000/en/act/pub/0017/sec0026.html
A restaurant is a type of licensed premises. Its uses are defined by its license.

There are different types of licence, which in turn define different type of restaurants.
Another definition is available on page 62 & 63 of the Commission on Liquor Licensing
Final Report (2003):
http://meas.ie/easyedit/files2/final-report-april2003.pdf

And you could always try a Google search yourself.
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Re: Restaurants operating as hot food take aways

Postby blaydo » Wed Jun 23, 2010 2:37 am

Thanks a million Tayto and everyone else for your help.
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