At present, land can be used for any purpose* for a temporary period of 28 days without the need to apply for planning permission. The erection of moveable structures in relation to the temporary use of land is also permitted for a 28-day period, as set out in Class 15 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992.
As the hospitality sector re-opened during the Covid-19 pandemic, a range of outdoor seating was created by pubs, cafes and restaurants on pavements and roads adjacent to premises to comply with public health guidance that restricted the use of indoor areas. The design and scale of the outdoor areas created have varied in size, from the provision of casual seating and wheeled planters to the erection of pergola structures and decking.
This article is the third in a series of five considering proposed changes by the Scottish Government to permitted development rights and the Use Classes Order to support the future of our town and city centres.
Café culture, alfresco dining and outdoor socialising in Scotland
Pre-pandemic, if any structures associated with such outdoor areas remained in place for more than 28 days, then planning permission would be required; and, in the absence of permission, a Local Planning Authority (‘LPA’) could take enforcement action to have the unauthorised development removed**.
To support the hospitality industry as it re-opened, and in recognition of the fact that temporary uses such as outdoor seating would be needed for longer periods of time whilst social distancing rules were in place, the Chief Planner and the Minister for Local Government, Housing and Planning issued an advice letter that encouraged LPAs to informally relax planning controls. The letter advised that LPAs should agree not to take enforcement action against acceptable planning breaches that would ultimately allow businesses to operate – and for some normality to return to our lives.
The Scottish Government have always indicated that this guidance would be revoked once physical distancing was no longer required, and as such, the guidance is currently due to be withdrawn in September 2022. However, given the success of many outdoor areas created as a result of the pandemic, the Scottish Government are considering introducing a permitted development right (‘PDR’) that would “permit the placing of moveable furniture on a public road adjacent to food and drink premises” as part of the ongoing review of permitted development rights in Scotland***.
The Scottish Government are yet to share any wording around the proposed PDR, but we understand that this will potentially apply to Class 3 (Food and Drink) uses only.
Outdoor spaces can make places more vibrant and welcoming, and as the pandemic has shown, there is an appetite for alfresco eating, drinking and socialising in Scotland – even despite the unpredictable climate!
If the Scottish Government do create a PDR for moveable outdoor furniture, we would question whether this should be extended further to reflect the range of businesses within the hospitality sector that may wish to provide outdoor seating? Only Class 3 is referred to within the current consultation; however, what about Class 1, which can include uses such as cold food takeaways and sandwich shops, and Sui Generis uses, such as public houses? Guidance as to the types of furniture that would be considered acceptable within the scope of the PDR would also be welcomed.
Recent changes to PDR in England now allow pubs, restaurants and cafes to erect moveable “structures”, such as marquees, for an unlimited number of days without the need to apply for planning permission, subject to limits on height and scale to address potential amenity and visual impacts. Listed pubs, restaurants and cafes are permitted to erect moveable structures for 120 days in a 12-month period, subject to prior approval in respect of the siting and method of installation, to ensure that historic assets are protected whilst enabling them to make the best use of their outdoor spaces. A similar approach in Scotland would continue to support the ongoing vitality and viability of the hospitality sector.
The Scottish Government are accepting comments on the proposed PDR for moveable furniture until 3 August 2022. If you are interested in finding out more, or if you would like to understand better how the proposed permitted development right may relate to your commercial property interests, please get in touch with any member of the Montagu Evans Planning team and/or visit our dedicated town centres sector page here.
End Notes
*Other than as a caravan site or an open-air market.
**Planning permission is not required for tables and chairs that are put out and removed each day.
***The Scottish Government have highlighted that any proposals for moveable furniture on public roads would still require consent from the relevant Roads Authority under Section 59 of the Roads (Scotland) Act 1984 and that licensing controls would apply to any seating proposed in connection with the sale of alcohol.
