Coronavirus: Understanding the law on takeaway services following planning review

The coronavirus pandemic has affected many business sectors, but one could argue that the hardest hit is the hospitality sector. With bars and restaurants being shut down for the foreseeable future, many operators will now be contemplating takeaway services following the government’s relaxation of planning regulations in the UK.

The planning regime has been changed by amendment to the General Permitted Development Order that permits a move from an A3 restaurant or A4 drinking establishment use to allow takeaway, where such use does not currently appear on the planning permission relating to the premises. That permission will last for a one-year period from last week and will be subject to operators informing the local planning authority that they intend to use their premises in this way. The amendment does not change the existing uses of the premises. This is a development to be welcomed.

With these new developments in mind, operators who are thinking of re-orienting their business to takeaway should be aware of the law and concerns around the remote sales of alcohol and those of the licensing authorities concerning children and young people – i.e. those under 18.

The Licensing Act 2003 seeks to protect children and this objective lies at the heart of the concerns about remote sales of alcohol. The Act introduced a raft of measures to protect children by way of potential prosecution of offences and imposition of criminal penalties. Two of the key elements here are sales of alcohol to children and delivering alcohol to children.

As many will be aware from the premises licence, there are mandatory conditions at the beginning which are common to licences across the country. Breach of these could lead to a review of the licence and also prosecution. These are the conditions which are not often noted by operators, but they are there and stand in the same way as any other conditions imposed on the licence following a hearing or by agreement.

The mandatory conditions state that the premises licence holder must have an age verification policy in place in relation to the sales and supply of alcohol.

This means that, in the same way as employees or bar staff should check that an individual is over 18 when selling to them in bar, they should also carry out the same checks over the telephone or via the web if customers are seeking to purchase remotely. If they are paying by credit card, it is usually a good indication that they are over 18 but it could be a 16- or 17-year-old making the purchase on a parent’s card so further checks will be needed upon delivery, if there is suspicion about the sale. The supermarkets are very well geared up for this and have advanced systems in place but smaller operators, particularly those not used to operating remote sales, may not be. Operators new to the takeaway world will need to develop policies in this respect.

Business owners and staff should also adhere to the age verification policy and this is the duty of the designated premises supervisor, according to the condition.

Home Office guidance suggests that this condition does relate to companies that sell alcohol remotely (either by way of online or telephone sales) and that photo ID should be shown at or before the point of service. This is easy in a live bar setting but places responsibility on the delivery agent where the sale is remote. If there is any suspicion upon delivery at the door that the person who effected the sale is under 18, then there should be no delivery. Again, polices should be developed for the various forms of delivery service, either by the operator itself or via Deliveroo or Uber Eats.

Another section of the Act deals with delivery of alcohol to children and it is important to note that another offence is created here if the employee knowingly delivers alcohol to a person under 18, which has been sold on the premises. In the case of remote sales, the actual sale takes place where the beer or wine is made ready for delivery – in other words, where it is removed from the shelves or storage and placed into the hands of the employee or agent who is delivering.

However, there is an exemption from prosecution where the delivery of alcohol to an under-18 is made at a place where the buyer lives or works but if there is any suspicion about the buyer on the doorstep, the delivery should be refused so as to avoid any future potential charge of making a sale to an under-18.

Keystones Law’s Licensing team have years of experience in dealing with a change to licence requirements. If you are an operator considering takeaway services, we can assist you through the process and develop policies for uncertain situations. Contact Gareth Hughes using the below details for more information.