“I am opening a new pharmacy. Do I need planning permission to operate the business?” Legal director Claire Timmings and associate Dan Murphy explain.
When buying a new pharmacy, get your solicitor to do all the appropriate searches and enquiries. This will include getting a search from the local authority to check the property’s planning history.
Use of a property for a certain activity falls within a specified ‘use class’. Normally, planning permission would be required where there is a change of use between classes, but there are exceptions where you are allowed to change use without planning permission.
Separate enquiries with the seller’s solicitors will reveal how long the property has been used for its current purpose. Depending on the length and extent of the use, this may enable the property to be used for that purpose without planning permission.
Location determines use class. Traditional high street pharmacies usually fall within retail use Class A1, as set out in the Schedule of the Town & Country Planning (Use Classes) Order 1987 (“the Order”). Where a pharmacy is part of a health centre development, it would usually fall within Class D1 of the Order which covers health centres.
For a pharmacy within a health centre to retain that D1 use class, the activities need to be ancillary to the main Health Centre use. Factors taken into consideration to assess whether there is ancillary use include:
a. The amount of over the counter sales or prescriptions issued and if those are less than those issued for the whole health centre
b. The pharmacy has its own signage or access and operates ancillary to (and not independently of) the health centre
c. The physical floor space is less than the floor space of the health centre.
If neither an A1 or D1 use class apply then the pharmacy is likely to have sui generis (literally ‘of its own kind’) use, if planning consent has been granted expressly referring to the pharmacy use.
Regarding distance selling pharmacies, a property used for storage and/or distribution purposes usually falls within Class B8 of the Order. Where a customer-facing trade counter is introduced, you may need to apply for planning permission if the trade/retail use becomes the main use.
Careful scrutiny of any planning conditions attached to a planning permission is needed to ensure they do not prevent or restrict any proposed pharmacy use. Examples that can restrict use are those that make the permission personal to a given occupier, allow a temporary use only, or limit the hours of use (which could conflict with the operating hours required by the NHS contract).
LONG USE WITHOUT PLANNING PERMISSION
If a change of use has taken place without planning permission, you will need to check if the change has been in place for a long enough time to make it immune to enforcement action. For breach of use or planning conditions, the period of time relevant is 10 years; for works done without consent, the period is generally four years.
This will not apply if there is deliberate concealment of the breach or if a listed building is involved, in which cases the local authority has the right to take enforcement action at any time after the breach and potentially pursue criminal proceedings.
Some works to a property, usually where there are external alterations, will also require planning permission. This includes signage (illuminated or not), where advertisement consent could be required.
Separate listed buildings consent may be required for any works (including internal) you intend to carry out. Failure to obtain that consent is a criminal offence.
ACTION FOR FAILURE TO OBTAIN PERMISSION
A local authority has a variety of enforcement powers to require you to submit a retrospective planning application to authorise any change. If a breach is serious, they could serve enforcement or stop notices, which could require you to stop the use or cease operations at the property. Failure to comply could lead to a fine or imprisonment.
In summary, you need to check that the property and any works you propose has the necessary planning consent before committing yourself to a purchase, since the consequences of being in breach could potentially harm your business and lead to prosecution.
The above is a general overview and we recommend that independent legal advice is sought for your specific concerns.