The word "shop" is given a very broad definition in the 1994 Planning Regulations. It includes use for the sale of sandwiches or other cold food for consumption off the premises. However, the sale of hot food for consumption off the premises is specifically excluded.

Most grocery shops such as Spar and Centra now sell hot sausage rolls, chicken wings and so on. Is this a material change of use which would require planning permission? This is the question which An Bord Pleanala had to decide in a recent case concerning a Spar convenience store on Dame Street in Dublin.

Dublin Corporation served a warning notice on the applicant calling upon him to discontinue the sale of hot food for takeaway which is not permitted under the definition of "shop" in the 1994 Regulations. The applicant submitted that the sale of small quantities of hot bread, sausage rolls and so on did not require planning permission as it is incidental to the principal use of the premises as a shop.

Dublin Corporation did not agree and the dispute was referred to An Bord Pleanala. The board initially refused to deal with the matter as it felt it did not have jurisdiction. However, the board was subsequently directed to determine the question by the High Court.

The applicant's case before the board ultimately failed on a technical point relating to the planning history of the premises. However, the board's findings on the question of whether a shop is permitted to sell hot food for consumption off the premises are very interesting.

The board, in its decision dated April 6th last, concluded that use of part of the premises for the sale of hot food for consumption off the premises was incidental to the principal shop use. Furthermore, sale of hot food, to the limited extent to which it occurred, would not result in a material change of use. This would appear to be good news for the retail sector and in particular those shops which sell small quantities of hot takeaway food.

An Bord Pleanala has considered this issue before. The case concerned a supermarket in Co Cork where the sale of hot food for consumption off the premises had begun prior to the implementation of the 1994 Planning Regulations. Again, the board concluded that the limited sale of hot takeaway food did not constitute a material change of use in terms of planning.

Following the board's reasoning, a premises principally used as a shop is entitled to sell small quantities of hot food for consumption off the premises as this use is incidental and would not result in a material change of use requiring planning permission. However, it is clearly a matter of degree.

In the Palmerlane case, in Dame Street, the evidence given was that the sale of hot food amounted to no more than 2 per cent of the total floor area of the building and that in terms of the turnover amounted to less than 2 per cent of the total sales.

On the same day as the Palmerlane decision, the board decided a separate case concerning a premises in Temple Bar known as Rasher Byrnes.

IN this case, the sale of hot food constituted a "significant element" in the use of the retail outlet. For that reason, the board held that the sale of hot food amounted to a material change of use which requires planning permission.

The exclusion of the sale of hot takeaway food from the definition of shop in the 1994 Regulations is in accordance with the general policy of discouraging certain types of use which are more likely to be inconsistent with the proper planning and development of an area. This would also explain why one can change from use as a takeaway to a shop without planning permission but not the other way around.

Consumers' tastes and requirements have changed a lot over the past number of years. People want to be able to buy the newspaper, a hot sandwich and some coffee and return to their office or canteen. Shops have had to change to meet this demand.

The decision of An Bord Pleanala is to be welcomed in its application to small shops and convenience stores. One would hope that this case will be followed in the future and enforcement proceedings will only be taken where there is a clear breach of planning law.

Ainsley Heffernan is a solicitor in the commercial property department in Beauchamps Solicitors. He is a contributor to Irish Planning Law & Practice