McDonald’s launches appeal at council's enforcement notice over Portsmouth kitchen

Fast food giant McDonald’s has launched an appeal over the city council’s decision to issue an enforcement notice claiming its Fratton “dark kitchen” – the second of its kind in the country – does not have planning permission.

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Portsmouth City Council served the enforcement notice in June giving the company three months to end the use of the Partnership Park unit due to the number of delivery vehicles using the site, its operation at “unreasonable” hours and the lack of an “adequate” plan for waste management.

McDonald’s said the appeal over the facility was of “national importance,” with “a number of parties” looking to clarify the rules around delivery-only outlets and requesting a full inquiry be held.

The enforcement gave the company three months to end its use of the site, although this period will be extended as a result of the appeal.

Existing planning permission for the unit, which was previously used by tool manufacturer Hilti, allows the unit to be used for industrial or storage purposes. Planning use classes have since been changed by the government.

McDonald’s took over the lease in December 2020 and began operating its delivery kitchen in April 2021 with the facility only serving orders made through delivery apps from 7am until 11pm seven days a week.

It accepted there had been “a number of teething problems,” including a complaint about odours, but that these had all been resolved.

An application for a certificate of lawful development for its operation from the site was refused by the council in March 2022.

“Most major hot food businesses (McDonald’s, KFC, Burger King, and Nando’s amongst others) use so called ‘cloud’ or ‘dark kitchens’ as food production and distribution hubs and they are often located on industrial estates,” its appeal statement, written by Planware Ltd, says.

“The law supports the conclusion that such a use falls within former use class B1(c) (now E(g)(iii)). However, there has been no definitive planning inspector’s decision fully considering the matter.

“This appeal is therefore important to the restaurant sector nationally.”

Dark kitchens have been opened across the country in recent years to meet increased demand from delivery services for fast food. The Portsmouth facility allows it to meet daytime demand that otherwise would have been left to its nearby Fratton restaurant.

McDonald’s said this recent phenomenon meant there was a lack of clarity in planning law as to what type of permission is needed for their operation and said they hoped a planning inquiry would be held in this case to make a definitive ruling which would apply nationwide.

“It is important that the decision is based on an accurate assessment of the facts,” the appeal statement adds. “This is best secured through an inquiry procedure which can resolve factual issues more reliably through live evidence and questioning.”

It says it is accepted that a commercial kitchen is operating from the site but that McDonald’s did not agree that this was being dong without planning permission.

The appeal was lodged on July 31 and a deadline of October 2 has been set for submissions to be made. This will be followed by an examination by the Planning Inspectorate.