Trade leaders are warning of planning hurdles for pubs that increase their food offer and then revert back to being wet-led.
Under the current use classes system, pubs and bars, which are grouped in the A4 category, can change into a restaurant, referred to as A3, but not the other way round.
Barry Gillham, chairman of Fleurets, said: "If a licensee decides to introduce a food offer to offset the effect of the smoking ban, gets it wrong and goes bust, the next tenant, who realises that food was not a good idea for the pub, might be left with a restaurant rather than a pub and no way of changing it back."
Some operators are concerned that councils may use the regulations to squeeze pubs and bars out of busy areas by denying consents for changes of use.
Nick Bish, chief executive of the Association of Licensed Multiple Retailers, said: "Use classes are absolutely crucial to operators' success and they must be alert to this dangerous 'drift', from which there might well be no return."
Glendola Leisure managing director Alex Salussolia said: "I think there's a general lack of awareness on the potential impact of the use class orders, mostly caused by the smoke screen effect of the 2003 Licensing Act. My advice would be to look at your business or businesses and find out exactly what the use class is and be wary of this 'drift' into a food-focused business."
Areas of concern and possible solutions
Concern over use class drift was expressed at an ALMR business seminar by Trevor Standen, a negotiator for planning consents at law firm Radcliffes Le Brasseur.
"This area is of particular concern to people buying and selling," said Standen. "When you're buying you want to know exactly what the planning history is and what the use rights are, and the same consideration will apply if you're selling. It's not just turnover used to assess use, other factors taken into account might include: do the majority of customers consume alcohol exclusively?; is there a public house licence?; is there an obligation or expectation for customers to consume a meal?; and what is the space being used for?
"One solution would be to apply for planning permission that is split, which gives permission for both A3 and A4. This would take advantage of the General Permitted Development Order and allow you to implement a second use within a 10-year period. The second option would be to argue your case for a 'sui generis' class, which basically means a unique premises."