The high court has upheld an inspector’s decision that a Westminster restaurant has established continuing use of tables and chairs on the pavement outside, even though they are taken inside at night when it is closed.
Julian Cordani, owner of the Demartino Italian restaurant at 196–198 Great Portland Street, W1, argued successfully before the inspector that they have had seats and tables on the pavement of Great Portland Street for more than 20 years, and that, as a result, they have acquired a right to keep them.
The inspector granted him a Certificate of Lawful Existing Use or Development (CLEUD), on appeal from a decision by Westminster City Council that, because the tables and chairs are taken inside when the restaurant is closed, Mr Cordani had not established the necessary continuous use to secure immunity from planning control.
The inspector found that the fact that the tables and chairs were taken in each night did not constitute a “significant interruption” of the continuing unauthorised use of the 1.5m x 3.25m area of land outside the restaurant. He described them as “short periods of inactivity in a continuing use”.
However, the Council challenged that decision, arguing that the tables and chairs were not there for 10 years without a break, and so no CLEUD should have been granted.
Now Judge Anthony Thornton QC has backed the inspector’s decision, leaving Cordani free to go on using tables and chairs outside Demartino.
He said: “The inspector had found that the evidence was to the effect that the pavement furniture had been provided on the pavement continuously for customers’ use for at least ten years and that overnight interruptions were a normal and accepted part of that provision. As for non-siting of pavement furniture during cold and inclement weather, these were not periods relied on by WCC and, in any case, were similar to other periods of inactivity, such as holiday periods and periods of enforced closing or lack of demand which are clearly part of, and incidental to, restaurant use.
“Furthermore, there had been no significant periods of interrupted use throughout the qualifying period and such interruptions as had occurred were found by the inspector to have been interruptions that could naturally arise when the pavement was being used in connection with the restaurant. His findings were based on a correct application of the burden of proof and were well within his margin of discretion as a fact-finder. All the inspector’s findings concerned with the restaurant’s use of the pavement were findings of fact and the decision and the wording of the CLEUD involved no errors of law.”
He added that there was nothing to the Council’s objection that the CLEUD did not define the hours of permitted use or the amount of pavement furniture that could be sited on the pavement so that the use that was certified was greater and more extensive than the unauthorised use that had acquired immunity.
He said: “The area could only be used for siting pavement furniture when the restaurant was open for business since it could only be used in connection with the restaurant. Further, pavement furniture could only be sited in the clearly defined area of adjacent pavement so that the number of tables and chairs that could be used is limited to the maximum number that can safely and reasonably be placed on the area for use by the restaurant’s customers.”
Westminster City Council v Secretary of State for Communities and Local Government Administrative (Judge Anthony Thornton QC) 17 January 2013
Saira Sheikh (instructed by Westminster City Council – Legal Services) for the Applicant
Gwion Lewis (instructed by The Treasury Solicitor) for the First Respondent
Jonathan Clay (instructed by Bryan O’Connor and Co) for the Second Respondent
