Council loses High Court battle with restaurant over outside tables

A local authority has failed in a High Court bid to quash an inspector’s ruling that a restaurant was entitled to a lawful development certificate in relation to use of an area of pavement for tables and chairs.

In Westminster City Council v Secretary of State for Communities and Local Government & Anor [2013] EWHC 23 an inspector had allowed an appeal by the restaurant’s owner, Julian Cordani, over the council’s refusal to grant a certificate (or CLEUD).

The inspector ruled that the authority’s grounds for refusal in April 2010 were not well-founded. The decision was made on the grounds that the use had lasted for a continuous period of ten years dating back from Cordani’s application to Westminster in March 2010.

The inspector also concluded that the fact that the tables and chairs were taken into the restaurant each night when the restaurant closed did not indicate that there was a significant interruption in the continuity of the unauthorised use of the land.

Westminster sought a quashing order under s. 288 of the TCPA 1990 (as amended), claiming that the inspector acted unlawfully in:

1. Issuing a CLEUD which went beyond what the evidence would support;

2. Failing to apply to the Secretary of State's own policy on the drafting of CLEUDs; and

3. Failing to give sufficient reasons to explain why he was satisfied that the use was in continuous use for tables and chairs, and could be described in such general terms, notwithstanding the legal principles and the Secretary of State's policy.

However, in the High Court HHJ Anthony Thornton QC dismissed the council’s appeal.

On the first ground, the judge said: “The CLEUD clearly and correctly defined the use of the pavement in the same terms as the use that had acquired immunity. The defined use was not therefore a more extensive use than the immune use that was being certified as lawful.

“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.”

HHJ Anthony Thornton QC added that the inspector’s 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,” the judge added.

He also rejected the council’s contention that the CLEUD was not drafted with sufficient particularity.

On the third ground of appeal, the judge said:

• “The evidence showed, as the inspector found, that the pavement furniture had been used by the restaurant in connection with its business and was not merely used by being placed on the pavement. That furniture was taken into the restaurant for safe keeping whenever the restaurant was closed as a normal feature of restaurant use of pavement furniture. The evidence showed that the restaurant used its pavement furniture in this way not only when the restaurant closed for the night but also when it closed for other reasons such as for holidays and when customer demand did not require the use of the external pavement facilities.

• These findings were based on the six separate witness statements provided to the inspector. These included independent corroborating evidence and all these statements were to the effect that the restaurant's use of the pavement was continuous. There was no evidence to the contrary save an ambiguous and inconclusive statement on the restaurant's website which the inspector placed no significant weight upon given the six clear and unequivocal statements to the contrary.

• Since the relevant use was in connection with the restaurant's business, the use of the pavement was subject to fluctuation but was also subject to the overriding requirement that the use could only be, but need not necessarily be, taken advantage of whilst the restaurant was open for business. Moreover, as part of that use, the restaurant was entitled to forgo it without losing it when the pavement was not actually needed by its customers. When it was not needed, the pavement furniture could be stored inside the restaurant premises.

• The guidance set out in Circular 10/97 was followed.

• These conclusions are derived from the reasons provided by the inspector which were, in consequence, clear and sufficiently reasoned.”