Outdoor seating: overcoming the complex application process

A recent High Court judgement illustrates the problems experienced by a restaurateur in London.

Julian Cordani, current operator of a restaurant in Great Portland Street, in the West End, was the second generation of a family that had offered its fare from a restaurant and associated sandwich bar called Demartino, renamed in 2005 from La Perugina.

The restaurant and sandwich bar had benefited from several tables and chairs situated outside the premises for alfresco dining, which had varied in number over the years,
but had certainly been placed there since 1991 when the restaurant began to operate.

There had never been any planning permission granted for the use of tables and chairs — none had ever been sought by the operators despite an apparent “making of a material change in the use of the land” requirement, as identified in the Town and Country Planning Act.

The tables and chairs had been sited outside the premises for a continuous period of 10 years (in fact a lot longer), and the premises could therefore benefit from a certificate
of lawfulness of existing use or development (CLEUD), which could be issued by the planning authority. In Westminster, and some other London boroughs, an application for a table and chairs licence cannot be considered without the requisite planning permission being in place.  

Mr Cordani applied for the CLEUD, which not only should have satisfied Westminster in respect of planning, but also have the effect of providing the restaurant immunity against enforcement action once it had been issued.

One would have thought this should be a reasonably simple process: not so. The case officer delegated by the council to investigate the application visited the premises early one morning and noted there was no furniture outside, and as a result the application was refused.  

In appealing to the Secretary of State, Mr Cordani produced further sworn statements from people who had used the tables and chairs, and also testified that there had always been tables and chairs outside the restaurant.

The inspector conducting the appeal also heard Westminster accepted that, on occasions, “the restaurant had located tables and chairs outside” but disputed that they had been located there “continuously to date and without a break”. The council also made mention of the uncertainty of use in the area because of the variable number of tables and chairs placed there.

The inspector was not persuaded and allowed Mr Cordani’s appeal, finding tables and chairs did not have to be on the pavement 24 hours a day to be continuously used.
Most reasonable people would probably think ‘great, now let’s move on’ — not quite. Westminster issued an application to the High Court to quash the decision of the inspector on the following grounds:

• Issuing the CLEUD went beyond what the evidence would support.
• The Secretary of State’s own policy on the drafting of CLEUDs was not followed.
• A failure of the inspector to give sufficient reasons why he was satisfied that the area was in continuous use for tables and chairs.

Judge Anthony Thornton QC, in a detailed judgement, dismissed the three grounds.
He stated that the CLEUD clearly and correctly defined the use of the pavement in the same terms as the use that had acquired immunity.
Furthermore, the inspector had determined that the use does not limit the hours for which the furniture may be placed on the pavement, or the number of tables, other than what it should not exceed on safety grounds.

Finally, the pavement use was specifically related to the operation of the restaurant.

The furniture was taken inside for safe keeping when the restaurant was closed, and when customer demand did not require the use of the furniture facilities.

The restaurant could not be expected to forego the entitlement to use the pavement because the premises was closed — in which case the pavement furniture was stored inside the restaurant premises.

It is perhaps hard to understand in these days of austerity for both councils and small businesses that a local authority can invest so much effort, time and money on an issue patently lacking in controversy.