I’ve blogged previously about businesses, particularly in the food and drink sector, treading the fine line that exists between mixed and ancillary use.

A recent English High Court decision – Najafi v. Secretary of State for Communities and Local Government [2015] EWHC 4094 (Admin) – concerned a middle eastern café/restaurant in Ealing, West London.

The main issue of contention was the use of the premises for shisha smoking. After appealing the enforcement action, ultimately the proprietors were unsuccessful – the following factors influenced the decision:

  • More seating was allocated to shisha smoking than dining.
  • There was a separate entrance to the area allocated for shisha smoking.
  • Out with the scope of the A3 use planning permission, side and rear extensions had been built, boundary walls had been rebuilt and an awning erected over an outdoor area used for smoking.
  • Conditions (no details as to their nature are given, unfortunately) under the A3 planning permission remained unimplemented.

In terms of the mixed v. ancillary use, yet again floorspace and the physical dominance of a use within premises (as opposed to consideration of its contribution to business profit or turnover) appears to be a relatively weighty factor. Albeit the fact that the area of floorspace devoted to shisha smoking was greater than the consented use tends to suggest that this case was more clearly cut than others might have been.