As restaurants and cafes look forward to maximising their business during some warmer weather, the High Court has considered the extent to which restaurateurs already using the space outside their premises for al fresco dining without having obtained planning permission might be able to benefit from the long user rules to establish lawful use and immunity from enforcement action.

Mr. Julian Cordani, the current owner of a restaurant and sandwich bar at Great Portland Street, London called Demartino has been permitted to station tables and chairs on the pavement outside his restaurant for al fresco diners after establishing use for such purposes over a period of more than ten years. Westminster City Council’s objections to a planning inspector’s grant of a certificate of lawful existing use or development (“CLEUD”) to the restaurateur were dismissed by the High Court.

Property owners can make an application for a CLEUD if it can be demonstrated that the necessary ten years of “continuous use” has accrued over the relevant area. Once granted, a CLEUD confirms that the existing use of the relevant land is lawful and it has the effect of providing immunity against enforcement action.

Following Mr. Cordani’s application for a CLEUD, the case officer from Westminster City Council visited the premises early one morning and discovered that there was no furniture outside, and as a result, refused the initial application.

Mr. Cordani then successfully appealed to the Secretary of State. The inspector reached his conclusions on the basis of clear, independently corroborated and unchallenged evidence collated by Mr. Cordani from eye witnesses that an area of pavement adjoining the restaurant had been used by its customers for outdoor dining since the early 1990s.

The local authority then issued an application to the High Court to quash the decision of the inspector. Westminster argued that, as the restaurant’s use of the pavement was restricted to the summer months and tables and chairs were taken indoors at night, the use could not be said to be “continuous”. It was also submitted that issuing the CLEUD granted went beyond what the evidence would support and its drafting was in excessively broad terms as the Secretary of State’s own policy on the drafting of CLEUDs was not followed.

However, dismissing Westminster’s appeal, Judge Anthony Thornton QC upheld the inspector’s decision that this temporary storage was a “short period of inactivity” and did not constitute a “significant interruption” in the requisite continuous use. The inspector had found that this practice of storage was a necessary and normal routine of most restaurants operating an al fresco on-site eating facility. Similar considerations would apply to holiday periods or other occasions of a temporary nature when the restaurant was closed to business, such as periods of enforced closing or lack of demand. Intermittent and overnight storage of pavement furniture does not therefore reset the CLEUD clock to zero.

The Court also held that the CLEUD correctly defined the use of the pavement area in the same terms as the use that had acquired immunity. The CLEUD did not need to specify the exact amount of pavement furniture or limit the hours of permitted use for the relevant area. The number of tables and chairs that can be used is limited to the maximum number that can safely and reasonably be placed on the pavement for customers’ use.

This case is a good example of the Court taking a pragmatic approach to the increasing popularity of al fresco dining, and will be welcomed by owners of restaurants and cafes as we all look forward to warmer, sunnier weather over the summer months.

It should also be noted that any application for a CLEUD relates to the particular circumstances of each matter and the prospects of success will depend on the quality of the evidence submitted in support of the application. In this particular case, the seating area was located on the public highway and there was no indication that Westminster sought to enforce its highway powers.

Anyone considering adding an outside seating area should consider whether planning permission might be needed. The status of the land will need to be checked as, if it is on the highway, a highway licence will be needed and, if it is on private land, the agreement of that owner.