As we look ahead to spring and summer, the High Court has already considered a spot of al fresco dining.

Restaurants and cafés looking to make the most of the pavement outside their premises might need to apply for planning permission but those operators already doing so without permission might be able to benefit from the long user rules.

An application for a Certificate of Lawful Existing Use or Development (“CLEUD”) can be made if it can be demonstrated that they have accrued the necessary 10 years of “continuous use” over the relevant area.  Once granted, a CLEUD confirms that the use of the relevant land is lawful.

This latest case confirms that it is possible to establish the necessary “continuous use” even where pavement furniture is not in situ 24/7.  In this particular case, the tables and chairs were stored indoors overnight for safekeeping and during inclement weather.

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 was upheld by the Court.  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.  Restaurant and café operators will be reassured by this confirmation that intermittent and overnight storage of pavement furniture does not reset the CLEUD clock to zero.

The Court also held that 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.

It should be noted that any application for a CLEUD relates to the particular circumstances of each matter and the likelihood of success depends on the quality of the evidence submitted.  This case was interesting because the seating area was on the highway and there was no indication that the local authority sought to enforce its highway powers.  The restaurant owner was able to extend his business without obtaining the consent of the owner of the subsoil of the highway.  He may even have been able to extend beyond his demise without paying further rent.

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.

This case is a good example of the Court taking a pragmatic approach to the increasing popularity of al fresco dining, particularly as we all look forward to warmer, sunnier days.