Westminster City Council v Secretary of State for Communities and Local Government & Anor

A lawful development certificate must identify the lawful use with sufficient clarity, but it need not record every ordinary fluctuation in the use. Where the certified activity forms part of a use class, the certificate may define the use by reference to that class and the physical area concerned. Periodic non-use which is a normal incident of the activity, such as removing restaurant furniture overnight or during temporary closures, does not necessarily interrupt continuity. The relevant question is whether there has been a significant interruption, assessed as a matter of fact and degree. A certificate describing restaurant pavement use may therefore permit variable numbers of tables and chairs within the defined area, subject to normal and safe use, without specifying fixed hours, seasons or a maximum number, where the wording accurately reflects the established use.

Westminster City Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dated 14 December 2010. The inspector had allowed Mr Julian Cordani’s section 195 appeal against the Council’s refusal to issue a certificate of lawfulness of existing use or development.

The certificate concerned the use of a defined area of public pavement outside a restaurant for tables and chairs in connection with the restaurant. The inspector found, on the evidence, that the use had continued for more than ten years, although the furniture was removed when the restaurant was closed. The Council challenged the continuity finding, the breadth of the certificate’s description and the adequacy of the inspector’s reasons.

1. Application dismissed. The inspector’s decision was within the powers of the Town and Country Planning Act 1990, and the Council’s procedural objections failed. Additional evidence could be admitted on the section 195 appeal, the Council could change its grounds in response, and a new public-law challenge could be raised under section 288 because the inspector had to apply the law whether or not the parties had identified every relevant issue (paras [35]–[42]).
2. For section 191 purposes, the applicant bears the burden of proving the relevant facts on the balance of probabilities. An unauthorised use must have continued actively throughout the ten-year period, but continuity is assessed by asking whether there has been a significant interruption, applying fact and degree (paras [53]–[55]).
3. Removing pavement furniture overnight, during holidays or during other temporary periods when the restaurant was closed did not end the use. Those periods were normal incidents of restaurant use and did not prevent enforcement action during the qualifying period. The inspector was entitled to treat the evidence as establishing continuity, notwithstanding the ambiguous website reference to summer seating (paras [57]–[61]).
4. The certificate’s description was sufficiently precise. It identified the land and area and described the use of the pavement for tables and chairs in connection with the existing restaurant. Read in context, that wording incorporated the Class A3 restaurant use under the Use Classes Order. It did not authorise unlimited or unsafe use: the furniture had to be used for restaurant purposes within the defined area and in a normal and safe manner (paras [62]–[71]).
5. Because the use fell within a use class, intensification would require further planning control only if it amounted to a material change of use. The inspector’s reasons adequately explained both the continuity finding and the certificate’s form, and the guidance in Circular 10/97 had been followed (paras [63], [72], [75]–[81]).

This was a first-instance statutory application under section 288 of the Town and Country Planning Act 1990. The application challenged an inspector’s decision allowing a section 195 appeal against Westminster City Council’s refusal of a section 191 certificate.