Westminster City Council v Secretary of State for Communities and Local Government & Anor [2013] EWHC 23 (Admin)

[2013] EWHC 23 (Admin)

Case No CO/653/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17 January 2013

In the matter of an application under section 288 of the Town and Country Planning Act 1990

Before

HIS HONOUR JUDGE ANTHONY THORNTON QC

Sitting as a judge of the High Court

Between

Westminster City CouncilApplicant

(2) Mr Julian CordaniRespondents

Ms Saira Sheikh (instructed by Westminster City Council - Legal Services) for Applicant

Mr Gwion Lewis (instructed by The Treasury Solicitor) for First Respondent

Mr Jonathan Clay (instructed by Bryan O’Connor and Co) for Second Respondent

Judgment

[1]The applicant, Westminster City Council (“WCC”), makes this application under section 288 of the Town and Country Planning Act 1990 (as amended) (“TCPA”). The application questions the validity and seeks to quash a decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government (“Secretary of State”) dated 14 December 2010. That decision allowed an appeal under section 195(1)(a) of the TCPA from a decision of WCC dated 30 April 2010 refusing the application of the second respondent, Mr Julian Cordani (“Mr Cordani”) under section 191(1)(a) of the TCPA to grant a lawful development certificate (“CLEUD”) Varied terminology was used in this case in relation to the Certificate of Lawfulness of Existing Use or Development (“section 191 certificate”) that Mr Cordani had applied for from WCC This terminology was as follows: (1) Section 191 of the TCPA merely refers to the issue of “a certificate to that effect”, being the lawfulness of the matters specified in section 191(1). However, the headnote to section 191 is entitled:

“Certificate of lawfulness of existing use or development”. (2) The relevant Departmental Guidance, being paragraphs 8.16 – 8.17 of Annex 8 to Circular 10/97, refers to a section 191 certificate as a “lawful development certificate” or a “LDC”. (3) The Planning Inspectorate’s (“PI”) standard Appeal Form for use by an applicant seeking to appeal an adverse section 191 decision is entitled a “Certificate of Lawful Use or Development”

Appeal Form. However, the PI otherwise adopts the same terminology as Circular 10/97. It has a standard template for use by inspectors when exercising their powers to issue section 191 certificates when allowingsection 191 appeals. This template is headed “Lawful Development Certificate”. In his decision, the inspector referred to the certificate as a “LDC” and he issued a “Lawful Development Certificate” on the standard PI template as part of his decision. (4) WCC’s terminology is different and inconsistent. In its template application form, a section 191 certificate is referred to as a “Lawful Development Certificate for an Existing use or operation or activity including those in breach of a planning condition” but WCC otherwise referred to this certificate as a “Certificate of Lawful Existing Use or Development” and hence a “CLEUD”. This appears to be its standard description of a section 191 certificate. However, the draftsman of WCC’s written submissions to the inspector referred to the certificate as a “Certificate of Lawful Existing or Proposed Use” and also as a “certificate of lawfulness”. (5) In the cases cited in argument, a section 191 certificate is variously referred to as a “lawful development certificate”, a “LDC”, a “lawful use certificate”, a “certificate of lawful use” or the “certificate issued in this case”. (5) WCC’s counsel adopted the section 191 headnote reference to a “Certificate of Lawfulness of Existing Use or Development” when first referring to this certificate in paragraph 1 of her skeleton referred to it thereafter as a “Certificate of Lawfulness” or, adopting WCC’s acronym, as a “CLEUD”. The Secretary of State’s counsel in paragraph 3 of his skeleton referred to the certificate as a “certificate of lawful use” but also adopted the acronym “CLEUD” for all other references to the certificate. Mr Cordani’s counsel was more circumspect in referring to the certificate as “the Certificate” throughout his skeleton. Each of these verbal formulae is therefore in use to describe a section 191 certificate. I will adopt WCC’s counsel’s usageand refer to the certificate in this case as a “CLEUD” whilst acknowledging that this is the same section 191 certificate that is referred to by the headnote to that section as a “Certificate of lawfulness of existing use or development” and by Circular 10/97 and the PI as a “lawful development certificate” or a “LDC” and by the various other usages referred to above. . The inspector allowed Mr Cordani’s appeal on the grounds that WCC’s refusal was not well-founded. Mr Cordani’s original application, as amended by WCC and as then adopted by the inspector in his decision, was for a CLEUD certifying that the use of a defined area of pavement in front of the Demartino restaurant located in Great Portland Street, London, WI for placing of tables and chairs as pavement furniture in connection with the existing restaurant was lawful within the meaning of section 191(2) of the TCPA. This decision was made on the grounds that that use had lasted for a continuous period of ten years dating back from Mr Cordani’s original application to WCC on 5 March 2010. B. Factual background

[2]On 15 May 1990, WCC approved an application for the change of use of the basement and ground floors of 196 – 198 Great Portland Street, London, W1 to a restaurant use. In January 1991, Mr Mario Inzani and his brother Mr Renzo Inzani acquired a lease of these premises with a term of twenty years from 25 March 1990. These premises are located in a prominent position close to both Great Portland Street underground station and Regent’s Park. The Inzani brothers converted and renovated the premises into one planning unit in two internally connected parts to comprise an Italian restaurant called La Perugina and an associated sandwich bar. Mr Mario Inzani ran the business until 2001 when he retired leaving his son, Mr Davide Inzani to run it with Mr Cordani who was Mr Mario Inzani’s nephew and Mr Davide Inzani’s cousin. Mr Mario Inzani then sold the business and assigned the lease to Mr David Inzani, Mr Cordani and Mr Robert Easom in 2003. The new owners closed the sandwich bar soon afterwards, continued to run the restaurant, which they renamed Demartino, from both parts of the demised premises and renewed the restaurant’s lease in December 2005.

[3]Mr Cordani’s evidence was that the restaurant had, since 1991, always continuously and without interruption placed pavement furniture on the adjacent area of pavement for the al fresco use of its customers. This area of pavement was located immediately adjacent to and across the entire front of the demised restaurant premises and is covered by expandable awnings which are opened when the pavement furniture is sited there.

[4]This use of the pavement only occurred on occasions when the restaurant was open but the pavement furniture was not always used in this way when it was open. However, when the restaurant was closed, the pavement furniture was stored within the restaurant for safe keeping. The pavement furniture was always placed within the same rectangular area of pavement which measured 1.5m x 3.25m. The number of tables and chairs sited on the pavement has always been variable up to the limit permitted in that area. In practice, a variable number of between two and six tables with their associated chairs have always been sited there.

[5]This pavement use has always occurred in conjunction with the use of that area of pavement as a public highway when pavement furniture was not sited there. This use required planning permission since it amounted to a change of use from an exclusively highway use to a restaurant street trading use. C. Planning history

[6]The use of the pavement for al fresco eating purposes amounted, when that use started, to “the making of a material change in the use of other land” (section 55(1) of the TCPA). It was therefore “development of land” for which planning permission was required (section 57(1) of the TCPA). However, the restaurant management had never applied for planning permission for this material change of use and WCC had never, prior to 2010, threatened to enforce against this unauthorised breach of planning control.

[7]The “other land” where development had taken place was, in this case, the rectangular area of pavement outside and adjacent to the restaurant and the relevant “use” was, as stated in the CLEUD, siting pavement furniture on that part of the pavement for use in connection with the restaurant. That restaurant use was, or certainly was contended by Mr Cordani to be, a use falling within Class A3 of the Use Classes Order 1987 (“UCO”). Until that use had continued for a ten-year continuous period, enforcement action could have been taken by WCC so as to require the restaurant to desist from that use (sections 171(1), 171A(1)(a), 171B(3) and 172(1) of the TCPA).

[8]In addition to planning permission, the restaurant was required to obtain from WCC a temporary tables and chairs licence (“TCL”) which had formally been known as a ‘Temporary street trading licence to trade from tables and chairs on the street’ See footnote 1 to paragraph 9 of the Inspector’s decision. . This is the particular type of street trading licence granted to restaurants, cafés and coffee bars by WCC for pavement use in the exercise of its powers under the City of Westminster Act 1999. WCC has adopted a policy that it will not issue a TCL unless the necessary planning permission for the establishment’s pavement use has first been obtained.

[9]In this case, Mr Cordani, in applying to WCC for a CLEUD, was seeking the equivalent of full planning permission for his specified use since a CLEUD certified the restaurant’s use of the pavement as being a lawful one and it also provided the restaurant with immunity from any enforcement action once it had been issued As a result of sections 191(1)(a), 191(2) and 191(4) – (6) of the TCPA. .

[10]Mr Cordani applied for a CLEUD from WCC in an application dated 5 March 2010. This application was no doubt triggered by his wish to obtain a TCL to enable the restaurant to use the adjacent pavement area in conformity with WCC’s licensing regime, there being no evidence that the restaurant had ever previously applied for a temporary street trading or licence or a TCL.

[11]Mr Cordani’s application described the existing use as being:

“Placing tables and chairs [on the pavement] in connection with use of adjoining premises as a restaurant.”

In support of the application Mr Cordani submitted a statutory declaration sworn by Mr Mario Inzani dated 2 January 2010 which stated that the restaurant had begun to place a number of tables and chairs outside for customers to eat their meals or their sandwiches when he started trading at the premises in 1991 and that that use continued throughout his period of trading until his retirement in 2001. He knew from his regular visits to the premises since his retirement which he had made as a result of his continued connection with the restaurant through his son that that use had continued unbroken up to the present time.

[12]The only check that the planning officer concerned with this application made to verify or countermand the factual basis that it relied on was to visit the exterior of the premises early in the morning of 29 April 2010 and observe that, on that occasion and at the time that the visit took place, no tables or chairs were located on the pavement outside the restaurant. The planning officer took a photograph to verify this observation from which it can be seen that the visit took place so early in the morning that it was still dark and the restaurant was closed 29 April 2010 was a Thursday and, as can be seen from the website, the restaurant opened at 7.00am that morning having closed at 10.30pm the previous evening. .

[13]The case officer’s delegated report to the WCC officer who had been delegated to take the decision whether or not to approve the application recommended that the application should be refused. This recommendation was made because the case officer considered that the restaurant had provided insufficient information to show that the pavement had been continually used for placing tables and chairs on it for a period in excess of ten years and because that officer had concluded that pavement furniture was not left outside when the restaurant was closed or during inclement weather.

[14]This conclusion was reached because the case officer had observed that there were no tables and chairs placed outside the premises at the time of the early morning site visit on 29 April 2010 and because there was a statement on the Demartino’s website that its opening times were 7.00am to 10.30pm on Mondays to Fridays, 6.00pm to 10.30pm on Saturdays and 12.00pm to 3.30pm on Sundays that also stated:

“Outside Seating: Yes (during summer months)”

A photocopy of the relevant page of the website was submitted to the inspector but was not referred to in the decision letter. .

[15]The case officer dismissed the evidence of Mr Mario Inzani that tables and chairs had been continuously placed outside the premises since 1991 because his statutory declaration did not identify how regularly and at what times he had visited the premises in the years following his retirement in 2001.

[16]The delegated decision dated 30 April 2010 adopted the case officer’s recommendation and refused the application. The decision rephrased the existing use as being:

“Use of the public highway for the placing of chairs and tables in an area measuring 1.5m x 3.25m in connection with the existing restaurant.”

This decision stated that it had been reached on the grounds that insufficient evidence had been submitted to demonstrate that, on the balance of probabilities, tables and chairs had been located outside the property for a continuous period of at least ten years from the date of the application.

[17]Mr Cordani then served a notice of appeal on the Secretary of State dated 20 July 2010 pursuant to section 195(1) of the TCPA. This section required the Secretary of State, or an inspector delegated by him, to grant the appellant a CLEUD if WCC’s refusal had not been well-founded. Mr Cordani’s grounds for contending that a CLEUD should be granted were that the evidence submitted to WCC, which was in the form of a statutory declaration, was sufficient to establish Mr Cordani’s entitlement to a CLEUD in the absence of evidence to the contrary. However, additional evidence was enclosed with the notice of appeal which it was submitted clearly established that entitlement.

[18]The additional evidence was submitted in two stages and was in the form of an additional statutory declaration and four witness statements. The statutory declaration, dated 20 July 2010, was made by Mr Mario Inzani’s son, Mr Davide Inzani, who is one of the three owners of the Demartino restaurant. He stated that, from his own knowledge, throughout the period from January 1991 until the 20 July 2010 tables and chairs had been placed continuously and without a break on the relevant pavement area outside the premises where customers could sit and eat their meals or their sandwiches. He also produced a photograph, which he stated had been taken in 1994, that showed tables and chairs located on that pavement area.

[19]The first of the four witness statements, also dated 20 July 2010, was made by Mr Dean Bryan who had been employed continuously since 1991 as a contract cleaner to clean offices located close to the restaurant. He had also regularly sat at the tables and chairs located outside the restaurant over the years and still did so. He was therefore able to confirm from his own knowledge that tables and chairs had been placed along the outside frontage of the restaurant continuously during the whole of the period since 1991.

[20]The second of the four witness statements was dated 14 September 2010 and was made by Mr Nicholas Rees who stated that he had known and regularly eaten at the La Perugina and Demartino restaurants since November 1994. During the whole of that period, he stated that there had always been tables and chairs along the outside frontage as at present at which customers had sat and been served from the restaurant.

[21]The third of the four witness statements was dated 15 September 2010 and was made by Mr Cordani who stated that he was currently one of the owners of the Demartino restaurant, that he had known the premises since his uncle Mr Mario Inzani had opened the restaurant under the name of La Perugina in 1991 and that during the whole of that period there had been tables and chairs along the outside frontage as at present at which customers had sat and been served.

[22]The fourth of the four witness statements was also dated 15 September 2010 and was made by Mr Antonio Pirozzi who stated that he had supplied the restaurant with groceries and wine regularly and continuously since 1991and during the whole of that period there had been tables and chairs along the frontage at which customers had sat and been served from the restaurant.

[23]The inspector conducted the appeal in accordance with the written representations procedure. He was provided with the two statutory declarations and the four witness statements that I have already summarised. He was also provided with written representations from WCC and a written response served by Mr Cordani’s solicitors on his behalf.

[24]The written submissions served on behalf of WCC accepted that the restaurant had “on occasion” located tables and chairs on the highway since 1991 but disputed that they had been located there “continuously to date and without a break”. WCC contended that no change of use had ever occurred since there had never been continuous and uninterrupted use of the highway for the location of tables and chairs since these had always been removed from the pavement area overnight and for certain months of the year. This conclusion was based on the WCC planning officer’s discovery when making the early morning site visit on 29 April 2010 that there was no pavement furniture on the pavement and on the restaurant’s website entry that outside seating was provided “during summer months”. WCC contended that during the periods when the pavement area adjacent to the restaurant was not being used by pavement furniture, it reverted back to its original use as part of the public highway since it was not evident to the general public that that area was being used for siting pavement furniture.

[25]WCC also contended that, contrary to the relevant Departmental Circular Paragraphs 8.16 and 8.17 of Annex 8 to Circular 10/97: Enforcing planning control: legislative provisions and procedural requirements. , Mr Cordani had not provided any indication of the hours or intensity of the restaurant’s use of the relevant pavement area. Indeed, the evidence showed that at different times, there had been two tables and four chairs, four tables and eight chairs and six tables and thirteen chairs. A larger number of tables and chairs would obviously occupy a larger area than that stated to be the area used by the restaurant. In consequence, there was insufficient detail of the user contended for to enable a CLEUD to be issued.

[26]The reply submissions served on behalf of Mr Cordani contended that the fact that the tables and chairs were taken into the restaurant and stored there when the restaurant was closed did not destroy the continuity of use of the adjacent pavement area in connection with the Demartino’s restaurant business. In support of this conclusion, the submissions relied on the fact that most restaurants providing similar pavement eating facilities adopted the same practice of storing pavement furniture overnight within the restaurant without it being suggested that those restaurants were using the pavement on a non-continuous or interrupted basis.

[27]The submissions also contended that it was irrelevant how many tables and chairs were placed on the pavement so long as those that were placed there were always located on the designated pavement area in question. Furthermore, the fact that the pavement area was not used during periods when the restaurant was closed did not destroy the continuity of the use of that area in connection with the restaurant. Finally, in relation to the submission that there was no continuous use because pavement use was confined to the summer months as suggested on the restaurant website, it was contended that the evidence showed that the restaurant’s use of the pavement was not in fact confined to the summer months and, in any event, the fact that there were periods when the pavement was not used by the restaurant did not interrupt the restaurant’s user of the pavement in connection with its business.

[28]In his decision letter dated 14 December 2010, the inspector allowed the appeal. The decision letter stated that the matters to be determined were solely matters of evidential fact and planning law and that no question arose as to the planning merits of the existing use. The burden of proving those facts rested on Mr Cordani who had to adduce relevant evidence to support his assertion that, on the balance of probability, part of the public highway adjacent to the Demartino restaurant had been used for placing tables and chairs in connection with the restaurant for in excess of ten years at the date of the application, namely from 5 March 2000. The inspector correctly reminded himself of the approach he had to adopt in relation to the evidence. In his decision letter, he stated:

“WCC acknowledges that where an applicant for a LDC has proved his or her case on the balance of probability, and the Council holds no contradictory evidence, there is no legitimate reason not to issue a LDC. This approach is consistent with the advice in Circular 10/97 (para.8.15). This states that the court (in F W Gabbitas v SSE and Newham LBC [1985] JPL 630) held that the applicant’s own evidence does not need to be corroborated by “independent” evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate “on the balance of probability”

Paragraph 15 and footnote 2 of the decision letter. .

[29]The decision letter then summarised the evidence adduced by the parties and their respective cases which I have already summarised and the decision then continued:

“General principles relating to continuity of use and intermittent uses 18. To become lawful a use must have continued actively throughout the ten year period to the extent that enforcement action could have been taken against it at any time during that period. 19. Any significant interruption in continuity of an unauthorised use before it has gained immunity means that the breach has ended. Should the use re-commence, the ten year period for immunity must start again. 20. Whether or not any such break in continuity is significant will be a matter of fact and degree in the light of the particular circumstances of each case. Short periods of inactivity might be regarded as part of a continuing use, but longer periods cannot. My consideration of the parties’ cases and conclusions 21. The fact that the tables and chairs were taken in each night when the restaurant closed does not indicate that there was a significant interruption in the continuity of the unauthorised use of the land. These were no more than short periods of inactivity in a continuing use. These nightly breaks do not mean that the breach of planning control ended each evening and re-commenced the following day. There is no clear evidence to suggest that significantly longer breaks occurred. 22. The application for a ‘Temporary Street Trading Licence; anticipates that this routine occurrence would happen in most cases. It asks the applicant to specify the hours during which the tables and chairs would be on the street and where they would be sorted when they are not placed on the highway. Plainly, this is recognised as a characteristic of such a use. 23. The evidence indicates that for a period of in excess of ten years prior to the date of the LDC application it was open to the Council to take enforcement action against the unauthorised use. The fact that the tables and chairs were removed each night and stored, rather than left on the highway, would not have prevented the Council from taking such action if had wished to do so. Conclusions 24. For the reasons given above I conclude, on the evidence now available, that the Council’s refusal to grant a lawful development certificate in respect of the use of the public highway for the placing of tables and chairs was not well-founded and the appeal should succeed. I will exercise accordingly the powers transferred to me under section 195(2) of the 1990 Act as amended.”

My consideration of the parties’ cases and conclusions

Conclusions

[30]WCC then issued this application dated 25 January 2011 under section 288 of the TCPA which permits the High Court to quash a decision on, and only on, either or both of the two statutory grounds, being(a) that the order made as a result of the decision was not within the powers of the Act; or

(b) that any of the relevant requirements had not been complied with in relation to that order. WCC seeks a quashing order on three related grounds, namely that the inspector acted unlawfully in: (1) Issuing a CLEUD which went beyond what the evidence would support; (2) Failing to apply to the Secretary of State’s own policy on the drafting of CLEUDs; and (3) Failing to give sufficient reasons to explain why he was satisfied that the use was in continuous use for tables and chairs, and could be described in such general terms, notwithstanding the legal principles and the Secretary of State’s policy. D. Issue 1 - Issuing a CLEUD which went beyond what the evidence would support (1) The CLEUD

[31]The CLEUD. The CLEUD, or LDC as it was called in the certificate issued by the inspector, was in these terms:

“It is hereby certified that on 5 March 2010 the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto and cross-hatched in black on the hand-drawn plan and within the area edged red on the OS based plan attached to this certificate, was lawful within the meaning of section 191(2) of the [TCPA] for the following reasons: The use has continued for in excess of ten years so that the time for taking enforcement action has expired [section 171B(3) of the TCPA] and the use does not contravene any of the requirements of any enforcement notice in force. First Schedule The use of the public highway for the placing of tables and chairs in an area measuring 1.5m x 3.25m in connection with existing restaurant. Second Schedule Land at Demartino Restaurant, 196-198 Great Portland Street, W1W 5QF.”

First Schedule Second Schedule Land at Demartino Restaurant, 196-198 Great Portland Street, W1W 5QF.” (2) Mr Cordani’s preliminary objection

Second Schedule

[32]Introduction. Mr Jonathan Clay, counsel for Mr Cordani, raised a preliminary objection to WCC’s application. He contended that WCC’s grounds for objecting to Mr Cordani’s appeal to the Secretary of State had not been referred to in its decision to refuse Mr Cordani’s original application. nor in its submissions submitted to the inspector so that it was not open to it to raise these grounds for the first time in its section 288 application.

[33]In considering this objection, I must also take account of the fact that significant additional evidence was submitted to the inspector on behalf of Mr Cordani in support of his appeal in the form of Mr Cordani’s statutory declaration and the witness statements of four other witnesses. This additional material supplemented Mr Mario Inzani’s statutory declaration that had been the only evidence submitted to WCC on behalf of Mr Cordani to support his original section 191 application.

[34]The procedural objection raised on behalf of Mr Cordani raises interesting and difficult theoretical issues concerning(a) the nature of a statutory appeal to the Secretary of State provided for by section 195 of the TCPA and in particular whether such an appeal is one of both fact and law or only one of law;

(b) whether a section 195 appeal may be conducted in reliance on additional evidence to that placed before the original planning authority decision-maker;

(d) whether the matters that may be raised in section 288 application may still be raised if they had not been raised with or considered by the decision-maker when deciding the section 195 appeal.

[35]Underlying principles governing planning appeal and application procedures. The underlying principles relating to the reception of fresh evidence by a first-tier statutory appeal to a body that is not an independent tribunal and of being entitled to advance new grounds of challenge with a second-tier court conducting a statutory appeal or a similar application from the first-tier decision were considered in an authoritative decision of the Court of Appeal in E v Secretary of State for the Home Department

[2004] QB 1044

[2004] EWCA 49

, CA at paragraphs 36 – 75 and 90 - 92. which was cited in argument by Ms Sheikh, counsel for WCC, in her cogent written and oral submissions. The judgment of the court that was delivered by Carnworth LJ, albeit in the context of a challenge to decisions of immigration adjudicators under the law and procedure governing asylum appeals in October 2002 The applicable law and procedure governing asylum claims has undergone radical changes since October 2002 but the principles relating to the reception of fresh evidence by a first tier tribunal in a planning appeal and of fresh grounds adduced in support of a second tier challenge of the first tier tribunal’s decision in the High Court are of general application to both judicial review and statutory appeal processes. . It is only necessary to provide a summary of the relevant principles identified in that judgment that are relevant to section 195 appeals and 288 applications.

[36]The relevant principles are:(1) The original section 191 decision was one of fact and the application of those facts to the relevant law This principle was not, of course, discussed or identified in the E judgment but it is self-evident from the nature of the decision that must be taken by the planning authority in a section 191 application and was accepted by the inspector in paragraph 5 of the decision letter to be a decision confined to evidential fact-finding and planning law that did not involve issues of planning merits of the existing use. .

(2) The section 195 appeal to the Secretary of State inevitably involves a review of the evidence considered by the planning authority since the only ground of appeal is that the planning authority’s refusal of the original application was not well-founded Section 195(2)(a) of the TCPA. .

(3) There is no general entitlement to introduce fresh or additional evidence in support of a section 195 appeal. The decision-maker, whether it is the Secretary of State or an inspector appointed by the departmental Planning Inspectorate on a reference by the Secretary of State and whether the adopted procedure is the written, hearing or inquiry procedure, is master of the procedure to be adopted Subject to the relevant statutory rules of procedure governing the decision-making process, here the written procedure conducted by an inspector. . Fresh evidence will normally be admissible subject to the right to respond but will normally only be admitted in conformity with the strict time limits that apply to its submission.

(4) When fresh evidence is admitted, the planning authority is entitled to change its grounds of objection from those relied on in refusing the original application in consequence of the fresh evidence. This is permitted on the grounds of fairness and in the public interest.

(5) It is now a safe working rule that the substantive grounds for intervention by the High Court in a second-tier statutory review confined to considering whether the first-tier decision was not within the powers of the relevant Act In this case, section 288 of the TCPA. Of course, this principle has even greater force in this case since section 288 additionally permits a challenge where the relevant requirements have not been complied with. are identical to judicial review grounds of challenge involving perversity, error of law, taking irrelevant matters into account, failing to take relevant matters into account and procedural unfairness ibid., paragraphs 41 – 42. .

(6) An error of law encompasses unfairness resulting from misunderstanding or ignorance of an established fact ibid., paragraph 91. .

(7) Fresh evidence is admissible on Ladd v Marshall

[1954] 1 WLR 1489

;

[1954] 3 All ER 745

, CA. principles in support of such a ground of review, that is where the evidence could not or should not reasonably have been adduced before the first-tier decision-maker. Exceptionally, and in the discretion of the second-tier decision-maker, fresh evidence may be admitted where the interests of justice require it even where such principles do not apply ibid., paragraph 91. .

(8) Where the error of law complained of is that the inspector’s decision was not within the powers provided by section 195 and failed to take account of Circular 10/97, the grounds of challenge on those grounds only first arose once the original decision letter had been promulgated.

(9) The written procedure adopted by the Secretary of State was an inquisitorial procedure that required the inspector to apply the law applicable to the grant or refusal of CLEUDS irrespective of whether or not the relevant law had been drawn to his or her attention by the parties to the appeal.

[37]Mr Cordani’s further evidence in the appeal. Further evidence was submitted in two tranches on behalf of Mr Cordani in support of his appeal that WCC’s refusal decision was not well-founded. The first tranche, consisting of Mr Davide Inzani’s statutory declaration was submitted with the notice of appeal dated 20 July 2010. The second tranche, consisting of the witness statements of Mr Cordani, Mr Nicholas Rees and Mr Antonio Pirozzi, was submitted on 15 September 2010. WCC submitted its written submissions setting out its grounds of resistance to Mr Cordani’s appeal soon afterwards and, finally, Mr Cordani’s reply submissions dated 12 October 2010 were then submitted. No objection was taken by WCC to this further evidence being submitted. Since the evidence was relevant and significant and had been submitted in order to provide the suggested lack of evidence of the claimed uninterrupted user over the entire ten-year period, its reception by the inspector accorded with the relevant procedural rules and normal practice applicable to section 195 appeals. The evidence was received, considered and relied on by the inspector in deciding to allow Mr Cordani’s appeal. It followed that no procedural irregularity occurred when the inspector accepted and considered this additional evidence.

[38]WCC’s grounds for resisting the appeal. WCC’s principal ground for rejecting Mr Cordani’s original application had been that Mr Cordani had submitted insufficient evidence to satisfy it of the claimed user over a ten-year period. WCC’s principal ground for resisting the appeal was that the totality of the evidence showed that the claimed use had continued for ten years but Mr Cordani was not entitled to be issued with a CLEUD confirming its lawfulness because that user was not continuous. This change of tack arose after WCC had considered Mr Cordani’s further evidence to the evidence that it had considered originally. Having done so, it was obviously entitled to change its ground for contending that a CLEUD should not be issued.

[39]On seeing and considering Mr Cordani’s further evidence, WCC’s changed its ground of objection. It accepted that that the totality of the evidence showed that the contended for use of pavement furniture had occurred over the ten-year period in question but still objected to the issue of a CLEUD on the grounds that the nightly and seasonal removal of the tables and chairs from the pavement prevented the restaurant establishing a lawful user of the pavement in connection with its restaurant use. WCC was clearly entitled to change its basis of objection to take account of Mr Cordani’s further evidence.

[40]WCC’s second change in its grounds of application. A second change of position has now occurred in WCC’s grounds in support of this application. This change has occurred because the inspector rejected its submissions and concluded that a CLEUD should be issued because the repeated clearing of pavement furniture from the pavement when the restaurant was closed did not amount to significant interruptions in the continuity of the restaurant’s use of the pavement. In the light of those findings, WCC now contends that the resulting CLEUD should contain a detailed description of the restaurant’s use of the pavement that included the months, periods and days in the year when the restaurant was closed, the days when, despite the restaurant being open, the furniture was not placed on the pavement, the time or times of day that the furniture was put out and taken in and the number of tables and chairs that were placed on the pavement when the pavement furniture was placed there. WCC’s contention is that the inspector’s failure to record these facts had resulted in the recognition of a user as lawful which was more extensive than the actual user that was operated and which made it much more difficult to enforce against if that user intensified or changed in the future.

[41]WCC is entitled to advance its application on these grounds since they amount to a claim that the inspector’s order was not within the powers of the TCPA and had not complied with the law and were, in consequence judicially reviewable, albeit in the form of a statutory section 288 appeal.

[42]Conclusion – preliminary procedural objections. The procedure that was adopted and the grounds now being advanced in support of WCC’s application are in conformity with the law and practice of section 195 appeals and 288 applications. In summary:(1) Mr Cordani was entitled to submit further evidence when advancing his section 195 appeal since the appeal was one of fact and his proposed submission of further evidence conformed to the practice applicable to its admission in such appeals.

(2) WCC was, in consequence, entitled to change its grounds of objection having considered and taken account of the further evidence.

(3) WCC was also entitled to advance a new public law ground of challenge to the inspector’s decision, being a contention that the inspector’s issued CLEUD was not in conformity with the requirements of section 191, was not within the powers of the TCPA and did not comply with relevant requirements applicable to the contents of CLEUDs.

(4) WCC’s further objections could be raised on the hearing of is section 288 application even though they had not previously been advanced to the inspector since he was obliged to comply with the law even if he had not previously been addressed by the parties on the relevant legal issues in their submissions. (3) WCC’s submissions

[43]WCC’s principal objection to the inspector’s decision and CLEUD was that the restaurant’s certified lawful use of the pavement set out in the CLEUD was wider and more extensive than the use that was justified by his findings of fact. It was contended that the use was defined in unduly general terms which would permit the placing of unlimited amounts of furniture on the pavement at all times of the day and night continuously throughout the year. In other words, the CLEUD failed to define periods of time during the year when, and the hours between which, the restaurant was closed and the intensity of the pavement furniture use of the pavement.

[44]Had the certificate been worded to reflect the inspector’s findings of fact or the findings that he should have made on the basis of the evidence that was submitted to him, it would have limited the numbers of tables and chairs that could be sited on the pavement and limited their presence on the pavement to the opening hours of the restaurant and to the seasons, periods or days of the year when the restaurant had in fact used the pavement during the ten-year qualifying period of unlawful use.

[45]It followed that the decision contained two errors of law. It misapplied the burden of proof in relation to the finding that the restaurant’s use had occurred “without a break” and it granted a certificate which described a more extensive use than the use that had occurred and did so in general rather than in specific terms thereby precluding the effective monitoring, control and enforcement of any unlawful intensification of the siting of pavement furniture on the adjacent pavement. (4) Secretary of State and Mr Cordani’s response submissions

[46]Mr Lewis and Mr Clay, respectively counsel for the Secretary of State and Mr Cordani, provided admirably clear written and oral submission. Since these were complimentary, I will summarise them collectively.

[47]The principal submission was that WCC’s submissions overlooked the inspector’s finding of fact that the use, as described in the verbal formulation set by WCC, was not in general terms but confined the use of pavement furniture to a specific and defined area “in connection with the existing restaurant”. That formulation was sufficient in law to describe the existing use and was one that was supported by the evidence put forward by Mr Cordani that was adopted by the inspector whose findings are now accepted by WCC. The authorities showed that it was not necessary to define an existing use in great detail and to identify the specifics of that use in terms that involved the detailed nature of a particular use. In this case, it was not necessary for the CLEUD to provide such details as the numbers of tables and chairs that could be sited on the pavement, the hours between which the pavement furniture could be used, the nature of the weather that precluded external siting of the pavement furniture and the seasons or periods of the year when external siting did not take place and was not therefore permitted. These matters were defined with sufficient particularity by the formulation of use set out in the CLEUD issued by the inspector since that formulation corresponded to and clearly defined the use that had been acquired by the restaurant of the pavement that was the subject of the CLEUD.

[48]It was also contended on behalf of the defendants that the inspector had not, erroneously, reversed or inverted the burden of proof when reaching his finding that the restaurant’s use of the pavement had been continuous and had not erred in failing to define the use of the pavement that was lawful by incorporating as limitations on that use the times and periods of non-use and the intensity of use of the pavement. The certificate, as worded, accurately and clearly reflected the limitations of use inherent in the restaurant’s use of the pavement and there was no requirement for that use to be defined in any greater detail than was provided by the agreed formulation.

[49]Furthermore, there was no need to specify the use in any greater detail in order to enable any impermissible intensification of that use to be controlled. This was because that use could be intensified with impunity since any intensified use would still be a permitted restaurant use that fell within, and was permitted by, Class A3 of the UCO. The basic flaw in WCC’s submissions was that they erroneously elided activity on site, being the physical use of the pavement furniture, with the planning use of the site, being the nature and type of use that was permitted there by the planning legislation.

[50]In conclusion, the respondents submitted that the inspector could not be faulted for not redrafting the formulation of use he had incorporated into the CLEUD that he had issued. He adopted the formulation that had been drafted by WCC in its refusal decision, he was not asked to consider a more detailed formulation, his formulation was consistent with the advice provided by Circular 10/97 on how to word a LDC and it equated with the findings of fact that he had found which WCC accepted and was not challenging in this application. (5) Relevant legal principles

[51]Introduction. Section 191 and Circular 10/97. The relevant law relating to the issue of and any permissible challenge to the CLEUD is to be found in section 191 of the TCPA and the guidance as to the content of a CLEUD that is contained in Annex 8 to Circular 10/97. The relevant provisions of section 191 state:

“Certificate of lawfulness of existing use or development. (1) If any person wishes to ascertain whether— (a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter. (2) For the purposes of this Act uses and operations are lawful at any time if— (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if— (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force. (4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (5) A certificate under this section shall— (a) specify the land to which it relates; (b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use, operations or other matter to be lawful; and (d) specify the date of the application for the certificate. (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”

The relevant provision contained in the UCO SI 1987/764. This amended Class A3 definition was inserted by the Town and Country Planning (Use Classes) (Amendment) (England) Order 2005 (SI 2005/84), article 3 with effect in relation to England only from April 21, 2005. This amended definition narrowed the Class A3 category which had previously applied to restaurants and fast food outlets so that it now only applies to restaurants. is as follows:

“Restaurants and cafes Class A3. Use for the sale of food and drink for consumption on the premises” (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter. (2) For the purposes of this Act uses and operations are lawful at any time if— (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if— (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force. (4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (5) A certificate under this section shall— (a) specify the land to which it relates; (b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use, operations or other matter to be lawful; and (d) specify the date of the application for the certificate. (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”

Class A3. Use for the sale of food and drink for consumption on the premises”

[52]The relevant provisions of Circular 10/97 are as follows:

“The content of a LDC under section 191 8.16 Subsection (5) of section 191 provides for certain matters a LDC must contain. The LDC is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site-plan); precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when. For example, if a certificate is for a use of land - unless the use falls within one of the "use classes" specified in the UCO current at the time, or the certificate is granted on the basis that a specific grant of planning permission confers, lawfulness on the use it is important for it to state the limits of the use at a particular date. These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date, against which any subsequent change may be assessed. If the use subsequently intensifies, or changes in some way to the point where a "material" change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A LDC must therefore be precisely drafted in all respects. … 8.17 By virtue of section 191(5)(b), a LDC must include a description of the use, operations or other matter for which it is granted regardless of whether the matters fall within a "use class" of the UCO. But where within a "use class", a LDC must also specify the relevant "class". In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously. This is particularly important for uses which do not fall within any "use class" (that is, a "sui generis" use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the use then took place. 8.18 Paragraph 8.16 above explains, in principle, why so much detail may need to be provided, first by the applicant when applying for the LDC, and then in the certificate itself. Some further illustration may be helpful to LPAs and prospective applicants. 8.19 One obvious example requiring such detail would be the case of an unauthorised building substantially completed more than four years ago and in respect of which a LDC is sought. The application, and any LDC, should identify the location and form of that building (which may be on a site with a number of similar buildings) with sufficient precision to ensure that it cannot be confused with any other building on the site, either at the application date or in future. This minimises the possibility of its being confused with any new building which might subsequently replace it in the same position on the site. Identification will usually best be in the form of a scaled plan or plans and whatever additional descriptive material is necessary to describe the building's siting, design and appearance, including accurate drawings of the building's elevations. 8.20 Equally, a LDC for a vehicle park, used in the past only for parking motor cars, should specify that limitation (assuming the LDC derives from ten years' unauthorised use rather than from a planning permission). Then, if the land is subsequently used for parking articulated lorries or coaches, which might have such an impact on amenity of the surrounding area, in planning terms, that a "material" change in the character of the use occurs, the LPA would be able to control it. 8.21 It is generally accepted that any "sui generis" use which is not in a "use class" in the UCO, such as a builder's yard or many haulage depots, can be "materially" different in planning terms from another use which nevertheless falls within the same general description. In other words, there can be a "material" change of use requiring planning permission between, for example, one builder's yard use, or a particular use as a haulage depot, and another. A change of ownership or occupation of land does not, in itself, constitute a material change of use. However, where a builder's yard has only in the past been used by a small jobbing builder for his office, and as a base for one or two vehicles and storing building materials, unless that detail and level of use are specified in the certificate (or by condition or limitation in a permission on which the LDC is based), the LPA will lack effective control in future over any significant intensification of the use (perhaps by a building contractor who introduces the storage of heavy plant and machinery, the mixing of concrete and the manufacture of joinery items on to the land). Such an intensification, though arguably constituting a "material" change of use from the former use, could not be controlled if the site benefited from a LDC which stated that it was lawfully "a builder's yard", without further qualification. 8.22 Where a LDC is granted for one use on a "planning unit" which is in mixed or composite use, that situation may need to be carefully reflected in the certificate. Failure to do so may result in a loss of control over any subsequent intensification of the certificated use if it extends to the whole of the land comprising the planning unit, to the exclusion of the other uses formerly taking place on some of the land (see Wipperman v Barking LBC [1965] 17 P&CR 225, DC. ).”

[53]It follows from these provisions that:(1) Anyone who wishes to ascertain whether an existing use of land is lawful may apply for that purpose to the local planning authority specifying the land and describing the use in question.

(2) A use is lawful if no enforcement action can be taken in respect of it because the time for taking enforcement action has passed and it does not constitute a contravention of any enforcement notice then in force.

(3) If a local planning authority is provided with information satisfying it of the lawfulness at the time of the application of the use described in the application or a description substituted by it, it shall issue a certificate to that effect and in any other case it shall refuse the application.

(4) A certificate shall specify the land to which it relates; describe the use in question; give the reasons for determining the use to be lawful and specify the date on which the application had been made for that certificate.

(5) The lawfulness of any use for which a certificate is in force shall be conclusively presumed.

[54]The inspector correctly reminded himself that, to be lawful, the unauthorised change of use had to have continued actively throughout the ten-year period leading up to the date of the application on 5 March 2010. In order to see whether Mr Cordani had proved that the restaurant’s use of the adjacent pavement had been continued actively, he considered whether there had been any significant interruption in that use. It was accepted by both parties that that was the correct test for him to have applied in this case. (6) Discussion

[55]Inspector’s decision. The inspector reminded himself that what he had to decide was an issue of mixed fact and law with the burden of proving the facts resting on Mr Cordani on the balance of probabilities. He concluded that the two statutory declarations from Mr Mario Inzani and his nephew, who between them had been hands-on owners of the restaurant continuously since 1991, and the four witness statements of those with personal knowledge of the restaurant for more than the relevant ten-year period that the restaurant had used the adjacent pavement continuously and without significant interruption to site its pavement furniture showed that that use had continued actively and continuously for the entire period having started as an unauthorised material change of use.

[56]Basis of WCC’s challenge to the CLUED. WCC’s challenge can be summarised as follows:(1) The inspector’s finding that the use of the pavement to site pavement furniture was not interrupted had resulted from an erroneous application of the burden of proof.

(2) The periods when the furniture was not sited on the pavement could not in law form part of the restaurant’s use of the pavement in connection with its restaurant business use.

(3) The inspector had erroneously failed to identify the permitted intensity of use even though that use had intensified when the restaurant had sited more than two tables and chairs on the pavement and in siting up to six tables and thirteen or more chairs there.

(4) The CLEUD erroneously defined the permitted use in general rather than specific terms so as to define the relevant use in more extensive terms than the inspector’s findings of fact had identified.

[57]Interrupted manner of use – overnight interruptions. The inspector found that the use of the pavement throughout the relevant period involved siting tables and chairs there when the restaurant was open and taking them back into the restaurant for storage and safe keeping when it closed for the night. He also found that that practice was a necessary and normal routine of most restaurants operating an al fresco on-site eating facility. He pointed out, in support of this conclusion, that WCC’s application form for that had to be used by a restaurant when applying for a TCL asked questions as to the hours during which the applicant intended to site pavement furniture on the pavement and where that furniture would be stored when not in use. This showed that WCC accepted that intermittent overnight storage of pavement furniture was a necessary feature of the type of use in issue in this case. Similar considerations would apply to holiday periods or other occasions of a temporary nature when the restaurant was closed for business.

[58]These conclusions rely on and are supported by this dictum of Schiemann LJ in Secretary of State for the Environment and Holding v Thurrock Borough Council [2002] J.P.L. 1278, CA at paragraph 28. :

“28. I accept Mr Corner’s [counsel for the Secretary of State] point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on – because it is the week-end or the factory’s summer holiday for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr Hockman’s [counsel for Mr Holding] submission that enforcement action can be taken once the new activity which resulted from the material change of use of land has permanently ceased. I accept that there will be borderline cases where it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others.”

[59]“Seasonability of use”. The clear, independently corroborated and unchallenged evidence considered by the inspector was that the use of the pavement was uninterrupted. WCC alleged that this finding had been based on an inversion of the burden of proof since the inspector, having referred to this body of evidence, went on to state that “there is no clear evidence to suggest that significantly longer breaks [than overnight ones] occurred”. The submission was misplaced. The burden of proof that the inspector had to apply had to be applied to the totality of the evidence from both parties. The inspector, in the passage that I have quoted from the decision letter, was merely explaining that all the evidence he had received was to the effect that the restaurant’s use of the pavement for its restaurant business was continuous and he had received no evidence to contradict that positive and unequivocal evidence. He therefore concluded, taking the evidence in the round, that Mr Cordani had shown on the balance of probabilities that there had been no significant interruptions in the restaurant’s use of the pavement.

[60]WCC contended that that conclusion was, in effect, perverse since the two statutory declarations had been shown to be unreliable given their assertion that the siting of pavement furniture was “without a break” whereas it was admitted that it was subject to repeated overnight breaks. Moreover, it was inherently improbable that the pavement furniture had been left out on the pavement in cold and inclement weather. Finally, the restaurant’s website had stated:

“Outside Seating: Yes (during summer months)”

. This showed that the use of the pavement had only occurred seasonally during the limited number of summer months.

[61]These submissions were misplaced. The inspector had found that the evidence was to the effect that the pavement furniture had been provided on the pavement continuously for customers’ use for at least ten years and that overnight interruptions were a normal and accepted part of that provision so that the statutory declarations were accurate in what they stated. As for non-siting of pavement furniture during cold and inclement weather, these were not periods relied on by WCC and, in any case, were similar to other periods of inactivity, such as holiday periods and periods of enforced closing or lack of demand which are clearly part of, and incidental to, restaurant use. Finally, the website entry did not state that the pavement was not used at all during the non-summer months. In other words, the website admission, if it be such, was not stating anything about non-summer use or non-use and no deductions could reasonably be made about non-use in the non-summer months from the statement that referred only to use in the summer months. Moreover, as the inspector found as a fact, any conclusion about non-summer months usage based on the website entry has been countermanded by the evidence of the six witnesses with first-hand knowledge of the restaurant’s use of the pavement that had been submitted to, and relied on by, him in making his findings of fact. These findings were fully supported by the evidence that he had to consider and were unimpeachable.

[62]Intensification of use. There is nothing to the objection that the CLEUD did not define the hours of permitted use or the amount of pavement furniture that could be sited on the pavement so that the use that was certified was greater and more extensive than the unauthorised use that had acquired immunity. The area could only be used for siting pavement furniture when the restaurant was open for business since it could only be used in connection with the restaurant. Further, pavement furniture could only be sited in the clearly defined area of adjacent pavement so that the number of tables and chairs that could be used is limited to the maximum number that can safely and reasonably be placed on the area for use by the restaurant’s customers. However, the restaurant can site any lesser number of tables and chairs so long as that smaller number is used for restaurant purposes. The restaurant could not, for example, stack or store tables or chairs on the pavement and could not use so many tables and chairs that its customers were crammed unsafely and inconveniently around the tables so that they could not conveniently eat at the tables.

[63]A further reason for rejecting WCC’s submission is that intensification of use is permitted where, as here, the use falls within a use class defined by the UCO unless the intensification is of such an extent as to constitute a material change of use of the use in question. Only then will the certified use cease to be the use provided for in the relevant UCO Class. Such cases will rarely be encountered in practice. This is made clear by dicta in Brooks & Burton Ltd v Environment Secretary

[1977] 1 WLR 1294

, CA at page 1306. See also the commentary to paragraph 8.16 of Circular 10/97 paragraph 4-1407 of the Planning Encyclopaedia (December 2006 release) to the same effect. where Lawton LJ in delivering the judgment of the court stated that intensification of use or a change in the degree of use of a user within a use class can amount to a change of use if that intensification amounts to a materially different use. This occurrence will depend on the fact and degree of the change that has resulted from the intensification and the decision that a material change of use has occurred is one of mixed fact and planning judgment by the decision-maker.

[64]The definition of the use that is provided in the CLEUD confined that use to restaurant use provided for by Use Class A3. Thus, any number of tables and chairs could be sited in the demarcated area so long as the number of tables and chairs in use did not exceed the number that could be accommodated on that area for use for normal and safe on-site eating.

[65]Description in general rather than specific terms - Class A3 use. The inspector had to include a description of the use in the CLEUD that he issued. He not surprisingly adopted the use description that WCC had settled when refusing Mr Cordani’s application, being a slightly modified wording to that put forward in that application. He therefore described the use as “The use of the public highway for the placing of tables and chairs in an area measuring 1.5m x 3.25m in connection with existing restaurant.”

[66]Although the CLEUD does not specifically refer to Class A3 of the UCO, it describes the use as being “in connection with the existing restaurant”. These words must be construed in their context, which includes the enforcement provisions of the TCPA and the definition of permitted uses provided by the UCO. When construed against that background, these words are clearly and obviously referring to the restaurant use provided for in Class A3 of the UCO. Thus, although the words used to defined the use being certified do not incorporate the words “Class A3”, they nonetheless followed the guidance set out in paragraph 8.17 of Circular 10/97 since, in its context, the phrase “existing restaurant”, was referring to the restaurant use covered by Class A3 of the UCO. This class covers use as “restaurants and cafes” and the UCO defined that use as being “use for the sale of food and drink for consumption on the premises”. In consequence, the definition of the relevant use contained in the CLEUD conformed to the guidance contained in Circular 10/97 the effect of the wording used in the CLEUD was to specify the relevant class of use as Class A3 Restaurant use, that wording was, in context, more than a title or label and it defined the use unambiguously.

[67]Use definition did not correctly describe the use that had been found to have occurred. This submission was based on WCC’s erroneous understanding of the nature of the use that was certified in the CLEUD.Although WCC settled the definition of use in its refusal decision as being a use of the pavement “in connection with the restaurant”, it did not consider that the use was a restaurant use but was instead the more limited and specific use of placing tables and chairs owned by the restaurant on the pavement. WCC’s understanding that that was the use that the restaurant was making of the pavement was demonstrated by the wording of the delegated report prepared by WCC’s case officer for use in deciding Mr Cordani’s section 191 application. The report described the use in question as being the “use of the public highway for the placing of tables and chairs” rather than its use as being for “the placing of tables and chairs for use in connection with the restaurant”. Further confirmation that WCC misunderstood the nature of the restaurant’s use of the pavement as being the more limited use of placing pavement furniture on the pavement was confirmed by WCC’s written representations that it submitted to the inspector. These also referred to the relevant use as being “the use of an area of the public highway for the placing of tables and chairs.”

[68]If WCC had been correct in understanding that the use in question was confined to siting pavement furniture on the pavement, the words defining that use in the CLEUD as being the use of pavement furniture “in connection with the restaurant” would not be defining the use being made of the pavement but would instead be describing the tables and chairs that were being used as being pavement furniture that was owned by the restaurant. However, these words when objectively interpreted did not bear that limited meaning so that the type of use that the inspector was certifying was use in connection with the restaurant and not the use of the pavement to site pavement furniture.

[69]WCC’s mistaken view of the use in question arose because it appears to have considered that the use that is referred to in section 191 of the TCPLA and in the UCO was a reference to the activity that was being undertaken on or in a particular planning unit at a particular moment in time. However, “use” in planning terms is a reference to the use being made of a particular planning unit may be put rather than a particular activity being carried out. In other words “use” in a planning sense is a shorthand description of everything that may be performed on or in the planning unit on the date in question and is not confined to the particular activity or manner of performing the use in question.

[70]Had the definition of use contained in the CLEUD merely been the siting of pavement furniture on the pavement, it would have been impermissible to lay up the tables and permit customers to sit there eating a meal or to have used tables with benches rather than with chairs or to have moved the tables and chairs off the pavement for safekeeping when the restaurant was closed yet all these activities were clearly permitted and formed an integral part of the use being made of the pavement.

[71]It follows that the CLEUD’s definition of use, was correctly geared to the inspector’s findings of fact by linking the siting of tables and chairs on the pavement with their use as restaurant furniture by the restaurant in connection with its existing Class A3 restaurant business at the adjoining restaurant premises. No further or more extended definition was required since it was clear from the definition that was used that pavement use was permitted but not required whenever the restaurant was open and that use continued and was not interrupted when the pavement was cleared of pavement furniture. The use was confined to the defined area and was for any number of tables and chairs so long as the number used permitted normal safe restaurant use without discomfort or overcrowding. No further words were, in consequence necessary and the definition that was used conformed to the inspector’s findings of fact and to the advice contained in Circular 10/97.

[72]Conclusion – issue 1. The CLEUD clearly and correctly defined the use of the pavement in the same terms as the use that had acquired immunity. The defined use was not therefore a more extensive use than the immune use that was being certified as lawful. Furthermore, there had been no significant periods of interrupted use throughout the qualifying period and such interruptions as had occurred were found by the inspector to have been interruptions that could naturally arise when the pavement was being used in connection with the restaurant. His findings were based on a correct application of the burden of proof and were well within his margin of discretion as a fact-finder. All the inspector’s findings concerned with the restaurant’s use of the pavement were findings of fact and the decision and the wording of the CLEUD involved no errors of law.

[73]The challenge under issue 1 fails. E. Issue 2 - Failing to apply to the Secretary of State’s own policy on the drafting of CLEUDs

[74]WCC’s challenge. Issue 2 is concerned is concerned with WCC’s contention that the CLEUD was not drafted with sufficient particularity even if it described in general terms the lawful use that was being certified. The challenge focused on the ministerial guidance set out in Circular 10/97 and, in particular, the guidance as to best practice to be followed when drafting the form and content of the definition of the use being certified by a CLEUD. WCC contended that the inspector failed to have regard to or to follow the guidance contained in paragraphs 8.16 and 8.17 of Annex 8 of the Circular in not amending the wording identifying and defining the use being certified. WCC also contended that the definition should have included within it reference to the hours during which the restaurant was permitted to site the pavement furniture on the pavement, the periods of the year when no use could be made of the pavement and the numbers of tables and chairs – or at least the maximum numbers of tables and chairs – that were permitted to be sited on the pavement when it was being used for restaurant purposes.

[75]Discussion. It is first helpful to set out again the relevant parts of the guidance that it is contended were not followed and to compare those passages with the definition of use that was settled by WCC and adopted by the inspector. The relevant parts are as follows:(1) Area of land Guidance, paragraph 8.16 “It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site-plan).” CLEUD definition “… the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto and cross-hatched in black on the hand-drawn plan [Plan 1] and within the area shown edged red on the OS-based plan [Plan 2] attached to this certificate …”. The certificate clearly and carefully complies with this guidance.

(2) Precise details of use Guidance, paragraphs 8.16 and 8.17 “… precise details of what use, operations or failure to comply with a condition are found to be lawful.” CLEUD definition “Use of the public highway for the placing of tables and chairs in an area measuring 1.5m x 3.15m in connection with the existing restaurant.” Guidance, paragraph 8.16 “It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site-plan).” CLEUD definition “… the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto and cross-hatched in black on the hand-drawn plan [Plan 1] and within the area shown edged red on the OS-based plan [Plan 2] attached to this certificate …”. Guidance, paragraphs 8.16 and 8.17 “… precise details of what use, operations or failure to comply with a condition are found to be lawful.” CLEUD definition “Use of the public highway for the placing of tables and chairs in an area measuring 1.5m x 3.15m in connection with the existing restaurant.” (3). Unambiguous description of the characteristics of use Guidance, paragraphs 8.16 and 8.17 “For example, if a certificate is for a use of land - unless the use falls within one of the "use classes" specified in the UCO current at the time, or the certificate is granted on the basis that a specific grant of planning permission confers, lawfulness on the use it is important for it to state the limits of the use at a particular date. … By virtue of section 191(5)(b), a LDC must include a description of the use, operations or other matter for which it is granted regardless of whether the matters fall within a "use class" of the UCO. … In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously.” CLEUD definition incorporating Class A3 – restaurant definition “… on 5 March 2010 … the use of the public highway for the placing of tables and chairs … in connection with existing restaurant … [use for the sale of food and drink for consumption on the premises].” The description of use defines the use that is lawful and permitted by the CLEUD fully, clearly and unambiguously. The description incorporates by necessary implication the UCO definition of restaurant use See paragraphs 65 – 66 above. and, when this composite definition is read with the plans attached to the CLEUD, the limits of the lawful use being certified are clear and unambiguous and do not require any additional wording. 78. The limits of that use were that the pavement furniture could only be used on the pavement when the restaurant was open and only in the same way as that furniture was used in the restaurant. Thus, if the restaurant was closed overnight, for holidays or for holiday periods or if there was no demand for pavement sitting at a time when the restaurant was open or it was not possible to use the pavement because of inclement or wintery weather conditions or because the pavement was being repaired or for any other reason that public parts of restaurants are sometimes closed or not in use for, the pavement furniture could be stored within the restaurant whilst the pavement restaurant use continued. This was because, as the inspector found, such ways of using the permitted use did not interrupt that use and because the pavement was ready and available for use at any time that the restaurant was open. Moreover, restaurants with open-air eating facilities were usually operated in this way. (4) Description by reference to a UCO use class Guidance, paragraph 8.16 “But where within a "use class", a LDC must also specify the relevant "class". … In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided.” CLEUD definition See under

(3) above. Guidance, paragraph 8.16 “But where within a "use class", a LDC must also specify the relevant "class". … In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided.” CLEUD definition See under (3) above. (5). Definition enables unlawful intensification of use to be controlled Guidance, paragraph 8.16 Guidance, paragraph 8.16 80. “These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date, against which any subsequent change may be assessed. If the use subsequently intensifies, or changes in some way to the point where a "material" change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A LDC must therefore be precisely drafted in all respects. …” CLEUD definition See under (3) above. For the reasons set out under (3) above, this definition was sufficient and more than simply a title or label.

[76]WCC’s contention that the present definition fails to give effect to the use found to exist in fact needs to be turned on its head. If the definition was of the kind and couched in the terms now contended for by WCC, the defined use would be unduly restricted and would not give effect to the facts found by the inspector. On the basis of his findings, that use does not limit the hours during which the pavement furniture may be placed on the pavement to particular hours but to the more flexible requirement that that use is limited to the times that the restaurant is open. Similarly, the use is not confined to particular periods of the year or to a maximum number of tables and chairs save that the number may not exceed what is reasonable and safe for restaurant use on the defined rectangular space that was defined in the CLEUD. These aspects of the use are governed by the restaurant’s flexible use of its facilities that are permitted by restaurant Class A3 use. All these matters are sufficiently clearly spelt out by the present wording.

[77]Conclusion – issue 2. The challenge under Issue 2 fails. F. Issue 3 - Failing to give sufficient reasons to explain why he was satisfied that the use was in continuous use for tables and chairs, and could be described in such general terms, notwithstanding the legal principles and the Secretary of State’s policy.

[78]WCC’s challenge. WCC contended that the inspector’s decision fails to give adequate reasons for issuing the CLEUD in the very general terms that it contended that the certificate had been issued in. It contended in particular that the decision failed to resolve an issue of fact, being the only controversial issue between the parties, namely the hours and dates of use of the site for the placement of tables and chairs.

[79]The issue may be summarised in this way. WCC contended that the inspector failed to explain:(1) Why he found that the restaurant, in bringing the pavement furniture into the restaurant and storing it there overnight did not amount to interrupted use and was a normal incident of restaurant use.

(2) Why he rejected the evidence that the restaurant’s use of the pavement was seasonal, confined to the summer months and, in consequence, significantly interrupted

(3) Why he did not follow the approach to the drafting of the definition of use recommended by paragraphs 8.16 and 8.17 of Circular 10/97.

Guidance, paragraph 8.16

[80]Discussion. None of these contentions has any validity. This is because, as has already been explained in this judgment:(1) The evidence showed, as the inspector found, that the pavement furniture had been used by the restaurant in connection with its business and was not merely used by being placed on the pavement. That furniture was taken into the restaurant for safe keeping whenever the restaurant was closed as a normal feature of restaurant use of pavement furniture,. The evidence showed that the restaurant used its pavement furniture in this way not only when the restaurant closed for the night but also when it closed for other reasons such as for holidays and when customer demand did not require the use of the external pavement facilities.

(2) These findings were based on the six separate witness statements provided to the inspector. These included independent corroborating evidence and all these statements were to the effect that the restaurant’s use of the pavement was continuous. There was no evidence to the contrary save an ambiguous and inconclusive statement on the restaurant’s website which the inspector placed no significant weight upon given the six clear and unequivocal statements to the contrary.

(3) Since the relevant use was in connection with the restaurant’s business, the use of the pavement was subject to fluctuation but was also subject to the overriding requirement that the use could only be, but need not necessarily be, taken advantage of whilst the restaurant was open for business. Moreover, as part of that use, the restaurant was entitled to forgo it without losing it when the pavement was not actually needed by its customers. When it was not needed, the pavement furniture could be stored inside the restaurant premises.

(4) The guidance set out in Circular 10/97 was followed.

(5) These conclusions are derived from the reasons provided by the inspector which were, in consequence, clear and sufficiently reasoned.

[81]Conclusion – issue 3. The challenge under Issue 3 fails. G. Overall Conclusion and Decision

[82]WCC’s application fails and is dismissed. HH Judge Anthony Thornton QC