Al fresco planning row

Posted: 18th January 2013

RestaurantThe owner of a central London restaurant was correctly permitted to station tables and chairs on the pavement for al fresco diners, that use having been established over a period of more than 10 years. Westminster City Council’s objections to a planning inspector’s grant of a lawful development certificate (CLEUD) to the restaurateur were dismissed by the High Court.

The inspector had reached his conclusions on the basis of ‘clear, independently corroborated and unchallenged evidence’ from eye witnesses that an area of pavement adjoining the Italian restaurant in Great Portland Street had been used by its customers for outdoor dining since the early 1990s.

Westminster argued that, as the restaurant’s use of the pavement was restricted to the summer months and tables and chairs were taken indoors at night, the use could not be said to be ‘continuous’. It was submitted that the inspector had unlawfully reversed the burden of proof in favour of the restaurateur and that the CLEUD he granted was in excessively broad terms.

However, dismissing Westminster’s appeal, Judge Anthony Thornton QC described the inspector’s decision as ‘unimpeachable’. In deciding that the restaurant’s use of the pavement had been uninterrupted, the inspector had rightly concluded that the fact that tables and chairs were taken inside for safe-keeping at night was a ‘normal feature of restaurant use of pavement furniture’.