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Can you extend the use of a restaurant to a drinking establishment and nightclub?

You may not think that allowing customers who are not eating to drink in your restaurant is a change of use. What about hosting live bands? Both of these are material changes of use. If you make a material change of use without planning permission, you will be in breach of planning control and could be served with an enforcement notice.

It is possible to appeal against an enforcement notice. In this article we look at a recent Court of Appeal decision in which the owner of a restaurant sought to appeal an enforcement notice.

In July 2013, an enforcement notice was issued against the owners of a Bath restaurant. The restaurant had breached planning control by extending the use of the premises to a drinking establishment and nightclub. The enforcement notice required the use of the premises as a drinking establishment and nightclub to cease.

The owner appealed against the enforcement notice.

Section 174(2) of the Town and Country Planning Act 1990 (TCPA 1990) sets out the grounds on which an appeal may be brought against an enforcement notice. Ground (f) can be used when the steps required by the enforcement notice, or the activities required to cease, exceed what is necessary to remedy any breach of planning control or to remedy any injury to amenity which has been caused by the breach. This was the ground relied upon by the restaurant owner. Ground (a) can be used where planning permission should be granted.

Section 177 of the TCPA 1990 gives the Secretary of State the ability to grant planning permission in respect of a breach of planning control set out in an enforcement notice. However, since the Localism Act 2011 came into force, the Secretary of State can only do this, in relation to land in England, if ground (a) has been specified as a ground of appeal.

This was the issue that arose in the Bath restaurant case. Ground (a) was not put forward as a ground of appeal, but the restaurant owner was aggrieved that the inspector had not, in his review of the case, considered whether or not planning permission should be granted. The High Court confirmed that the Inspector's approach was correct, but the Court of Appeal considered the point of general importance so heard the case.

The Court of Appeal has now confirmed the position. In England, there is now no deemed application for planning permission unless an appeal has been made on ground (a).

This case does not deal with issues relating to the planning merits of the changes of use. One interesting area is that the appellant at the original appeal suggested that the number of patrons of the restaurant who would be allowed to drink but not eat at the restaurant could be limited by condition. However, the Inspector rejected this argument in part on the basis that it would be difficult to enforce such a condition. The appellant also argued that additional patrons who only drank would not be harmful to amenity but the Inspector considered that this argument was engineered by the appellant to make the planning merits of the change of use part of the defective appeal. 

The answer is not to breach planning control in the first place. Ensure that you have the necessary consents before extending the use of your premises. Some changes of use are permitted without planning permission and we can advise you of the circumstances when these "permitted development rights" will apply. It is also possible for limited activities to take place without a change of use actually occurring. This can be a difficult issue which may require careful consideration and we would recommend that you take advice before carrying out any activity that does not fall within the ambit of your existing planning permission. 

If you are served with an enforcement notice, ensure that you take appropriate legal advice so that the best outcome can be achieved in the circumstances. If you fail to appeal an enforcement notice prior to the date upon which it takes effect, you will lose your ability to challenge that enforcement notice. Failure to comply with an enforcement notice that has taken effect can lead to prosecution.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com

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