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

Factual and Procedural Background

The Applicant, Company A, sought to quash a decision by an inspector appointed by the Secretary of State for Communities and Local Government ("Secretary of State") dated 14 December 2010. The inspector allowed an appeal by the Appellant against Company A's refusal of a lawful development certificate application under section 191(1)(a) of the Town and Country Planning Act 1990 ("TCPA"). The application concerned the use of a defined pavement area in front of a restaurant located at The City for placing tables and chairs as pavement furniture in connection with the restaurant. The inspector found the use to have been continuous for over ten years, rendering Company A's refusal not well-founded.

Company A initially approved restaurant use for the premises in 1990. The premises were leased by individuals related to the Appellant who ran the restaurant business under various names since 1991. The Appellant asserted that pavement furniture had been continuously placed on the adjacent pavement area since 1991 whenever the restaurant was open, although furniture was stored indoors when the restaurant was closed. Company A had not previously enforced against this use or required planning permission for it.

The use of the pavement for al fresco dining was a material change of use requiring planning permission, which had not been sought. Company A required a temporary tables and chairs licence for such pavement use but would not grant it without planning permission. The Appellant applied for a lawful development certificate to establish the use as lawful and obtain immunity from enforcement action. Company A refused the application on the basis of insufficient evidence of continuous use over ten years.

The Appellant appealed to the Secretary of State, submitting additional statutory declarations and witness statements supporting continuous use. The inspector, after considering written submissions from both parties, allowed the appeal and granted the certificate. Company A subsequently applied to the High Court under section 288 of the TCPA to quash the inspector's decision on grounds including that the certificate exceeded the evidence, failed to apply relevant policy on certificate drafting, and lacked sufficient reasoning.

Legal Issues Presented

1. Whether the inspector lawfully issued a lawful development certificate that went beyond what the evidence supported.
2. Whether the inspector failed to apply the Secretary of State's policy on drafting lawful development certificates.
3. Whether the inspector failed to give sufficient reasons explaining satisfaction that the use was continuous and could be described in general terms despite legal principles and policy.

Arguments of the Parties

Applicant's Arguments

• The certificate granted was broader than supported by the evidence, defining the use in unduly general terms allowing unlimited furniture at all times, contrary to the inspector’s factual findings.
• The inspector misapplied the burden of proof regarding continuity of use, ignoring significant interruptions such as overnight and seasonal removal of furniture.
• The certificate failed to specify critical details like hours of use, seasonal periods, and maximum numbers of tables and chairs, undermining enforcement control.
• The inspector did not follow the Secretary of State's Circular 10/97 guidance on certificate drafting requiring precise and unambiguous descriptions.
• The inspector’s decision lacked adequate reasoning on key factual controversies, including the nature and timing of use.

Respondents' Arguments (Secretary of State and Appellant)

• The certificate’s description was sufficiently precise, limiting use to a defined pavement area "in connection with the existing restaurant," which was supported by evidence and accepted by Company A.
• It was unnecessary to specify detailed limitations such as exact hours, seasons, or numbers of furniture because the certificate reflected the lawful Class A3 restaurant use under the Use Classes Order.
• The inspector correctly applied the burden of proof, concluding continuity of use on balance of probabilities, with overnight storage of furniture being normal and not interrupting continuity.
• The certificate’s general terms were appropriate and consistent with legal principles and Circular 10/97 guidance.
• Enforcement control over intensification was not impaired because intensification within the same use class would generally not constitute a material change of use.
• The inspector gave clear and sufficient reasons, supported by multiple corroborated witness statements, rejecting Company A’s seasonal use argument based on the restaurant’s website.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the inspector’s decision and the evidence underpinning it within the statutory framework of section 191 of the TCPA and Circular 10/97 guidance. It confirmed that the certificate must specify the land, describe the use, give reasons for lawfulness, and specify the application date. The inspector correctly identified the use as the placing of tables and chairs on a defined pavement area in connection with the existing Class A3 restaurant use, a description sufficient to define the use unambiguously without excessive detail.

The court found the inspector properly applied the burden of proof on the balance of probabilities, supported by multiple statutory declarations and witness statements. The inspector reasonably concluded that overnight storage of furniture inside the restaurant and seasonal fluctuations did not constitute significant interruptions that would break continuity of use. This was consistent with established case law that temporary inactivity does not end a use.

The court rejected Company A’s contention that the certificate was too general and failed to reflect the intensity or timing of use. It held that intensification within the same use class is generally lawful unless it constitutes a material change, and the certificate’s wording allowed for reasonable use without overcrowding. The court also found no error in the inspector’s reasons, which adequately addressed the key factual disputes and followed the Secretary of State’s policy guidance.

Procedurally, the court confirmed that fresh evidence submitted on appeal was properly admitted, and Company A was entitled to change its grounds of objection accordingly. The inspector’s acceptance and reliance on this evidence were lawful and did not constitute procedural unfairness.

Holding and Implications

DISMISSED

The court dismissed Company A’s application to quash the inspector’s decision. The lawful development certificate was held to have been properly issued, accurately reflecting the lawful use of the pavement in connection with the restaurant. The decision confirms that certificates need not specify overly detailed limitations such as exact hours or number of furniture items, provided the use is clearly defined within the relevant use class and supported by evidence. The ruling clarifies the application of continuity of use principles regarding intermittent removal of pavement furniture and affirms the procedural permissibility of admitting fresh evidence on appeal under section 195 of the TCPA. No new precedent was set; the decision applies established legal principles to the facts of this case, providing guidance on the drafting and challenge of lawful development certificates.