Points for trying

An inspector has declined to grant a certificate of lawfulness for the use of a former restaurant in the west Midlands as a day nursery (both Class E uses), being unpersuaded by a novel and rather clever argument on behalf of the appellants (DCS Number 400-036-148).  

The 1995 permission carried the following condition:-

“Notwithstanding the provisions of the Town & Country Use Classes Order 1987, the premises shall only be used as a licensed restaurant and tearoom for the sale of food on the premises and for staff accommodation and not for any other purpose, including any other uses within Class A1, A2 and A3 of the above order”.

The appellants argued that the condition restricted the use of the site to a restaurant and tearoom along with staff accommodation. A breach was claimed to have occurred because the site had been operating as a restaurant only, not as a restaurant and tearoom, over a minimum period of 10 years prior to its closure. Accordingly, they considered that the condition was no longer applicable and that a change of use to a day nursery would be lawful because a restaurant and day nursery would both fall within Class E of Part A, Article 3 of Schedule 2 of the Use Classes Order.

The inspector ruled, however, having regard to the inclusion of the specific word ‘and’, that the condition did not require the operation of both the restaurant and the tearoom. The fact that the occupant of the land chose not to implement the tearoom use might, he reasoned, have been due to external factors. They were both permitted uses, within the same use class that was in place at the time, which could be operated independently from each other. Furthermore, he continued, there is no distinction, in planning terms, between the two uses and there was no evidence to show that the intention of the condition was to prevent partial implementation of the restaurant without the tearoom or vice versa. 

The inspector considered that the purpose of the condition was essentially to limit the development to that which had been sought and prevent a change in use to something that might not safeguard the amenity of the occupants of adjoining premises and provide satisfactory off-street parking. He found that the words ‘not for any other purpose’ in the condition made this clear. He concluded that the condition had no other sensible discernible purpose than to prevent some other use which might be permissible without planning permission rather than to require all of the uses applied for to be implemented. Accordingly, he determined that the use of the site had not been operating in breach of condition. The condition remained enforceable and precluded the proposed change of use. 

Points for trying, though!

Section 4.5352 of DCP Online concerns the 10-year rule and breach of conditions.