Planning & Environment

In keeping with the lukewarm Scottish summer we’ve been enjoying, a recent DPEA decision (CLUD-260-2005) offers a timely, if seasonal, reminder about what amounts to ancillary use.

Nardinis of Largs operate an ice-cream parlour on Byres Road, Glasgow. It has takeaway and sit-in options for customers. It was agreed that the parlour fell within Class 1 retail use and it had a certificate of existing lawful use from 2009 permitting tables for 18 covers as an ancillary use.

Since 2009, the amount of customer seating within the shop had increased. An enforcement notice was served in September 2014, which Nardinis appealed seeking a new certificate of lawful use.

The key issue at appeal was whether the use of the premises for sit-in customers (now tables for around 30 covers) could properly be considered an ancillary use to the parlour’s main use as Class 1 retail or whether the scale of the operation was such that it was truly a separate Class 3 food and drink use.

In reaching his decision that the level of use for sit-in customers did amount to a separate Class 3 use, the Reporter focused on the fact that the tables occupied virtually all of the front shop area. It did not matter that the turnover generated by sit-in customers was considerably less than from takeaway sales.

Arguably an increase in 12 covers – perhaps three or four additional tables – is not particularly significant. The case also emphasises, however, the very limited protection offered by an existing certificate of lawful use if there has been any change from its terms.

Victoria Lane

Senior Solicitor at Brodies LLP
Victoria is a senior solicitor in the Planning team. She has worked on a broad spectrum of transactions, gaining experience of working for landowners, developers, local authorities and other public sector bodies. Victoria has worked on a variety of projects, including the acquisition of a shopping centre, a quarry planning permission appeal, a wind met mast appeal, and proposals for planning restrictions on pay day lenders.
Victoria Lane