Planning & Environment

I was reminded that it is almost 30 years since I started my law degree at Glasgow University. I still remember a lecturer, with a twinkle in his eye, reciting the joke that in Edinburgh tables and chairs on the pavement was a cafe, but in Glasgow it was a warrant sale (like most Glaswegians, he was quite able to poke fun at Glasgow). According to Wikipedia, a warrant sale was a statutory means of collecting debts in Scotland until 2001, so the joke is past its sell-by date. Pavement cafe culture in alive and thriving in Glasgow, and throughout Scotland (although maybe only for the hardy/ smokers given current temperatures).

A pavement cafe might not seem the type of planning issue which would end up in the courts, but a recent English High Court decision illustrates the complications inherent in the concept of use in planning.

The issue was whether a restaurant had used the adjacent pavement to site table and chairs for 10 years, with the result that use was lawful and no longer required planning permission.

Quite straightforward you might think, but the planning authority (Westminster City Council) raised a number of issues, including overnight interruptions, when the furniture was moved into the restaurant for storage; seasonality of use; and intensification of use. The general thrust of their challenge was that the inspector had granted a certificate of lawful use in too wide terms.

The judge rejected the Council’s challenge. The key point was the inspector’s finding that the pavement furniture had been used by the restaurant in connection with its business. The use of the pavement fluctuated, but was subject to the overriding requirement that the use could only be taken advantage of whilst the restaurant was open for business. So it’s not about a pavement cafe, it’s “use of the public highway for the placing of tables and chairs in connection with existing restaurant.”

This shows how difficult it can be to analyse the nature of use.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar