A Westminster restaurant has been given the High Court go-ahead to continue providing seating for customers on the outside pavement despite objections from Westminster City Council.
In a test case ruling Judge Anthony Thornton QC rejected a claim by Westminster City Council that a Government planning inspector was wrong to find that Julian Cordani, owner of the Demartino Italian restaurant at 196–198 Great Portland Street, W1, had acquired the right to outside seating, even though the chairs and tables are taken inside when the restaurant is closed.
Following the Council’s refusal to grant a Certificate of Lawful Existing Use or Development (CLEUD) confirming this right, Cordani appealed successfully to the inspector, claiming the restaurant has used seats and tables on the pavement of Great Portland Street for more than 20 years. The inspector granted a CLEUD, finding that Cordani had acquired a right to keep them.
The inspector found that the fact that the tables and chairs were taken in each night did not constitute a "significant interruption" of the use of the area of pavement outside the restaurant.
However, the Council challenged that decision, arguing because the tables and chairs were taken in at night they were not there for ten years without a break and did not therefore qualify for immunity from planning control.
Rejecting the Council’s case, the judge said: “The inspector had found that the evidence was to the effect that the pavement furniture had been provided on the pavement continuously for customers’ use for at least ten years and that overnight interruptions were a normal and accepted part of that provision.
“Furthermore, there had been no significant periods of interrupted use throughout the qualifying period and such interruptions as had occurred were found by the inspector to have been interruptions that could naturally arise when the pavement was being used in connection with the restaurant. His findings were based on a correct application of the burden of proof and were well within his margin of discretion as a fact-finder.”