Appeal 3259254

The appeal is allowed and attached to this decision is a certificate of lawful use or development describing the existing use which is considered to be lawful.

It was not necessary for me to conduct a site visit to determine the appeal. The main parties were consulted on my intention, and did not object.

The main issue in this appeal is whether or not the Council’s decision to refuse the LDC was well-founded.

Section 191(2) of the Act provides that a use was lawful at the time of a LDC application if no enforcement action could be taken in respect of it (whether because it did not involve development or require planning permission, or because the time for enforcement action had expired, or for any other reason).

The appellant says that the appeal property has been used as a wine bar/bistro continuously since 1987, with planning permission granted for that change of use on 15 March 19881. Further he says that permission for a subsequent change of use to a community centre in December 19912 was never implemented. In effect therefore, as confirmed in his application, he is saying that there has been no breach of planning control against which enforcement could take place since the property has been continuously in use as permitted in 1988. Were he to satisfy me of this on the balance of probabilities, with sufficiently precise and unambiguous evidence, the appeal must succeed. 1 87/01402/[name] of use of the ground floor to a wine bar/bistro 2 91/00772/[name] of use to a [name] from the appellant

The appellant has submitted 20 statutory declarations from local businesses and residents all solemnly declaring that, since their local occupation, (a) they have always known the premises to have been used continuously as a drinking establishment (where hot, cold, alcoholic and non-alcoholic drinks were sold) and that to their knowledge the primary use of the premises at all times has been that of a drinking establishment; and (b) at all times they have known the premises to be open to members of the public. 4 of these declare such knowledge as far back as the year of the 1988 planning permission. 15 of these declare such knowledge in excess of 10 years before the LDC application. Even were I not persuaded of the appellant’s principal argument, this is significant since section 171B of the Act provides that, even had there been a break in use as a drinking establishment after the 1998 planning permission (for example, use as a community centre), no enforcement action could be taken after a period of 10 years following its reversion to use as a drinking establishment as a new, unauthorised, material change of use.

A Statutory Declaration is a formal statement made under the Statutory Declarations Act 1835 to affirm that something is true to the best knowledge of the person making the declaration. A Statutory Declaration must be witnessed by and signed in the presence of a solicitor, commissioner for oaths or notary public – as appears to have been the case with the submitted documents. Accordingly, they represent sworn first-hand evidence. When this factor is taken together with the large number and contents (highly pertinent to the appeal, sufficiently precise and unambiguous) I give them substantial weight.

The appellant submits in his statement that the appeal property has held an active alcohol licence since 1987, and this hasn’t been challenged by the Council despite an opportunity to do so during the appeal procedure. The Council’s Licensing records from 2014 appear to show that at that time a license was awarded to supersede the previous owner’s licence. While a premises licence does not itself entirely substantiate use as a drinking establishment for the purposes of planning (a place where the primary purpose is the sale and consumption of alcoholic drink on the premises), it is consistent with the appellant’s case and I give this consideration moderate weight.

While undated, this document says, “Since 1990, the business has been operating as a busy sports bar....”. Its weight is tempered by the nature of the document which would not necessarily be concerned with details relevant to the nuances of planning law (such as whether a significant break in use as a drinking establishment had occurred at any time). Nether the less, on the face of it, it broadly corroborates the appellant’s case and despite the above tempering I give it moderate weight.

These are undated and give no evidence as to use over any period. Accordingly, I give them no weight.

The appellant has submitted a [name] dating from 13 October 2016 for a term of 10 years from 25 March 2018.

The lease does not detail how the property is to be used, and the term in question covers less than 2 years before the LDC application date. Accordingly, I give it limited weight.

These do not substantiate use for a drinking establishment over any period, and I do not give them any weight in my decision.

The appellant has submitted a series of [name] images. Those taken in 2015, 2017 and 2019 show the property with “[name]” fascia signage, and with outdoor tables and a customer in the later photographs. An image from 2014 shows no fascia signage in place but the front door open and an ‘A board’ referring to “[name]” and advertising a range of alcoholic and soft drinks, together with bar snacks, a pool table and sport on TV. A 2012 image likewise shows no fascia signage in place, but with the property open and people apparently consuming drinks at an outside table. A 2008 image shows no outside tables and with a large fascia sign which says “[name]”.

I place significant weight on the 2012 to 2019 images as evidence of a drinking establishment due to that being the apparent character of the use, with or without the present of fascia signage.

The appellant has explained that the 2008 image shows the fascia signage of a community centre since it enabled the owner to pay lower rates, but that the character of the use was as a drinking establishment (as attested by the statutory declarations). From the image alone, I am not able to make any conclusion as to what the character of the use was in fact at that time. However, when taken together with the YouTube video from 26 December 2008 (which the Council agrees shows the inside of the premises in use as a “drinking bar”) I give this evidence in combination significant weight. Evidence from the Council

The Council has said that the appeal property has been described as a “shop and premises” in its business rates valuation records from 1 April 2010 to date, with a valuation at the site in 2017 describing the unit as a shop. However, this information appears to contradict both the evidence submitted by the appellant and the [address] images referred to by the Council in its [name] (although it did not submit the photographs as evidence in this appeal). For instance, the [name] says that the images show that the appeal property as operating as A4 between November 2015 and July 2019 as [name]. This undermines what it has said about the evidential value of its business rates records and the on-site valuation as a ‘shop’ for 2017. I therefore give this evidence limited weight.

There was a planning application approved in 2006 for window replacement to the upper floors of the appeal building. I note that, within the application, the Council has said there was no reference to the use of the premises at ground floor level. The Council says that the case officer at the time described the ground floor unit as a shop. However, it has not submitted the [name] in evidence to this appeal so I cannot make a first-hand assessment of the context in which that word was used. It is also reasonable to expect that the officer’s focus would have been professionally centred upon the operational development to the upper floors rather than the planning use of the ground floor. For these reasons, I give this evidence limited weight.

Therefore, for the above reasons, I find that the Council has no evidence itself, nor any from others, to contradict or otherwise make the applicant’s version of events less than probable and that the appellant’s evidence is sufficiently precise and unambiguous to persuade me on the balance of probabilities that the lawful use of the appeal property at the time of the application was as an A4 drinking establishment.

I conclude accordingly, on the evidence now available, that the Council’s refusal to grant a certificate of lawful use or development in respect of use as an A4 drinking establishment was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act as amended.