Notice aimed at takeaway use judged invalid

An enforcement notice requiring the service of takeaway food from a restaurant in east London to cease was quashed after an inspector found that the alleged breach of control was incorrect.

The notice alleged both a change of use from Class A3 (hot food) to Class A5 (hot food takeaway) and failure to comply with a condition prohibiting hot food takeaway use. At the site visit the inspector saw eight tables set out and, accordingly, could not accept the council’s claim that the unit operated simply as an A5 takeaway. On the other hand, a prominent counter and a significant area not occupied by tables suggested that takeaways were not simply ancillary as the appellant contended. Thus, it appeared to him that the unit operated as a mixed unit.

Therefore, it was important that the enforcement notice should allege a mixed use, he explained. Neither was he satisfied that the strand of the allegation concerning the breach of a planning condition was correct. This was because the condition related to the planning permission for restaurant use.

An A5 takeaway use, as alleged by the council, or a mixed use would be a new use which did not relate to the existing planning permission. Accordingly, variation of the condition would not allow such a use to take place and the breach of planning control could not therefore relate to that condition.

Quashing the enforcement notice, the inspector concluded that it did not specify with sufficient clarity the alleged breach of planning control.

Inspector: Peter Willows; Written representations

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