Thursday, 6 February 2014

Hours condition dispute could close East End restaurants

A story in yesterday’s Evening Standard made me prick up my ears like an old war horse. It seems that enforcement officers working for Tower Hamlets have decided to have a crusade against the late night opening of various restaurants and take-aways in the colourful Brick Lane area of Spitalfields. I suppose it is because I am always against anything that smacks of a concerted campaign on the part of planning officers that my sympathies were immediately with the restaurant owners.

The action that the officers are purporting to take on behalf of the Council (although it has been criticised by at least one of councillor) is aimed at enforcing hours conditions requiring midnight closure of as many as 60 catering premises in the area. Having acted in a number of similar cases myself, I am aware that many of these businesses do a significant part of their trade after midnight, and they might well be threatened with closure altogether if they were forced to close by 12, especially as planning officers are apparently insisting that no orders should be taken after 11.00 p.m. and that everyone must be out of the premises by midnight.

It should not automatically be assumed that all these restaurants have the midnight closure condition on their planning permission; premises that have been open for a considerable number of years may turn out to have different opening hours specified in their permission. The wording of the conditions may also vary, and the council may not necessarily be able to insist on last orders as early as 11.00 p.m.

A local councillor has pointed out that some of these restaurants have been opening until well after midnight for 15 to 20 years. If that is so, then it would appear that any breach of a condition regulating the opening hours of those particular premises has long since become immune from enforcement and therefore lawful. If continuity of the breach over a period of at least 10 years can be shown, then it would appear that there is very little excuse for Tower Hamlets seeking to take enforcement action in such cases, and the threat of such action is frankly oppressive.

It is not clear from the report in the Standard precisely what form the threatened enforcement action will take, but (as Circular 10/97 makes clear) it is inappropriate to serve a Breach of Condition Notice in a case where there is genuine doubt as to whether there has been a breach of condition or where there is a possibility that its breach may in fact be immune from enforcement. If the Council wishes to test the matter, the appropriate mechanism would be an Enforcement Notice under section 172, which can then be tested on appeal under section 174. By contrast, there is no right of Appeal against a Breach of Condition Notice, and so judicial review would be the only way in which that type of notice could be challenged.

I very much hope that the restaurateurs of Brick Lane will stand up to the bullying tactics of Tower Hamlets Council, but to do so they will have to make good use of the legal remedies open to them.



  1. Brick Lane is a very specific example but the problem of operating hours being flouted in London is widespread and can cause misery for neighbours, particularly now that the line between restaurant and bar has become so blurred. In Lambeth licences often allow opening times as much as 6hrs after the planning condition states a venue should cease to operate. Planning are always consulted on Licence applications but to my knowledge have never objected when such a conflict arises. In my experience, most neighbours are unaware that such planning permission conditions exists and believe the only recourse open to them is to prove statutory nuisance - often a very onerous process. And where planning departments have been alerted they rarely take any action. It is about time planning departments start to enforce conditions which operators have agreed to. Of course, where long-standing breaches can be proven, they should be allowed to continue. Late night opening is an important part of London's culture but it needs to be properly conditioned so as to ensure lives of residents are not recklessly blighted by operators exploiting venues which are not properly designed, located or managed to cope the issues which often accompany late night trade. I would also like to see councils start to enforce planning conditions relating to noise not being audible outside a premises. A 'crusade' is only required because, for years, these matters have not been effectively dealt with as they arise.

  2. I know you have this totally irrational dislike of LPA planners, but they are generally not vindictive.

    The problems are that people may have complained, and that if you let people breach conditions, then as you point out they may become immune to enforcement. So opening to 01:00 for instance may be fine, and if applied for may be accepted and permitted, but if not controlled, may end up opening all night, to the detriment of people who may live nearby.

    I dont know the area well, so I wont comment on specifics. But I dont think its entirely rational to attack LPA planners for doing their job, and just assuming they are being unreasonable. They are there to represent the public interest, not the interestes of the restaurants solely.

    You may want to not be quite so reactionary.

  3. If those responsible for issuing liquor licences consider that later opening is appropriate (and such decisions are certainly not made on a whim), then maybe the planners should come into line, and adjust planning conditions to match the conditions of the liquor licence. Nowadays, both are working for the same authority!

  4. Martin

    It really is begining to seem like you do have a prejudice against LPA planners . . . But that aside I think you do have to acknowledge (as a Legal Assoc of the RTPI) that planning has SOME role in mediating public and private interests. Or do you, after all, belong to the 'planning can't ever really work' school currently led by Mssrs Pickles and Boles?

  5. You are, of course, correct to say that "there is no right of Appeal against a Breach of Condition Notice, and so judicial review would be the only way in which that type of notice could be challenged."
    However on a number if occasions I have successfully submitted an application to vary the condition in breach, and then appealed against the (prompt) refusal.
    Often, the LPA will agree to suspend the enforcement of the BCN whilst the appeal takes place.

  6. In reponse to Richard W's comment, I don’t have a prejudice against planning officers, only against those who go about their work in an officious and oppressive manner. The blanket threats made to some 60 businesses in and around Brick Lane smack of a ‘crusade’. Were there really 60 individual complaints that the officers were following up? Enforcement action should be proportionate and carefully judged after an objective consideration of all the relevant facts. There can be no objection to enforcement action being taken in appropriate cases, but I think LPAs should avoid anything in the nature of a campaign. Conwy Borough Council embarked on a similar crusade in respect of unauthorised works to listed buildings in Llandudno a year or two ago, but I believe that saner counsels eventually prevailed.