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.
© MARTIN H GOODALL