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The owner of The Main Course, Gullane, appealed to Scottish Ministers after East Lothian Council refused to issue a certificate of lawfulness for the use of the garden to the rear of the restaurant as an outdoor seating area.
Council planners said that the garden belonged to an upstairs flat – and not the ground-floor restaurant – even though applicant Luciano Crolla owns both properties.
Mr Crolla argued that the garden, which has been operating as an outdoor area of the restaurant since last summer and has a marquee in place, was within the red boundary line of the original planning permission to turn the ground-floor property into a restaurant issued eight years ago.
However, the Scottish Government Reporter has ruled in favour of the local authority’s view, telling Mr Crolla he has not proved his case.
He now faces having to apply for planning permission to change the use of the garden into part of the restaurant business.
Officials said that the use of the garden came to light after they received complaints about a large marquee being erected there.
They said that while in pre-Covid times planning permission would have been needed for the marquee, current guidance allowed the council to take a more flexible approach to businesses and no action would be taken until the county came out of the current pandemic.
The Reporter said he saw the marquee on a site visit as part of the appeal process and acknowledged the council’s position.
Throwing out the appeal for the certificate of lawfulness, he said: “It is not my role to determine whether enforcement action should be taken or planning permission granted for the above outdoor dining and drinking use on the appeal site or, indeed, for the marquee.”
He added: “My role is solely to determine whether the use to which the appeal site was put at the time of the application was the lawful use at that time.
“The onus is on the appellant to demonstrate, on the balance of probability, that the evidence favours their contention.
“Based on the submitted evidence, my site visit and the analysis, it fails to do so.”