2227375 Appeal Decision

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Appeal Decision

Inquiry held on 9 - 11 June 2015 and 12 - 14 October 2015Site visit made on 11 June 2015

by Gloria McFarlane LLB(Hons) BA(Hons) Solicitor (Non-practising)

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 14 January 2016

Appeal Ref: APP/Q5300/X/14/22273758 Lancaster Avenue, Hadley Wood, Barnet, Hertfordshire, EN4 0EX

The appeal is made under section 195 of the Town and Country Planning Act 1990 asamended by the Planning and Compensation Act 1991 against a refusal to grant a

certificate of lawful use or development (LDC). The appeal is made by Hadley Wood Jewish Community Ltd against the decision of the

Council of the London Borough of Enfield. The application Ref P14-00812LDC, dated 4 March 2014, was refused by notice dated

7 October 2014. The application was made under section 191(1)(a) of the Town and Country Planning

Act 1990 as amended.

The use for which a certificate of lawful use or development is sought is use of groundfloor as a community synagogue, with ancillary accommodation on the first floor.

Summary of Decision: The appeal is allowed and a certificate of lawful useor development is issued, in the terms set out below in the Decision.

Application for costs

1. At the Inquiry an application for costs was made by the Appellant against theCouncil. This application is the subject of a separate Decision.

Procedural matters

2. All witnesses gave evidence to the Inquiry after they had either made anaffirmation or taken the oath.

Main Issue

3. The main issue is whether the use of 8 Lancaster Avenue as a communitysynagogue on the ground floor, with ancillary accommodation on the first floorwas lawful on 4 March 2014, that is, the date on which the application for theLDC was made. In order to establish this, the Appellant has to prove on thebalance of probability that the use commenced on or before 4 March 2004 andthat it has been continuous since then.

Reasoning

The evidence

4.

The Appellant is The Hadley Wood Jewish Community Ltd (the Community)which is a registered charity that was established, among other things, tofurther the religious and other charitable work of the Jewish community and


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congregation of Hadley Wood and surrounding areas and to provide residentialaccommodation for a minister or rabbi, premises for the community synagogueor other place of worship and amenity for the members; and to employ aminister or rabbi and to provide accommodation for the same1. The propertyat 8 Lancaster Avenue (No 8) was bought in 2002 primarily with funds loanedand/or donated by members of the Community.

5. In support of the application the Community submitted, among other things,about 27 statutory declarations made by members of the Community on atyped pro-forma document with the date from which the member had been apaid up member of the Community and the date from which he/she had beenregularly attending weekly services at No 8 added in in hand writing with thestatement that the member had also been attending weekly activities in theform of religious lectures2. In support of the appeal the Communitysubmitted, among other things, about 55 statutory declarations from membersof the Community which included declarations made by members who hadmade declarations previously. These declarations are also largely pro-forma

with slight differences depending on individual circumstances but nearly allstate in common the figure of 30-40 as the number of attendees at services.

6. With regard to the members who made statutory declarations at the time ofboth the application and the appeal there are some differences in the dates ofmembership and the dates of the commencement of attendance at services3and also some differences as to whether the member attended services and/orlectures regularly or occasionally or gave no indication of attendance4.

7. As can be seen from the list of appearances I heard evidence from 34 membersof the Community. From their oral evidence it would appear that the statutorydeclarations, in particular the later ones, were made in a variety of ways

including the member drafting his/her own document or the solicitor,Mr Finegold, drafting it for his/her approval. Each witness said that they hadnot been told what to write. I therefore find it somewhat surprising that, asmost of the members are in Mr Tabachniks words professional and seriouswomen and men (doctors, accountants, businessmen, lawyers)5, the statutorydeclarations are in such similar, in some cases almost identical, forms andterms with little, if any, personalisation and that there was no reference at allto numbers of attendees until the appeal stage. I also have some concernthat, although most witnesses in their oral evidence seemed very sure aboutthe number of people who attended services, their recollection of other events,such as the actual process of making the statutory declarations and who was

involved, whether there was a consecration service or not and when and if theywent to other activities at No 8 was often vague and hesitant in respect ofthese matters.

8. However, I also give weight to the fact that, again in Mr Tabachniks words, themembers are very well aware of the importance of giving truthful evidencewhen under oath and from their oral evidence I find that Saturday morningservices, with the attendant Kiddush, have been taking place at No 8 sincesometime in late 2002/early 2003 using the large sanctuary room on the

1Memorandum of Association paragraphs 3 and 5 Mr Picks appendicespage 272

Stuart Singer refers to occasional attendance at both services and lectures3Statutory declarations from, among others, David Brin, Nadia Rihani, Sylvia Quastel and Lis Melchior4Statutory declarations from, among others, Russell Gold and Linda Slavin5Document C paragraph 11


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ground floor for the service and the kitchen/living room for the Kiddush. Atthis stage I make no finding as to numbers and whether this use resulted in amaterial change of use or not.

9. Mr Pemberton has been a Planning Enforcement Officer with the Council sincesometime in 2006. Prior to him taking up the post a Council Officer visited

No 8 following a complaint and found a dining room which was large with lotsof chairs around the edge of the room and stacked in a corner and a coat rail.Photographs were taken but unfortunately these could not be found6. As aresult of the visit a letter, dated 17 January 2006, was sent by the Council tothe then Rabbi, Rabbi Simon, at No 8 requesting that the owner ceases use ofthe property as a meeting place or synagogue, that the property reverts to useonly as a dwelling within 28 days7.

10.It would appear that no further action was taken by the Council untilMr Pemberton made an unannounced, unsuccessful visit to No 8 in aboutNovember 2006. This unsuccessful visit was followed by a letter to the Rabbiasking him to contact the Council to make an appointment for Mr Pemberton to

visit8. No response was received by the Council to this request and on23 January 2007 a letter was sent by the Council to the Rabbi notifying himthat there would be visit by a Planning Enforcement Officer on 2 February 2007at 11.009.

11.This visit duly took place and Mr Pemberton recorded that the property [is] alarge 4 bedroom detached property in a residential area with a large driveway.When I attended the property I met Mr Lester who informed me that RabbiWanderer now lived at the property. I was shown around the house whichlooked like its main use was for a single family dwelling with all the bedroomsused, the kitchen/lounge well lived in and childrens toys littered around the

property and in the garden. There is one room which is used by the Rabbi tohost one service a week at most for the local elderly [who are not allowed todrive on the Sabbath and it is too far to walk to Oakwood synagogue] which isthe sole reason why there is sometimes a service at the property10.

12.Mr Pemberton took photographs of the various rooms11which show what hehas described in his report, that is, rooms in use as bedrooms; toys in thegarden; a kitchen area with a childs high-chair; a sitting area adjacent to thekitchen; and a room with such things as a dining table and chairs, a book case,a menorah and a wooden board on the wall with names written on it.

13.The Community dispute many aspects of Mr Pembertons report. These include

Mr Pemberton only recording Mr Lester as being present whereas Mr Vincentsays that he was also present, although he did not hear what was said betweenMr Lester and Mr Pemberton; prior to the visit Mr Pemberton had spoken toCouncillor Zinkin who had referred to the elderly being unable to travel to thesynagogue and the Rabbi taking a service once a week at his home and thatMr Pemberton had confused this conversation with his visit and that Mr Lesterhad not said anything of the sort; and the report was not to be relied onbecause Mr Pemberton no longer had his handwritten notes from which he

6Mr Picks appendices page 947Mr Picks appendices page 1 Rabbi Simon is incorrectly named as Rabbi Sims8

Mr Picks appendices page 29Mr Picks appendices page 310Mr Picks appendices page 9511Mr Pembertons appendix 1


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made his typed report. On this basis the Community says that the report wasunreliable, however, the Community does not dispute the physical descriptionof the property or the photographs.

14.In his oral evidence Mr Pemberton said that he had typed up his handwrittennotes on the afternoon of the visit and that he would not have written

something that he had not been told on site. I have no reason to believe thatMr Pemberton was not following what seems to me to be a reasonable practicewith regard his notes and I am satisfied that, on balance, his report reflects thecontents of his notes and I give his evidence significant weight.

15.Mr Pemberton recommended no further action because he did not feel that theuse of one room warranted enforcement action and that the negative feedbackwould far outweigh the positive. Mr Pemberton has no planning qualificationsand he sought advice from senior officers, one of whom was Mr Newton, whotook a different view and considered that the continued use of the property inthe manner described required planning permission. The report records that aletter was sent but there is no copy of this letter within the documents

submitted by either Party. As a result of that letter and subsequentinvolvement by Councillor Zinkin and the then Acting Director of Environment12a letter was sent to Rabbi Wanderer in terms that because the number ofworshippers was no more than 12 and the frequency of use was only weekly,planning permission would not be required13but if the number rose to between15-20 then planning permission would be required. Along with the previousletter, this later letter was not retained by either the Council or the Community,and given that the Community considers Mr Pembertons reporting to beunreliable I find it surprising that that Community places so much reliance onhis report in this respect when the actual letters are not available.

16.

Whatever may or may not have been said by either Councillor Zinkin orMr Lester, and what may have been said in the letters, it is not at all clear tome how the figure of no more than 12 worshippers per week and the increasednumbers of 15-20 were arrived at or where they were derived from by theCouncil and what implications those numbers had with regard to the planningstatus of the use. I therefore give little weight to this evidence.

17.In cross-examination Mr Newton accepted that if there was weekly attendanceof 30-40 for the Saturday morning services this would constitute a materialchange of use of the property; that there would be a material change of use ifthe evidence demonstrated attendances of 15-20 at the weekly Saturdaymorning services; and that the Councils position had not changed since it wasadopted around March 2007. This led to Mr Newton conceding that if I foundattendances of at least 15 at a weekly Saturday service I should find that thisconstituted a material change of use14. This was the first time that theCouncils case had been put in this way.

18.The Council agrees in the statement of common ground that at the currenttime the primary use of No 8 is that of a Class D1 synagogue but there is noagreement about, and Council does not say, when it is considered that theprimary use as a synagogue began15. Indeed Mr Newtons evidence about

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Who did not have a planning qualification13The word permitted is used in the report Mr Picks appendices page 9614Document C paragraph 2.215Statement of common ground paragraph 9


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when he considered that the change of use as agreed in the statement ofcommon ground took place or what facts and circumstances led to this changeof use was not at all clear, despite the best efforts of Mr Tabachnik in cross-examination and Mr Grant in re-examination. The Councilsposition as statedin the statement of common ground is that the synagogue use as at March2004 was not the main use of the building16and it maintained this position

throughout the appeal whatever the evidence may have been with regard tonumbers of attendees.

19.With regard to the question of numbers, prior to the purchase of No 8 therewere regular services in the homes of members of the Community, in particularat Mr and Mrs Packs home. They both gave evidence of about 30 to 40 peopleattending these services and as the attendees were in their home and they hadto provide chairs for them17I am satisfied that this is a reasonably accuratefigure of attendance at this time. The evidence from many of the Communitywas that most, if not all, of these people attended No 8 for Saturday morningservices together with others from the outset in late 2002/early 2003.

20.

The Inquiry was told by Mr Bennett, who attends the service every week andwho plays a role in the service, that there has to be a quorum of 10 men for aservice to take place. Dr Daiz is a warden and he told the Inquiry that heneeds 17 men to each undertake the honours in the service, such as lifting theTorah and opening the curtains, and that since 2003 no man has had to

double up a role; as well as the 17 plus men present there were usually atleast 13 women attending. On occasions, such as the High Holy Days,attendances were considerably higher.

21.In 2003 there were 61 member families of the Community which rose to 65 in200718and by 2013 to almost 11019. However, membership does not

necessarily equate to attendance at services as many witnesses said that theywere irregular and/or occasional attendees.

22.The Kiddush is a religious practice comprising blessings and ritual which takesplace immediately after the Saturday morning service and which involvessharing some food, cake and a glass of wine or whisky with other congregants.The Communitys accounts show sums of about 3,000 per annum for the costof the Kiddush in 2003 to 200420. Mr Goldberg, a kosher butcher and supplierof kosher food, has provided a statutory declaration in which he states that heprovided the Community with platters and foods for the Kiddush from 2003until his retirement in 2006 for 30 to 40 people each week. In addition severalof the women witnesses told the Inquiry about how they used to prepare theKiddush for that number of people and how there would have been complaintsif there had not been enough food and drink.

23.Miss Stockwell, the next door neighbour at No 6, complained to the Council in2003 about noise emanating from No 8. She could not give numbers of peopleattending, and nor would I have expected her to have been able to do so. TheCommunity asserts that there had to be more than 12 people forMiss Stockwell to hear them because the noise and attendance would not havebeen de minimisfor her to have complained and being able to hear them even

16Statement of common ground paragraph 917

Mrs Pack said they had 24 stacking chairs which were later taken to No 818Document C paragraph 19.719Document B paragraph 2220Mr Singers appendices pages 113-114


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though the properties were detached. But I place little weight on this assertionbecause no evidence was presented about noise levels and depending on theevent and other circumstances, such as the thickness of the walls and thespace between the buildings, it seems to me that it is not possible to speculateabout how many people were making the noise. Miss Stockwell did, however,note an increase in activity from about 2011 and given her proximity to the

appeal site I give this evidence some weight.

24.I have taken into account the voluminous written evidence comprising, amongother things, newsletters, minutes of meetings and the statutory declarations,as well as the oral evidence to the Inquiry which covered a multitude of issuesrelating to services and other events at No 8. It is also pertinent to note thatthe primary service in the Jewish faith is that held on Saturday mornings and itis the holding of that service upon which a synagogue use can be established.Although I am satisfied, on the balance of probability, that there has been asynagogue use at No 8 since late 2002/early 2003 the question I have todetermine in this appeal is whether the synagogue use was the primary use of

the property in March 2004.25.The Council and the Community agree that the planning unit is the whole of the

property at No 8 and the Planning Practice Guidance advises that an applicationfor a LDC needs to describe precisely what is being applied for21. Thedescription of the use applied for is use of ground floor as a communitysynagogue, with ancillary accommodation on the first floor and both theCommunity and the Council agreed that it was the actual use of the propertythat I had to consider. I therefore have to consider whether any other useshave taken place at No 8 since late 2002/early 2003, and in particular in andsince March 2004, and if so, what the planning status is of those uses.

26.

The Community placed considerable emphasis on the intention of theCommunity to buy a property for a synagogue and the funds that wereobtained from the members for this purpose. However, the Memorandum ofAssociation also refers to employment of a rabbi and the provision ofaccommodation for him/her22and the Directors Report for the period ended30 June 2003 records that asuitable property was purchased which has beenleased to a Rabbi and his family who are assisting in promoting theadvancement of Judaism in Hadley Wood this has led to not only theprovision of services but also the development of Jewish social and culturalevents23.

27.Mrs Simon gave oral evidence to the Inquiry after the adjournment althoughshe had not provided any proof of evidence. She moved into No 8 with herhusband, Rabbi Simon, and their six children in August 2002 and the familylived there until September 2005. She described her husband as a part-timeRabbi24with Rabbinical duties for two days in the week although he tended toexpend more time than that; in addition he taught at a College five days aweek from 09.00 to 16.00. Mrs Simon was also in full time employment.Mrs Simon explained that the family used the first floor bedrooms andbathrooms and that they cooked, ate and used the kitchen and living area and

21Planning Practice Guidance: Lawful Development Certificates paragraph 00522

Mr Picks appendices page 27 paragraph 523Mr Picks appendices page 3624Rabbi Simon described himself as resident Rabbi of the Community in his statutory declaration and Rabbi Fine,Rabbi of Cockfosters and North Southgate Synagogue, described him as his Assistant Rabbi


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the garden; they did not use the sanctuary room for family purposes. OnFriday evenings some members of the Community would come to prepare theKiddush and on Saturdays services would take place in the sanctuary room andthe kitchen/living area would be used for the childrens service and theKiddush. The attendees would use the cloakroom on the ground floor andoccasionally children would use the w.c. facilities upstairs. The events relating

to the religious use were usually over by around Saturday lunchtime.

28.The Community was a strict landlord in that, among other things, membershad keys which they used to enter the premises, sometimes without notice;there were procedures that had to be followed before repairs could beundertaken; a fridge and some cupboards in the kitchen were kept for theKiddush; and Mrs Simon felt that she had no privacy. Nevertheless apart fromone room and the use of the kitchen/living room on Friday evenings andSaturday mornings the family lived in and used the property as their home.

29.With regard to the sanctuary room Rabbi Fine explained that Jewish lawrequired that the sanctuary be treated with respect throughout the week and

that it should not be used for such things as a childs play area25. However,Ms Daitz told the Inquiry that from September 2004 for about 18 months totwo years she ran a Baby and Toddler Group that met in the sanctuary room onMonday morning and the principal activities of the Group were arts and craftsand musical activities26. Although Rabbi Simon and his family may not haveused the sanctuary room it would therefore appear that it was used forpurposes other than services during their occupation.

30.Rabbi and Mrs Wanderer had five children and they lived at No 8 from August2006 until October 200927. Rabbi Wanderer was also a part time Rabbi28andhe also had separate employment as a teacher. His familys occupation of the

property appeared to be similar to that of Rabbi Simon and his family, althoughin this instance I only heard evidence from the Rabbi, not his wife.

31.When Rabbi Wanderer and his family moved out internal changes took placewhereby the garage was incorporated into the sanctuary room. The evidencewas that this was to provide more room for the expanding congregation.

32.Rabbi and Mrs Birnbaum had three children29when they moved into No 8 in2010 and they lived there until November 2013 when they moved into No 8A.Rabbi Birnbaum is a full-time Rabbi and his assistant Rabbi, Rabbi Braham,who now lives in No 8 is not married and has no children. Since RabbiBirnbaum has been employed religious and associated activities at No 8 have

grown and there are now such things as regular Friday night and Saturdayevening services, childrens and adults learning classes and lectures. This hasresulted in the property being used more frequently for community usesassociated with the synagogue but the property continued, and continues, toprovide residential accommodation for a resident Rabbi.

33.On 29 November 2013 the Community made an application to extend the frontof the property for improved accessibility, storage for recycling facilities and an

25Document C paragraph 14.626Document 9 paragraph 4327There is some variation in these dates on different documents but no point was taken about any substantial

period of non-occupation28He describes himself as being employed as the Rabbi of the Community in his statutory declaration but RabbiFine describes him as his Assistant Rabbi the same as Rabbi Simon29They now have four children


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extension to the rear. Alterations to the interior were also proposed to provideimproved facilities on the ground floor and to provide ancillary accommodationon the first floor for the Rabbi. The Design and Access Statementaccompanying the application says, under the heading Current Use/Scale, thatthe Community has been functioning in Hadley Wood for some 17 years andthat over the years it has become difficult for members of Hadley Wood,

particularly the young and the elderly, to walk to Old Farm Avenue onSaturdays and festivals. That is how the local community of Hadley Wood hasevolved. Thus giving some credence to Mr Pembertons report of the visit inFebruary 2007.

34.The description goes on to state that the building has been used solely as areligious meeting room and ancillary facilities including the ancillary residentialaccommodation for the minister and that there are mostly no services onweekdays and 30-50 persons are in attendance on Sabbath services on Fridayevenings and Saturdays. The Council questioned the use of No 8 as asynagogue and the application was withdrawn. Following on from that

withdrawal the application that is the subject of this appeal was made.35.Council Tax is payable on residential properties and Council Tax has been paid

in respect of No 8 since 2002, albeit with some exemptions while the propertywas vacant for periods when the various families had moved out and the newfamily had not moved in. Rabbi Wanderer and Rabbi Birnbaum soughtreductions in Council Tax because they were ministers of religion, not becauseNo 8 was a synagogue, but these discounts were refused. In April 2015 theCommunity advised the Council Tax Department that No 8 had been operatingas a synagogue with ancillary accommodation since 2002; although the CouncilTax Department have not replied to this letter, the witness statement providedin this appeal states that this is the first time this has been declared by the

Community30. However, given the complexities of the Council Tax system, Igive this evidence little weight in the balance of evidence in support of aprimary residential use, save for the fact that both Rabbis appeared to haveconsidered they had a residential use of No 8.

36.The photographs taken by Mr Pemberton in 2007 clearly show a domesticresidential use of the first floor, the kitchen/living room and the garden.Whatever his qualifications, or lack of them, Mr Pembertons opinion in 2007from his visit to the property was that No 8 had a residential use and that therehad not been a change of use to a primary synagogue use. This is a view towhich I give considerable weight. I fully accept that none of the families used

or entered the sanctuary room for any reason except for attending services orother associated religious events, but given the size of the families thatoccupied the property I find that it is more than likely that they used all of theother parts of the building, including the kitchen/living area, as their residentialaccommodation; and that the current occupying Rabbi continues the residentialuse, albeit the residential use is somewhat reduced.

37.There are matters relating to the evidence submitted in support of theCommunitys case that cause me some concern. These include the pro-formaand non-personalised nature of the statutory declarations; the evidence bymany of the witnesses that they had not discussed their evidence with anyoneelse; the witnesses uncertainty about events and occasions other than

30Mr Newtons Appendix 15


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Saturday morning services, the Kiddush and numbers of attendees; differencesin the history of the Community as it appears on the website in 2014 and 2015where for example a reference to needing a tenant for financial reasons in2003 has been deleted from the earlier version and Rabbi Wanderer is referredto as being employed as a part-time Rabbi whereas Rabbi Simon is not sodescribed; the varying descriptions of the Rabbis employment status and

employers liability insurance not being taken out until 2008; the Communitynot notifying the Council Tax Department about its understanding of the use ofthe No 8 since 2002 until April 2015; the presence of a restrictive covenantproviding for use of the property as a private or professional residence only31;and there being no mention at the time No 8 was purchased about the need forplanning permission for the change of use from a residential dwelling to asynagogue, particularly as it is apparent from documents relating to theCommunitys interest in purchasing other properties that it was aware thatplanning permission would be required for a synagogue or other use32and theprofessional expertise in respect of both land law and planning that wasavailable to the Community at that time and thereafter.

38.In raising these concerns I take into account that it is for the Community toprove its case and whilst I do not believe that there was any deliberateintention to mislead the Inquiry some of the details were vague and conflictingto the extent that, save for evidence of actual use to which I have referredabove, I find it unreliable and unhelpful.

Description of the use applied for and the actual use

39.By virtue of s.191(4) of the Act a description of the use can be substituted if Iam satisfied as to its lawfulness. Although I was invited by the Community togrant a LDC whether in the precise terms appliedfor or with such amendments

as are considered appropriate33

the question of any modified description hadnot been specifically raised at the Inquiry. I therefore sought the views of theParties after the close of the Inquiry about whether a mixed use ofresidentialand synagogue would be a more accurate description of the use at No 8.

40.The Councils response was that its case was that at the date of the applicationthe residential use had become a clearly ancillary element within the building,the accommodation being confined to part of the first floor but that this state ofaffairs had not persisted for 10 years34.

41.Mr Picks response on behalf of the Community35was that the residentialelement at the appeal site is not self-sufficient in its own right to be part of a

mixed use; it does not possess its own kitchen and provides very basicaccommodation for those who are shepherding the religious community. Theoffice and the synagogue storage on the first floor also demonstrate that thefirst floor accommodation is subservient to the synagogue use. However,although Mr Pick did not believe that the evidence gave rise to any change inthe description he also wrote that the [Community] would obviously prefer acertificate granted in the terms of the possible amendment rather than arefusal.

31Land Registry Documents page 20 of Mr Picks appendices 32

Document 6 page 2 paragraph 2(a)33Document 10 paragraph 2034Document I35Document II


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42.In order for an LDC to be granted in the terms sought the Community has toprove that on 4 March 2004 the primary use of No 8 was a synagogue and thatthis primary use has continued for ten years. The actual use of No 8 for thatperiod is a matter of fact and degree based on the evidence before the Inquiry.When the Community purchased No 8 there is no dispute that its primary usewas that of a single family dwelling. Rabbi Simon and his family lived there, as

their family home, from August 2002 until September 2005. The Communitywas a strict landlord with many dos and donts and keys were retained bymembers of the Community but there are many situations in residentiallettings where dwellings are let with restrictions such as no pets or putting uppictures or shelves and where the landlord retains a set of keys, and it is notunusual for a landlord to be responsible for maintenance and running expensesas was the case with Rabbi Simons occupation. The residential use wascontinued by Rabbi Wanderer and Rabbi Birnbaum and their families.

43.From my visit it was apparent that the property continues to have a residentialuse in that Rabbi Braham occupies one bedroom with an ensuite bathroom on

the first floor and uses the kitchen/living room on the ground floor, while theremainder of the property appeared to be used for the purposes of thesynagogue. The residential accommodation provided has all the facilitiesrequired for day-to-day living and the residential use is not confined to the firstfloor as described by the Community in the application.

44.I accept that the residential use was tied to the Rabbis employment36but thisis not the same as an ancillary use in that, for example, an agricultural dwellingis tied to agricultural employment but the dwelling is not an agricultural use.In those circumstances the residential occupation is tied to the employment butthe actual use of the property is a residential one. Similarly residentialaccommodation above a public house may be tied to employment but it would

be a matter of fact whether it was functionally related to the primary use of thepremises37.

45.I have noted previously that the Council considers that the property is now inuse as a Class D1 synagogue but no evidence has been provided by the Councilabout when it considers this use began or why the actual current use differsfrom the previous use.

46.An ancillary use is one which is functionally related andordinarily incidental tothe primary use of the planning unit, it does not mean relatively small38. Inmy opinion, the residential use of No 8 from late 2002/early 2003 has not beenancillary to the synagogue use because there was and is no functional linkbetween them. The resident Rabbi conducted, and his family attended,services but the synagogue use may also have taken place when there was noRabbi living on the premises when the residential part was vacant; the usesassociated with the synagogue are for the members of the Community who donot live at No 8 and are therefore separate from the residential use.

47.As the Saturday morning service is the most important aspect of thesynagogue it seems to me that the other activities that have developed overthe years such as adult and childrens classes and the use of rooms as an officeand storage are ancillary to the synagogue use. The extent of those uses has

36Document C paragraphs 14.7 14.1037Document C paragraph 638Encyclopedia of Planning Law and Practice P55.42


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fluctuated and although the residential use has reduced in physical terms, itremains a distinct and separate use. The property retains the character of aresidential dwelling as I saw on my visit and it is still in use as a home.

48.The use of No 8 since its purchase by the Community seems to me to besimilar to the appeal decision I was referred to by the Community which related

to a proposed use of a residential room as a prayer room in which theInspector found that such a use would not be ancillary or incidental to theresidential use and opined that a regular use of some 12 to 20 people arrivingand leaving every Sunday more or less together would bring about a materialchange in character which would as a matter of fact and degree result in amaterial change in the use of the property and that there would be a mixed useof the property comprising a dwellinghouse and a Sunday prayer room39.

49.The evidence clearly showed that the community synagogue use increased, andapparently continues to increase, however, within a mixed use the differentuses can fluctuate and change with one being more prevalent at one time thanthe other, with neither being primary or ancillary, and the use remains a mixed

one. This in my opinion is the situation that pertained at No 8 and continues tothe present time.

50.I therefore find that the Community has not proved that a LDC in the termssought in the application should be granted. I conclude as a matter of fact anddegree that, from the evidence as set out above, in March 2004 No 8 had inaddition to its primary residential use a primary use as a synagogue and thatthis mixed use probably occurred from the date of purchase by the Community.This mixed use continued without interruption until March 2014 and, in myopinion, continues to the present time. In these circumstances, I considerthat although a LDC cannot be granted for the use applied a LDC can be

granted for a mixed use of residential and synagogue.

51.I appreciate that my findings differ from the cases put by the Community andCouncil and from the matters they have agreed, but I am not aware of anylegislation or authority that prohibits me from reaching my own conclusionbased on the evidence before me. Indeed, the provisions of s.191(4) ands.193(4) of the 1990 Act indicate to me that that is the approach I should take.

Conclusions

52.From what I have set out above and taking into account the evidence I haveread and heard and the submissions made on behalf of both the Community

and the Council I therefore conclude as a matter of fact and degree that therewas a material change of use of the property at 8 Lancaster Avenue from aresidential use to a mixed use of residential and community synagogue inabout August 2002 and that this mixed use continued from then until theapplication date in March 2014, and indeed continues to the present time.

53.Although I consider that the Councils refusal to grant a certificate of lawful useor development in respect ofuse ground floor as a community synagogue,with ancillary accommodation on the first floor as described in the applicationwas well-founded, for the reasons given above I conclude, on the evidence nowavailable, that a certificate of lawful use or development in respect of a mixeduse of residential and community synagogue should be granted and that the

39Document 6 page 76 APP/N1920/X/12/2181668 paragraph 7


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appeal should succeed on that basis. I will exercise the powers transferred tome under section 195(2) of the 1990 Act as amended.

Decision

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

Gloria McFarlane

Inspector


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APPEARANCES

FOR THE APPELLANT THE COMMUNITY

Mr A Tabachnik Counsel, instructed by Mr Pick

He called

Mr E Pick Planning ConsultantBSc(Hons) BTP MRTPIRabbi Fine Founder RabbiRabbi Birnbaum Current RabbiRabbi Wanderer Previous RabbiCllr Lavender Ward CouncillorMs Y Simon Wife of Rabbi Simon

The following witnesses were/are all Members of the Hadley Wood Jewish

Community:Mr M SingerDr A DaizMr R RogersMrs S PittalMr M VincentMr J MelchiorMr M LazarusMrs D LazarusMrs L MelchiorMr M Pinker

Dr V WatkinMr A RoseMr M LensonMr R FeldMr B PrinceMrs E FeldMrs C PackMr S SingerMr G BarcMr L PittalMr S Pack

Mr S LesterMr M LangleyMrs P KentonMr B MinskyMrs B BrooksMr R GottliebMr P TaylorMrs S MinskyMr P BennetMrs G KembleMs L Daitz

Dr L SlavinMr L Slavin


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FOR THE LOCAL PLANNING AUTHORITY

Mr E Grant Counsel, instructed by the Solicitor to Enfield Council

He called

Mr W Pemberton Planning Enforcement OfficerMr S Newton Principal Planning OfficerMA(Hons)

INTERESTED PERSONS

Miss F Stockwell Local residentMr N Haynes Local resident

DOCUMENTS SUBMITTED AT THE INQUIRY

Document 1 - The Councils letter of notification and list of persons notified

Document 2 - Report of the Trustees for the year ended 30 June 2006, submitted by the Community

Document 3 - Invitation, submitted by Mr Singer

Document 4 - Maps showing the route from Cockfosters and North SouthgateSynagogue to 8 Lancaster Avenue, submitted by the Community

Document 5 - The Councils letter of notification of the resumed Inquiry and list of persons notified

Document 6 - Bundle of supplementary documents, submitted by the Community

Document 7 - Letter to Mr Pick dated 9 October 2015 from the Council, submittedby the Community

DOCUMENTS SUBMITTED BY THE ADVOCATES AT THE INQUIRY

Document A - Opening statement on behalf of the LPA

Document B - Closing submissions on behalf of the LPA

Document C - The Communitys closing submissions

CORRESPONDENCE SENT AND RECEIVED AFTER THE INQUIRY

Document I - Email from PINS dated 2 November 2015 and the Councils responsedated 16 November 2015

Document II Letter from Mr Pick dated 10 November 2015


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IMPORTANT NOTES SEE OVER

Lawful Development CertificateTOWN AND COUNTRY PLANNING ACT 1990: SECTION 191(as amended by Section 10 of the Planning and Compensation Act 1991)

TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) (ENGLAND)ORDER 2010: ARTICLE 35

IT IS HEREBY CERTIFIEDthat on 4 March 2014 the use described in the FirstSchedule hereto in respect of the land specified in the Second Schedule hereto andedged in black on the plan attached to this certificate, was lawful within themeaning of section 191(2) of the Town and Country Planning Act 1990 (as

amended), for the following reason:

The material change of use of the land from a residential use to a mixed use ofresidential and synagogue had taken place prior to March 2004 and had continuedfor the relevant period of ten years and that the mixed use of residential andsynagogue was existing on the date of the application.

Signed

Gloria McFarlaneInspector

Date 14.01.2016

Reference: APP/Q5300/X/14/2227375

First Schedule

A mixed use of residential and synagogue

Second Schedule

Land at 8 Lancaster Avenue, Hadley Wood, Barnet, Hertfordshire, EN4 0EX


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CERTIFICATE OF LAWFULNESS FOR PLANNING PURPOSES

NOTES

This certificate is issued solely for the purpose of Section 191 of the Town andCountry Planning Act 1990 (as amended).

It certifies that the use /operations described in the First Schedule taking place on

the land specified in the Second Schedule was /were lawful, on the certified dateand, thus, was /were not liable to enforcement action, under section 172 of the1990 Act, on that date.

This certificate applies only to the extent of the use /operations described in theFirst Schedule and to the land specified in the Second Schedule and identified onthe attached plan. Any use /operation which is materially different from thatdescribed, or which relates to any other land, may result in a breach of planningcontrol which is liable to enforcement action by the local planning authority.


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PlanThis is the plan referred to in the Lawful Development Certificate dated: 14.01.2016

by Gloria McFarlane LLB(Hons) BA(Hons) Solicitor (Non-practising)

Land at: 8 Lancaster Avenue, Hadley Wood, Barnet, Hertfordshire, EN4 0EX

Reference: APP/Q5300/X/14/2227375

Scale: Not to scale

2227375 Appeal Decision

Documents

Transcript of 2227375 Appeal Decision