A Wisbech night club has lost a legal challenge against Fenland District Council for operating without planning permission.
H20 Sanzokuou Ltd and Mr S Rafique appealed to the Planning Inspectorate against an enforcement notice.
The council claimed the Chapel Road club operates as a restaurant/bar/nightclub and snooker hall without consent.
The appeal failed but the club had an enforcement notice for compliance extended from three to six months.
“Subject to that variation, the appeal is dismissed and the enforcement notice is upheld,” ruled the inspector. K R Saward.
He noted that there has since been a change in ownership of the premises.
The inspector concluded: “I cannot be satisfied that noise and disturbance caused by the mixed use of the premises can be controlled to acceptable levels, including through the use of conditions.
“There is no obvious alternative scheme that would overcome the planning difficulties. None of the proposals would remedy the breach.”
Mr Saward said he had allowed time for options to be explored through a planning application.
“In doing so, I emphasise this does not mean any of the options mooted are acceptable,” he said.
Mr Saward unravelled arguments over what constituted a night club and looked at previous advertising for the premises.
The inspector, in his finding’s details advertising for the VIP Lounge, located on the ground floor, with the main room containing a long bar, seating areas and a dance floor with several disco balls hanging overhead.
“There was no sign of any nightclub use on the first floor which was laid out with snooker/pool tables and a bar with kitchen off it,” he said.
He said the ‘VIP Lounge’ has a presence on social media describing itself as a ‘dance club & nightclub’. A screen shot taken in November 2019 says: ‘The largest nightclub in Wisbech is proud to announce the grand opening of The VIP Lounge on New Year’s Eve 2016 at Chapel Road, Wisbech’.
“Not only is ‘The VIP Lounge’ described as a nightclub but the type of activity and opening times falls squarely within what would ordinarily be regarded as such,” he concluded.
“That is precisely what the evidence indicates has occurred.”
He said: “The type of activity advertised would certainly not fit within the somewhat quaint term of a ‘dance hall’ reminiscent of days gone by where people would pay to go and dance in a large room or building.”
Planning applications made in 2017 and 2018 both described the development as: ‘retrospective change of use to mixed use restaurant/bar/club on ground floor.
Both applications were refused, the inspector noted.
The appellants suggested that the restaurant is not a primary use but ancillary to what he found to be a nightclub use.
“That is inconsistent with the description given by Appellant B when applying for planning permission in 2018,” he said.
“Indeed, the allegation reflects the mixed use for which planning permission was sought.”
He said: “There is one building in single ownership with several different functions within it albeit operating as different businesses on each floor.”
Planning permission had been granted in 1985 for the use as a snooker centre.
There followed permissions in 1986 and 1987 for the change of use of the ground floor to a leisure centre with the upper floor remaining as a snooker hall.
Mr Saward there were differences in planning law that distinguished between a dance hall and a nightclub.
“I have found the use to be a nightclub rather than a dance hall,” he said.
There was now a mixed use composed of restaurant, bar, nightclub and snooker hall uses.
There will have been a material change of use once the use changed from a leisure use to a different primary use. Indeed, a material change of use will have occurred each time a new primary use was added within the same planning unit to form a different mixed use.
The mixed use requires planning permission which has not been obtained, says the inspector.
He also dismissed the claim that since it had been operating in its current form for more than 10 years then it could not be enforced against. Mr Saward said advertising only began in December 2016.
“The main issue is the effect of the change of use on the living conditions of residential occupiers within the vicinity of the appeal site with particular reference to noise and disturbance,” he said.
“Some residents complain of regularly disturbed sleep due to noise emanating from the nightclub,” he said.
“They also describe disturbance from patrons leaving the premises and anti-social behaviour in the street during the early hours of the morning.
“Residents are supported in their objections by the local ward member and Wisbech Town Council.”
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