Appeal Decision

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

Site 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/14/2227375

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

The appeal is made under section 195 of the Town and Country Planning Act 1990 as
amended 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 ground
floor as a community synagogue, with ancillary accommodation on the first floor.

Summary of Decision: The appeal is allowed and a certificate of lawful use

or 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 the
Council. This application is the subject of a separate Decision.
Procedural matters
2. All witnesses gave evidence to the Inquiry after they had either made an
affirmation or taken the oath.
Main Issue
3. The main issue is whether the use of 8 Lancaster Avenue as a community
synagogue on the ground floor, with ancillary accommodation on the first floor
was lawful on 4 March 2014, that is, the date on which the application for the
LDC was made. In order to establish this, the Appellant has to prove on the
balance of probability that the use commenced on or before 4 March 2004 and
that 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, to
further the religious and other charitable work of the Jewish community and

Appeal Decision APP/Q5300/X/14/2227375

congregation of Hadley Wood and surrounding areas and to provide residential

accommodation for a minister or rabbi, premises for the community synagogue
or other place of worship and amenity for the members; and to employ a
minister or rabbi and to provide accommodation for the same1. The property
at 8 Lancaster Avenue (No 8) was bought in 2002 primarily with funds loaned
and/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 a
typed pro-forma document with the date from which the member had been a
paid up member of the Community and the date from which he/she had been
regularly attending weekly services at No 8 added in in hand writing with the
statement that the member had also been attending weekly activities in the
form of religious lectures2. In support of the appeal the Community
submitted, among other things, about 55 statutory declarations from members
of the Community which included declarations made by members who had
made declarations previously. These declarations are also largely pro-forma
with slight differences depending on individual circumstances but nearly all
state 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 of
both the application and the appeal there are some differences in the dates of
membership and the dates of the commencement of attendance at services3
and also some differences as to whether the member attended services and/or
lectures regularly or occasionally or gave no indication of attendance4.
7. As can be seen from the list of appearances I heard evidence from 34 members
of the Community. From their oral evidence it would appear that the statutory
declarations, 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 had
not been told what to write. I therefore find it somewhat surprising that, as
most of the members are in Mr Tabachniks words professional and serious
women and men (doctors, accountants, businessmen, lawyers) 5, the statutory
declarations are in such similar, in some cases almost identical, forms and
terms with little, if any, personalisation and that there was no reference at all
to numbers of attendees until the appeal stage. I also have some concern
that, although most witnesses in their oral evidence seemed very sure about
the 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 they
went to other activities at No 8 was often vague and hesitant in respect of
these matters.
8. However, I also give weight to the fact that, again in Mr Tabachniks words, the
members are very well aware of the importance of giving truthful evidence
when under oath and from their oral evidence I find that Saturday morning
services, with the attendant Kiddush, have been taking place at No 8 since
sometime in late 2002/early 2003 using the large sanctuary room on the
1
2
3
4
5

Memorandum of Association paragraphs 3 and 5 Mr Picks appendices page 27

Stuart Singer refers to occasional attendance at both services and lectures
Statutory declarations from, among others, David Brin, Nadia Rihani, Sylvia Quastel and Lis Melchior
Statutory declarations from, among others, Russell Gold and Linda Slavin
Document C paragraph 11

Appeal Decision APP/Q5300/X/14/2227375

ground floor for the service and the kitchen/living room for the Kiddush. At
this stage I make no finding as to numbers and whether this use resulted in a
material change of use or not.
9. Mr Pemberton has been a Planning Enforcement Officer with the Council since
sometime 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 lots
of 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 a
result of the visit a letter, dated 17 January 2006, was sent by the Council to
the then Rabbi, Rabbi Simon, at No 8 requesting that the owner ceases use of
the property as a meeting place or synagogue, that the property reverts to use
only as a dwelling within 28 days7.
10. It would appear that no further action was taken by the Council until
Mr Pemberton made an unannounced, unsuccessful visit to No 8 in about
November 2006. This unsuccessful visit was followed by a letter to the Rabbi
asking 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 on
23 January 2007 a letter was sent by the Council to the Rabbi notifying him
that there would be visit by a Planning Enforcement Officer on 2 February 2007
at 11.009.
11. This visit duly took place and Mr Pemberton recorded that the property [is] a
large 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 Rabbi
Wanderer now lived at the property. I was shown around the house which
looked like its main use was for a single family dwelling with all the bedrooms
used, 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 to
host one service a week at most for the local elderly [who are not allowed to
drive on the Sabbath and it is too far to walk to Oakwood synagogue] which is
the sole reason why there is sometimes a service at the property10.
12. Mr Pemberton took photographs of the various rooms11 which show what he
has described in his report, that is, rooms in use as bedrooms; toys in the
garden; a kitchen area with a childs high-chair; a sitting area adjacent to the
kitchen; 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 Vincent
says that he was also present, although he did not hear what was said between
Mr Lester and Mr Pemberton; prior to the visit Mr Pemberton had spoken to
Councillor Zinkin who had referred to the elderly being unable to travel to the
synagogue and the Rabbi taking a service once a week at his home and that
Mr Pemberton had confused this conversation with his visit and that Mr Lester
had not said anything of the sort; and the report was not to be relied on
because Mr Pemberton no longer had his handwritten notes from which he
6

Mr Picks appendices page 94

Mr Picks appendices page 1 Rabbi Simon is incorrectly named as Rabbi Sims
8
Mr Picks appendices page 2
9
Mr Picks appendices page 3
10
Mr Picks appendices page 95
11
Mr Pembertons appendix 1
7

Appeal Decision APP/Q5300/X/14/2227375

made his typed report. On this basis the Community says that the report was
unreliable, however, the Community does not dispute the physical description
of the property or the photographs.
14. In his oral evidence Mr Pemberton said that he had typed up his handwritten
notes 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 that
Mr Pemberton was not following what seems to me to be a reasonable practice
with regard his notes and I am satisfied that, on balance, his report reflects the
contents of his notes and I give his evidence significant weight.
15. Mr Pemberton recommended no further action because he did not feel that the
use of one room warranted enforcement action and that the negative feedback
would far outweigh the positive. Mr Pemberton has no planning qualifications
and he sought advice from senior officers, one of whom was Mr Newton, who
took a different view and considered that the continued use of the property in
the manner described required planning permission. The report records that a
letter was sent but there is no copy of this letter within the documents
submitted by either Party. As a result of that letter and subsequent
involvement by Councillor Zinkin and the then Acting Director of Environment12
a letter was sent to Rabbi Wanderer in terms that because the number of
worshippers was no more than 12 and the frequency of use was only weekly,
planning permission would not be required13 but if the number rose to between
15-20 then planning permission would be required. Along with the previous
letter, this later letter was not retained by either the Council or the Community,
and given that the Community considers Mr Pembertons reporting to be
unreliable I find it surprising that that Community places so much reliance on
his report in this respect when the actual letters are not available.
16. Whatever may or may not have been said by either Councillor Zinkin or
Mr Lester, and what may have been said in the letters, it is not at all clear to
me how the figure of no more than 12 worshippers per week and the increased
numbers of 15-20 were arrived at or where they were derived from by the
Council and what implications those numbers had with regard to the planning
status of the use. I therefore give little weight to this evidence.
17. In cross-examination Mr Newton accepted that if there was weekly attendance
of 30-40 for the Saturday morning services this would constitute a material
change of use of the property; that there would be a material change of use if
the evidence demonstrated attendances of 15-20 at the weekly Saturday
morning services; and that the Councils position had not changed since it was
adopted around March 2007. This led to Mr Newton conceding that if I found
attendances of at least 15 at a weekly Saturday service I should find that this
constituted a material change of use14. This was the first time that the
Councils case had been put in this way.
18. The Council agrees in the statement of common ground that at the current
time the primary use of No 8 is that of a Class D1 synagogue but there is no
agreement about, and Council does not say, when it is considered that the
primary use as a synagogue began15. Indeed Mr Newtons evidence about
12
13
14
15

Who did not have a planning qualification

The word permitted is used in the report Mr Picks appendices page 96
Document C paragraph 2.2
Statement of common ground paragraph 9

Appeal Decision APP/Q5300/X/14/2227375

when he considered that the change of use as agreed in the statement of

common ground took place or what facts and circumstances led to this change
of use was not at all clear, despite the best efforts of Mr Tabachnik in crossexamination and Mr Grant in re-examination. The Councils position as stated
in the statement of common ground is that the synagogue use as at March
2004 was not the main use of the building16 and it maintained this position
throughout the appeal whatever the evidence may have been with regard to
numbers of attendees.
19. With regard to the question of numbers, prior to the purchase of No 8 there
were regular services in the homes of members of the Community, in particular
at Mr and Mrs Packs home. They both gave evidence of about 30 to 40 people
attending these services and as the attendees were in their home and they had
to provide chairs for them17 I am satisfied that this is a reasonably accurate
figure of attendance at this time. The evidence from many of the Community
was that most, if not all, of these people attended No 8 for Saturday morning
services 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 and
who plays a role in the service, that there has to be a quorum of 10 men for a
service to take place. Dr Daiz is a warden and he told the Inquiry that he
needs 17 men to each undertake the honours in the service, such as lifting the
Torah 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 at
least 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 in
200718 and by 2013 to almost 11019. However, membership does not
necessarily equate to attendance at services as many witnesses said that they
were irregular and/or occasional attendees.
22. The Kiddush is a religious practice comprising blessings and ritual which takes
place immediately after the Saturday morning service and which involves
sharing 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 cost
of the Kiddush in 2003 to 200420. Mr Goldberg, a kosher butcher and supplier
of kosher food, has provided a statutory declaration in which he states that he
provided the Community with platters and foods for the Kiddush from 2003
until his retirement in 2006 for 30 to 40 people each week. In addition several
of the women witnesses told the Inquiry about how they used to prepare the
Kiddush for that number of people and how there would have been complaints
if there had not been enough food and drink.
23. Miss Stockwell, the next door neighbour at No 6, complained to the Council in
2003 about noise emanating from No 8. She could not give numbers of people
attending, and nor would I have expected her to have been able to do so. The
Community asserts that there had to be more than 12 people for
Miss Stockwell to hear them because the noise and attendance would not have
been de minimis for her to have complained and being able to hear them even
16
17
18
19
20

Statement of common ground paragraph 9

Mrs Pack said they had 24 stacking chairs which were later taken to No 8
Document C paragraph 19.7
Document B paragraph 22
Mr Singers appendices pages 113-114

Appeal Decision APP/Q5300/X/14/2227375

though the properties were detached. But I place little weight on this assertion
because no evidence was presented about noise levels and depending on the
event and other circumstances, such as the thickness of the walls and the
space between the buildings, it seems to me that it is not possible to speculate
about 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, among
other things, newsletters, minutes of meetings and the statutory declarations,
as well as the oral evidence to the Inquiry which covered a multitude of issues
relating to services and other events at No 8. It is also pertinent to note that
the primary service in the Jewish faith is that held on Saturday mornings and it
is 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 a
synagogue use at No 8 since late 2002/early 2003 the question I have to
determine 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 application
for a LDC needs to describe precisely what is being applied for21. The
description of the use applied for is use of ground floor as a community
synagogue, with ancillary accommodation on the first floor and both the
Community and the Council agreed that it was the actual use of the property
that I had to consider. I therefore have to consider whether any other uses
have taken place at No 8 since late 2002/early 2003, and in particular in and
since March 2004, and if so, what the planning status is of those uses.
26. The Community placed considerable emphasis on the intention of the
Community to buy a property for a synagogue and the funds that were
obtained from the members for this purpose. However, the Memorandum of
Association also refers to employment of a rabbi and the provision of
accommodation for him/her22 and the Directors Report for the period ended
30 June 2003 records that a suitable property was purchased which has been
leased to a Rabbi and his family who are assisting in promoting the
advancement of Judaism in Hadley Wood this has led to not only the
provision of services but also the development of Jewish social and cultural
events23.
27. Mrs Simon gave oral evidence to the Inquiry after the adjournment although
she had not provided any proof of evidence. She moved into No 8 with her
husband, Rabbi Simon, and their six children in August 2002 and the family
lived there until September 2005. She described her husband as a part-time
Rabbi24 with Rabbinical duties for two days in the week although he tended to
expend more time than that; in addition he taught at a College five days a
week 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 and
bathrooms and that they cooked, ate and used the kitchen and living area and
21

Planning Practice Guidance: Lawful Development Certificates paragraph 005

Mr Picks appendices page 27 paragraph 5
23
Mr Picks appendices page 36
24
Rabbi 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
22

Appeal Decision APP/Q5300/X/14/2227375

the garden; they did not use the sanctuary room for family purposes. On
Friday evenings some members of the Community would come to prepare the
Kiddush and on Saturdays services would take place in the sanctuary room and
the kitchen/living area would be used for the childrens service and the
Kiddush. The attendees would use the cloakroom on the ground floor and
occasionally 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, members
had keys which they used to enter the premises, sometimes without notice;
there were procedures that had to be followed before repairs could be
undertaken; a fridge and some cupboards in the kitchen were kept for the
Kiddush; and Mrs Simon felt that she had no privacy. Nevertheless apart from
one room and the use of the kitchen/living room on Friday evenings and
Saturday mornings the family lived in and used the property as their home.
29. With regard to the sanctuary room Rabbi Fine explained that Jewish law
required 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 to
two years she ran a Baby and Toddler Group that met in the sanctuary room on
Monday morning and the principal activities of the Group were arts and crafts
and musical activities26. Although Rabbi Simon and his family may not have
used the sanctuary room it would therefore appear that it was used for
purposes other than services during their occupation.
30. Rabbi and Mrs Wanderer had five children and they lived at No 8 from August
2006 until October 200927. Rabbi Wanderer was also a part time Rabbi28 and
he 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, although
in this instance I only heard evidence from the Rabbi, not his wife.
31. When Rabbi Wanderer and his family moved out internal changes took place
whereby the garage was incorporated into the sanctuary room. The evidence
was that this was to provide more room for the expanding congregation.
32. Rabbi and Mrs Birnbaum had three children29 when they moved into No 8 in
2010 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 Rabbi
Birnbaum has been employed religious and associated activities at No 8 have
grown and there are now such things as regular Friday night and Saturday
evening services, childrens and adults learning classes and lectures. This has
resulted in the property being used more frequently for community uses
associated with the synagogue but the property continued, and continues, to
provide residential accommodation for a resident Rabbi.
33. On 29 November 2013 the Community made an application to extend the front
of the property for improved accessibility, storage for recycling facilities and an
25

Document C paragraph 14.6

Document 9 paragraph 43
27
There is some variation in these dates on different documents but no point was taken about any substantial
period of non-occupation
28
He describes himself as being employed as the Rabbi of the Community in his statutory declaration but Rabbi
Fine describes him as his Assistant Rabbi the same as Rabbi Simon
29
They now have four children
26

Appeal Decision APP/Q5300/X/14/2227375

extension to the rear. Alterations to the interior were also proposed to provide
improved facilities on the ground floor and to provide ancillary accommodation
on the first floor for the Rabbi. The Design and Access Statement
accompanying the application says, under the heading Current Use/Scale, that
the Community has been functioning in Hadley Wood for some 17 years and
that over the years it has become difficult for members of Hadley Wood,
particularly the young and the elderly, to walk to Old Farm Avenue on
Saturdays and festivals. That is how the local community of Hadley Wood has
evolved. Thus giving some credence to Mr Pembertons report of the visit in
February 2007.
34. The description goes on to state that the building has been used solely as a
religious meeting room and ancillary facilities including the ancillary residential
accommodation for the minister and that there are mostly no services on
weekdays and 30-50 persons are in attendance on Sabbath services on Friday
evenings and Saturdays. The Council questioned the use of No 8 as a
synagogue 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 property
was vacant for periods when the various families had moved out and the new
family had not moved in. Rabbi Wanderer and Rabbi Birnbaum sought
reductions in Council Tax because they were ministers of religion, not because
No 8 was a synagogue, but these discounts were refused. In April 2015 the
Community advised the Council Tax Department that No 8 had been operating
as a synagogue with ancillary accommodation since 2002; although the Council
Tax Department have not replied to this letter, the witness statement provided
in 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, I
give this evidence little weight in the balance of evidence in support of a
primary residential use, save for the fact that both Rabbis appeared to have
considered they had a residential use of No 8.
36. The photographs taken by Mr Pemberton in 2007 clearly show a domestic
residential use of the first floor, the kitchen/living room and the garden.
Whatever his qualifications, or lack of them, Mr Pembertons opinion in 2007
from his visit to the property was that No 8 had a residential use and that there
had not been a change of use to a primary synagogue use. This is a view to
which 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 or
other associated religious events, but given the size of the families that
occupied the property I find that it is more than likely that they used all of the
other parts of the building, including the kitchen/living area, as their residential
accommodation; and that the current occupying Rabbi continues the residential
use, albeit the residential use is somewhat reduced.
37. There are matters relating to the evidence submitted in support of the
Communitys case that cause me some concern. These include the pro-forma
and non-personalised nature of the statutory declarations; the evidence by
many of the witnesses that they had not discussed their evidence with anyone
else; the witnesses uncertainty about events and occasions other than
30

Mr Newtons Appendix 15

Appeal Decision APP/Q5300/X/14/2227375

Saturday morning services, the Kiddush and numbers of attendees; differences

in the history of the Community as it appears on the website in 2014 and 2015
where for example a reference to needing a tenant for financial reasons in
2003 has been deleted from the earlier version and Rabbi Wanderer is referred
to as being employed as a part-time Rabbi whereas Rabbi Simon is not so
described; the varying descriptions of the Rabbis employment status and
employers liability insurance not being taken out until 2008; the Community
not notifying the Council Tax Department about its understanding of the use of
the No 8 since 2002 until April 2015; the presence of a restrictive covenant
providing 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 for
planning permission for the change of use from a residential dwelling to a
synagogue, particularly as it is apparent from documents relating to the
Communitys interest in purchasing other properties that it was aware that
planning permission would be required for a synagogue or other use32 and the
professional expertise in respect of both land law and planning that was
available to the Community at that time and thereafter.
38. In raising these concerns I take into account that it is for the Community to
prove its case and whilst I do not believe that there was any deliberate
intention to mislead the Inquiry some of the details were vague and conflicting
to the extent that, save for evidence of actual use to which I have referred
above, 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 I
am satisfied as to its lawfulness. Although I was invited by the Community to
grant a LDC whether in the precise terms applied for or with such amendments
as are considered appropriate33 the question of any modified description had
not been specifically raised at the Inquiry. I therefore sought the views of the
Parties after the close of the Inquiry about whether a mixed use of residential
and 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 application
the 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 of
affairs had not persisted for 10 years34.
41. Mr Picks response on behalf of the Community35 was that the residential
element 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 basic
accommodation for those who are shepherding the religious community. The
office and the synagogue storage on the first floor also demonstrate that the
first floor accommodation is subservient to the synagogue use. However,
although Mr Pick did not believe that the evidence gave rise to any change in
the description he also wrote that the [Community] would obviously prefer a
certificate granted in the terms of the possible amendment rather than a
refusal.

31
32
33
34
35

Land Registry Documents page 20 of Mr Picks appendices

Document 6 page 2 paragraph 2(a)
Document 10 paragraph 20
Document I
Document II

Appeal Decision APP/Q5300/X/14/2227375

42. In order for an LDC to be granted in the terms sought the Community has to
prove that on 4 March 2004 the primary use of No 8 was a synagogue and that
this primary use has continued for ten years. The actual use of No 8 for that
period 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 use
was that of a single family dwelling. Rabbi Simon and his family lived there, as
their family home, from August 2002 until September 2005. The Community
was a strict landlord with many dos and donts and keys were retained by
members of the Community but there are many situations in residential
lettings where dwellings are let with restrictions such as no pets or putting up
pictures or shelves and where the landlord retains a set of keys, and it is not
unusual for a landlord to be responsible for maintenance and running expenses
as was the case with Rabbi Simons occupation. The residential use was
continued by Rabbi Wanderer and Rabbi Birnbaum and their families.
43. From my visit it was apparent that the property continues to have a residential
use 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 the
remainder of the property appeared to be used for the purposes of the
synagogue. The residential accommodation provided has all the facilities
required for day-to-day living and the residential use is not confined to the first
floor as described by the Community in the application.
44. I accept that the residential use was tied to the Rabbis employment36 but this
is not the same as an ancillary use in that, for example, an agricultural dwelling
is tied to agricultural employment but the dwelling is not an agricultural use.
In those circumstances the residential occupation is tied to the employment but
the actual use of the property is a residential one. Similarly residential
accommodation 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 the
premises37.
45. I have noted previously that the Council considers that the property is now in
use as a Class D1 synagogue but no evidence has been provided by the Council
about when it considers this use began or why the actual current use differs
from the previous use.
46. An ancillary use is one which is functionally related and ordinarily incidental to
the primary use of the planning unit, it does not mean relatively small38. In
my opinion, the residential use of No 8 from late 2002/early 2003 has not been
ancillary to the synagogue use because there was and is no functional link
between them. The resident Rabbi conducted, and his family attended,
services but the synagogue use may also have taken place when there was no
Rabbi living on the premises when the residential part was vacant; the uses
associated with the synagogue are for the members of the Community who do
not live at No 8 and are therefore separate from the residential use.
47. As the Saturday morning service is the most important aspect of the
synagogue it seems to me that the other activities that have developed over
the years such as adult and childrens classes and the use of rooms as an office
and storage are ancillary to the synagogue use. The extent of those uses has
36
37
38

Document C paragraphs 14.7 14.10

Document C paragraph 6
Encyclopedia of Planning Law and Practice P55.42

10

Appeal Decision APP/Q5300/X/14/2227375

fluctuated and although the residential use has reduced in physical terms, it
remains a distinct and separate use. The property retains the character of a
residential 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 be
similar 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 the
Inspector found that such a use would not be ancillary or incidental to the
residential use and opined that a regular use of some 12 to 20 people arriving
and leaving every Sunday more or less together would bring about a material
change in character which would as a matter of fact and degree result in a
material change in the use of the property and that there would be a mixed use
of the property comprising a dwellinghouse and a Sunday prayer room39.
49. The evidence clearly showed that the community synagogue use increased, and
apparently continues to increase, however, within a mixed use the different
uses can fluctuate and change with one being more prevalent at one time than
the 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 to
the present time.
50. I therefore find that the Community has not proved that a LDC in the terms
sought in the application should be granted. I conclude as a matter of fact and
degree that, from the evidence as set out above, in March 2004 No 8 had in
addition to its primary residential use a primary use as a synagogue and that
this mixed use probably occurred from the date of purchase by the Community.
This mixed use continued without interruption until March 2014 and, in my
opinion, continues to the present time. In these circumstances, I consider
that 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 and
Council and from the matters they have agreed, but I am not aware of any
legislation or authority that prohibits me from reaching my own conclusion
based on the evidence before me. Indeed, the provisions of s.191(4) and
s.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 have
read 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 there
was a material change of use of the property at 8 Lancaster Avenue from a
residential use to a mixed use of residential and community synagogue in
about August 2002 and that this mixed use continued from then until the
application 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 use
or development in respect of use ground floor as a community synagogue,
with ancillary accommodation on the first floor as described in the application
was well-founded, for the reasons given above I conclude, on the evidence now
available, that a certificate of lawful use or development in respect of a mixed
use of residential and community synagogue should be granted and that the
39

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

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Appeal Decision APP/Q5300/X/14/2227375

appeal should succeed on that basis. I will exercise the powers transferred to
me 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 use
or development describing the existing use which is considered to be lawful.

Gloria McFarlane
Inspector

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Appeal Decision APP/Q5300/X/14/2227375

APPEARANCES
FOR THE APPELLANT THE COMMUNITY
Mr A Tabachnik

Counsel, instructed by Mr Pick

He called
Mr E Pick
BSc(Hons) BTP MRTPI
Rabbi Fine
Rabbi Birnbaum
Rabbi Wanderer
Cllr Lavender
Ms Y Simon

Planning Consultant
Founder Rabbi
Current Rabbi
Previous Rabbi
Ward Councillor
Wife of Rabbi Simon

The following witnesses were/are all Members of the Hadley Wood Jewish
Community:
Mr M Singer
Dr A Daiz
Mr R Rogers
Mrs S Pittal
Mr M Vincent
Mr J Melchior
Mr M Lazarus
Mrs D Lazarus
Mrs L Melchior
Mr M Pinker
Dr V Watkin
Mr A Rose
Mr M Lenson
Mr R Feld
Mr B Prince
Mrs E Feld
Mrs C Pack
Mr S Singer
Mr G Barc
Mr L Pittal
Mr S Pack
Mr S Lester
Mr M Langley
Mrs P Kenton
Mr B Minsky
Mrs B Brooks
Mr R Gottlieb
Mr P Taylor
Mrs S Minsky
Mr P Bennet
Mrs G Kemble
Ms L Daitz
Dr L Slavin
Mr L Slavin

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Appeal Decision APP/Q5300/X/14/2227375

FOR THE LOCAL PLANNING AUTHORITY

Mr E Grant

Counsel, instructed by the Solicitor to Enfield Council

He called
Mr W Pemberton
Mr S Newton
MA(Hons)

Planning Enforcement Officer

Principal Planning Officer

INTERESTED PERSONS
Miss F Stockwell
Mr N Haynes

Local resident
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 Southgate
Synagogue 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, submitted
by 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 response
dated 16 November 2015
Document II Letter from Mr Pick dated 10 November 2015

14

Lawful Development Certificate

TOWN 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 CERTIFIED that on 4 March 2014 the use described in the First
Schedule hereto in respect of the land specified in the Second Schedule hereto and
edged in black on the plan attached to this certificate, was lawful within the
meaning 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 of
residential and synagogue had taken place prior to March 2004 and had continued
for the relevant period of ten years and that the mixed use of residential and
synagogue was existing on the date of the application.

Signed

Gloria McFarlane
Inspector
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

IMPORTANT NOTES SEE OVER

CERTIFICATE OF LAWFULNESS FOR PLANNING PURPOSES

NOTES
This certificate is issued solely for the purpose of Section 191 of the Town and
Country 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 date
and, thus, was /were not liable to enforcement action, under section 172 of the
1990 Act, on that date.
This certificate applies only to the extent of the use /operations described in the
First Schedule and to the land specified in the Second Schedule and identified on
the attached plan. Any use /operation which is materially different from that
described, or which relates to any other land, may result in a breach of planning
control which is liable to enforcement action by the local planning authority.

Plan
This 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