The Main Course, Gullane, had asked East Lothian Council to issue a certificate of lawfulness for the use of the garden to the rear of the restaurant as an outdoor seating area.
However, council planners refused after ruling that the garden belonged to an upstairs flat – and not the ground-floor restaurant – even though applicant Luciano Crolla owns both properties.
Mr Crolla was told that he would have to apply for planning permission to change the garden from domestic use to outdoor use as part of the restaurant.
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Now he has appealed to Scottish Ministers to overturn the decision as the restaurant prepares for an easing of lockdown restrictions.
A report by council planning officers said that they had been alerted to a large marquee being erected in the garden after a complaint was made about it.
However, it 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 pandemic.
The report added that the rear garden at the restaurant had been used for outdoor dining since July last year; however, it said this was not sufficient time to make it a ‘lawful use’, ruling it remained a domestic garden regardless of ownership.
The appeal has been lodged with Scottish Ministers and will be subject to a site visit.