Planning permission – Change of use – Material consideration – Respondent applying for judicial review of decision to grant planning permission for extension to restaurant – High Court granting application – Appellant planning authority appealing – Whether appellant failing properly to consider whether lawful use of garden as part of restaurant established – Whether appellant failing to consider issue of noise as material consideration – Appeal dismissed
A restaurant at 208 Hampton Road, Twickenham, was in a row of shops with residential accommodation above. The ground floor had been a restaurant since about 2005, when planning permission was granted on appeal for change of use to Class A3. In 2008, permission was granted for mixed A3/A5 use to allow takeaways.
In 2006, the appellant local authority had granted planning permission for development at the back of the property and in its back garden, involving the demolition of the existing garage and construction of a new garage, a detached store, and an extension to the main building.
In 2022, the appellant investigated a possible breach of planning control because a pergola had been erected in the garden for use as an extension to the seating area of the restaurant.
The interested parties applied for retrospective permission to retain the pergola but shorten it. In December 2022, the appellant granted permission subject to conditions, including screening of the boundary, for a period of five years.
The respondent, who lived next door, applied for judicial review of that decision. The court granted the application holding, amongst other things, that the appellant acted unlawfully in concluding that the use of the “garden area” as part of the restaurant on the ground floor was longstanding and lawful: [2023] EWHC 2278 (Admin); [2023] PLSCS 162. The appellant appealed.
Held: The appeal was dismissed.
(1) The interpretation of a planning permission was a question of law. The question was what a reasonable reader would understand the words to mean, in their context; and for that purpose the reasonable reader was to be treated as equipped with some knowledge of planning law and practice: DB Symmetry Ltd v Swindon Borough Council [2023] EGLR 11 applied.
At the time of the 2005 planning permission, the relevant regulations required an application to be accompanied by a plan which “identifies the land to which it relates”. The reasonable reader would understand that plans submitted with the application had particular significance.
Where the proposed development was a change of use, the extent of the land covered by that change of use would normally be ascertained by reference to the site as defined on the site plan: Barnett v Secretary of State for Communities and Local Government [2009] PLSCS 110; [2010] 1 P & CR 8 and Hillside Parks Ltd v Snowdonia National Park Authority [2023] EGLR 4 considered.
(2) Whether a use was or was not long-standing was a question of fact for the local planning authority. That would depend (at least in part) on when the use began.
The judge was not in a position to make that finding of fact; and he did not (at least in terms) say that the officer’s finding was irrational. Therefore, the appellant was entitled to proceed on the basis that use of the rear area for the purposes of a restaurant was lawful. The change of use permitted by the 2005 grant of planning permission extended to the use of the rear garden.
Before 2005, the use of the rear garden was ancillary to the use of the ground floor as a shop. It would be paradoxical, and contrary to what a reasonable reader equipped with some knowledge of planning law and practice would understand the 2005 grant to mean, for the permitted change of use to be limited to the ground floor of the built envelope, while the permitted use of the rear garden remained use as a shop.
The rear garden had been ancillary to the shop which had previously occupied the ground floor, and it was a natural meaning of the grant of permission that future use of the garden would continue to be ancillary to the use of the ground floor as a restaurant. Accordingly, while the construction of a new structure in the rear garden as part of the restaurant would require planning permission, it would not represent a material change of use.
(3) The appellant failed properly to consider the issue of noise. Even if noise connected with the use in itself was not in question, the appellant failed to consider whether noise associated with the operational development and its subsequent use as a permanent year-round dining area (as opposed to use of the garden as open land) was capable of being a material consideration. Both common sense and law suggested that it was: Fidler v First Secretary of State [2004] EWCA Civ 1295; [2004] PLSCS 234; [2005] 1 P & CR 12 considered.
Moreover, the relevant local plan policy did not merely apply to land use. It stated specifically that design had to avoid noise nuisance. Design could not have been a feature of the existing use of the rear area, even if lawful. Consideration of design of the proposed structure had addressed only its visual appearance and impact.
However, it was obvious that the construction of a large, enclosed structure hard against the boundary wall and clad with retractable glass panels would bring noise far closer to neighbours than the existing open land use.
(4) Even if use of the rear area as part of a restaurant was lawful, the officer considering the application wrongly said that mitigation of noise disturbance was secured by existing conditions and that issues such as noise “are not in question”.
The subject matter of the application was not merely a change of use: it was an application for operational development consisting of building operations; and to the extent that such operational development was capable of generating additional noise, it was a plainly material consideration.
There had been no acoustic assessment and it was not possible to determine whether the proposal would lead to an unacceptable loss of amenity to adjoining premises. Had any attention been paid to the noise generating potential of the proposed structure, permission might have been refused, or conditions imposed regarding the materials from which it was constructed. The appellant failed properly to consider the issue of noise and, for that reason, the grant of planning permission had to be quashed.
Charles Streeten (instructed by South London Legal Partnership) appeared for the appellant; Andrew Parkinson and Barney McCay (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of London Borough of Richmond upon Thames v R (on the application of Ariyo)
