The interpretation of a planning permission is a question of law. What would a reasonable reader understand the words, in their context, to mean?
The Court of Appeal has underlined this principle, dismissing an appeal, in London Borough of Richmond upon Thames v R (on the application of Ariyo) [2024] EWCA Civ 960; [2024] PLSCS 145.
The case concerned a building at Hampton Road, Twickenham, one of a parade of shops with residential accommodation above. In December 2005, permission was granted for change of use of the ground floor from a general hardware store – with a polytunnel in the garden for growing plants and garage beyond – to a restaurant.
In 2021, application was made for the retention and amendment of an existing pergola at the rear of the building to create a substantial development occupying most of the space between the building and the garage in the garden.
The local authority decided the use of the rear garden by customers was not a breach of planning control given the long-standing lawful use of the premises as a restaurant but the application was refused and an appeal dismissed on grounds that the structure would be overbearing and visually intrusive to neighbours.
An application in 2022 for a structure of reduced height and length succeeded subject to screening conditions. The claimant, who had objected to the application on the ground of noise levels, challenged the decision.
The judge, quashed the decision to grant planning permission on the basis that the 2005 application was specifically for change of use of the ground floor, not the whole of the building or the property. The authority had erred in failing to consider properly whether there was an established lawful use of the garden as part of the restaurant and to take into account the noise arising from its use. Soundproofing conditions to protect those in the flat above from restaurant noise would be ineffective if the garden was also used as a restaurant.
The Court of Appeal agreed that the authority had failed properly to consider the issue of noise and so the grant of planning permission must be quashed. However, the judge had misinterpreted the planning permission.
The 2005 permission extended to the use of the rear garden which had been ancillary to use of the shop. Its natural meaning was that future use of the garden would be ancillary to use of the ground floor. So while the construction of a new structure in the rear garden would require planning permission it would not represent a material change of use.
Louise Clark is a property law consultant and mediator
