Whether a use is long-standing is a matter of assessment, and whether a use ought to be permitted is a matter of planning judgment; however, whether an admitted use is lawful is a matter of law, not of planning judgment.
The High Court has considered these issues in quashing the grant of planning permission for a restaurant extension in R (on the application of Ariyo) v Richmond upon Thames London Borough Council [2023] EWHC 2278 (Admin); [2023] PLSCS 162.
The case concerned a building at Hampton Road, Twickenham, one of a row of shops with residential accommodation above. Permission for change of use of the ground floor to a restaurant was granted in 2005, and in 2006 permission to construct a new garage and extend the main building into the garden was granted.
In 2021 and 2022 the defendant investigated the erection of a pergola, occupying most of the space between the building and the garage in the garden to the rear of the property intended for use as an extension to the seating area of the restaurant.
A retrospective application, by the owners of the building, to retain the pergola was approved following modifications. The grant was subject to conditions, including screening the boundary with the claimant’s property for five years. The claimant, who had objected to the application, challenged the decision.
Use of the garden as a restaurant or part of one would be lawful if it was expressly permitted by the 2005 planning permission; or that permission could be interpreted as implying permission to that effect; or if a use originally not lawful had over time ceased to be amenable to enforcement.
The 2005 application was specifically for change of use of the ground floor, not the whole of the building or the property, and the grant included soundproofing conditions to protect those in the flat above from restaurant noise. Such conditions would be ineffective if the garden were also to be used as a restaurant.
In reaching the decision under review, no proper investigation of the extent of the planning unit was undertaken. Those reporting in 2021/22 had assumed that there was permission to use the garden as a restaurant. The failure to consider properly whether there was an established lawful use of the garden as part of a restaurant and the consequent failure to take into account the noise arising from its use were public law errors. They were material to the decision and it was not highly likely that the decision would have been the same if the errors had not been made.
Louise Clark is a property law consultant and mediator
