Richmond upon Thames LBC v R. (on the application of Ariyo) [2024] EWCA Civ 960

Case Summary

Key takeaways

• Plans accompanying a planning application form part of the granted permission and are crucial in determining its scope
• When interpreting a planning permission, a reasonable reader would look at both the description of development and the accompanying plans
• The scope of a change of use permission should be interpreted practically - the permitted use should extend to the whole planning unit to avoid creating areas that would otherwise be left with an impractical or useless permitted use
• However, when considering operational development that may intensify an existing use, the potential noise and amenity impacts must be properly assessed

Background

This case concerned the proper interpretation of a 2005 planning permission for change of use, and whether it authorized the use of a rear garden area as part of a restaurant.

The facts

• The property was originally a hardware store with a rear garden containing a polytunnel used for growing plants for sale.
• In 2005, planning permission was granted on appeal for “change of use of the ground floor from a general hardware store (A1) to a restaurant (Class A3)…in accordance with the terms of the application…and the plans”
• The 2005 application included:
  
  • A site plan showing the whole property including the rear area
  • A layout plan showing only the built envelope and doors leading to the rear area
• In 2022, the Council granted permission for retention and amendment of a 'pergola' in the rear garden to facilitate outdoor dining. It would stand against the boundary wall of the property and include retractable glass panels.
• Mr Ariyo, who lived next door, challenged this 2022 permission by judicial review on grounds including noise levels.
• The key issue was whether the 2005 permission authorized use of the garden as part of the restaurant.

The High Court decision

The High Court held that the 2005 change of use permission only applied to the ground floor of the building, not the garden area. The Council appealed this decision, arguing that the 2005 permission had included the garden.

The Court of Appeal decision

The Court of Appeal held that:

1. A reasonable reader would look at both the description and the plans to determine the scope of a planning permission.
2. The 2005 permission related to the whole site as shown on the site plan.
3. A practical interpretation was required - if the rear area remained restricted to use ancillary to a shop, this would be useless given the shop was being changed to a restaurant.

However, the Court dismissed the Council's appeal on a different ground:

• The planning officer had failed to properly consider whether noise from the pergola structure and its use as a permanent year-round dining area (as opposed to use of the open garden) was a material consideration.
• The intensification of use through the operational development required proper assessment of noise and amenity impacts.

Practical implications

This case provides important guidance on:

1. The interpretation of planning permissions - both description and plans must be considered.
2. The need for practical interpretation of change of use permissions.
3. The continuing need to assess amenity impacts when operational development may intensify an existing use.
4. The importance of clear and comprehensive officer reports when assessing impacts of development.

Note

If you have any questions about the potential implications of this case, please don’t hesitate to contact Alicia Merricks or any member of the DLA Piper Planning team for advice.  Also, make sure to watch our case law update which includes further commentary on this case on YouTube here.