![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Richmond Upon Thames v Ariyo, R (On the Application Of) [2024] EWCA Civ 960 (09 August 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/960.html Cite as: [2024] EWCA Civ 960 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISIONPLANNING COURT
MR C M G OCKLETON, VICE PRESIDENT OF THE UPPER TRIBUNAL
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE MALES
____________________
LONDON BOROUGH OF RICHMOND UPON THAMES |
Appellant |
|
- and - |
||
The King on the Application of OWOLABI ARIYO |
Respondent |
____________________
Andrew Parkinson & Barney McCay (instructed by Richard Buxton Solicitors) for the Respondent
Hearing date: 13 June 2024
____________________
Crown Copyright ©
Lord Justice Lewison:
The issue
The site and its planning history
"I grant planning permission for change of use of the ground floor from a general hardware store (Class A1) to a restaurant (Class A3) at 208 Hampton Road in accordance with the terms of the application Ref. 05/0844/COU and the plans submitted therewith subject to the following conditions:
2) the use hereby permitted shall not be open to customers outside of the following times: 08.00hrs and 23.00hrs "
"Issues regarding smells, soundproofing etc were addressed at appeal and are controlled by other legislation."
"No moped/motorcycle deliveries shall take place from the rear of the site during the hours of 19:00 and 23:00.
The development hereby approved shall not be occupied until the walls/floors, as applicable, have been insulated to provide sound attenuation against internally generated noise "
"The site comprises a two-storey terraced property. The ground floor and rear of the site is currently used as a Class E(b) Restaurant and the first floor is used as a Class C3 Dwellinghouse. The rear of the property comprises a large garden area."
"The use of the rear garden by customers is not restricted by planning condition and is not in breach of planning control given the long-standing lawful use of the premises as a restaurant. The new shelter constructed in the garden is however unauthorised."
"The Application does not include any form of acoustic assessment and therefore it cannot be determined if the proposals would lead to an unacceptable loss of amenity to adjoining properties or not. There are also concerns over the proximity of the adjoining gardens which are used solely for residential purposes.
The commercial use of this rear garden area is lawful in planning terms and associated noise connected with this land use, whether open or enclosed, cannot be raised as a material reason for refusal in this case."
"It is also unclear the scale of noise disturbance on the adjoining neighbours and if this will lead to an unacceptable loss of amenity."
"I note from the officer's report that use of the garden area by restaurant customers is "not restricted by planning condition and would not be in breach of planning control". However, it is my view that the use of such a garden area for occasional outside seating (weather permitting) would be a very different prospect to the creation of a permanent, large enclosed structure to facilitate year-round usage by restaurant guests."
The impugned decision
" comprises a two-storey terraced property and forms part of a parade of shops with residential accommodation above. The ground floor and rear garden of the site is currently in use as a Class E (b) Restaurant. The first floor is used as a Class C3 Dwellinghouse."
"Policy LP 8 states that development must protect the amenity and living conditions of neighbouring occupants. Design must avoid noise disturbance or harm to the reasonable enjoyment of the uses of buildings and gardens. Harm may arise from various impacts such as noise .
The use of the rear garden by customers is not restricted by planning condition and is not in breach of planning control given the long-standing use of the premises as a restaurant. Consequently, issues associated with this use, such as noise or parking, are not in question. Mitigation of noise disturbance is secured by existing planning conditions. Any breaches of conditions, such as operating hours of the business, should be dealt with separately to this application."
Lawful use: question of planning judgment or question of law?
"First, it argues that the use of the garden as a restaurant was lawful as a result of the grant of planning permission in 2005. Secondly, it argues that the question whether the use was longstanding and lawful was a matter of fact and degree and a pure matter of planning judgment for the Council and so not amenable to challenge in this Court."
"I deal with the second argument first, as I must (because if correct it nullifies consideration of the first). I accept that whether a use is longstanding is a matter of assessment. Further, whether a use ought to be permitted is clearly a matter of planning judgment. But whether an admitted use is (or would be) lawful is not a matter of planning judgment: it is a matter of law, within the jurisdiction of the Court. The Court needs to construe any existing grants of permission, and if appropriate any provisions relating to permitted development; the Court needs to decide whether the use is permitted or if for some other reason cannot be the subject of enforcement. I do not accept Mr Streeten's argument that this is not a matter for the Court." (Emphasis added)
The 2005 planning permission
"As it appears to me, the use of the garden as a restaurant, or as part of the restaurant, would be lawful if (a) it was expressly permitted by the 2005 grant of planning permission; or (b) if the 2005 grant of planning permission were subject to some principle of interpretation implying a grant of permission to the necessary effect; or (c) if a use originally not lawful had, through the passage of time, ceased to be amenable to enforcement."
"The problem with the argument that the site plan governs the permission, to my mind, is that it cuts across almost every other aspect of the 2005 application and resulting grant. First, it is abundantly clear that there was no application to use the building above the ground floor, or the part of the ground floor with its separate entrance to the residence above, as a restaurant. Both are within the boundaries outlined on the plan. Secondly, the application was specifically for change of use of "the ground floor", not the whole of the building or the whole of the property. Thirdly, the grant included conditions of soundproofing in the construction of the building to protect those in the flat above from noise from the restaurant, which would be ineffective if the garden were to be used as a restaurant too. In DC Symmetry v Swindon Borough Council [2022] UKSC 33 the Supreme Court has indicated that one factor to be taken into account in interpreting conditions in a grant of planning permission is "any other conditions which cast light on the purpose of the relevant words" (per Lord Hodge at [66]); it seems to me that that is also a proper factor to take into account in interpreting the extent of the permission itself."
"Using the plan of the whole property to construe the grant of planning permission in 2005 as a grant extending to the use of the garden, but not the residential parts of the house as a restaurant is neither principled (because clearly not all the property was included in the application) nor reasonable (because the grant followed the application, which sought permission only for the "ground floor"). It verges on the absurd in that it is impossible to see that a person who thought permission was being granted for restaurant use in the garden would have sought to protect from noise only those living in the same property, and them only from noise arising from restaurant use within the building itself."
Long-standing use
"The only other way in which the use as a restaurant could be lawful would be by lapse of time. Ten years' use of the garden as a restaurant would need to be established (s 171B(3)). The photographs exhibited to the claimant's witness statement make it clear that the garden was not used as a restaurant until the building of the pergola, at the end of 2021 at the earliest."
The Respondent's Notice
"I note from the officer's report that use of the garden area by restaurant customers is "not restricted by planning condition and would not be in breach of planning control". However, it is my view that the use of such a garden area for occasional outside seating (weather permitting) would be a very different prospect to the creation of a permanent, large enclosed structure to facilitate year-round usage by restaurant guests."
"It is of course correct that the erection of a building as such may not give rise to a material change of use of the planning unit on which it is erected. On the other hand, as a matter of both common sense and law, the character of the activities on a site may be materially affected by the nature of the buildings on the site, as the inspector found in this case. Again that was a matter of fact and degree for him."
"The use of the rear garden by customers is not restricted by planning condition and is not in breach of planning control given the long-standing use of the premises as a restaurant. Consequently, issues associated with this use, such as noise or parking, are not in question. Mitigation of noise disturbance is secured by existing planning conditions."
Result
Lord Justice Moylan:
Planning History
"The development proposed is change of use of the ground floor from a general hardware store (Class A1) to a restaurant (Class A3)". (my emphasis)
This wording is, further, repeated at the end of the Decision under the heading "Formal Decision":
"I allow the appeal and grant planning permission for change of use of the ground floor from a general hardware store (Class A1) to a restaurant (Class A3) at 208 Hampton Road in accordance with the terms of the application Ref. 05/0844/COU dated 15 March 2005 and the plans submitted therewith subject to the following conditions." (my emphasis)
"The application for structural alterations resulting in the grant of permission in 2006 was accompanied by plans of what was proposed. The whole of the existing ground floor area previously occupied by the spaces called "restaurant" and "kitchen" (and including the staff toilet) would become the dining area of the restaurant. A new extension to the rear would house the kitchen, and another smaller one behind the existing toilets would be part of an extended toilet block. Again, there would be no access from the restaurant to the garden area except through the kitchen (no separate fire escape is shown). As already indicated, there was to be demolition and rebuilding of the garage (at the rearmost part of the property) and construction of a store adjacent to the boundary with no. 206, about halfway down the garden."
It can be seen, again, that the plans which accompanied this application confined the "restaurant" to within the ground floor area and that there was no access to the garden other than through the kitchen.
"The site comprises a two-storey terraced property. The ground floor and rear of the site is currently used as a Class E(b) Restaurant and the first floor is used as a Class C3 Dwellinghouse. The rear of the property comprises a large garden area."
It can be seen that the use of the "ground floor and rear of the site" as a restaurant is stated as a fact. It is not based on any analysis of how the garden had in fact been used.
"The use of the rear garden by customers is not restricted by planning condition and is not in breach of planning control given the long-standing lawful use of the premises as a restaurant." (my emphasis)
There is, again, nothing to suggest that this was based on any determination as to the actual use of the garden rather than on an assumption as to the effect of the 2005 permission, namely that it made the use of the garden by restaurant customers lawful. This conclusion is supported by the later observation in the first report, as referred to by Lewison LJ (paragraph 8), namely that the "commercial use of this rear garden is lawful in planning terms and associated noise connected with this land use, whether open or enclosed, cannot be raised as a material reason for refusal in this case". There is no reference to this being based on actual use rather than use permitted as a result of the 2005 permission.
"I note from the officer's report that use of the garden area by restaurant customers is "not restricted by planning condition and would not be in breach of planning control". However, it is my view that the use of such a garden area for occasional outside seating (weather permitting) would be a very different prospect to the creation of a permanent, large enclosed structure to facilitate year-round usage by restaurant guests."
I would emphasise her reference to "a very different prospect".
Judgment Below
"In the present case there is so far as I can see no suggestion that any proper investigation of the extent of the relevant planning unit was undertaken at any stage. It seems to have been assumed by the authors of the reports in 2021 and 2022 that there was permission to use the garden as a restaurant: that was an assumption, not a decision, either that the 2005 consent applied to the garden on its face or that it applied to a planning unit larger than that specified on its face. It is therefore right at least to consider whether the absence of proper consideration of this issue was material."
Council's Appeal
"(1) The deputy judge erred in his construction of the planning permissions granted for the use of the Property as a restaurant; and/or
(2) The deputy judge erred in his approach to the question of whether the use of that garden was longstanding and lawful."
"granted permission to change the use of the whole of the Property into two units: (1) a self-contained residential unit on the first floor with its own front door; and (2) a restaurant unit encompassing the ground floor, including the garden which could only be accessed from the restaurant." (my emphasis)
I have emphasised the phrases, "as part of the restaurant on the ground floor" and "a restaurant unit encompassing the ground floor, including the garden", because they reflect the Council's substantive submission that the expression in the 2005 planning permission, "the ground floor", included the garden. As set out in the Council's Skeleton argument, it was submitted that the correct interpretation of the 2005 permission was that the "garden area formed [part] of the 'ground floor', it was at ground floor level, accessible only through the kitchen and fire escape, and was specifically referred to by the Inspector when describing the Property" when she referred to the "area to the rear".
Claimant/Respondent's Case
Determination
"This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense."
"the meaning of the document should be ascertainable from the document itself, other public documents to which it refers such as the planning application and plans and drawings submitted with the application, and physical inspection of the land to which it relates."
Plans and drawings are among the potentially relevant factors. It can also be seen from the context in which they used the expression "particular significance":
"In this case, we are concerned with grants of full planning permission, in relation to which it is to be expected that a reasonable reader would understand that the detailed plans submitted with the application have particular significance: Barnett v Secretary of State for Communities and Local Government [2009] JPL 243, para 24 (Sullivan J); affirmed [2009] JPL 1597, paras 1722 (Keene LJ); R Harwood, Planning Permission (2016), para 28.9."
"If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an "ambiguity". On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted."
As can be seen, this passage, on which the expression particular significance was based, was dealing with plans and drawings "which will describe the building works" and will show "the detail of what has been permitted". They were not given an elevated status but were "as much a part of the description of what has been permitted as the permission notice itself" (my emphasis).
"It was a necessary implication of permitting the new detached dwelling in 1995 that it would have a curtilage. Given that context and the other information on the site plan, the only reasonable inference was that it defined the extent of the proposed curtilage in 1995. In 1998 the position was materially different. There was a dwelling in existence, it had a curtilage. It was not a necessary implication of permitting the extension or alteration of that dwelling that its curtilage would be extended beyond that which had been permitted in 1995. There was nothing on the site plan which suggested that the red line should be interpreted as defining the extent of such an extension. For these reasons the Inspector's conclusions that the 1998 permission did not grant planning permission for an extension to the residential curtilage of Miscombe Manor was correct."
"Mr Newberry QC points out that it is mandatory to submit a site plan with a planning application: see the 1988 Regulations, reg 3(1)(b), which requires a 'plan which identifies the land to which it [that is the application] relates'. Mr Newberry then argues that the planning permission subsequently granted then relates to that area of land shown on the site plan. That, he says, is the function and purpose of the site plan. He acknowledges that his argument logically implies, if pushed to the extreme, that a permission to alter the windows of an existing house would also grant permission for ancillary residential use of the whole area shown within a red line on a site plan even if it covered a much larger area than the existing curtilage. But he submits that, even when such a use is not specified on the permission itself or within the application, the change of use is implicit within the documents to which reference can be made. He contends that, as a matter of principle, all land shown as included within the site on a site plan in a planning application therefore receives the benefit of any resulting planning permission unless expressly excluded by a condition on the permission. In consequence all such land where permission is granted either for a new dwelling or for an extension to a dwelling house enjoys permission for use for purposes ancillary or incidental to the dwelling house."
"the extent of the land covered by the implicit permission for a change of use will normally be ascertained by reference to the site as defined on the site plan. Thus that part of the site not built on can be used for purposes ancillary to the dwelling unless there is some obvious restriction shown on the permission itself. The site boundary shown on the plans defines the area of the new use."
Lord Justice Males: