Council fails in appeal over quashing of permission for restaurant expansion

The London Borough of Richmond Upon Thames has lost a Court of Appeal case over whether it acted unlawfully in a planning case, despite judges disagreeing over the reasons why Richmond should lose.

CMG Ockelton, Vice President of the Upper Tribunal, said in a High Court judgment in September 2023 that Richmond had been wrong to allow a restaurant to expand its dining area under a garden pergola as no lawful authority existed for the use of the garden as a restaurant.

Planners initially rejected the restaurant owners’ bid  for an extension, but they made a fresh application proposing the pergola be reduced in height by lowering the floor level by 30 cm. Richmond then granted permission.

Claimant Owolabi Ariyo, who lives next door, argued the council erred in thinking that restaurant use was lawful in the garden part of the site and that the officer's report supporting planning permission was inconsistent with the refusal of the first application on grounds of noise. The report on the second application discounted this on the basis that the noise impact was already lawful.

Mr Ockelton said the only route to lawful use was if a use that was not lawful had, through the passage of time, ceased to be amenable to enforcement.

This though would need to show 10 years’ use of the garden as a restaurant, but this started only with the building of the pergola at the end of 2021.

Richmond appealed.

Giving the main judgment, Lord Justice Lewison said Mr Ariyo objected that there would be undesired noise levels but Richmond planners said proposed modifications to the pergola would mitigate this.

Lewison LJ said Richmond’s policy on noise stated designs must avoid noise nuisance.

He said: “Design could not have been a feature of the existing use of the rear area, even if lawful. In his consideration of design of the proposed structure, the officer addressed only its visual appearance and impact.

“It seems to me to be 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.”

There had been no acoustic assessment; and the officer stated it was not possible to determine whether the proposal would lead to an unacceptable loss of amenity to adjoining premises.

Lewison LJ said: “Nowhere in the impugned decision did the officer consider the noise generating potential of such a structure. Indeed…he does not appear to have had any material on which an assessment could have been made.

“Had he paid any attention to the noise generating potential of the proposed structure, he might have refused permission. Or he might, at the very least, have imposed some condition relating to the materials from which it was to be constructed.”

The judge said the decision could not be saved by section 31 (2A) of the Senior Courts Act 1981and dismissed the appeal.

Lord Justice Moylan agreed that Richmond’s appeal should be dismissed but disagreed with Lewison LJ’s view that Mr Ockleton had misinterpreted the lawfulness of the use of the garden in relation to a 2005 grant of planning permission.

He said: “The matters relied on by the council do not outweigh the very clear words in the 2005 permission, namely that planning permission was given 'for change of use of the ground floor from a general hardware store … to a restaurant’.

“The council's submission that the words ‘ground floor’ included the garden is, in my view, untenable and the other matters they rely on are insufficient to surmount the clear effect of the use of the words, ‘ground floor’ in the 2005 permission.”

Maoylan LJ concluded: “Something as significant as, what I have described as, the radical transformation of the garden required clear rationalisation and justification which, in my view, are absent in the present case. A case, I repeat, which concerns what should be a matter which is relatively accessible to the general public, namely the interpretation of a planning permission.”

Lord Justice Males agreed with Lewison LJ that Richmond failed properly to consider the noise issue and the planning permission must be quashed.

Mark Smulian