The ground floor of the premises had operated as a restaurant since about 2005, planning permission having been granted on appeal for change of use to Class A3. In 2008 a further grant of planning permission to mixed A3/A5 use to allow takeaways from the restaurant, was permitted. In 2022 the council then issued a permission for an extension to the restaurant in the rear garden to enable further seating to be provided for customers.
The claimant, who lived next door to the premises, argued that in granting this permission the council had failed to assess whether the garden could lawfully be used as part of the restaurant and this was fundamental in establishing whether an extension was acceptable in principle. In response the council claimed that the use of the garden was lawful by virtue of the 2005 permission or alternatively, had been used for a continuous period of more than 10 years.
Mr Justice Ockelton disagreed with the council’s defence of its decision. In his view the permission granted in 2005 related to the ground floor of the premises only, not the entire site and this did not change when a takeaway service was allowed in 2008. Nor did he agree with the council’s further claim that the use of the garden as part of the restaurant was lawful because of the expiration of 10 years uninterrupted use. It was clear from photographs provided by the claimant and the council’s enforcement investigations that its use commenced in 2021/22. Thus there was no immunity from enforcement action.
On the basis that the council did not properly consider this matter nor the impact it could have on the amenity of the claimant, he could not be sure that planning permission would be granted. The consideration of noise in a planning officer’s report was predicated on the use of the garden as a restaurant being a lawful use. In treating the question in this way, the officer failed to take into account the clearly material factor that the use was not one that was entitled to be considered lawful. The consideration of noise in the most recent report was therefore unlawful, the judge opined. The permission was therefore quashed.
Ariyo v Richmond Upon Thames London Borough Council & Another
Date: 9 September 2023
Ref:  EWHC 2278 (Admin)