Owolabi Ariyo, R (on the application of) v Richmond Upon Thames London Borough Council & Ors

Whether an existing use is lawful is a question of law for the court, not a matter of planning judgment. A planning permission must be construed by reference to the application, the grant and relevant conditions. A site plan identifying the ownership boundary does not necessarily authorise the whole site for the permitted use.

Where reliance is placed on a planning unit larger than the expressly permitted area, that issue requires specific consideration and cannot be assumed. A planning authority must take into account noise as a material consideration where the lawfulness of the relevant use has not been established. In planning cases, the Article 8 balancing exercise is ordinarily inherent in the planning process. Re-consultation is required only where the revised proposal is substantially different or failure to consult would be procedurally unfair.

The claimant sought judicial review of the Council’s grant of retrospective planning permission for a modified pergola used as an extension to a restaurant at neighbouring premises. The Council had treated use of the rear garden by restaurant customers as a long-standing lawful use and had therefore discounted associated noise as a material consideration.

The claimant challenged the decision on five grounds: the lawfulness of the garden use; the inconsistent treatment of noise; inadequate reasons concerning visual amenity; failure to consider Article 8 rights; and failure to re-consult after the application was modified. The central issues were whether the garden use was authorised by earlier permissions or had become immune from enforcement, and whether the decision-making process was otherwise unlawful.

1. Grounds 1 and 2 succeeded. The claim was allowed to the extent that the planning permission was quashed. Grounds 3, 4 and 5 failed.
2. Whether an admitted use is lawful is a question of law for the court. The court must construe the relevant permissions and determine whether the use is authorised or immune from enforcement. The question is not insulated from review as a matter of planning judgment.
3. The 2005 permission authorised restaurant use of the ground floor, not the rear garden. The ownership plan did not control the scope of the permission. That construction was supported by the application’s wording, the absence of access from the restaurant to the garden, and the soundproofing condition protecting the residential accommodation above. The 2008 permission did not enlarge the permitted restaurant area. Section 75(3) of the Town and Country Planning Act 1990 authorised use of the 2006 kitchen extension for its designed purpose, but did not affect the remainder of the garden.
4. The Council had not properly considered whether the garden formed part of a larger planning unit. The planning-unit question could not simply be assumed to override the apparent scope of the permission. Nor could ten years’ use establish immunity under section 171B(3), because restaurant use of the garden began no earlier than construction of the pergola in late 2021.
5. Because the garden use had not been shown to be lawful, the officer unlawfully treated noise from that use as incapable of being a material consideration. The errors were material, and it could not be said that the decision would highly likely have been the same without them.
6. The reasons concerning visual amenity satisfied the applicable standard. The differences between the refused and approved schemes were identified, and the assessment remained a matter of planning judgment. The Article 8 ground was hopeless: adverse effects on residential amenity do not ordinarily establish illegality, and the required balancing exercise is inherent in planning decision-making.
7. Re-consultation was not required. Whether a revised proposal is substantially different, and whether failure to consult would be unfair, are matters for planning judgment subject to review for unfairness. The revisions addressed some objections, were not substantially different, and caused no perceptible unfairness or demonstrated adverse effect.