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

The lawfulness of an existing use is a question of law where it depends on the construction of a planning permission. Whether use is long-standing is ordinarily a question of fact for the planning authority. Operational development must be assessed for its own planning effects. A permanent enclosed structure can materially affect the character of activities and generate noise, making noise a material planning consideration. A report which treats noise as irrelevant because the underlying use is lawful fails to consider a material matter. The error is not saved by section 31(2A) of the Senior Courts Act 1981 unless the court is satisfied that the decision would highly likely have been substantially the same.

The Council granted planning permission for the retention and amendment of a permanent enclosed pergola at the rear of a restaurant. The respondent challenged the decision by judicial review, arguing that the Council wrongly treated customer use of the garden as lawful and wrongly excluded noise from consideration. The High Court held the Council’s decision unlawful in [2023] EWHC 2278 (Admin). On appeal, the Council disputed the construction of the 2005 permission and the treatment of long-standing use. The respondent’s notice raised the independent question whether noise from the proposed operational development was a material consideration. The central issues were the scope of the earlier permission and the adequacy of the officer’s consideration of neighbour amenity.

1. Disposition. The appeal was dismissed unanimously. The judges divided on the scope of the 2005 planning permission, but all agreed that the Council had failed properly to consider noise.
2. Lawfulness and construction. Whether an admitted use is lawful, when its status depends on a planning permission, is a question of law for the court. Interpretation is an objective exercise based on what a reasonable reader, equipped with some knowledge of planning law and practice, would understand from the words, context, plans, conditions and common sense. The approach in DB Symmetry Ltd v Swindon BC [2022] UKSC 33, Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30 and Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476 was applied. Lewison LJ, with Males LJ agreeing, concluded that the 2005 permission extended to the rear garden and garage for ancillary restaurant purposes. Moylan LJ considered that the clear reference to the ground floor confined the permission to the built envelope and that the officer had not separately determined long-standing use.
3. Respondent’s notice. The noise point was not wholly new. It had been raised in the objections, claim form and lower-court skeleton argument, and the Council had adequate notice without material prejudice. It was therefore permitted to be advanced.
4. Noise and operational development. The application concerned building operations creating a permanent enclosed dining area, not merely the continuation of an existing lawful garden use. Under Fidler v First Secretary of State [2004] EWCA Civ 1295, the nature of buildings may materially affect the character of activities on a site. The structure’s potential to bring restaurant activity and music closer to neighbours was therefore a material consideration under Policy LP8.
5. Failure to consider a material matter. The officer treated noise as not in question because customer use of the garden was said to be lawful. He failed to assess noise associated with the permanent structure, despite the absence of an acoustic assessment and the possibility of conditions concerning construction materials. The omission was material and the decision was not saved by section 31(2A) of the Senior Courts Act 1981. The grant of planning permission was accordingly quashed.

• Court of Appeal (Civil Division): Appeal dismissed in [2024] EWCA Civ 960. Lewison LJ and Males LJ held that the 2005 permission extended to the garden and garage; Moylan LJ disagreed on that issue. All three judges held that the Council had failed to consider noise properly.
• High Court of Justice, King’s Bench Division, Planning Court: The Council’s grant of planning permission was held unlawful in [2023] EWHC 2278 (Admin).