Town and country planning – Planning permission – Change of use – Claimant applying for judicial review of decision of defendant planning authority to grant planning permission for extension to restaurant – Whether defendant failing to consider properly whether lawful use of garden as part of restaurant established – Whether defendant failing to take account of noise arising from use – Application granted
The interested parties owned a restaurant at 208 Hampton Road, Twickenham, in a row of shops with residential accommodation above.
The ground floor had been a restaurant since about 2005, planning permission having been granted on appeal for change of use to Class A3. In 2008, there was a further grant of planning permission to mixed A3/A5 use to allow takeaways.
In 2006, the defendant local authority had granted planning permission for development at the back of the property and in its back garden, consisting of the demolition of the garage and construction of a new garage, a detached store, and an extension to the main building.
In 2022, the defendant investigated a possible breach of planning control. A pergola had been erected in the garden, between the main building and the garage, apparently intended for use as an extension to the seating area of the restaurant.
The interested parties applied for retrospective permission to retain the pergola but shorten it. On 12 December 2022, the defendant granted permission subject to conditions, including screening of the boundary, for a period of five years.
The claimant, who lived next door, applied for judicial review of that decision contending, amongst other things, that the defendant was wrong to consider that the use of the garden as a restaurant was a long-standing lawful use; and the officer’s report supporting the grant of planning permission was inconsistent with its assessment of the impact of noise.
Held: The application was granted.
(1) Whether a use was longstanding was a matter of assessment and whether a use ought to be permitted was clearly a matter of planning judgment. But whether an admitted use was lawful was a matter of law, within the jurisdiction of the court.
The court needed to construe any existing grants of permission and, if appropriate, any provisions relating to permitted development; and decide whether the use was permitted or for some other reason could not be the subject of enforcement.
The use of the garden as a restaurant, or as part of the restaurant, would be lawful if: (i) it was expressly permitted by the 2005 grant of planning permission; or (ii) if the 2005 permission were subject to some principle of interpretation implying a grant of permission to the necessary effect; or (iii) if a use originally not lawful had, through the passage of time, ceased to be amenable to enforcement.
(2) In the present case, the question was whether there was some means by which the grant of permission for change of use of the ground floor of the building, carried with it permission to use some larger space as a restaurant. The identification of a planning unit was a matter of planning judgment.
There was no suggestion that any proper investigation of the extent of the relevant planning unit was undertaken at any stage. It seemed to have been assumed 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 was therefore right at least to consider whether the absence of proper consideration of that issue was material: R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12; Barnett v Secretary of State [2010] 1 P & CR 8, R (KP JR Management Co Ltd) v Richmond upon Thames London Borough Council [2018] EWHC 84; [2018] PLSCS 13 and DC Symmetry v Swindon Borough Council [2022] UKSC 33; [2023] EGLR 11 considered.
(3) For the purpose of determining whether or not there had been a material change in the use of any buildings or other land, the local authority was entitled to look at the whole of the area, which was used for the particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.
It might equally be apt to consider the entire unit of occupation even though the occupier carried on a variety of activities and it was not possible to say that one was incidental or ancillary to another.
However, it might frequently occur that within a single unit of occupation two or more physically separate and distinct areas were occupied for substantially different and unrelated purposes.
In such a case, each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit: G Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506 and Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 considered.
It might be a useful working rule to assume that the unit of occupation was the appropriate planning unit, unless some smaller unit could be recognised as the site of activities amounting in substance to a separate use both physically and functionally.
(4) The treatment of the garden as having permission for use as a restaurant required clear consideration of the issue of the planning unit in the light of the grants of permission and the physical state and use of the building at the time of those grants.
The absence of that crucial factor in the officers’ reports was a clear pointer to the fact that in this case that matter had not been lawfully determined.
The failure to consider properly whether there was an established lawful use of the garden as part of a restaurant and the consequent failure to take into account the noise arising from its use in the context of making the present decision were public law errors.
They were material to the decision made and it could not be said that it was highly likely that the decision would have been the same if the errors had not been made.
The consideration of noise was predicated on the use of the garden as a restaurant being a lawful use.
The planning officer failed to take into account the clearly material factor that the use was not one that was entitled to be considered lawful.
Barney McCay (instructed by Richard Buxton Solicitors) appeared for the claimant; Charles Streeten (instructed by South London Legal Partnership) appeared for the defendant; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
