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

9 August 2024

[2024] EWCA Civ 960

Court of Appeal

A restaurant wanted to build a fancy covered area in its backyard. A neighbor sued, saying it would be too noisy. The court agreed with the neighbor, even though the restaurant argued it had permission from a past decision. The court said the council should have carefully considered the noise the new building might make before approving it.

Key Facts

•Richmond upon Thames LBC (the Council) granted planning permission for a rear pergola at a restaurant.
•The application involved retention and amendment of an existing structure, later modified to reduce size.
•A neighbor, Mr. Ariyo, challenged the decision via judicial review, raising concerns about noise.
•The key legal issue was whether the 2005 planning permission implicitly permitted restaurant use of the rear garden.
•The Council argued the garden use was lawful due to the 2005 permission or long-standing use.
•The judge found the Council acted unlawfully, concluding the 2005 permission did not cover garden use.
•The Court of Appeal considered the interpretation of the 2005 planning permission and the Council's failure to consider noise implications.

Legal Principles

The lawfulness of a use depends on the interpretation of planning permission; this interpretation is a matter of law for the courts.

Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476, Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30, DB Symmetry Ltd v Swindon BC [2022] UKSC 33

Interpretation of planning permission considers the natural and ordinary meaning of words, the overall purpose, other conditions, and common sense.

DB Symmetry Ltd v Swindon BC [2022] UKSC 33

Whether a use is longstanding is a question of fact for the local planning authority, not the court.

Case law implied

In planning decisions, the character of activities can be materially affected by building nature; potential for increased noise from operational development is a material consideration.

Fidler v First Secretary of State [2004] EWCA Civ 1295

New points can be raised on appeal if they are based on existing facts and the other party has not suffered detriment.

Brent LBC v Johnson [2022] EWCA Civ 28, Singh v Dass [2019] EWCA Civ 360, Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, Azhar v All Money Matters T/A TFC Home Loans [2023] EWCA Civ 1341

Outcomes

Appeal dismissed.

The Council failed to properly consider the noise implications of the proposed pergola despite the application being for operational development capable of generating additional noise. The 2005 planning permission, while differently interpreted by the judges, did not unequivocally grant permission for restaurant use of the rear garden.

Judge's decision upheld (partially differing interpretations on 2005 planning permission).

Differing interpretations of the 2005 planning permission existed, with Lord Justice Lewison believing the permission extended to the garden and Lord Justice Moylan disagreeing. Both ultimately agreed that the appeal should be dismissed because the Council failed to consider the noise issue.

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

Key Facts

Legal Principles

Outcomes

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