High Court quashes grant of planning permission for restaurant extension

The London Borough of Richmond Upon Thames was wrong to allow a restaurant to expand its dining area under a garden pergola, the High Court has decided.

CMG Ockelton, Vice President of the Upper Tribunal, said in his judgment that no lawful authority existed for the use of the garden as a restaurant and found for the claimant on two out of five grounds.

Richmond granted planning permission to extend a restaurant next to the claimant’s home in Twickenham. The ground floor had operated as a restaurant since about 2005 and in 2008 a further grant of planning permission to mixed A3/A5 use was given to allow takeaways.

Planners initially rejected the restaurant owners’ application for an extension, but they made a fresh application proposing the pergola be reduced in height by lowering the floor level by 30 cm. Richmond then granted permission.

The claimant argued the council erred in thinking that restaurant use was lawful in the garden part of the site and that the officer's report supporting planning permission was inconsistent with the refusal of the first application on grounds of noise. The report on the second application discounted this on the basis that the noise impact was already lawful.

Mr Ockelton said the claimant’s argument “asserts a negative: that there is no lawful authority for use of the garden as a restaurant”.

He said use of the garden as a restaurant would be lawful if it was expressly permitted by the 2005 grant of planning permission, or if that grant were subject to some principle of interpretation implying a grant of permission; or if a use originally not lawful had, through the passage of time, ceased to be amenable to enforcement.

Having dismissed the first two routes to lawful use Mr Ockelton said only lapse of time remained which would need to show 10 years’ use of the garden as a restaurant, but it was clear this had started only with the building of the pergola at the end of 2021.

He said consideration of noise 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,” Mr Ockelton said.

“The consideration of noise in the most recent report was therefore unlawful: the reason is not precisely that argued by [the claimant], but is sufficiently encompassed in his claim that the change from noise having some relevance to its having none in the most recent report required explanation.”

Mr Ockelton said it could not be said that it was highly likely the decision would have been the same if the errors had not been made and made a quashing order.

Three other grounds argued failed. These were that the two reports were inconsistent on the physical aspects of the impact of the structure, the decision failed to take into account the claimant’s Article 8 rights and that the council was guilty of procedural unfairness.

Mark Smulian