The King on the application of Owolabi Ariyo v Richmond Upon Thames London Borough Council

Hearing date: 25 May 2023

Approved Judgment

Introduction

This is an application for judicial review of a decision of the defendant planning authority, Richmond upon Thames London Borough Council (“the Council”) to grant planning permission for an extension to a restaurant. The claimant, Owolabi Ariyo, lives next door. The interested parties, Arben Jahja and Paul Jit Dhillon, are the owners of the restaurant. They have not taken any part in these proceedings. Permission was granted, with other consequential Orders, by Lang J on 1 March 2023. There has been extensive exchange of written arguments and other materials between the parties, and I am also asked to grant permission to amend the grounds and to allow the defendant to rely on a skeleton argument exceeding the normal maximum length of 25 pages.

The claimant has sought to add further grounds or points of claim after seeing the defendant's Detailed Grounds of Defence. It was not quite clear on what basis these were put forward. On the one hand they were said to be a mere expansion of matters already pleaded in the Statement of Facts and Grounds accompanying the claim form or in the Reply that Lang J had allowed the Claimant to rely on. That approach, however, is not consistent with an agreed list of issues for the Court to determine, which sets out certain issues as arising only if the new grounds are permitted. The defendant resisted the application. It says that some or all of the matters that the claimant now seeks to add are new and that it is too late to add them: the claimant should have put his case comprehensively when he issued the proceedings, and it is not right that the defendant should be faced with new issues after compiling its defence. The defendant might want to be able to rebut the new material by evidence.

At the beginning of the hearing, I ruled that the added grounds would not be admitted. Insofar as they are encompassed within the existing pleadings the addition is unnecessary; insofar as they are not, the addition does not meet the justifiable demands of procedural rigour and would be unfair. The new points are not of such obvious merit that their substance calls for consideration in determining whether to allow their admission. It follows that any questions that would require determination if the new grounds were admitted do not fall for decision.

The second procedural issue is that the defendant sought permission to rely on a skeleton exceeding 25 pages in length. It is regrettable that its draftsman was not able to write more concisely in what is after all not a case of the utmost complexity, but no issue of fairness arises. I granted permission for the skeleton as filed to be used.

The Claim

The site is at 208 Hampton Road, Twickenham, TW2 5NJ. So far as concerns its basic appearance from the front, the building is one of a row of shops with residential accommodation above. The ground floor has operated as 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 from the restaurant. In the mean time, in 2006, the Council 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. It is not clear that the store was ever built.

In 2021 and 2022, the Council investigated a possible breach of planning control. A building, called in the documentation a ‘pergola’, had been erected in the garden, occupying most of the space between the main building and the garage, and apparently intended for use as an extension to the seating area of the restaurant. It is this building, subject to proposed modifications, that is the subject of the decision under challenge and the present claim. The interested parties applied for retrospective permission to retain the pergola but shorten it, but permission was refused on 1 April 2022, and an appeal was dismissed.

Promptly after the appeal decision, the interested parties submitted a further similar application, this time also proposing a reduction in height. The claimant submitted a letter of objection. Following a discussion between the interested parties and the defendant, the application was modified so that as at the time of decision the floor level was to be lowered by 30 cm (thus reducing the roof height by that amount), reducing the length of the structure at the end nearer to the main building, so that there would be a space between the two of them, and screening was proposed between the site and the claimant's property at no. 210. On 12 December 2022 the Council granted permission subject to conditions including screening of that boundary, for a period of five years expiring on 12 December 2027. That is the decision under challenge. The claim was received on 23 January 2023.

The grounds of challenge are as follows. First, in making its decision the Council erred in thinking that restaurant use was a lawful use of the garden part of the site. Secondly, the officer's report supporting the grant of planning permission was inconsistent with that supporting the refusal of the immediately preceding application in its assessment of the impact of noise: the earlier report had said that noise was a material consideration counting in favour of refusal, whereas the later had discounted this factor on the basis that the noise impact was already lawful. There should have been a clear statement of the reason for the change of view. Thirdly, the two reports were inconsistent on the physical aspects of the impact of the structure: again there should have been a clear statement of the reason for the change of view. Fourthly, the decision failed to take into account the claimant's rights to private and family life under article 8 of the European Convention on Human Rights. Fifthly, the defendant was guilty of procedural unfairness: having allowed a modification of the application on which there had been consultation and to which the claimant had responded, it should not have proceeded to grant planning permission without giving the claimant an opportunity to respond to the modified application. The defendant resists the application on all grounds.

Grounds 1 and 2: the facts

Grounds 1 and 2 raise separate issues, but they are both concerned with the existing lawful use of the garden space at the rear of no.208. The relevant background facts are essentially the same and must now be examined.

The starting point is the application for, and grant of, planning permission for change of use in 2005. I have not seen all the application papers. There were two plans. One showed, edged in red, the entirety of the premises, including the rear garden and garage, as mapped by the Ordnance Survey. The other showed only the main building on the site, with no indication of surrounding land. On this plan, the ground floor is principally divided into “restaurant” at the front, and “kitchen” at the back. To the side of the restaurant frontage is a part reserved for a separate “entrance to upper floors”, leading to a staircase up; behind that feature, but accessible only from the restaurant, are toilets and a fire escape door. There is a separate toilet serving the kitchen; there is no access to the land at the rear from the restaurant save through the kitchen or the fire escape. The arrival of the stairs on the first floor is indicated in the second element of the plan, which shows the whole of that floor. The inspector's decision summarises the application as “change of use of the ground floor from a general hardware store (Class A1) to a restaurant (Class A3)”. It notes that the ground floor is currently in use as a hardware shop, and that “in the area to the rear, there is a polytunnel where plants are grown for sale in the shop”. It concludes that change of use would (in broad terms: the details are not important in the present context) be advantageous.

In relation to conditions, the inspector required details of the proposed extraction and ventilation system to be provided as a safeguard to the amenities of surrounding residents, and for the same reason imposed a condition limiting opening hours, but did not require the hours to be displayed, or a further condition limiting the time staff could be on the premises. Specifically in regard to general noise the inspector wrote “I agree that a condition requiring sound insulation between the proposed restaurant and the residential accommodation above is necessary to safeguard the amenity of those residents”. Subject to those conditions, permission for change of use of the ground floor was granted.

The application for structural alterations resulting in the grant of permission in 2006 was accompanied by plans of what was proposed. The whole of the existing ground floor area previously occupied by the spaces called “restaurant” and “kitchen” (and including the staff toilet) would become the dining area of the restaurant. A new extension to the rear would house the kitchen, and another smaller one behind the existing toilets would be part of an extended...