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“Ariyo, Round 2”

Roderick Morton • Aug 27, 2024

The Court of Appeal recently upheld a High Court decision quashing a grant of planning permission in which the interpretation of a previous permission played a key part, despite finding that the High Court had misinterpreted that previous permission. 


In 2022, the council granted permission for a rear garden pergola extension to a restaurant. Key to the decision was the council’s view that the use of the rear garden as part of the restaurant was lawful.  Mr Ariyo, a neighbour, brought a judicial review of the decision. 


The site comprised a ground floor restaurant with unrelated residential accommodation upstairs and a rear garden. Prior to 2005, the ground floor had operated as a hardware shop. There was evidence that plants had been grown in the rear garden for sale in the shop. In 2005, permission was granted on appeal for the change of use of the ground floor hardware shop to a restaurant. In 2006, permission was granted for a rear extension to the restaurant and construction of a store in the garden. In 2008, permission was granted for the change of use to a mixed restaurant and takeaway, with deliveries being picked up from the new rear extension. The blue line plan for the 2005 application showed only the building; the red line ownership plan showed the whole site. The plans for the 2006 application showed the proposed buildings on a site plan. The plans for the 2008 application showed the whole site and adjacent features. 


The pergola appeared in 2021. Following discussion with enforcement officers, a retention application was invited and refused, and an appeal dismissed on design grounds. But a revised application for a modified pergola was then made for which permission was granted. The revised application was for the structure only, not any change of use. But the officer report assumed that the use of the rear garden as part of the restaurant was lawful given the longstanding restaurant use; it therefore discounted noise impacts. 


At the High Court, the council argued that the 2005 permission was for the whole site, including the garden, because that was the red-lined site. The court disagreed. The 2005 permission was, it said, for the ground floor of the building only; nothing else. This was clear from the blue lined plan, from the fact that the 1st floor was excluded and from the fact that conditions sought to protect the residential amenity only of the first floor occupiers. The 2008 takeaway permission did not change that. The 2006 extension permission changed the use of the land beneath the extension but no other part of the garden. 


The council next argued that the 2005 permission extended to the whole of the planning unit of the restaurant, including the garden. The court side-stepped the issue. The matter simply had not been properly considered by the council in granting permission and could not be taken as read now. 

The potential lawfulness by immunity of the use of the garden as part of the restaurant was also considered. But the court rejected this on the basis that there had been no restaurant use until construction of the pergola. 

It followed that the council’s decision to grant permission was flawed, judicial review was granted and the decision was quashed. The council appealed.

In our article on the High Court decision, we commented that the High Court’s decision was an odd one. If the rear garden was not part of the restaurant, what was it? Its own planning unit? Really? A small suburban back yard with no other use and no separate access?


At the Court of Appeal, Counsel for Mr Ariyo had no answer to this. Lord Justice Lewison said that this outweighed the stricter interpretation of the 2005 permission imposed by the High Court. Lord Justice Males agreed.


While he agreed with the overall decision, Lord Justice Moylan took a wholly different view on interpretation. For him, the permission was clear enough on its face, it went through an inspector appeal in 2005, the plans restricted the permission to the building and the lack of any conditions protecting neighbouring properties from noise from restaurant use in the garden suggested that those granting permission were only permitting restaurant use within the building itself. The High Court, he said, got the interpretation right. The planning unit concept was “not particularly helpful” in determining the meaning of the 2005 permission, particularly when up against otherwise clear words of the permission. 


Further, the Court of Appeal said that the High Court had no business determining that the use of the garden was not lawful by immunity. That was a matter for an inspector at appeal.

That was not the end of the matter though. Mr Ariyo also contended that, even if the use of the rear garden as part of the restaurant was lawful (whether by the 2005 permission or expiry of time), the council, in granting permission, had nevertheless wrongly concluded that noise mitigation was “not in question”. This was because the construction of the pergola was not merely a change of use; it was a building operation which would create additional noise and the design of which (a 60cm ground level reduction, then construction or a large structure hard against the boundary wall with retractable glass panels and no known acoustic mitigation) ought at least to have generated some conditions. This aspect was upheld by all three judges in the Court of Appeal. The appeal was therefore dismissed.


By way of comment, while it is difficult to argue that the majority reached the right conclusion that the garden was lawfully in use as part of the restaurant, the decision does suggest that


  • interpretation of permissions is way more a matter of judgment than the “face of the permission” cases such as Trump International might suggest. Four eminent judges considered this permission; so far the decision is 2:2! 
  • The dividing line between what part of the interpretation is for the inspector and what is for the court is more flexible than might be expected. If the court wants jurisdiction, it will take it.
  • The primacy of the planning unit as the starting point for assessing use is “not particularly helpful” where matters of interpretation are concerned.

“Ariyo, Round 2”

by Roderick Morton • 27 Aug, 2024
LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960

2 Become 1

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LB Lambeth v SSLUHC [2024] EWHC 1391

Failure to serve

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LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)

Murfitt is judge-made law, not a statutory principle.

by Roderick Morton • 16 May, 2024
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467

Gypsy and Traveller sites in the Green Belt

by Roderick Morton • 26 Apr, 2024
Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)

Stripey House Owner Strikes Out

by Roderick Morton • 22 Mar, 2024
R oao Lisle-Mainwaring v RB Kensington and Chelsea and another

Implementation - deviation from plans

by Roderick Morton • 13 Feb, 2024
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)

Enforcement Warning Notices

by Roderick Morton • 30 Jan, 2024
s172ZA TCPA 1990

Interpreting planning permissions

by Roderick Morton • 26 Oct, 2023
Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278
Just what is the “streetscene” and the “character and appearance of an area”?

Just what is the “streetscene” and the “character and appearance of an area”?

by Roderick Morton • 28 Sept, 2023
Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904

Murfitt limited - again

by Roderick Morton • 07 Aug, 2023
Removal of facilitating development

All I wanted was closure

by Roderick Morton • 19 Jul, 2023
Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)

3 more years of Diddly Squat

by Roderick Morton • 28 Jun, 2023
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.

Equalities duties must be treated differently

by Roderick Morton • 17 May, 2023
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)

Standing to Appeal

by Roderick Morton • 25 Apr, 2023
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)

Implementation of planning permission

by Roderick Morton • 24 Mar, 2023
Atwill v New Forest NPA [2023] EWHC 625 (Admin)

McCaffrey v Dartmoor NPA

by Roderick Morton • 23 Feb, 2023
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341

NAPE article

by Roderick Morton • 17 Jan, 2023
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)

Hillside v Snowdonia

by Roderick Morton • 22 Nov, 2022
Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30

“Immunity” and adverts

by Roderick Morton • 26 Oct, 2022
LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)

A dwellinghouse by any other name

by Roderick Morton • 18 Aug, 2022
LB Brent v SSLUHC and Yehuda Rothchild [2022] EWHC 2051 (Admin)

R (oao) Liquid Leisure Limited and Royal Borough of Windsor and Maidenhead

by Roderick Morton • 20 Jul, 2022
Liquid Leisure Ltd, R (On the Application Of) v Royal Borough of Windsor and Maidenhead [2022] EWHC 1493 (Admin)

Another bite at the cherry

by Roderick Morton • 22 Jun, 2022
Manchester City Council vs SSLUHC and Kousar [2022] EWHC 1062 Admin

Chesterton v Wokingham

by Roderick Morton • 20 Jun, 2022
This article was first published in the NAPE newsletter of August 2018. Case report - Chesterton vs Wokingham BC [1] – s70C TCPA 1990 The High Court recently had another chance to consider the scope of s70C TCPA 1990 and took that opportunity to further restrict the judgment in R(Deep Banghard) vs Bedford Borough Council [2] to its facts. Our article on Deep Banghard was published in the NAPE November 2017 newsletter. S70C enables LPAs to decline to determine a planning application where to grant permission would involve granting permission for the whole or any part of the matters specified in an enforcement notice. The section was intended to stop appellants using strategic planning applications to delay effective enforcement. In Chesterton vs Wokingham BC, the appellant was the owner of a very nice spread on the banks of the Thames at Henley which was occupied by its main director. The land is designated green belt, it is in a conservation area and in a prominent location. As well as the main house, there is a 2 storey garage and 2 storey boathouse which were connected by a single storey storage building with a terrace on its roof. The built forms of the garage and boathouse were in line with planning permissions but their linking by the storage building meant that their permissions could not be said to have been implemented. The appellant applied for retrospective permission for the structure as built in May 2016 and the council served an enforcement notice in June 2016 against the whole structure. The permission application was refused and the enforcement notice was upheld on appeal on the basis that the size, scale and massing meant that it was inappropriate development in the greenbelt context. While complete demolition had been sought, the inspector altered the notice under ground (f) to require the storage building to be demolished and the rest of the structure brought into line with the extant permissions. Time to comply was extended. Rather than complying, the appellant lodged a further application shortly before the expiry of the compliance period seeking permission for a balcony linking the boathouse and garage. The council declined to determine the application on the basis that it related to matters specified in the enforcement notice. The balcony incorporated elements of the existing store roof. The appellant sought judicial review of the council’s decision. The judgement contains an interesting review of the purpose of s70C and its related provision, 174(2A), which prevents the ground (a) appeal of an enforcement notice which is issued after a planning application has been made for the matters specified in the enforcement notice. The logic of the two provisions is not to prevent the merits of an unauthorised development being considered at all but rather to ensure that they are considered only once, the proverbial “one bite at the cherry”. In the Deep Banghard case, the council was prevented from declining an application for retention and storage use of a dwelling building under s70C on the basis that the inspector had already ruled that the permission sought under ground (a) in the enforcement appeal (ie retention as storage) was not something he could decide within the limits of s174(2)(a) as it was not a matter set out in the enforcement notice. Judge Nathalie Levien QC decided that all developers were allowed one chance to have the planning merits of a proposal considered, one “bite at the cherry”. Banghard has already been significantly restricted by Gilbart J in R (Smith) vs Basildon Borough Council [3] . In Chesterton, Martin Rodgers QC sitting as a deputy judge noted the breadth of the wording of s70C which allowed LPAs a discretion to decline to determine where the application related to the whole or any part of the matters specified in the enforcement notice and noted that these reflected the breadth of the basis for the ground (a) appeal. It was not necessary, he said, that there is complete overlap between the EN breach and the planning application before s70C is engaged. The appellant relied on Banghard where it was suggested that anything more than minor differences would mean that the EN and the PP application related to different matters. The judge rejected this; so long as “any part” (beyond deminimis) of the application related to the same matters as the EN, it could be declined under s70C. Of course, whether it should be declined was a planning judgement and no doubt the differences were relevant to that judgment Further, the “one bite at the cherry” doctrine in Banghard was qualified in the sense that if the applicant had already had the chance to have the merits of his planning application considered at the enforcement appeal but had failed to take that chance, it was reasonable to decline to determine the planning application. In this case, the appellant could have raised its current scheme as an alternative under ground (f) in the enforcement appeal. Its failure to do so counted against it. This seems a little harsh as the work required to get from the “as built” storage building to the balcony proposal was not insubstantial and it is difficult to see that it would have been a winning approach under ground (f). It seems likely that we will see further litigation on the extent to which theoretical possibilities under ground (f) should be sufficient to engage s70C. The “whole or any part of” test for appeals under ground (a) is a minefield on which inspectors are not consistent and on which there are some significant court judgments For instance, the inspector in Banghard rightly held that an alternative storage use for a building was not “part of” the dwelling which the enforcement notice alleged had been created. Other inspectors have reached wholly different conclusions focusing on the built form and ignoring the use. If the s70C power is to stand or fall on the “whole or any part of” test, more consistency is required and it seems likely that we may see another spate of litigation on this aspect. LPAs must also bear in mind that the s70C power is a discretionary one and the question of whether an application covers the whole or part of the matters set out in an enforcement notice is a matter which requires the exercise of planning judgment, rather than an administrative stroke of the pen. [1] Chesterton Commercial (Bucks) Limited vs Wokingham DC [2018] EWHC 1795 (Admin) [2] R (Deep Banghard) vs Bedford Borough Council [2017] EWHC 2391 (Admin) [3] R (Smith) vs Basildon Borough Council [2017] EWHC 2696 (Admin)
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