Legal Viewpoint: Appeal Court provides commentary on when a use may be considered ancillary

This case relates to a ground floor restaurant with residential use above in the London Borough of Richmond-upon-Thames. Planning permission for the restaurant use of the property was granted in 2005 . A site plan and a layout plan were submitted with the 2005 application. Critically, whilst the site plan included the rear area and a free-standing garage, the layout plan only showed the built boundaries of the ground floor (although it did include doors from the kitchen and fire exit to the area at the back of the building). In 2022 an application was made for "the retention and amendment of [an] existing rear pergola to ensure a reduction in height and length". This application followed an application for a larger pergola which was refused in 2021. 

Despite objections to the 2022 application from a neighbouring resident based on noise levels, it was approved by the council in December 2022. However, the neighbour challenged this decision, leading the High Court to consider whether the use of the outside area at the rear of the property as a part of the restaurant was lawful. 

The High Court upheld the refusal of the 2022 application, holding that the 2005 permission did not grant consent for the rear garden to be used as part of the restaurant. The court found that the site plan could not govern the permission as it included other parts of the building (namely the upstairs residential area) which were not intended for restaurant use. This decision was challenged by the council. The neighbour at this point further contended that, even if the garden's use was lawful, the noise disturbance had not been adequately dealt with. The Court of Appeal considered both of these arguments. 

Lord Justice Lewison noted that, although the 2005 permission was granted for a change of use in relation to the ground floor it also was granted "in accordance with the terms of the application…and the plans submitted therewith". The fact that the layout plan showed the doors from both the kitchen and the fire exit opening onto the rear area was therefore an important consideration. Lord Justice Lewison concluded that "it was necessarily implicit in that layout that the use of the rear area would be encompassed in the change of use, at least for purposes ancillary to the use of the ground floor as a restaurant". 

He went on to note that the inspector granting the 2005 permission envisaged that the garage at the end of the garden would be used for staff parking, ancillary to the restaurant use of the property. This means that, if the garden was excluded from also being ancillary, there would be a breach of planning control every time someone walked from the garage to the restaurant. It was thus reasonable, he considered, that the change of use related to the whole of the area within the site plan. In fact, Lord Justice Lewison noted that if the garden area was not included in the change of use permission, the user would be left with an area of land "whose permitted use was as ancillary to a shop" which is useless given the shop no longer exists. Lord Justice Males agreed. 

Interestingly, Lord Justice Moylan disagreed with Lord Justice Lewison, instead considering that the 2005 permission was limited to the ground floor built envelope. He noted that the "natural and ordinary meaning of the words "for change of use of the ground floor"" could not be deemed to include the garden, also noting that the plans should not have any "special status". 

While the Court of Appeal judges did not agree on the permitted use of the garden, they did all  agree that noise was a material consideration that did not get adequately taken into account, thus ultimately refusing the 2022 application. Although the arguments on permitted use did not change the judgment here, the judges' comments do serve as a helpful reminder as to what could be taken into account when considering ancillary use and what to be mindful of when preparing application plans. 

Case: London Borough of Richmond Upon Thames v Ariyo, R (On the Application Of)

Date: 9 August 2024

Ref: [2024] EWCA Civ 960