Appeal from quashing of gazebo permission

An unsuccessful appeal by the Council against judgment by Ockleton J quashing the retrospective permission for a gazebo extension in the rear garden of a restaurant.

Our client lives next door to a restaurant, which operates under a 2005 permission allowing the change of use “of the ground floor from a general hardware store (Class A1) to a restaurant (Class A3)”. For many years the restaurant operated without using the garden in any way, which is not factually in dispute.  In October 2022, a new retrospective planning application was submitted for the retention of an existing pergola in the rear garden. It was a large structure with retractable glass panels on the sides and the roof. Our client objected on the basis of increased noise and lighting. The first application was refused both by the Council and on appeal on the grounds of visual impact. Determining a subsequent application for a slightly smaller scheme under delegated powers, the planning officer noted that the use of the rear garden by customers of the restaurant is not restricted by planning conditions nor is it in breach of planning control given the “long-standing use of the premises as a restaurant”. Therefore, he concluded (i) that issues associated with noise are not in question and (ii) that in any event, mitigation of noise disturbance is secured by existing planning conditions.

Our client challenged this in the High Court which held that, on a correct interpretation of the 2005 Permission, permission was only given for the use of the ground floor of the Property as a restaurant and this does not include the rear garden. Therefore, the planning officer had unlawfully concluded that the use of the rear garden of the Property as a restaurant was permitted under the 2005 Permission. The Appellant appealed the decision arguing this interpretation was wrong. Our client argued that, even if the rear area could lawfully be used as a restaurant, the officer made two legal errors:

• He wrongly concluded that mitigation of noise disturbance was secured by existing conditions; and
• He wrongly concluded that issues such as noise are “not in question”.

Lord Justice Lewison noted, in the leading judgement, that even though the description of the development in the 2005 Permission refers only to the conversion of the ground floor to a restaurant, the use of the garden was necessarily ancillary to the use of the ground floor as a restaurant, which was further indicated in the plans provided with the application for the 2005 Permission. Thus, the planning unit, for which the 2005 Permission was granted, included the rear garden. Lord Justice Moylan dissented:  the 2005 permission did not permit the use of a rear garden as a restaurant, relying on the ground floor layout plan. He reasoned that ancillary uses could amount to a material change of use if sufficiently intensified, a point not considered by the Council.

Notwithstanding the above difference in interpretations, three judges agreed that noise was a material consideration of the operational development proposed and that the planning officer had erred in law in failing to take this into account. The design of the pergola would result in increased noise to neighbours as it allowed year-round use. No noise assessment had been conducted by the Council or the applicant for the proposal and the design of such a pergola with retractable glass would result in increased noise for neighbours as opposed to open land use. The Court of Appeal concluded that the planning permission under the 2022 Application must be quashed and the appeal dismissed.