Overview

In the case of Ariyo v London Borough of Richmond Upon Thames Council [2024] the Court of Appeal addressed the nuances of interpreting planning permissions and the implications of noise management in a residential context. 

The judgment scrutinises the legal framework around the use of ancillary spaces in planning permissions and highlights the judicial emphasis on the procedural handling of noise considerations in planning applications. The case of Ariyo offers valuable insight for planning authorities, developers and neighbouring residents in order to understand the legal limits of operational development permissions. It also underscores the importance of precise, legally compliant procedures in planning decisions.

In this insight, we set out the facts of this case and key takeaways for local authorities. 

Background 

In 2005 the London Borough of Richmond Upon Thames Council (LPA) granted planning permission that changed the use of a “ground floor area” from use Class A1 hardware shop to a use Class A3 restaurant. The planning application included a site plan showing both the building and garden area, but the interior layout plan was limited to ground floor only. Although the planning permission was subsequently granted, it made no specific reference to the use of the garden area for dining. 

In 2022, a new application was submitted seeking planning permission to erect a garden area structure with retractable glass panels, enabling the restaurant to expand its outdoor seating capacity. Dr Ariyo, a neighbouring resident, opposed the proposal, arguing that the garden area had not been covered by the 2005 permission and raised notice concerns due to increased outdoor use.  

Despite noting noise policies, the LPA’s planning officer approved the 2022 application without a detailed noise assessment, citing the property’s longstanding use as a restaurant. Dr Ariyo challenged the proposed decision by way of judicial review. 

The High Court ruled in favour of Dr Ariyo, stating that the 2005 permission only applied to the building’s ground floor, excluding the garden area. It held that the LPA failed to address noise impact as a material consideration. The LPA appealed this decision to the Court of Appeal, arguing firstly that the 2005 planning permission covered the garden area and secondly, that noise implications had been appropriately considered when reaching the 2022 decision. 

Judgment 

A significant issue that was presented in the appeal was the interpretation of the 2005 planning permission and whether the “planning unit”, as defined in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, should extend to include the garden as part of the restaurant’s permitted area. The principle at stake is that the planning unit generally consists of an area in a single occupation, where one primary use is accompanied by ancillary spaces. 

In writing for the majority, Lord Justice Lewison concluded that the High Court had erred in its interpretation. He held that although the permission expressly referred to the ground floor, it implicitly included the garden area as part of the “planning unit” based on the application’s site plan. Excluding the garden would, in Lewison LJ’s view, leave the property’s outdoor area “useless” and render the planning permission incoherent. He drew on established principles: ancillary uses, which are reasonably incidental to a main use, are considered part of the primary development’s scope, provided they fall within the planning unit. Lord Justice Males concurred, supporting Lewison LJ’sstance that the planning permission’s interpretation should consider the planning unit holistically.  

In contrast, Lord Justice Moylan argued that the High Court’s restrictive reading of the 2005 Permission was correct, asserting that the clear reference to the ground floor’s interior excluded the garden. Moylan LJ reasoned that treating the garden as an ancillary area without explicit language allowing its use for dining could result in a material change of use. He emphasised that the intensified use of an ancillary area can, if sufficiently extensive, constitute development in itself. Moylan’s dissent underscored the need for precision in planning documentation to avoid conflating primary and ancillary uses when they serve distinct and potentially conflicting purposes.  

While the judges differed on the scope of the 2005 permission, they unanimously agreed on the LPA’s failure to adequately consider noise as a material consideration in the granting of the 2022 permission. 

The Court of Appeal held that, given the structural additions and increased capacity for outdoor dining, noise impacts required detailed analysis. Noise, being a foreseeable consequence of intensified use, should have been assessed to balance operational interests with the residential amenity of neighbouring properties. The absence of a thorough noise assessment in the LPA’s decision was deemed procedurally inadequate and substantively unlawful. This omission led to the Court quashing the 2022 planning permission and dismissing the appeal. 

Practical implications 

This judgment offers key practical insights for planning authorities, developers and practitioners, in three main areas:  

1. Clear and consistent documentation: The case reinforces the need for precise language in applications, decision notices, and supporting plans to prevent ambiguity. If the scope of the permission is uncertain, this can lead to significant operational and legal risks, as seen in this dispute over the garden’s ancillary use. The judgment cautions practitioners to carefully delineate the extent of requested permissions to avoid judicial interpretations based on inconsistent documentation. 
2. Ancillary uses and the planning unit: This case reaffirms the principle that ancillary uses are often permissible within a planning unit, but only to the extent that they align with the primary use. If ancillary use intensifies significantly, as in this case with outdoor dining, it may require separate permission. The Court’s reference to the case of Burdle confirms that practitioners should assess the planning unit’s boundaries rigorously, ensuring that any “red line” boundaries within an application are suitable for their intended uses. 
3. Material considerations, particularly noise: This case underscores the judicial expectation that noise, as a material consideration, must be addressed thoroughly, particularly when planning permissions introduce structural changes that are likely to increase activity levels. Failure to analyse noise impacts – especially in residentially sensitive settings – can lead to legal challenges. Practitioners are advised to conduct and document noise assessments for applications likely to result in operational expansions. 

Conclusion 

The Ariyo case is helpful for planning authorities and practitioners, illustrating the critical importance of clarity, consistency, and procedural thoroughness in planning applications and permissions. The Court of Appeal’s decision reminds practitioners to meticulously define the scope of permissions, especially where ancillary uses may arise. The case underscores that material considerations such as noise must be factored into decisions impacting nearby residents. Through this case, the Court has signalled the judiciary’s insistence on high standards of clarity and procedural compliance in planning law, affirming that where these standards are not met, permissions are vulnerable to judicial review and potential quashing. 

How can Capsticks help? 

The recent Court of Appeal decision of Ariyo v Richmond Upon Thames highlights the critical importance of precision in planning applications and documentation and the need to effectively address material considerations such as noise. Capsticks is well-positioned to help local authorities and RPs to navigate these legal requirements and avoid similar pitfalls. We provide strategic and cost-effective local government advice, underpinned by a practical understanding of the sector’s daily challenges. 

Capsticks is dedicated to being the firm of choice for local government organisations and Registered Providers, offering comprehensive legal services across development, planning law, corporate and securitisation, housing leasehold and asset management. Our team has in-depth expertise in all areas of planning law, including Section 106 Agreements, Highways Agreements, Community Infrastructure Levy (CIL) advice, planning appeals and general planning and development matters. 

This article was authored by Bria Sturgess, Paralegal Apprentice and Suzanne Smith, Partner in our Housing and Regeneration team. 

For further information and support regarding the case above, please contact Capsticks Partner,  Suzanne Smith.