ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR KEITH LINDBLOM QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| SUBURBAN PROPERTY INVESTMENT LIMITED
|- and -
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT & ANOTHER
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Miss Lisa Busch (instructed by Treasury Solicitors, Messrs ASB Law & the London Borough of Wandsworth) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"The garages and car parking accommodation shall not be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat and no trade or business shall be carried on therefrom."
"(b) Any other use of the garages would be prejudicial to the amenities of the residential building or the area generally."
"The current use is also regarded as a material change of use of the parking area to general commercial parking and storage, washing, valeting and maintenance of vehicles."
The notice required the Appellant to "…cease the use of the parking area on a general commercial parking basis and associated activities and ensure compliance with condition 3 of the  permission."
The Inspector's decision.
"5. The Appellant Company acquired a 999 year leasehold interest with the garage with associated rights of way from Dorrington Residential Limited, the freeholders of the garage and flats, on 19 December 2003. Dorrington have since disposed of their freehold interest in both. Mr Bowman, the Appellants' Company Secretary, told me that at the time of its acquisition by the Appellants the garage was empty and it remained so until about May or June 2004 while they spent 6 or 7 months refurbishing the garage and installing a security system. Thereafter they began advertising the garage spaces for let to the general public and have since averaged about 95% occupancy of the garage. Document 2/5 lists the whereabouts of licensees as at August 2007 showing one resident of Sylva Court with the remaining 19 mainly coming from parts of west and south west London, including Putney.
6. It is the nub of the Appellants' case, contrary to the Council's interpretation of it, that condition 3 of the 1965 permission does not restrict the parking of cars within the 24 parking spaces to those Sylva Court residents. In their view, from a literal reading of the condition, a car may be parked there so long as it is for a purpose incidental to the enjoyment of any dwelling house or flat and not for any trade or business purpose, such as a car repair garage. On the face of it that is a persuasive argument but one which does not hold up after closer consideration, for a number of reasons, most of which were advanced on the Council's behalf.
7. The starting point must be the 1965 permission itself, which was for a block of flats with associated parking provision. It was not a freestanding grant of permission for an underground car park, or other form of parking, but for an integral part [of] a sizable residential development. It seems to me that it is within that context that the language of the condition must be interpreted, such that the phrase 'shall not be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat' can only reasonably be taken to mean a dwelling or flat within the permitted block of flats and not 'any' dwelling wherever it happens to be located. I acknowledge that the condition could have been better worded to include a reference to the permitted block of flats but it appears from the Council's evidence that this was a fairly standard condition in use during that era when it was not thought necessary to include such a qualification. Inclusion of the term 'dwelling house' in addition to 'flat' may well reflect this standard phrasing since the condition could presumably be applied to most forms of residential development. The reason for imposing the condition is also revealing in that it states '(b) any other use of the garages would be prejudicial to the amenities of the residential building or of the area generally'. This undoubtedly refers to 'the residential building', or block of flats, as being permitted.
8. Other reasons for concluding that the condition effectively limits car parking within the garage to Sylva Court residents are the numerical co-relation of 24 spaces to 24 flats and the provision of a pedestrian access door to the garage at the foot of some steps leading from the entrance to the block of flats, albeit that door is now kept locked.
9. Having regard to the above, I am satisfied that the condition meets the test of precision set out at paragraph 14 of Circular 11/95 as well as the other five tests listed within that paragraph.
10. From the Appellants' own evidence the parking spaces are not, with one exception, now let to Sylva Court residents but to members of the wider public living elsewhere, on a commercial basis as part of what can only be described as a trade or business. That in my view is in breach of condition 3 as the notice alleges, and the ground (b) appeal fails to that extent.
11. I turn next to the second limb of the allegation, namely a material change of use to general commercial parking and storage, washing, valeting and maintenance of vehicles. It follows from my finding above that general commercial parking is taking place as a matter of fact. It is also clear from the Appellants' evidence that there is an element of storage since the cars are generally of high value, used less frequently than as a means of daily transport, with some kept under dust covers, all of which suggests longer term storage than normal day-to-day parking use."
The judgment of the Deputy Judge
"18. Was the Inspector right to read the condition in the way he did? I believe he was. One thing that could not sensibly be said is that condition 3 was intended to prevent the garage and car parking accommodation being used by the residents of Sylva Court for the parking of their own vehicles. Such parking would plainly be used for a purpose incidental to the enjoyment of a dwelling house or flat, applying the concept in the generic way in which it is put; or, if one is to apply it more specifically in respect of Sylva Court, which is a block of flats, incidental to the enjoyment of a flat. Without any semantic sophistication, one can readily see that this is to understand the word "incidental" here in its ordinary English sense, conveying the idea of something that occurs in connection with or as a result of something else. Similarly, it would be absurd, in my view, to suggest that condition 3 was intended to prevent some form of charge or licence fee being levied for the use of the garage by residents of the building. This would not affect at all the basic proposition, rightly discerned by the Inspector in my view, that the use must be one incidental to the enjoyment of Sylva Court as a residential building by those who live in it.
19. By contrast, the parking of vehicles owned by people who lived elsewhere - as Miss Busch put it in argument - by the general public, would clearly not be parking incidental to the enjoyment of Sylva Court as a residential building, nor indeed incidental to the enjoyment of any other particular residential building, again no matter whether the parking were charged for or not.
20. Condition 3 is also explicit in precluding the carrying on of any trade or business from the garages and car parking accommodation. It is plain, in my view, that such activity was regarded by the authors of the condition as being likely to be or to become inimical to the purpose of protecting the enjoyment of the flats by their residents. It was therefore ruled out. This understanding of condition 3 also sits well not only with the reason given for its imposition, but also with the concept of the whole development as defined in the planning permission.
21. The reason for the condition imposed concerns the amenities of the residential building and of the general area around it. It may be that over the years the word "amenities" has become somewhat hackneyed in the parlance of land use planning. Here, however, in a consent granted more than 40 years ago, one can sensibly read the word in its ordinary English sense, meaning the useful or desirable features of a place. The description of the development in the permission embraces not only the block of flats itself, but also in precise terms the garages and covered parking. This may sensibly be taken as an indication that the provision of parking within the development was regarded by the authority which approved it as an integral element of the proposal, and in my judgment it also serves to support the Inspector's understanding of condition 3.
22. I do not accept Mr Pike's suggestion that the correlation between the number of spaces and the number of flats in the block and the pedestrian access door connecting the garage to the flats, to which the Inspector referred in paragraph 8 of his decision letter, were irrelevant as matters he took into account in concluding there was support for the meaning he ascertained for condition 3. In my view, the Inspector was right to regard them as being consistent with his interpretation of the condition.
23. For the reasons I have given, I reject the contention, skilfully advanced as it was by Mr Pike in his submissions, that the Inspector adopted a legally incorrect construction of condition 3 and thus misdirected himself in approaching his task of making appropriate findings of fact for the Appellant's ground (b) appeal. On the contrary, I am in no doubt that the Inspector adopted the correct meaning of condition 3 and that he properly directed himself in considering whether, as a matter of fact and degree, the alleged breach had occurred.
24. Crucial in the Inspector's analysis on that question were the findings he made in paragraphs 10 and 11 of his decision letter. He recorded in those two paragraphs, as in my view he was perfectly entitled on the evidence - including the Appellant's own evidence - to find, that general commercial parking by the letting of spaces, with one exception, to members of the wider public living elsewhere, and including an element of storage, was taking place on the site and that this constituted a breach of condition 3 as alleged in the enforcement notice. It would be quite impossible, in my view, to stigmatize that finding and that conclusion as being irrational or otherwise bad in law. This first part of the Appellant's challenge therefore fails.
Lord Justice Rimer:
Lord Justice Carnwath:
Order: Appeal dismissed