England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR KEITH LINDBLOM QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 January 2011

Lord Justice Sullivan:

Introduction.

1. This is an appeal against the order dated 22 May 2009 of Mr Keith Lindblom QC (as he then was), sitting as a Deputy High Court Judge, dismissing the Appellant's appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against the decision of an Inspector appointed by the Respondent dismissing the Appellant's appeal against an enforcement notice ("the notice") issued by the Interested Party on 22 November 2006. The Inspector's decision is contained in a decision letter dated 23^rd October 2007.

Facts.

2. The facts are set out in the judgment below. In summary, planning permission was granted on 23 February 1965 for "the erection of a part 8 and part 9 storey block of 24 flats with nine garages and covered parking for 12 cars at 81 Putney Hill, Wandsworth" ("the 1965 permission"). The 1965 permission was subject to four conditions. We are concerned with condition 3 which states:

"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."

3. The reason given for the imposition of condition 3 was:

"(b) Any other use of the garages would be prejudicial to the amenities of the residential building or the area generally."

4. The block of 24 flats, now known as Sylva Court, 79 Putney Hill SW15, was constructed pursuant to the 1965 permission. Within the grounds there is an underground garage containing 24 car parking spaces. The flat roof of that garage is landscaped and laid out to lawn. At the inquiry before the Inspector it was agreed between the Appellant and the Interested Party that the parking provision referred to in the 1965 permission had been modified at the approval of reserved matters stage to embrace the 24 underground spaces within the garage (see paragraph 4 of the decision letter). The breach of planning control alleged in the enforcement notice was "Failure to comply with condition 3 of the [1965] planning permission which states ...". The terms of condition 3 were set out (see above) and the notice continued:

"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 [1965] permission."

5. The Appellant appealed against the notice on grounds (a), (b), (d) and (g) in section 174(2) of the Act. Subject to varying the notice by the deletion of the words "washing, valeting and maintenance" from the allegation of breach of planning control, and the removal of the reference to "associated activities" in the requirements of the notice, the Inspector rejected the appeal on all of those grounds and upheld the notice as varied. Before the Deputy Judge the Inspector's decision on both grounds (b) and (d) was challenged. In this appeal the challenge is confined to the Inspector's rejection of the appeal on ground (b).

The Inspector's decision.

6. The Inspector dealt with ground (b) in paragraphs 2 to 13 of his decision letter. Having described the underground garage and referred to the 1965 permission, he said in paragraphs 5 to 11:

"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."

7. In paragraphs 12 and 13 the Inspector considered and rejected the allegation in the enforcement notice that washing, valeting and maintenance of vehicles had been taking place and varied the notice accordingly.

The judgment of the Deputy Judge

8. The Deputy Judge upheld the Inspector's reasoning. In paragraphs 18 to 24 of the judgment he said:

"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.

Submissions

9. On behalf of the Appellant Mr George QC submitted that while conditions in planning permissions should not be interpreted in an unduly pedantic manner, the focus had to be on the wording of the condition read in the light of the planning permission as a whole, including the reasons given for the imposition of the condition. Condition 3 should be given its literal meaning, and its literal meaning is that any use which is for a purpose which is incidental to the enjoyment of a (ie any) dwelling house or flat is permissible. This literal meaning gives effect to the words "a dwelling house or flat". If it had been intended to confine the use of a car parking accommodation to a purpose incidental to the enjoyment of the (24) flats permitted by the 1965 permission, then the condition would have said so, and there would have been no need for there to have been any reference to a dwelling house or flat, since only flats were permitted by the 1965 permission. He drew attention to the fact that when the draftsman of the permission wished to refer to "the residential building", rather than a dwelling house or flat he did so in the reason given for the imposition of condition 3.
10. Mr George accepted that the concept of a purpose being "incidental" to the enjoyment of a dwelling house (or flat) required there to be some connection between the purpose and the enjoyment of the dwelling house. The former had to be a result of, or result from, the latter.
11. He submitted that one of the incidents of occupying a dwelling was, for very many people, the possession of a car and that inevitably brought with it the need to find somewhere to park the car. Thus, he submitted that the parking of their cars in this car park by residents living elsewhere was a  purpose which was incidental to those residents' enjoyment of their dwelling houses or flats.
12. On behalf of the Respondent Miss Busch submitted that such a car parking use was not incidental to the car owners' enjoyment of their dwelling houses or flats elsewhere because there was no functional connection between the use of the car parking space and an enjoyment of the dwellings. In practice, that functional connection would exist only in respect of car parking in this car park by the residents of Sylva Court.
13. The condition had to be construed in the context of the planning permission as a whole. Since planning permission had been granted for 24 flats with nine garages and covered parking it was plain that planning permission has been granted for garages and car parking that were associated with the use of the 24 flats, and that planning permission was not being granted for a separate use as a public car park or garage in its own right. Even if there had been no condition, such a use of the car parking spaces would have been a material change of use requiring a separate planning permission. Against this background condition 3 could not be construed so as to permit a use as a commercial car park for use for car parking by the general public.

Discussion

14. I accept that we should not read words into condition 3 and that it does not expressly limit the use of the underground car park to a purpose that is incidental to the 24 flats hereby permitted, but instead limits its use to a use which is for a purpose that is "incidental to the enjoyment of a dwelling house or flat". The question is whether this makes any practical difference in the context of this particular planning permission. Some meaning must be attributed to the words "incidental to the enjoyment of a dwelling house or flat". If the draftsman of the planning permission had wished to restrict the use of the car park by reference simply to the type of vehicle to be parked there -- private cars rather than, for example, commercial vehicles -- then the condition would have said so: "the car park shall not be used for the parking of any kind of vehicle other than private motorcars."
15. The question for both the Inspector and the Deputy Judge was whether the use of the underground car park for the parking of cars belonging to members of the general public who lived in dwelling houses or flats in "mainly west and south west London, including Putney" (see paragraph 5 of the decision letter) can be regarded as a use which is for a purpose that is incidental to their enjoyment of those dwelling houses or flats elsewhere in west or south west London.
16. The point does not admit of much elaboration, but I would respectfully agree with the Deputy Judge's view that the use of the car park for such car parking, that is to say by the owners of vehicles who live in houses or flats elsewhere in west or south west London, is not a use for a purpose which is incidental to the enjoyment by those car owners of their houses or flats (see paragraph 19 of the judgment). The use of the car park for parking of that kind by those who do not park in close proximity to their homes is not a use which is incidental or ancillary to the enjoyment of any dwelling house or flat.
17. As Miss Busch submitted on behalf of the respondent, there is no connection between the parking of the vehicle in the car park on the one hand and the enjoyment of the vehicle owner's dwelling house or flat by the vehicle owner on the other. If I park my car on land within the curtilage of my house or block of flats, that parking can fairly be described as a use of that land for a purpose which is incidental to my enjoyment of my house or flat. On the other hand, if I park my car in a car park some distance away, perhaps on the other side of, or even outside, the borough, my use of that car park, whether or not I pay for it, could not be said to be "incidental" to my enjoyment of my dwelling house or flat. As Buxton LJ observed when refusing permission on the papers, if such a use is "incidental" to anything at all, it is incidental to the car owner's enjoyment of the car, not the car owner's enjoyment of his house or flat.
18. The concept of a use that is incidental to the enjoyment of a dwelling, whether a house or a flat, is well established. Thus the occupier of a dwelling may use a room in his dwelling for professional or business purposes, for example as an office, surgery, studio or workshop. Subject always to questions of fact and degree relating, for example, to the intensity of such a use, the number of visitors etc, such a use is capable of being incidental to the occupier's enjoyment of his or her dwelling. The position is quite different if the occupier of a dwelling carries on his business or profession in an office, surgery, studio or workshop on land elsewhere. The use of that land will be a separate use for business or professional purposes. It will not be a use which is incidental to the enjoyment of a dwelling merely because the person carrying on the business or profession lives in a dwelling in some other place. Similarly, the fact that those persons who park their cars on the appeal site will all live in dwellings (houses or flats) somewhere, does not mean that their use of the appeal site is incidental to their enjoyment of those dwellings. The use is an independent car parking use, which is not permitted by the 1965 permission.
19. During the course of submissions the question was raised whether the condition would permit car parking by the occupiers of adjoining properties, for example the adjoining block of flats, Ross Court. Would such a use of the car park by those who live nearby be "incidental to the enjoyment" of those flats or dwelling houses? This question was not considered by the Inspector because both parties at the inquiry (and before the Deputy Judge on appeal) put their cases on an all or nothing basis. The Appellant was contending that a use of the car park by any member of the general public for the parking of his private car was in accordance with condition 3 because his parking of the car in the car park was incidental to the enjoyment of his dwelling house wherever that dwelling house might be. The Interested Party was contending that the condition should be construed as though it limited the use of the car park to a purpose incidental to the enjoyment of the 24 flats permitted by the 1965 permission. It should be added that there was no evidence before the Inspector that the car park was being used by any of the residents of adjoining properties. The evidence was that one of the users of the car parking spaces was an occupier of one of the flats in Sylva Court. The others came from elsewhere. How far away we do not know.
20. Condition 3 must not be read in isolation. It must be read in the context of the 1965 permission as a whole, and it is common ground that, if it is possible to do so, it should be given an interpretation which ensures that it is neither imprecise nor unreasonable. If that is done and one asks the question, incidental to the enjoyment of which dwelling house or flat?, the answer, in my judgment, is obvious: the 24 flats permitted by the planning permission. The use of the car park by the residents of those flats would not have required a separate planning permission, because such a use would undoubtedly have been incidental to the enjoyment of their flats. On the other hand, use of the car park by anyone else would have been a use for a separate car parking purpose and as such would have required planning permission.
21. Thus, in the context of this particular planning permission, the fact that condition 3 limited the use of the car park to a use for a purpose incidental to the enjoyment of a dwelling house or flat and did not in terms limit it to a use for a purpose "incidental to the enjoyment of the dwellings or flats hereby permitted" is of no practical consequence. Car parking on this site by car owners who live in dwellings elsewhere will not be incidental to the enjoyment of those dwellings and will therefore be in breach of condition 3.
22. Various other criticisms were made of the Inspector's approach and that of the Deputy Judge, but in my view those criticisms are of no consequence because the Inspector was correct to conclude that there had been a breach of condition 3 and that general commercial parking, whether with or without storage, was not permitted by the 1965 permission.

Conclusion

23. For these reasons I for my part would dismiss this appeal.

Lord Justice Rimer:

24. I agree. My provisional impression following my first reading of the planning permission dated 23 February 1965 was that the intention of condition 3 was to tie the use of the garages and car parking accommodation to a use by the owner or occupier of one or other of the 24 flats at Sylva Court. Mr George's careful argument to the contrary effect has not persuaded me to a different view.
25. Condition 3 must be interpreted in the context of the planning permission as a whole. The permission was for the erection of a block of 24 flats "with 9 garages and covered parking for 12 cars". The natural sense of that was that the 21 parking slots would be for a use associated with the use of the 24 flats. Condition 3 then expressly confined their use to purposes "incidental to the enjoyment of a dwelling house or flat and no trade or business shall be carried on therefrom." In my judgment, as both the Inspector and the Deputy Judge held, that condition is to be read as expressly confining the parking facilities to a use incidental to the enjoyment of the Sylva Court flats.
26. Mr George made a point based on the use of the indefinite article in condition 3, which he suggested supported a wider interpretation that pointed to any dwelling house, whether in Sylva Court or not. This was, he said, supported by the use of the phrase "a dwelling house or flat", which he said showed that the condition was looking at dwellings beyond the boundaries of Sylva Court, which consisted exclusively of flats. I do not regard either point as doing the work that Mr George sought to derive from it. First, the use of the indefinite article appears to me to be a normal one in the context, or at any rate more appropriate than the definite article that Mr George suggested as appropriate if the condition has the limiting effect that the Inspector and Deputy Judge held that it does.
27. As for the phrase "dwelling house or flat" the dual reference is, I accept, an untidy piece of drafting, since -- at any rate in ordinary landlord and tenant parlance -- a "dwelling house" is apt to embrace any type of unit, whether a flat, maisonette or house, that is occupied for residential purposes. I would not, however, attach the weight to the dual reference that Mr George does. The draftsmen of former years sometimes used two words where one would do, and had the draftsman intended to draw the suggested distinction between flats and houses, I doubt if he would have included the word "dwelling".
28. The real problem, however, with the Appellant's argument is the fact that condition 3 expressly confines the use of the garages and parking accommodation to a use "incidental to the enjoyment of a dwelling house or flat …". In the context of the permission as a whole I regard that as obviously confining the use to a use by the domestic occupiers of the Sylva Court flats. At least one problem with any wider interpretation is that the condition would, in practice, become so uncertain as to be unworkable. I can see, for example, that it might be just as convenient to an occupier of Ross Court, which is next door to Sylva Court, to have the use of a Sylva Court garage and that such use could fairly be said to be incidental to his enjoyment of his Ross Court flat. But once you travel much further afield, for example, to the remoter parts of Putney or to Barnes, the idea that the use by a domestic resident there of a garage in Sylva Court could be said to be incidental to the enjoyment of his house or flat appears to me to be unreal. It may well be incidental to the enjoyment of his car, but that is not sufficient.
29. I have no doubt that it was not the intention of condition 3 to convey that the parking accommodation at Sylva Court could be used by any domestic resident wherever he might be resident. The permission itself gave rise to an inference that the parking accommodation was to be used in connection with the block of flats at Sylva Court. It did not give any permission to use that accommodation as a commercial public car park, which is what the Appellant is using it for. Condition 3 then imposed the express limits that it did upon the use of the parking accommodation.
30. I would dismiss the appeal.

Lord Justice Carnwath:

31. I also agree with both judgments. I add a word, in acknowledgment of the fact that I granted permission to appeal and perhaps did not then see the matter in quite such clear terms as my Lords. My doubts were related to the Inspector's conclusion that as a matter of law the condition was confined to the residents of Sylva Court. It seemed to me that if one looked at the words of the condition on its own it could certainly be said to extend to the residents of the neighbouring Ross Court, which shares the same access road from which the garage takes its own access. Miss Busch's definition of incidental as implying "a functional connection between enjoyment of the flat and use of the car parking space" would appear to apply equally to residents of Ross Court. It might also extend to other properties in the immediate area. If that were the right construction, it would not of course cover the facts such as the Inspector found in this case. However, it might have suggested that there was an error of law which infected the decision and possibly had some relevance to the planning judgment under ground (a). That might have been enough to require remittal to the Secretary of State.
32. However, I am satisfied, in the light of the argument, that the Inspector was entitled to take the view he did. The key, as I see it, as my Lords have said, is in looking at the permission as a whole. This was a permission for the erection of a block of flats "with nine garages and covered parking for 12 cars" (the amount of parking subsequently being extended to 24 spaces). The word "with" makes it quite clear, if it were not clear anyway, that this is a permission for parking associated with the flats and the condition must be read in that light. So that even though the condition does not in terms refer specifically to the particular block, that is implicit in the context. So for those reasons I agree that the appeal must be dismissed.

Order: Appeal dismissed