England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE RICHARDS: John Davenport and Joseph Davenport appeal by way of Case Stated against their conviction on 8th July 1998 at West London Magistrates' Court for the contravention of breach of condition notices served on them pursuant to section 187A of the Town and Country Planning Act 1990, requiring them to comply with a condition of the grant of planning permission.

2. The Respondent to the appeal is the London Borough of Hammersmith and Fulham, which is the Local Planning Authority. The facts as found by the magistrates can be stated briefly.

3. In 1979 Joseph Davenport was granted planning permission for the retention of two single-storey buildings in connection with the use of land for motor vehicle repairs from premises known as S&J Motors at 65 Tasso Road, London W6. Planning permission (reference 79/20/00633) was subject to eight conditions. The material condition is Condition 8 which provided that:

4. I would add that the stated reason for the imposition of that condition was:

5. Tasso Road is indeed a vehicular highway owned by the Respondent as a highway authority. The road was outside the application site and was not land under the control of either of the Appellants.

6. The Appellants were each served personally with a breach of condition notice relating to Condition 8 on 27th May 1997. The Appellants are jointly registered as the owners of the land and are equal partners in the business of S&J Motors.

7. On 23rd September 1997 an enforcement officer of the Respondent went to observe Tasso Road. During her observation, from the hours of 9.40 am until 3.00 in the afternoon, she observed a number of vehicles, which had been parked in Tasso Road by Joseph Davenport or by employees of the Appellants, being taken to S&J Motors to be worked on and then later being reparked in Tasso Road.

8. The magistrates also found that, after being served with the breach of condition notice, Joseph Davenport gave no instructions to ensure compliance with Condition 8 by himself, his partner or his employees but, in fact, gave the notice to his solicitor.

9. In front of the magistrates, it was contended on behalf of the Appellants that Condition 8 was unlawful and invalid on the grounds that the Local Planning Authority had no power to impose such a condition, the condition did not serve a planning purpose and it was unreasonable. It was also contended that there was no power to serve a breach of condition notice on John Davenport, as Condition 8 purported to regulate land not under his control. The magistrates rejected those contentions, found the case proved against both Appellants and made an order that they should each pay a fine of £100 and costs of £772.50.

10. The magistrates subsequently stated the following questions for the opinion of this Court:

11. It has been common ground before us that a person is entitled to raise the invalidity of a condition as a defence to criminal proceedings in respect of a breach of a notice.

12. I turn to consider the relevant legislation which, at the time when the planning permission was granted, was contained in the Town and Country Planning Act 1971. The power to impose conditions was to be found in sections 29 and 30. Section 29(1) provided, so far as material:

13. Section 30(1) provided in material part:

14. Equivalent provisions were contained in the earlier legislation and are also now to be found in the successor legislation, namely sections 70 and 72 of the Town and Country Planning Act 1990. Because the permission was granted under the 1971 Act, however, I will consider the submissions by reference to the provisions of that Act.

15. The essential issue raised by the first of the magistrates' questions is whether Condition 8 is ultra vires sections 29(1) and 30(1) of the 1971 Act on the ground that it relates to the use of land outside the application site and outside the applicant's control, namely the highway, and there is no power under the relevant subsections to impose a condition relating to the use of such land.

16. The submission made by Mr Harwood for the Appellants is that section 29(1) permits the imposition of conditions only in respect of land within the application site and section 30(1) permits the imposition of conditions in respect of land outside the application site only if that land is under the control of the applicant. If those propositions of law are correct, it follows that Condition 8 is ultra vires since, as found as a fact by the magistrates, Tasso Road was outside the application site and was not land under the control of the applicant.

17. The competing submission of Mr Bedford, for the Respondent, is that the limitations on the power to impose conditions under sections 29 and 30 are not as great as those for which Mr Harwood contends. It is accepted that a condition cannot require the carrying out of works on land outside the application site unless that land is within the control of the applicant but, it is pointed out, Condition 8 did not so require. It did not require the carrying out of anything. It was negative in effect, in that it restricted the activity that the applicant could carry on in Tasso Road. It prohibited vehicles which had been left with or were in control of the applicant from being stored or parked in Tasso Road. That, it is said, was a carefully worded condition aimed at and limited to those things that the applicant could achieve. It did not require anything that was not within his power to bring about.

18. A condition which applies to land outside the application site and not in the control of the applicant is, it is submitted, lawful provided that it is negative in effect and does not require the applicant to do matters that are outwith his powers; and provided, of course, that it complies with the normal requirements as to planning purpose and so forth, matters that I will come to in the context of the second issue.

19. The final point made is that section 30(1) is expressed to be without prejudice to the generality of section 29(1) and there is nothing in section 30(1) or in the authorities that cuts down the generality of that power so as to preclude the imposition of a negative condition of this sort relating to land outside the application site.

20. I turn, therefore, to consider the authorities. The first of those relied on by the Appellants is Mouchell Superannuation Fund Trustees and another

21. The condition therefore fell into two parts, the first to the effect that a particular means of access had to be adopted, and the second requiring work to be done in relation to that means of access.

22. At page 105, Glidewell LJ said this, referring to the judgment below:

23. Reference was then made to a number of authorities which supported the proposition as stated by Glidewell LJ.

24. I note that the kind of condition referred to in that passage was a condition requiring the carrying out of works on land. That, of course, is not the kind of condition with which the present case is concerned. On the face of it, the principle articulated by Glidewell LJ is therefore not one that can assist the Appellants. Nevertheless, Mr Harwood does submit that the same underlying principle operates here. What he says is that the principle articulated by Glidewell LJ reflects the wording of section 30(1) and that that subsection, by its express terms, applies not just to a condition requiring the carrying out of works, but also to any condition for regulating the development or use of any land. In each case, the restriction is to land under the control of the applicant.

25. I do not accept that section 30 can be relied upon in that way. That section confers an express power to impose certain kinds of condition in relation to land under the control of the applicant. It does not, however, purport to cut down the generality of the power in section 29(1) as to the imposition of conditions.

26. In my judgment, the reason why a condition requiring the carrying out of works on land not within the control of the applicant is invalid is the operation of a broader principle, namely that one cannot lawfully impose a condition requiring a person to secure a result that it does not lie wholly within his power to secure. That principle can be seen in operation in the case of Mouchell itself, in the context of the Court's consideration of the first part of the condition in that case.

27. At page 107H, Glidewell LJ, having quoted from the judgment below which referred to the problems of restricting access to a particular route and pointed out that some vehicles would reach the site in ignorance of the condition, went on:

28. One sees there the principle to which I have previously referred. The Court does not say that the first part of the condition in that case is invalid on the ground that it relates to land outside the application site and outside the applicant's control. If that had been perceived to be the true position, then one would expect it to have been dealt with in that way. But on the contrary, the Court bases its decision on the different and more limited principle that the condition required the applicant to secure more than he could be assured of securing.

29. Applying that reasoning in the present case, there is, it seems to me, no difficulty about compliance with Condition 8. The applicant is plainly able to comply with it. All that the condition requires is that he does not use certain land outside his control, namely Tasso Road, for a stated purpose. In order to comply with that condition, he does not need to have control over the land in question. Accordingly, as it seems to me, there is nothing in the decision in Mouchell that supports the Appellants' case that Condition 8 is outside the powers conferred by section 29 and section 30 of the 1971 Act. On the contrary, the reasoning of the court in that case supports the view that Condition 8 is a valid condition.

30. Reference has also been made to the case of Proberun -v- Secretary of State for the Environment (1990) 60 P&CR 160. In particular, a passage at page 165 where Sir Frank Layfield QC (sitting as a Deputy Judge of the High Court) referred to section 29 and stated:

31. It is suggested that that passage supports the view that conditions relating to land outside the application site will only be valid insofar as they come within section 30 and, in particular, relate to land within the control of the applicant. However, that case was concerned with the question whether it was lawful to impose a condition obliging the applicant to provide vehicular access on land that formed no part of the application site and that was not controlled by him. It was plainly a case where the relevant principle was that a condition must not impose an obligation compliance with which cannot be secured by the applicant. I do not think that the judge's brief observation as regards the general effect of section 29 and 30 was directed to a situation of the kind that arises in the present case.

32. Our attention has been drawn in addition to certain ministerial guidance. Circular 5/68 (which was the Circular in effect at the time when this planning permission was granted) refers to the powers in the 1962 Act, namely section 17(1) and 18(1), again the equivalent of section 29(1) and 30(1) of the 1971 Act.

33. Paragraph 3 of the memorandum attached to that Circular states:

34. Observations are also to be found in Circular 1/85 and 11/95. Circular 11/95 includes, in paragraph 7 of an appendix containing examples of conditions which are unacceptable, the following:

35. It refers back to paragraph 37 of the text which, under the subheading "Control over land" states:

36. As to those passages, I note that paragraph 37 is concerned with the positive act of carrying out works on land and does not seem, in terms, to provide a reasoned justification for the statement in the appendix that a condition requiring loading and unloading and the parking of vehicles which shall not take place in the highway at the front of the premises is unlawful. Be that as it may, one has to bear in mind that guidance of this kind is not and does not purport to be an authoritative statement of the law. It may be that the particular condition given by way of example in the appendix is unlawful for the reasons that I have already touched upon, namely that the applicant is not able to secure that all loading and unloading or all parking of vehicles, including parking by customers, does not take place on the highway in front of the premises. Thus it would fall within the scope of the reasoning which caused the Court in Mouchell to hold the first part of the condition in that case to be invalid.

37. If and insofar as the guidance goes further and purports to set out as a statement of law that a condition cannot, in any circumstance, be imposed in respect of land outside the application site and not under the control of the applicant, it is for this Court to determine whether it is a correct statement of the legal position.

38. Before I express my conclusions on that subject, I should refer to one other authority which is relied on by

39. Mr Bedford for the Respondent. That is the case of Grampian Regional Council-v- City of Aberdeen District Council (1984) 47 P&CR 633. The essential point with which that case is concerned is somewhat different from that arising in the present case. What the House of Lords was considering was a condition which required that a permitted development should not commence until some event had taken place outside the application site. The particular event in question in that case was the closure of a road. That is a negative condition relating to the development or use of the application site. It prevents use of the application site unless and until the specified event has taken place outside the site. In that respect, the case is plainly different from the present where we are concerned, as regards Condition 8, with a restriction on the use of land outside the application site rather than a restriction on the use of the application site itself.

40. The case is, however, helpful with regard to the general principle to which I have referred. The reporter (the equivalent in England and Wales of the Inspector) had concluded that the development in question should not proceed unless a particular road was closed. He had concluded that a condition requiring closure of that road would be unlawful because it did not lie wholly within the power of the applicant to secure closure of the road, any closure order being subject to confirmation by the Secretary of State.

41. There is nothing in the reasoning of their Lordships in the course of the judgment in Grampian to cast any doubt on the validity of what was said by the reporter. What the House of Lords did was uphold an alternative means of achieving the same ultimate result. The result was a condition, as I have said, preventing development on the site until a specified event had occurred. It was a condition with which the applicant was plainly capable of complying. He simply was not able to proceed unless and until the relevant event did occur.

42. The general approach in the case does seem to me to lend support to Mr Bedford's submissions. I have come to the conclusion that the proposition for which the Appellants contend is not one that is supported by the language of the statute itself or by the authorities. There is nothing to show that a condition relating to land outside the application site and outside the control of the applicant is invalid unless that condition requires the carrying out of works on such land or is otherwise one with which the applicant could not be assured of securing compliance. Although Condition 8 regulates the use of land outside the application site and outside the applicant's control, it imposes a requirement which lies wholly within the applicant's power to comply. There is, in my judgment, no inconsistency between upholding the validity of that condition and the approach of the court in Mouchell and other cases to which I have referred. As already mentioned, if the ministerial guidance goes further then, in my view, it does not represent the correct position.

43. For those reasons, I conclude in relation to the first issue that the magistrates were correct to reject the Appellants' submissions and to proceed on the basis that there was a power in section 29(1) to impose a condition such as Condition 8.

44. I go on to consider the second of the magistrates' questions. As to that, it is common ground that a condition imposed under section 29(1), in order to be valid, must first be imposed for a planning purpose; secondly, relate fairly and reasonably to the development for which the permission has been given; and thirdly be reasonable, that is to say, it must be a condition which a reasonable authority, properly advised, might impose (see per Lord Lane in Newbury District Council -v- Secretary of State for the Environment (1981) AC 578 at 627).

45. In relation to the first of those requirements, planning purpose, it is submitted for the Appellants that Condition 8 does not serve a planning purpose. The main point advanced is that it duplicates other controls in relation to parking. In broad terms what is submitted is that the right course is for control over parking to be determined by the highways authority in accordance with their separate powers, and that if such controls are effected by way of planning conditions, one has not only duplication but the risk of inconsistency.

46. For my part, I do not accept that the fact that there also exist other forms of control makes it unlawful, or not for a planning purpose, to impose controls by way of a condition on the grant of planning permission. Whether it is appropriate to achieve control over parking by way of a planning condition or by way of other powers that exist is a matter of judgment.

47. So far as the planning purpose of Condition 8 is concerned, it seems to me that that point is answered by considering the stated purpose for which it was imposed by the authority, namely to avoid obstruction of the surrounding streets and to safeguard the amenities of adjacent premises. Those matters are plainly proper planning considerations and the imposition of a condition for those purposes meets the test that a condition must be for a planning purpose.

48. As to the need for a fair and reasonable relationship to the development permitted, the submission made on behalf of the Appellants is that because Condition 8 extends to vehicles under their control regardless of any connection with the permitted development, there is no fair and reasonable relationship to that development. That submission depends upon how one views Condition 8. In my judgment, notwithstanding the seemingly general wording of that condition, it must be construed in the context of the planning permission in which it was imposed and having regard to the fact that the planning permission was for the use of the premises for the repair and servicing of motor vehicles and for no other use. Against that background, it seems to me that the condition is naturally to be construed as relating to vehicles left with or in the control of the applicant in connection with the permitted use of the premises. It does not extend to vehicles which are in the control of the applicant for purposes unconnected with the permitted use of the premises. In particular, to take a point advanced in argument, if Joseph Davenport were to buy a house in Tasso Road and wished to park his private car outside that house, I do not read Condition 8 as precluding that course because, in those circumstances, the vehicle would be in his control for purposes unconnected with the business and would be parked in Tasso Road for purposes unconnected with the business.

49. If one adopts that construction of Condition 8, then the contentions advanced on behalf of the Appellants fall away because, so construed, the condition plainly relates to the development and, in my judgment, fairly and reasonably so relates.

50. The question of reasonableness raises, in the submissions of the Appellants, three points. First, it is said that the condition is unreasonable in seeking to regulate the use of the public highway when other controls can be applied to all users or classes of users. In effect, it is said, if there is a problem about parking on a public highway then highway powers can and should be used and they can be applied fairly as between different classes or categories of user, such as business users and residential users.

51. I have already touched upon this issue in what I said in the context of planning purpose. Whether it is appropriate to impose controls over parking by way of a planning condition rather than leaving the matter solely to other highway controls is a matter of judgment. In this case, I see nothing in the circumstances that could possibly render unreasonable the judgment that was made by the Respondent to impose Condition 8 so as to secure one limited form of control over parking. The control relates to cars left with or in the control of the applicant for the purposes of business. The planning permission was granted in circumstances where it was recognised that, but for a condition of this kind, there might be problems for neighbouring occupiers in terms of obstruction to the road and loss of amenity. It seems to me entirely reasonable to impose a condition of this kind to obviate those problems as a condition of the grant of planning permission allowing the applicant's activities to proceed on the premises.

52. The fact that this is a condition compliance with which is wholly within the power of the applicant for planning permission reinforces the view that it is a reasonable condition. I also note that there is no objection in principle to the imposition of a condition that restricts an activity which would otherwise be lawful. I refer to the Royal Borough of Kingston upon Thames -v- Secretary of State for the Environment (1974) 1 All ER 193 at 196H. There is, as that case makes clear, no principle to the effect that one cannot cut down on an applicant's pre-existing right, in this case the right to park on the street. In any event, as I have indicated, the particular problem to which Condition 8 is addressed is one which would not arise but for the very grant of planning permission in relation to which the condition is imposed.

53. For those reasons, I reject the Appellants' submissions both under the particular head of 'unreasonableness' and, as I have indicated, on the various other points that are raised within the context of the second question posed by the Magistrates and I would answer that second question in the Respondent's favour.

54. I turn finally to the third question, which relates to the service of the breach of condition notice on John Davenport, who was not himself an applicant for the original planning permission. By section 187A(2)(b) a breach of condition notice may be served on any person having control of the land requiring him to secure compliance with such of the conditions as are specified in the notice.

55. The land that is there referred to is plainly the land in respect of which the carrying out of development has been authorised by the planning permission. That is to say, the application site. That is clear from the other provisions of the section.

56. The breach of condition notice was served on John Davenport as such a person, that is, as a person having control of that land.

57. It has been submitted on his behalf that the Magistrates made no finding on whether he was, as a matter of fact, a person having control of the land. It is true that there is no express finding to that effect but, as it seems to me, such a finding is implicit in the Magistrates' finding of guilt against him. Moreover, given the finding of fact that he is registered as a joint owner of the land and is an equal partner in the business, and given the absence of any other evidence on the subject, the inference that he is a person having control of the land is, in my view, reasonable if not irresistible. I refer in that respect to Nourish -v- Adamson (1998) 3 PLR 21 at 26B, where it was stated by Schiemann LJ:

58. By section 187A(4) the conditions which may be specified in a notice served by virtue of section 2(b) are "any of the conditions regulating the use of the land".

59. It is submitted on behalf of the John Davenport that Condition 8 does not regulate the use of the land, namely the premises of S&J Motors. Condition 8, it is said regulates or purports to regulate the use of Tasso Road which is not the land referred to in subsection (4) nor, indeed, is it land over which John Davenport has any control.

60. Mr Bedford has sought to counter that submission by an argument along the lines that Condition 8 does regulate the use of the premises of S&J Motors by restricting the way in which the use of that site can be carried on. The consequence of preventing the applicant from parking and storing vehicles on Tasso Road was, it is said, to restrict the way that the applicant's site could be used. The applicant would have to ensure that the use was carried on in a way which did not involve the parking or storage of vehicles on Tasso Road. In that way the condition regulates the use of the land even though its specific requirements relate to other land. I reject that submission. In my judgment, Condition 8 regulates the use of Tasso Road and does not regulate the use of the land subject to the planning permission, that is to say, the premises of S&J Motors. I think it would be highly artificial to view the condition as regulating the use of those premises. The kind of indirect effect on the use of the premises does not seem to me to be sufficient for this purpose. As a matter of ordinary language, Condition 8 regulates the use of Tasso Road for parking and does not regulate the use of the premises of S&J Motors.

61. For that reason, I have come to the conclusion that the notice served on John Davenport was not a valid notice, because the condition which it purports to enforce is not a condition regulating the use of the relevant land. That being so, I find in his favour in relation to the third of the questions raised by the magistrates.

62. By way of summary, the answers that I would give to each of the three questions posed by the magistrates are: (1) yes, (2) yes and (3) no. Because the answer to (3) is "no", for the reasons I have given, I would allow the appeal of John Davenport. That question does not effect the position of Joseph Davenport. For the reasons I have given, I would dismiss his appeal.

63. LORD JUSTICE ROSE: I agree. Accordingly, the Justices' questions will be answered in the way proposed by my Lord. The appeal of Joseph Davenport will be dismissed and the appeal of John Davenport will be allowed.

64. MR HARWOOD: My Lord, I ask for an order to quash the convictions of John Davenport, quashing the fine and costs awarded against him by the magistrates.

65. MR HARWOOD: In terms of costs, can I make an application for John Davenport's costs of this appeal to be paid by the Respondent, and that his costs in the magistrates court should be paid, perhaps more appropriately, out of central funds?

66. LORD JUSTICE ROSE: Presumably neither of the Appellants are legally aided?

67. MR HARWOOD: They are not, my Lord.

68. LORD JUSTICE ROSE: Is there anything else you are seeking?

69. MR BEDFORD: My Lord, in relation to Mr John Davenport, I do not resist the nature of the orders sought.

70. LORD JUSTICE ROSE: That is to say, costs out of central funds in the court below and costs against the Respondents here?

71. MR BEDFORD: My Lord, yes. So far as Mr Joseph Davenport is concerned his appeal having been dismissed, the London Borough of Hammersmith and Fulham is a public authority prosecutor and can only recover costs in his case against a particular party, and I do ask for costs in relation to his appeal, against Mr Joseph Davenport.

72. My Lord, there is a separate matter I would briefly address your Lordships on. Simply, in relation to the decision in relation to Mr John Davenport clearly----

73. LORD JUSTICE ROSE: Can we deal with costs first. Can you resist the application made against you for costs in relation to Joseph Davenport?

74. MR HARWOOD: I cannot, my Lord. It may be helpful to indicate whether the costs are half the Respondent's costs of this appeal, a portion of them or----

75. LORD JUSTICE ROSE: Speaking entirely for myself, I will have to consult with my brother, I would have thought that Joseph Davenport's costs were rather more than half. We spent rather more time devoted to Joseph Davenport than we did to John. The issues were more complex in relation to him.

76. MR HARWOOD: My Lord, those issues related to both Appellants.

77. LORD JUSTICE ROSE: Yes, but you lost in relation to one and you lost on two issues in relation to the other, and we spent more time on those two issues than we did on the third issue. However, I am merely thinking aloud at the moment.

78. MR HARWOOD: My Lord, I simply say that to ensure that Mr Joseph Davenport does not end up taking all the costs.

79. LORD JUSTICE ROSE: I understand that.

80. MR HARWOOD: ... of the respondents in this court given one appellant was successful.

81. LORD JUSTICE ROSE: We shall order Joseph Davenport to pay three-quarters of the costs of the appeal. That deals with costs. Mr Bedford, you want something else?

82. MR BEDFORD: My Lord, in relation to Mr John Davenport the position is on the proper construction of 187A(2) and (4). Clearly, my client wishes that matter to be considered further, and asks for leave to appeal from this Court. It is a matter which potentially has wider significance and it is not purely an issue of this case. It is a point of statutory construction upon which, apart from today, there is no authority. It is a point which potentially could cause some concern to authorities in the position to enforce. I appreciate, to some extend, the facts of this case are relatively unusual, but notwithstanding that, I cannot and certainly would not wish your Lordships to consider the matter further. In those circumstances, it being a point of statutory construction which could have wider implications, I ask for leave to appeal.

83. LORD JUSTICE ROSE: Would this be an appeal to the House of Lords? Is it a criminal cause or matter, or would it be an appeal to the Court of Appeal?

84. LORD JUSTICE ROSE: Prima facie, if it is an appeal by way of Case Stated, it is a criminal matter. First of all you would need us to certify a question and then you would need to ask us for leave. If it is a criminal cause or matter, it would simply....

85. MR BEDFORD: My Lord, following that----

86. LORD JUSTICE ROSE: Our combined view is that it must be criminal, as it resulted in a fine. Then your first step is to require us to certify a point of law. You had better identify it.

87. MR BEDFORD: My Lord, the way I would put the position, if one goes back to the case at page 13 of the bundle (having at the same time pages 25 and 26 of the bundle which is the second provision open) and is whether a condition which refers to land other than the application site attached to a permission which authorises the use of the application site can be a condition for the purposes of section 187A(4) which regulates the use of the application site.

88. MR JUSTICE RICHARDS: Is the true question in this case, although I am not saying that it is a question that is certifiable, "whether Condition 8 regulates the use of premises of S&J Motors"; is it not a very narrow question?

89. LORD JUSTICE ROSE: I understand, speaking entirely for myself, your desire to canvass the wider theoretical possibilities and the question you pose, but the question is whether that actually arises in this case. That is why, speaking for myself, it does seem that Richards J is right.

90. MR BEDFORD: My Lord, if one considers the reason why it is, in your Lordships' judgment, a condition which does not satisfy subsection (4), it is on the basis that this condition does not regulate the use of the land.

91. LORD JUSTICE ROSE: That is absolutely right.

92. MR BEDFORD: The only reason for that is because it regulates the use of other land, but it is not possible, as I understand from your Lordships' judgment, for a condition in this form which regulates the use of other land to, at the same time, have the effect of regulating the use of land for the purposes of subsection (4).

93. LORD JUSTICE ROSE: I am not sure that Richards J's said that. I think what Richards J's judgment said, with which I agree, that Condition 8 did not regulate the use of the land. If that is right, then it is not a point of law of general importance.

94. MR BEDFORD: My Lord, only insofar as Condition 8 is an example of a condition which, as I said, although it does not refer to the land in question, has the effect of restricting the use of the land in question. Necessarily there will be facts which underlie every such point, but in my submission it remains a point of law isolated from those points of condition of this form, which does not, on the face of it, refer to the land which nonetheless have the legal effect of regulating that land for the purpose of the section. My Lord, I made my submission.

95. LORD JUSTICE ROSE: Thank you, we decline to certify.

96. MR HARWOOD: My Lords, can I ask for a point of public importance to be certified which is in respect of question one and issue one. The point is whether there is power by section 29(1) and section 31 of the Town and County Planning Act 1971 to impose a condition prohibiting a person from carrying out activities on land outside the application site and outside the applicant's control.

97. It may be appropriate, my Lords, to add, "where that person is otherwise capable of complying with the condition." In your Lordships' judgment, that is the point that has not been addressed by authority. It is a point of substantial importance because from your Lordships' judgment it is possible for a local authority to impose a condition preventing the occupants of properties permitted by planning permission, from parking on particular roads, and it is also in your Lordships' judgment a point in which the consistent ministerial guidance may very well be wrong. So, my Lords, that is a point of public important and ought to be certified as fit to be heard by the House of Lords.

98. LORD JUSTICE ROSE: We certify that question. It may be that the drafting of it can be slightly improved, but we are not going to embark on that. The substance of the question which you drafted, we certify.

99. MR HARWOOD: I am obliged, my Lord. I ask for leave to appeal to the House of Lords?

100. LORD JUSTICE ROSE: That we refuse.

101. MR HARWOOD: Thank you, my Lord.