QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ST ANSELM DEVELOPMENT COMPANY LIMITED||(CLAIMANT)|
|(1) THE FIRST SECRETARY OF STATE|
|(2) WESTMINISTER CITY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J LITTON (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
The Second Respondent did not appear and was not represented
Crown Copyright ©
"The whole of the car-parking accommodation shown on the drawings shall be provided and retained permanently for the accommodation of vehicles of the occupiers and users of the remainder of the building provided that nothing in this condition shall prevent the use of such car-parking accommodation or any part thereof, by persons or bodies for such periods and at such times as the Council may from time to time approve in writing."
The reason given for the imposition of condition 2 was: "to ensure the permanent retention of the garage space for parking purposes and to ensure that the use of the building does not add to traffic congestion."
"ThIS FORMAL NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(b) of the above Act, at the land described below. The Council considers that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations."
Paragraph 2 describes the land affected:
"The building and associated land at 13-17 Clarges Street, W1 shown edged with a thick black line on the attached plan marked A."
Paragraph 3 describes the alleged breach of planning control. It refers to the 1964 planning permission, sets out the terms of condition 2, and continues:
"Space No. 03 (shown hatched in black on the attached plan marked B) was one of those spaces.
It appears to the Council that this condition has not been complied with because as at 06 December 2001, this space was being leased to Ian Scott International, 20 Berkeley Street, London W1."
The reasons for issuing the notice are explained in paragraph 4. Paragraph 5 explains what the recipient of the notice is required to do:
"All persons with the exception of the occupiers and users of 13-17 Clarges Street to stop using car parking space number 3 shown hatched in black on the attached plan marked B."
Plan B shows 19 spaces with space 3 cross-hatched. The appellants appealed against all the enforcement notices on grounds (c) and (d) in section 174(2) of the Act. In respect of one of the enforcement notices an appeal was made under ground (a) that condition 2 should be discharged. The Inspector concluded that the condition was necessary and reasonable and should be retained, and so refused the appeal on ground (a). There is no challenge to that aspect of the Inspector's decision. The challenge is confined to her rejection of the appeals under ground (c) and (d), which she dealt with together. Having set out the agreed facts, the Inspector summarised the parties' cases as follows in paragraph 6, 7 and 8:
"It is the appellant's case that a breach of condition 2 occurs when the car parking accommodation ceases to be used only by occupiers and users of the remainder of the building. It is contended that the terms of condition 2 could not be more clear. They require 'the whole of the car parking accommodation ... shall be ... retained permanently...', for users of the rest of the building. Accordingly, it relates to the whole of the car park. The lack of ambiguity is, if it were necessary, strengthened by an express reference in the latter part of the condition to 'any part thereof.' Accordingly, the simple question arises: when did the breach occur? That is to say, at what date did the requirement that the whole of the car park be retained permanently for users of the building, cease to be complied with? The answer is entirely clear: well over 10 years ago. Accordingly, by virtue of s.171B(3) of the 1990 Act, no enforcement action may now be taken in relation to this condition...
7. It is the Council's case that the phrase 'the whole of the car-parking accommodation' in condition 2 means all parts of the car parking accommodation and that this interpretation is consistent with the words used. The whole can clearly embrace its parts. It is contended that this interpretation is also consistent with the reason given for the imposition of the condition: traffic congestion, it may reasonably be assumed, does not only arise from the loss of 19 spaces. It cannot have been intended that if there was a breach in relation to one space there would be no requirement to maintain the other spaces. The condition can and should be construed sensibly. There is no need to construe it differently. To construe 'the whole' as meaning 'all parts' is consistent with the subsequent 'or any part thereof'. In any event, the absence of qualification of 'the whole' cannot be said to be determinative.
8. Responding to the Council's case, Further Counsel's Opinion submitted by the appellant draws attention to the wording of s.171A(1) of the 1990 Act and states that by this section of the Act, the relevant breach of planning control in the case consists of '... failing to comply with any conditions ... subject to which planning permission has been granted', and by s171B(3), in the case of a breach of planning control consisting of breach of a condition '... no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.' Accordingly, one must ask the question: at what date was there a 'failing to comply' with condition 2? The answer is well over 10 years ago. There is the same inevitable result on Counsel's approach on behalf of the Council. When did the requirement that all parts of the car-parking accommodation shall be retained permanently for occupiers, cease to be complied with? Answer, by common consent, there was a failure to comply with this condition over 10 years ago, when some 'parts' were occupied by outsiders. The condition was breached. On the Council's approach there would not be an enforceable breach of the condition, even if 18 out of the 19 spaces were occupied by outsiders. That is plainly wrong. The clear purpose and effect of the condition was that no part of the car park shall be used by those not occupying the building. Whether construed as a positive or restrictive obligation, there was a failure to comply with it over 10 years ago."
"9. I have carefully considered the Counsel's Opinions, which are central to the parties' cases. It seems to me that the interpretation of condition 2 of the 1964 planning permission turns on the nature of the matter constituting the failure to comply with the condition. This is the essence of the guidance in para 8.36 of Annex 8 to Circular 10/97. Whilst referring specifically to LDC cases, it gives as an example a condition prohibiting outside storage on a site where the condition has only ever been breached on a definable part of the site. I conclude from my reading of the guidance that it is considered legitimate to specify only that part of the site in the LDC, provided that there is enough evidence to suggest that the condition has only ever been breached on that part, so that any further extension of the outside storage elsewhere on the site could still be enforced against if necessary.
10. The matter constituting the failure to comply with condition 2 is the use of the five car parking spaces in the car park by persons/bodies who are non-occupiers and non-users of the remainder of the building. The condition requires 'the whole of the car parking accommodation...' and also 'any part thereof', '... shall be ... retained permanently ...' for the vehicles of the occupiers and users of the remainder of the building. The car park clearly includes definable constituent parts - the individual car parking spaces. Thus, on a common-sense interpretation of condition 2, I consider that it cannot have been intended that if there were a breach in relation to one space there would be no requirement to maintain the other spaces. Therefore, the fact that the condition has ceased to have effect on 14 of the 19 parking spaces because they have gained immunity from enforcement action by being breached continuously for 10 years, does not in my view mean that the condition has ceased to have effect on the remaining 5 spaces and that any breach in respect of the use of these spaces could not be enforced against. The condition applies to the whole of the car parking accommodation and to its constituent parts."
"... that the use of car parking spaces 3, 10, 12, 15 and 17 by non-occupiers and non-users of the remainder of the building is in breach of condition 2 and is not immune from enforcement action as the unauthorised use of the spaces commenced less than 10 years prior to the issuing of the enforcement notices. The appeals on grounds (c) and (d) therefore fail."
(1) For the purpose of this Act:-
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
Constitutes a breach of planning control.
(2) For the purposes of this Act:-
(a) the issue of an enforcement notice (defined in section 172)...
(b) ... constitutes taking enforcement action."
The time limits within which enforcement action so defined may be taken are prescribed by section 171B. Subsections (1) and (2) are not applicable to the present case. Subsection (3) provides:
"In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
"(1) An enforcement notice shall state -
(a) the matters which appear to the local planning authority to constitute the breach of planning control; and
(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.
(2) A notice complies with subsection (1)(a) above if it enables any person on whom a copy of it is served to know what those matters are.
(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are-
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in the respect of the land..."
"... that at the date when the enforcement notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters."
"... that the steps required by the notice to be taken, or the activities required by the notice to cease, accede what is necessary to remedy any breach of planning control which may be constituted by those matters, or as the case may be to remedy any injury to amenity which has been caused by any such breach."
"For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if:-
(a) the time for taking enforcement action in respect of a failure has then expired...."
Mr Litton points to the fact that section 173(4) provides that an LDC may be issued for the whole or part of the land specified in the application, and to section 193(5) which states that:
"A certificate under section 191 or 192 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate."
In paragraph 9 of the decision letter, the Inspector referred to the guidance in paragraph 8.36 of Annex 8 to Circular 10/97, the relevant part of which states:
"... if the planning permission was subject to a number of conditions, a LDC granted in respect of one of them could not be regarded as legitimatising a breach of any of the others. Moreover, it is possible to breach some individual conditions in different ways. It is the matter constituting the failure to comply with the condition, rather than the condition itself, which the LDC should, where appropriate, describe. If a condition prohibiting open storage on a site has been breached for more than ten years, for example by storing materials in the open on a particular part of the site, the LDC should describe the extent of the breach which has become lawful. Such a certificate would not then cover a future breach of the condition involving open storage on a different part of the site from that described in the LDC."
Miss Lieven submitted that the present case was concerned with an enforcement notice rather than an LDC, and questioned the relevance of the advice in paragraph 8.36 of the Circular. She further submitted that the advice did not purport to be an authoritative interpretation of the Act. I accept the submission that while the enforcement provisions have to be considered against the background of the LDC provisions, since the two are interrelated, the latter provisions and the advice set out in paragraph 8.36 of the Circular, are of little assistance in resolving the issue in the present case.
"Breach in this context is defined by section 171A (1)(b) as 'Failing to comply with any condition ....' In my judgment, to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should:
(1) Identify the failure to comply;
(2) Look to see when as a matter of fact and degree that failure began; and
(3) Decide whether a period of ten years has since expired.
In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Enforcement action against a breach of condition is concerned with the particular breach in question. If non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition, however, will in an appropriate case continue in force. If there is subsequently renewed non-compliance, that would, in my judgment, be a fresh breach. The period for enforcement against that breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.
In applying that test under section 191(3)(a) the decision maker is concerned with the particular non-compliance, the subject of the application for a certificate."
The condition is not ambiguous. It requires the whole and not merely the parts of the car park to be retained to provide car parking accommodation for the occupiers/users of the building. Construing the condition in that way does not result in an absurdity, rather it reflects the Council's undoubted intentions in imposing the condition. The Council did want the whole, and not merely parts of the car park accommodation to be retained for the benefit of such users, so that the use of the building would not add to traffic congestion. Since it undoubtedly was the Council's intention that the whole of the car parking accommodation should be so used, it is difficult to see how any alternative formulation of the condition could have avoided the practical problem that has arisen for the Council in seeking to enforce compliance with the condition in the present case. For example, if the condition had required "All the car parking spaces to be used ... ", or if he had said that "Each and every car parking space is to be used ...", or if it had provided that "no part of the car parking accommodation shall be used other than for ..." then there would still have been a breach of the condition as soon as one of the spaces ceased to be used in the manner prescribed by the condition.