Suburban Property Investment Ltd v Secretary of State for Communities & Local Government

A planning condition must be construed in the context of the permission read as a whole, including the express reason for imposing it. The condition and its reason must be distinguished: the condition imposes the restriction, while the reason explains it. Where permission approves parking as an integral part of a residential development, a condition limiting use to purposes incidental to a dwelling or flat may properly be understood as referring to that development. It does not prevent residents from paying to use the spaces. Commercial letting to non-residents may instead breach the condition and constitute a material change of use. On an appeal concerning the date of breach, the appellant bears the evidential burden of establishing that enforcement action was time-barred.

The appellant held a long lease of an underground car park serving a block of flats. The original planning permission included garages and covered parking and imposed a condition restricting their use to purposes incidental to the enjoyment of a dwelling house or flat, while prohibiting trade or business.

The local planning authority issued an enforcement notice alleging breach of the condition and a material change of use through commercial parking. The Secretary of State’s Inspector rejected the appellant’s appeals under grounds (b) and (d) of section 174(2) of the Town and Country Planning Act 1990, subject to limited variations. The central issues were the proper construction of the condition and whether the breach had occurred more than ten years before enforcement action.

1. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, summarily assessed at £8,988.
2. A planning permission and its conditions must be construed sensibly as a whole. The court may consider the express reason for a condition, but must distinguish the restriction imposed by the condition from the explanation supplied by its reason. The approach in Secretary of State for Communities and Local Government v Bleaklow Industries Ltd [2009] EWCA Civ 206 supported this analysis.
3. Condition 3 applied to the garages and parking forming an integral part of the permitted residential development. The reference to use incidental to the enjoyment of a dwelling house or flat referred, in context, to enjoyment of Sylva Court by its residents. The numerical relationship between the parking spaces and flats, the pedestrian access to the block, the description of the development and the reason for the condition all supported that construction.
4. The condition did not prohibit residents from parking their own vehicles or from paying a charge or licence fee for parking. It did prohibit the commercial letting of spaces to members of the wider public living elsewhere, since that use was not incidental to enjoyment of Sylva Court and amounted to trade or business from the parking accommodation.
5. The Inspector was entitled to find, on the evidence, that commercial parking and an element of vehicle storage were taking place and constituted a breach. The findings were neither irrational nor otherwise unlawful. The Inspector was also entitled to conclude that the breach began only after the appellant acquired and refurbished the car park and began letting spaces to the wider public in about May or June 2004.
6. For the ground (d) appeal under section 174(2) of the Town and Country Planning Act 1990, the appellant bore the burden of proving, on the balance of probability, that enforcement action was unavailable because the breach had occurred before the relevant ten-year period. The evidence did not establish that proposition. It was unnecessary and legally wrong to treat commercial lettings to Sylva Court residents as a separate earlier breach.

The judgment does not state any earlier appellate decision. It records the Secretary of State’s Inspector’s decision on the enforcement appeal, which upheld the enforcement notice subject to limited variations. The Administrative Court dismissed the statutory appeal and refused permission to appeal to the Court of Appeal.