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

A planning condition must be construed in the context of the planning permission as a whole, including the description of the development and the reason for the condition. A restriction to purposes incidental to enjoyment of a dwelling house or flat does not permit a commercial car park merely because users live in dwellings elsewhere. The relevant use must have a functional connection with enjoyment of the dwelling. Where permission grants flats with associated parking, that context may make the permitted dwellings implicit, even without express wording. Parking by the wider public is an independent car-parking use requiring planning permission and may breach the condition.

Suburban Property Investment Ltd v Secretary of State for Communities & Local Government & Anor concerned an appeal under section 289 of the Town and Country Planning Act 1990. Planning permission had been granted for a block of 24 flats with associated garages and covered parking. Condition 3 restricted use of the parking accommodation to purposes incidental to enjoyment of a dwelling house or flat and prohibited trade or business.

The appellant acquired the garage and let most spaces commercially to members of the public living elsewhere. An Inspector upheld an enforcement notice on ground (b), subject to variation. The Administrative Court dismissed the appellant’s appeal. The central issue before the Court of Appeal was whether the parking use was incidental to enjoyment of the users’ dwellings elsewhere, or was an independent commercial use outside the permission.

Appeal dismissed unanimously. Lord Justice Sullivan gave the leading judgment. Lord Justice Rimer and Lord Justice Carnwath agreed.

1. Condition 3 was not to be read in isolation. The planning permission, viewed as a whole, was for a residential block with associated parking, not for a freestanding public car park. The description of the development, the reason referring to the amenities of the residential building, and the associated physical features supported that construction.
2. The phrase incidental to the enjoyment of a dwelling house or flat required a functional connection between the use of the parking land and enjoyment of the relevant dwelling. Parking within the curtilage of a house or block of flats could satisfy that requirement. Parking some distance away by persons living elsewhere did not. It was, at most, incidental to enjoyment of the car.
3. In the context of this permission, the relevant dwellings were the 24 permitted flats at Sylva Court. Parking by their residents would not require separate planning permission. Parking by persons living elsewhere was an independent car-parking use and was not authorised by the permission or condition 3. The absence of express words referring to the flats permitted made no practical difference.
4. The Inspector was entitled to take account of the numerical relationship between the parking spaces and flats and the access arrangements. His findings that the spaces were being let to the wider public on a commercial basis, with an element of storage, established a breach of condition 3. Those findings were neither irrational nor otherwise unlawful. General commercial parking, whether or not accompanied by storage, was not permitted.
5. The court did not determine whether use by residents of adjoining properties might in another case be incidental to enjoyment of their dwellings, since that issue had not been investigated and was unnecessary to the appeal.

The order of the Administrative Court was therefore upheld and the appeal dismissed.

• Court of Appeal (Civil Division): [2011] EWCA Civ 112; dismissed the appeal.
• Administrative Court, Queen’s Bench Division: by order dated 22 May 2009, Mr Keith Lindblom QC dismissed the appellant’s appeal under section 289 of the Town and Country Planning Act 1990 against the Inspector’s decision.
• Planning Inspector: decision letter dated 23 October 2007 dismissed the enforcement-notice appeal on grounds (a), (b), (d) and (g), subject to variation of the notice. The Court of Appeal considered only ground (b).