St Anselm Development Company Ltd., R (on the application of) v First Secretary of State

MR JUSTICE SULLIVAN: This appeal under section 289 of the Town and Country Planning Act ("the Act") against a decision by an Inspector, appointed by the first respondent, to dismiss the appellant's appeals against five enforcement notices issued by the second respondent, raises a short but difficult question of law.

The Inspector's decision is contained in a decision letter dated 20th December 2002. The appeals were determined by way of an informal hearing which was held on 13th November. At that hearing there was no dispute between the appellant and the second respondent as to the relevant facts which were as follows.

On 29th May 1964 the Council granted planning permission for "the erection of a new building for use as offices and for residential purposes on the sites of numbers 6 to 17 Clarges Street, Westminster." The new building included a basement car park containing 19 car parking spaces. The planning permission was subject to a number of conditions, including condition 2 which was as follows:

Fourteen of the 19 spaces in the car park had been leased to, and used continuously by, non-occupiers and non-users of the building for more than 10 years. There was no dispute that those spaces were immune from enforcement action. The remaining five spaces had not been used continuously for ten years by non-occupiers and non-users of the building. In respect of each of those spaces the Council issued an enforcement notice on 2nd May 2002. The five enforcement notices were all in the same form. For present purposes, it is, therefore, sufficient to set out the relevant parts of one of them, that relating to car parking space number 3. Paragraph 1 of the enforcement notice states:

The Inspector set out her own reasoning in paragraphs 9 and 10:

She, therefore, concluded in paragraph 11:

On behalf of the appellant, Ms Lieven submits that the Inspector misconstrued condition 2. In essence, she repeats the submissions which were made on behalf of the appellant before the Inspector and contends that the Inspector erred in rejecting those submissions. The argument is short and simple. So far as material for present purposes section 171A provides:

Ms Lieven submits that there were two questions for the Inspector: was there a failure to comply with condition 2? Answer: yes; when did that breach of planning control begin? Answer: more than 10 years ago when the whole of the car parked ceased to be provided and retained for the occupiers and users of the remainder of the building.

Condition 2 is not in the least ambiguous: it refers to "the whole of the car parking accommodation." Since it relates to the car park as a whole, there can be only one date of breach, the moment the "whole" ceases to be used in accordance with the terms of the condition.

The Inspector erred in going beyond the plain words of condition 2 and in praying in aid a "common sense interpretation of condition 2" so as to give effect to the Council's "intention" in imposing the condition. The argument advanced before the Inspector by the second respondent took matters no further. Even if "the whole of the car parking accommodation" is read as "all parts of the car parking accommodation" there was still a breach of condition more than 10 years ago: when all parts of the car parking accommodation ceased to be used by occupiers/users of the building. If, as the Inspector contended in the last sentence of paragraph 10 of the decision letter, the condition applies "to the whole of the car parking accommodation and to its constituent parts", one still reaches the same conclusion, since, for over 10 years, the whole of the car park has not been retained for occupiers and users of the building as required by the terms of the condition.

On behalf of the Secretary of State, Mr Litton referred to the statutory framework within which sections 171A and 171B are set. Section 172 of the Act empowers a local planning authority to issue an enforcement notice if it appears that there has been a breach of planning control and it is expedient to issue the notice. Section 173 prescribes the form and content of an enforcement notice:

Section 174(2) sets out the grounds on which an appeal may be brought against an enforcement notice. They include (d):

Where someone contends that a failure to comply with a condition has become immune from enforcement action under section 171B(3) he may make an application for a lawful development certificate (LDC): see section 191(1)(c). Paragraph 191(3)(a) states:

Mr Litton referred to a number of authorities for the propositions that in construing a planning permission that is clear, unambiguous and valid on its face (there is no suggestion that the 1964 planning permission is not such a provision) regard should be had only to the terms of the permission itself, including the conditions and the reasons given for imposing conditions; that conditions should not be construed narrowly or strictly; and that they should not be construed contra proferentes the local planning authority.

These principles are not in dispute between the parties, but they are of no real assistance in the circumstances of the present case where Mr Litton does not suggest that the meaning of condition 2 is ambiguous or uncertain. It means what it says: the whole of the car park is to be retained for use by the occupiers and users of the building.

He submitted that by analogy with the presumption against absurdity when construing statutes, the court should not give the words used in a condition their ordinary meaning, if to do so would result in an absurdity. That submission, in effect, concedes that the appellant's approach to the interpretation of condition 2 gives the words used in the condition their ordinary and natural meaning. Mr Litton referred to the decision of Robin Purchas QC, sitting as a deputy High Court judge, in Nicholson v Secretary of State for the Environment and Maldon DC [1998] JPL 553. That case was concerned with the question of whether there had been a breach of a condition continuously for ten years. At page 560 Mr Purchas said:

Mr Litton draws attention to the decision-maker in a LDC case being concerned "with the particular non-compliance." Apart from that guidance there is no issue between the parties as to the appropriateness of the three questions identified by the learned deputy judge in the first of the paragraphs from his judgment set out above. But Miss Lieven submits that the guidance in the second paragraph, whilst entirely correct in the context of that case, has no application to the present case. It would have had relevance if, for example, any of the car parking spaces had been used for a period of five years by non-occupiers/users of the building, there had then been a period during which the car parking spaces were retained for use by occupiers/users of the building, followed by another period of five years during which they were used by non-occupiers/users. But those are not the facts of the present case.

Mr Litton submitted that in order to avoid absurdity the condition should be construed as though it applied separately to each of the 19 car parking spaces. By reference to the advice in paragraph 8.36 of Annex 8 to Circular 10/97 (see above), he submitted that the immunity conferred by section 171B must relate to the particular breach of planning control specified in the enforcement notice. Thus one focused not upon a breach of condition 2, but upon the particular manner in which the enforcement notice alleged that it had been breached. He submitted that absurd consequences would flow if such an approach was not adopted. The appellant's argument, if correct, would have applied with equal force if only one of the car parking spaces had begun to be let out to and used by non-occupiers/users for a period of ten years before the enforcement notices were issued. Moreover, the argument would also apply if the car park was more substantial, say 100 spaces of which one space had been used otherwise than in accordance with the condition for a period of over ten years or more. In such a case, even though the remaining 99 spaces might well have been retained for use by the occupiers/users of the building, after ten years use of the one space that had not been so retained the remaining 99 spaces would become immune from enforcement action and an applicant would be entitled to apply for a LDC in respect of the use of those spaces otherwise than in accordance with the condition.

Mr Litton submitted that similar problems would arise if there were breaches of some of the model conditions suggested in Appendix A to Circular 11/95, for example condition 43 relating to the use of caravans on caravan sites, or condition 65 which relates to the operation of machines on industrial or commercial premises.

The problem arises precisely because the Council thought that it was important that all, and not simply some, of the car parking spaces should be retained for particular users. Merely because one of the spaces is not used in accordance with the terms of the condition it does not follow that the Council would be at all happy to see the remainder of the car parking spaces free from effective control. From the Council's point of view 18/19 of a loaf would be better than none. Absurdity may well be putting it too high, but there can be no doubt that the consequence of accepting the appellant's arguments would be, to say the least, most undesirable in planning terms. If a local planning authority, for perfectly good planning reasons, wishes the whole of a particular area/building, or floor in a building, to be retained (or not used) for a particular purpose, it would be most unfortunate if its right to take enforcement action in relation to any use of that area, however extensive, would be curtailed after ten years merely because a part, perhaps only a small part, of the building or area had been used (or not used) in breach of condition. The planning consequences of using the whole of the area or building otherwise than in accordance with a condition, as opposed to the consequences of using only a small part of the building or area in breach of condition, might be very significant. The legislative intention underlying section 171B is that if a local planning authority has failed to take enforcement action to stop a particular activity for a period of ten years, then it is far too late for it to begin to complain about the activity in question.

While it is true that the use of any car parking space by a non-occupier or user of the building will result in the whole of the car parking arrangements not being made available for the users/occupiers of the building in accordance with condition 2, the practical consequences of using all of the car parking spaces for non-occupiers/users could be very different indeed from the practical consequences of merely using one of the spaces for non-occupiers/users. Ms Lieven fairly acknowledged that the appellant's approach to the condition might well impose additional monitoring responsibilities upon the Council, and that those additional monitoring responsibilities might well be burdensome. But she submitted that that did not mean that the result could be described as "absurd".

I accept that absurdity may be putting it too high, but there is no doubt that on the appellant's approach a local planning authority could easily be lulled into a false sense of security. If there were little or no adverse consequences as a result of one car parking space being used for non-occupiers/users, there would be no reason for the Council to become involved. If that situation continued for ten years, the Council would be powerless to prevent a much more significant breach.

Like the Inspector, I would strive to avoid such an undesirable planning consequence if at all possible. I am not persuaded that her re-interpretation of the condition, as set out in paragraph 10 of the decision letter, is appropriate or, indeed, an answer to the underlying problem. If the condition does apply to the whole of the car parking accommodation and to its constituent parts, the breach still occurred over ten years ago, when the whole of the car parking ceased to be used in accordance with the terms of condition 2.

Mr Litton's re-interpretation of the condition so as to apply it, in effect, to each and every one of the car parking spaces individually, thus giving each space the benefit of its own condition is, in my judgment, a step, if not 19 steps, too far. In my view, the court should not strive to rewrite the condition, which would be impermissible, but to consider whether the provisions in the Act relating to the ten-year time limit can be construed so as to produce a sensible planning outcome.

There can be no doubt what the sensible planning outcome would be. On the planning merits, the Inspector considered that condition 2 should be retained. It still served a planning purpose even though it applied to only five spaces.

Miss Lieven submits that I should not rewrite the Act. I agree. But I do not think it necessary to do so. I think it is merely necessary to construe section 171B(3) within the overall framework for enforcement action that is laid down by the Act. When considering the ten-year limit on taking enforcement action, it is important to bear in mind that it is not sufficient for an enforcement notice to allege that the breach of planning control is a breach of condition in section 173(1)(b). A notice must also specify the matters which are said to constitute the breach: see subsections 173(1)(a) and (2). In addition, the notice must specify the steps which it requires to be taken. Although under-enforcement is permissible, those steps may not be more than is necessary to make any development comply with the conditions which are alleged to have been breached: see subsections 173(3) and (4). Thus, if space number 1 is being used by non-occupiers/users of the building, but the remaining 18 spaces are being retained for use by the occupiers/users of the building, any steps required to be taken would be limited to space number 1.

Applying this statutory framework to the facts of the present case, if condition 2 is breached because one car parking space ceases to be retained for use as parking accommodation by users/occupiers of the building, the enforcement notice must make it plain that the breach of condition is by reason of the use of that space, must identify the space with sufficient clarity, and require no more than that the use of that space, in breach of condition, shall cease. If the notice requires more it can be cut down in response to an appeal under ground (f) in section 174(2). The practical operation of these provisions can be seen in the enforcement notices served in the instant case. Although they refer to the building at 13 to 17 Clarges Street as the land at which there has been a breach of planning control, and although they refer to condition 2, if one reads each enforcement notice as a whole, it is plain that it focuses upon the use of a particular car parking space in breach of condition 2 and requires the use of that particular space in breach of condition to cease. Section 171B has to be construed against this statutory background, which requires an enforcement notice where there has been a breach of planning control by a reason of noncompliance with a condition to explain the nature and the extent of the breach, and what must be done to remedy the breach. For the purpose of applying the ten year time limit in section 171B the focus should be upon the terms of the enforcement notice which has been issued. The question is not: could an enforcement notice alleging a failure to comply with this condition have been issued 10 years ago, but could this enforcement notice alleging this failure to comply with the condition and requiring this failure to be remedied by taking these steps, have been issued 10 years ago? If the answer to the latter question is "Yes", then it is readily understandable that the local planning authority should have lost its right to take enforcement action. In respect of those spaces where the local planning authority could not have required any remedial steps to be taken - because they were being retained for the use of occupiers/users of the building - there is no sensible reason why it should have lost its right to take enforcement action. In my judgment, it is does not involve a rewriting of section 171B to construe it as though it prohibits a local planning authority from issuing an enforcement notice after the end of ten years from when the particular matters alleged by the enforcement notice to constitute a breach of condition began.

I acknowledge that this construction results from a desire to avoid the unfortunate consequences that would flow, not merely in this case, but potentially across a range of other cases if the appellant's approach was adopted. As the Inspector said, "common sense" suggests that merely because one car parking space has been used in breach of a condition, such as condition 2, it cannot have been intended that the obligation to use the remaining spaces in accordance with the condition should cease merely because that one space has been used in breach of condition for a period of ten years. The question, and I freely acknowledge that I have found it a difficult one, is whether it is possible to give effect to the Inspector's common sense position? In my judgment it is possible, not by rewording the condition but by interpreting sections 171A (which cross refers to section 172) and 171B in conjunction with sections 172 - 174 in a purposive manner so as to focus upon the particular failure to comply with the condition and the remedial steps set out in the notice.

For these reasons, which differ somewhat from those set out by the Inspector in paragraph 10 of her decision, I dismiss this appeal.

MR LITTON: My Lord, I would ask for the Secretary of State's costs to be paid, obviously as a matter of principle, I do not suspect, but it may be, it will be objected to, and if the principle is correct, my Lord, then the costs have been agreed in the sum of £5,270.

MR JUSTICE SULLIVAN: Yes. Right, Ms Lieven, no problem about principle or detail?

MS LIEVEN: My Lord, I do not see that I can object to principle even though your Lordship has found against me on slightly different grounds, it was always a pure point of law and we lost on a pure point of law.

MR JUSTICE SULLIVAN: Yes, very well. Appeal dismissed. The appellant is to pay the first respondent's costs. I summarily assess those costs in the sum of £5,270. I think, Ms Lieven, this is a second appeal, so I think it is only the Court of Appeal that can give you permission to appeal?

MS LIEVEN: My Lord, I am not instructed to ask for permission to appeal in any event. It is an interesting point of law, but it is only five car parking spaces, my Lord.

MR JUSTICE SULLIVAN: Yes.

MS LIEVEN: Doubtless from Westminster's point of view it has a wider significance, but, from ours, we do have to bear in mind it is only five car parking spaces.

MR JUSTICE SULLIVAN: Pity, really.

MS LIEVEN: I agree.

MR JUSTICE SULLIVAN: I would have liked somebody else to look at it and be as troubled as I have by it. There we are. Thank you both very much indeed for very helpful skeleton arguments.