St Anselm Development Company Ltd., R (on the application of) v First Secretary of State [2003] EWHC 1592 (Admin)

Case No CO/223/03[2003] EWHC 1592 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 16 June 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF ST ANSELM DEVELOPMENT COMPANY LIMITEDClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantWESTMINISTER CITY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS N LIEVEN (instructed by Dechert LLP, 2 Serjeants' Inn, London EC4Y 1LT) appeared for CLAIMANTMR J LITTON (instructed by Treasury Solicitor) appeared for DEFENDANT for The Second Respondent did not appear and was not represented
J U D G M E N T(As Approved by the Court)Crown copyright©
[1]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.[2]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.[3]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:
"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."
[4]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:
"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."
[5]The Inspector set out her own reasoning in paragraphs 9 and 10:
"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."
[6]She, therefore, concluded in paragraph 11:
"... 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."
[7]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:(1) For the purpose of this Act:- (a) ... (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."
[8]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.[9]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.[10]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.[11]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:
"(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..."
[12]Section 174(2) sets out the grounds on which an appeal may be brought against an enforcement notice.

(d) :

"... 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."
And (f):
"... 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."
[13]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:
"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.[14]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.[15]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.[16]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:
"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."
[17]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.[18]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.[19]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. CONCLUSIONS 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.[20]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.[21]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".[22]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.[23]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.[24]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.[25]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.[26]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.[27]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.[28]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.[29]For these reasons, which differ somewhat from those set out by the Inspector in paragraph 10 of her decision, I dismiss this appeal.[30]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.[31]MR JUSTICE SULLIVAN: Yes. Right, Ms Lieven, no problem about principle or detail?[32]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.[33]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?[34]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.

[36]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.

[38]MS LIEVEN: I agree.[39]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.

Cited in 2 later judgments