Flats - Garages - Parking - Planning control

Suburban Property Investment Ltd v Secretary of State for Communities and Local Government and Anor: CA (Civ Div) (Lords Justices Carnwath, Rimer, Sullivan): 19 January 2011

The appellant company (S) appealed against a decision ([2009] EWHC 2018 (Admin)) dismissing its appeal against a decision of a planning inspector appointed by the respondent secretary of state to uphold an enforcement notice.

The enforcement notice had been issued by the interested party local authority in respect of a site to which S held leasehold title. Planning permission to develop the site had been granted in 1965 for the erection of an apartment building, garages and a level parking space. The grant of planning permission was subject to a number of conditions, including a condition that the garage and car parking facilities not be used for any purpose other than those that were incidental to the enjoyment of a dwelling-house or flat, and that no trade or business should be conducted therefrom. An apartment block was erected with underground garaging for a number of cars. Thereafter, S purchased a 999-year lease of the garage. The local authority served an enforcement notice on S claiming that S was using the garage for commercial venture, charging non-residents to use it, in breach of planning control. S subsequently appealed against the enforcement notice. S submitted that the relevant planning condition should be given its literal meaning and that the parking of vehicles in the garage by non-residents was a purpose that was incidental to the enjoyment of’ a’ dwelling, arguing that if it was the intention of the condition to limit the purpose to ‘the’ dwelling, it would have said so explicitly. The secretary of state contended there was no formal connection between the use of the garage and the dwellings by non-residents.

Held: The essential question was whether the use of the garaging by non-residents for parking cars could be regarded as a use for the purpose of enjoyment of their respective dwellings. In that context, the use of the garage by non-residents was clearly not for a purpose incidental to the enjoyment of their dwelling-houses. There was no connection between the parking of their vehicles and the drivers’ enjoyment of their own dwellings. If it was incidental to anything, it was incidental to their enjoyment of their cars, and that was not sufficient. Accordingly, the parking by non-residents of vehicles in the garage was not incidental to the enjoyment of property and was in breach of planning control.

Appeal dismissed.

Charles George QC, Jeremy Pike for the appellant; Lisa Busch for the respondent.