Appellants granted planning permission subject to condition restricting parking of vehicles on highway – Enforcement officer observing vehicles parked on highway – Notice of breach of condition served – Whether local planning authority entitled to impose condition – Whether notices validly served – Appeal allowed in part
In 1979 the second appellant was granted planning permission for the retention of two single-storey buildings at 65 Tasso Road, London W6 (the premises), in connection with its use for motor vehicle repairs. The local planning authority granted the permission subject to conditions, by virtue of sections 29 and 30 of the Town and Country Planning Act 1971 (now re-enacted in sections 70 and 72 of the 1990 Act). Condition 8 provided that “no vehicles which have been left with or are in the control of the applicant shall be stored or parked in Tasso Road”. The appellants were jointly registered as landowners of the premises and were equal partners in the motor vehicle repairs business. In September 1997 an enforcement officer employed by the respondent council observed vehicles being parked in Tasso Road by the appellants and their employees. These were then taken on to the premises to be repaired and later reparked in Tasso Road. Pursuant to section 187A(2) of the Town and Country Planning Act 1990, the appellants were each personally served with a breach of condition notice relating to condition 8 . They were convicted in the magistrates’ court and ordered to pay a fine of £100 plus costs of £772.50.
The appellants appealed by way of case stated contending that Tasso Road was not part of the premises and was not land under their control, and therefore the local planning authority had not possessed the power to impose condition 8. It was further contended that the respondents had not had the power to serve a breach of condition notice upon the first appellant, since he was not a party to the planning permission.
Held The appeal was allowed in part.
1. A condition on planning permission relating to land outside permission land could only be imposed on an applicant if it was wholly within his power to secure compliance. Condition 8 was not ultra vires, since it only required the applicants to ensure that vehicles left with them or in their control were not parked on the road, and that was wholly within their power to secure because they did not need to have control of Tasso Road in order to comply with the condition: Mouchell Superannuation Fund Trustees v Oxfordshire County Council [1992] 1 PLR 97 and circular 5/68 considered.
2. It had not been shown that condition 8 was not for a planning purpose, fairly and reasonably related to the development permitted, or was unreasonable. It had been imposed in order to avoid obstruction to the road and safeguard access to it, and, although other forms of control existed, that did not make it unlawful.
3. Section 187A(2)(b) of the 1990 Act provided that a breach of condition notice may be served on any person having control of the land subject to the condition. However, condition 8 regulated the use of Tasso Road, not the premises, and, since the first appellant was not in control of the road and not a party to the planning permission, the notice served on him was not effective.
Richard Harwood (instructed by William Sturges & Co) appeared for the appellants; Michael Bedford (instructed by the solicitor to Hammersmith & Fulham London Borough Council) appeared for the respondents
Thomas Elliott, barrister
