Neutral Citation Number: [2009] EWHC 2018 (Admin)
Case No CO/10313/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 22nd May 2009

B e f o r e: 

KEITH LINDBLOM QC 
(Sitting as a Deputy High Court Judge)
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Between: 

SUBURBAN PROPERTY INVESTMENT LIMITED 
Appellant

v 

THE SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
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Mr J Pike (instructed by William Innes) appeared on behalf of the Appellant 
Miss Busch (Mr T Amraou for judgment) (instructed by the Treasury Solicitor) appeared on behalf of the Respondent 
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J U D G M E N T 

1.	THE DEPUTY JUDGE:  
Introduction 
2.	This is an appeal under section 289 of the Town and Country Planning Act 1990, seeking an order to quash the decision of the Secretary of State's Inspector dismissing the appellant's appeal against an enforcement notice issued by the London Borough of Wandsworth Council, as local planning authority, in respect of an alleged breach of planning control at a block of flats, Sylva Court, on Putney Hill in London SW15.
3.	The appellant has a 999 year lease of a garage and car parking area at the premises, which it acquired from the freehold owner, Dorrington Residential Limited, in December 2003.  
4.	The building was erected in the mid‑1960s, planning permission for it having being granted in outline form by the London County Council on 23 February 1965.  The 1965 planning permission approved a development which it described as "the erection of a part 8 and part 9 storey block of 24 flats with 9 garages and covered parking for 12 cars at 81 Putney Hill, Wandsworth".  The permission was made subject to four conditions.  In proceedings before me the condition that has been at the centre of contention has been condition 3, which states:
"The garages and car parking accommodation shall not be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat and no trade or business shall be carried on therefrom."
The reason for the imposition of that condition was this:
"(b) Any other use of the garages would be prejudicial to the amenities of the residential building or of the area generally."
5.	Sylva Court contains 24 flats.  Within its grounds is an underground garage, in which there are 24 parking spaces.  The appellant has made spaces there available on payment of a licence fee to people who are not residents of Sylva Court, as well as to those who are.  
6.	On 22 November 2006 the Council issued an enforcement notice alleging a breach of planning control, which was stated in the notice to be a failure to comply with condition 3.  The notice required the cessation of the use of the parking area at Sylva Court on a general commercial basis and associated activities and compliance with condition 3.  
7.	The appellant appealed against the notice on four of the statutory grounds, namely grounds (a), (b), (d) and (g) of section 174(2) of the 1990 Act.  The proceedings before me have concerned only the appeal on grounds (b) (that the matters stated in the notice "have not occurred") and (d) ("that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters").  
8.	An inquiry into the appellant's appeal was held on 2 October 2007, and the Inspector undertook his site visit on the same day.  The outcome was that the appeal largely failed.  The Inspector, in his decision letter dated 23 October 2007, rejected all four of the appellant's grounds, save for part of the ground (b) appeal and part of the appeal under ground (g), the limited success of those parts of the appeal causing him not to quash the enforcement notice but to uphold it and to vary it to exclude reference to "associated activities" and to adjust the period of compliance with it from three to four months.
9.	In the appeal before the court Mr Jeremy Pike, who has appeared for the appellant, has attacked the Inspector's consideration of, and conclusions on, both grounds (b) and (d) of the appeal.
The challenge to the Inspector's treatment of the ground B appeal 
10.	The Inspector dealt with the ground (b) appeal in paragraphs 2 to 13 of his decision letter.  For the purposes of this appeal the salient passages in that part of the decision letter are these:
"2.  The notice does not set out in terms how the condition in question has been breached.  However, by alleging also a material change of use for general commercial parking and associated activities it is clear that the matters complained of was not being in compliance with the condition are that they are not purposes incidental to the enjoyment of a dwelling house or flat.  The appellants were aware of this and their appeal on various grounds was directed at those matters.  
3.  The garages and car parking accommodation referred to in the condition comprise an underground garage within the grounds and to the east of Sylva Court, which is a block of 24 flats.  A private road to the south of Sylva Court, which is shared with the adjoining block of flats at Ross Court, provides access to the garage which has a roller shutter door opening onto a ramped entrance from this road.  The garage contains 24 car spaces in two rows of 12 facing across the internal manoeuvring aisle.  The flat roof of the garage is landscaped and primarily laid to lawn.  There are no other formal parking spaces marked out within the grounds of Sylva Court.  
4.  Although the 1965 outline planning permission for the flats refers to 9 garages and covered parking for 12 cars it was agreed between the parties that at the stage of approval of reserved matters this parking provision had been modified to embrace the 24 underground spaces within the garage... 
5.  The appellant Company acquired a 999 year leasehold interest with the garage with associated rights of way from Dorrington Residential Limited, the freeholders of the garage and flats, on 19 December 2003.  Dorrington have since disposed of their freehold interest in both.  Mr Bowman, the appellants' Company Secretary, told me that at the time of its acquisition by the appellants the garage was empty and it remained so until about May or June 2004 while they spent 6 or 7 months refurbishing the garage and installing a security system.  Thereafter they began advertising the garage spaces for let to the general public and have since averaged about 95% occupancy of the garage.  Document 2/5 lists the whereabouts of licensees as at August 2007 showing one resident of Sylva Court with the remaining 19 mainly coming from parts of west and south west London, including Putney.  
6.  It is the nub of the appellants' case, contrary to the Council's interpretation of it, that condition 3 of the 1965 permission does not restrict the parking of cars within the 24 parking spaces to those Sylva Court residents.  In their view, from a literal reading of the condition, a car may be parked there so long as it is for a purpose incidental to the enjoyment of any dwelling house or flat and not for any trade or business purpose, such as a car repair garage.  On the face of it that is a persuasive argument but one which does not hold up after closer consideration, for a number of reasons, most of which were advanced on the Council's behalf.  
7.  The starting point must be the 1965 permission itself, which was for a block of flats with associated parking provision.  It was not a freestanding grant of permission for an underground car park, or other form of parking, but for an integral part [of] a sizable residential development.  It seems to me that it is within that context that the language of the condition must be interpreted, such that the phrase 'shall not be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat' can only reasonably be taken to mean a dwelling or flat within the permitted block of flats and not 'any' dwelling wherever it happens to be located.  I acknowledge that the condition could have been better worded to include a reference to the permitted block of flats but it appears from the Council's evidence that this was a fairly standard condition in use during that era when it was not thought necessary to include such a qualification.  Inclusion of the term 'dwelling house' in addition to 'flat' may well reflect this standard phrasing since the condition could presumably be applied to most forms of residential development.  The reason for imposing the condition is also revealing in that it states '(b) any other use of the garages would be prejudicial to the amenities of the residential building or of the area generally'. This undoubtedly refers to 'the residential building', or block of flats, as being permitted.  
8.  Other reasons for concluding that the condition effectively limits car parking within the garage to Sylva Court residents are the numerical co‑relation of 24 spaces to 24 flats and the provision of a pedestrian access door to the garage at the foot of some steps leading from the entrance to the block of flats, albeit that door is now kept locked.  
9.  Having regard to the above, I am satisfied that the condition meets the test of precision set out at paragraph 14 of Circular 11/95 ...  
10.  From the appellants' own evidence the parking spaces are not, with one exception, now let to Sylva Court residents but to members of the wider public living elsewhere, on a commercial basis as part of what can only be described as a trade or business.  That in my view is in breach of condition 3 as the notice alleges, and the ground (b) appeal fails to that extent.  
11.  I turn next to the second limb of the allegation, namely a material change of use to general commercial parking and storage, washing, valeting and maintenance of vehicles.  It follows from my finding above that general commercial parking is taking place as a matter of fact.  It is also clear from the appellants' evidence that there is an element of storage since the cars are generally of high value, used less frequently than as a means of daily transport, with some kept under dust covers, all of which suggests longer term storage than normal day‑to‑day parking use ...  
13.  There is an almost complete absence of credible evidence from any source to substantiate the allegation about washing, valeting and maintaining vehicles.  Whilst the onus of proving this point rests upon the appellants, taking account of Mr Clements' evidence, the balance of probability indicates that such activities have not taken place on a scale which is material in planning terms and I propose to delete the words 'washing, valeting and maintenance' from the allegation.  This will require a consequent variation to the requirements to remove the reference to 'associated activities' which I take to mean washing, valeting and maintenance.  The appeal on ground (b) succeeds to that extent."
11.	The essence of Mr Pike's submissions on this part of the case was that the Inspector misconstrued or misunderstood the true meaning of condition 3 and thus approached his findings of fact on the issue to which the ground (b) appeal gives rise, namely whether the breach of planning control alleged in the notice had as a matter of fact occurred, on a basis which was fatally mistaken as a matter of law.  
12.	For the Secretary of State, Miss Bush submitted that what the ground (b) appeal primarily required was that the Inspector should reach appropriate findings of fact and that the Inspector had plainly done just that, having heard the evidence provided to him at the inquiry and having visited the site to see for himself what was going on there.  
13.	Both sides, whilst contending for quite different interpretations of condition 3, nevertheless submitted that its meaning was perfectly clear.
14.	It is right, therefore, that I should start by reminding myself of the correct approach to the construction of a planning condition and of any restrictions placed upon it by means of the conditions.  In the recent decision of the Court of Appeal in Secretary of State for Communities and Local Government and another v Bleaklow Industries Limited and another [2009] EWCA Civ 206, a case which required the court to consider what was the proper meaning of a planning permission granted in April 1952 for the extraction of minerals from land in the Peak District National Park, Keene LJ set out a basic and now well‑established principle that operates in this area of the law of planning, and went on to apply it thus (at paragraphs 27 and 28):
"27.  All the parties are agreed that, in interpreting a planning permission, the general rule is that, in the absence of ambiguity, regard may only be had to the planning permission itself, including the conditions on it and the express reasons for those conditions: R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12 at 19C/D.  In the course of argument counsel have taken us to a report by an officer of the Ministry of Housing and Local Government which preceded the grant of the 1952 permission.  We have looked at this report on a de bene esse basis.  The recommendation in it is expressed in different terms from those in which permission was eventually granted.  Both sides have sought to draw some comfort from this, if resort can lawfully be had to such extrinsic material.  For my part, I do not regard it as appropriate to use that report as a means of construing the later planning permission, for the reasons set out in the Ashford case and in other authorities, such as Slough Borough Council v Secretary of State for the Environment [1995] JPL 1128.  A planning permission runs with the land and should be capable of being relied on by later landowners and others who may well not have access to officers' reports and other extrinsic material.
28.  I am satisfied that the wording of the 1952 planning permission should be regarded as deliberate and meaningful.  There is no basis for treating it as having been loosely worded ..."
Keene LJ went on (in paragraph 33) to emphasise the need to strive for an interpretation that would give effect to the whole of the terms of the permission, a principle I would regard as applying equally to the terms of a planning condition: 
"33.  The express grant of permission in the second limb for the extraction of 'other minerals', including limestone, in certain limited circumstances, confirms this interpretation.  As Mr Jones recognises, the judge's approach renders the second limb of this permission otiose.  All that could be done under it could already be done under the first limb if the judge is right.  Nor is there any reason why the carefully‑formulated second limb should be seen as having been included as a mere illustration of what could be done under the first limb.  That seems to me to be most implausible.  In principle, one should seek an interpretation that gives effect to both limbs of this permission, and that can only be achieved by construing this permission as meaning what it says: that is, allowing the winning and working of fluorspar and barytes (but not limestone) under the first limb and allowing the winning and working of limestone (and other minerals) but only in the circumstances described in the second limb."
15.	How then is one to approach the interpretation of condition 3 in the planning permission of 23 February 1965?  In my judgment, it is necessary to make sense of the condition, if one can, in the context of the permission read sensibly as a whole, including the reason given for its imposition.  In doing this it is important to remember the distinction between the condition and its reason.  The former contains the restriction; the latter explains it.  
16.	At the appeal inquiry the parties appear to have focused in particular on the part of the condition that specifically restricts the use of the garage and car parking accommodation to which it relates by stipulating that they were not to be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat, the Inspector concluding that these words "can only reasonably be taken to mean a dwelling or flat within the permitted block of flats and not any dwelling, wherever it happens to be located".
17.	Mr Pike laid emphasis on the use of the indefinite article, "a", as opposed to the definite article, "the", in the expression "the enjoyment of a dwelling house or flat", arguing, in effect, that had the condition been intended to relate specifically to the residential accommodation permitted by the planning permission, and only to that, it would have been appropriate and necessary to make that explicit.  
18.	Was the Inspector right to read the condition in the way he did?  I believe he was.  One thing that could not sensibly be said is that condition 3 was intended to prevent the garage and car parking accommodation being used by the residents of Sylva Court for the parking of their own vehicles.  Such parking would plainly be used for a purpose incidental to the enjoyment of a dwelling house or flat, applying the concept in the generic way in which it is put; or, if one is to apply it more specifically in respect of Sylva Court, which is a block of flats, incidental to the enjoyment of a flat.  Without any semantic sophistication, one can readily see that this is to understand the word "incidental" here in its ordinary English sense, conveying the idea of something that occurs in connection with or as a result of something else.  Similarly, it would be absurd, in my view, to suggest that condition 3 was intended to prevent some form of charge or licence fee being levied for the use of the garage by residents of the building.  This would not affect at all the basic proposition, rightly discerned by the Inspector in my view, that the use must be one incidental to the enjoyment of Sylva Court as a residential building by those who live in it.  
19.	By contrast, the parking of vehicles owned by people who lived elsewhere ‑ as Miss Busch put it in argument ‑ by the general public, would clearly not be parking incidental to the enjoyment of Sylva Court as a residential building, nor indeed incidental to the enjoyment of any other particular residential building, again no matter whether the parking were charged for or not.  
20.	Condition 3 is also explicit in precluding the carrying on of any trade or business from the garages and car parking accommodation.  It is plain, in my view, that such activity was regarded by the authors of the condition as being likely to be or to become inimical to the purpose of protecting the enjoyment of the flats by their residents.  It was therefore ruled out.  This understanding of condition 3 also sits well not only with the reason given for its imposition, but also with the concept of the whole development as defined in the planning permission.  
21.	The reason for the condition imposed concerns the amenities of the residential building and of the general area around it.  It may be that over the years the word "amenities" has become somewhat hackneyed in the parlance of land use planning.  Here, however, in a consent granted more than 40 years ago, one can sensibly read the word in its ordinary English sense, meaning the useful or desirable features of a place.  The description of the development in the permission embraces not only the block of flats itself, but also in precise terms the garages and covered parking.  This may sensibly be taken as an indication that the provision of parking within the development was regarded by the authority which approved it as an integral element of the proposal, and in my judgment it also serves to support the Inspector's understanding of condition 3.
22.	I do not accept Mr Pike's suggestion that the correlation between the number of spaces and the number of flats in the block and the pedestrian access door connecting the garage to the flats, to which the Inspector referred in paragraph 8 of his decision letter, were irrelevant as matters he took into account in concluding there was support for the meaning he ascertained for condition 3.  In my view, the Inspector was right to regard them as being consistent with his interpretation of the condition.
23.	For the reasons I have given, I reject the contention, skilfully advanced as it was by Mr Pike in his submissions, that the Inspector adopted a legally incorrect construction of condition 3 and thus misdirected himself in approaching his task of making appropriate findings of fact for the appellant's ground (b) appeal.  On the contrary, I am in no doubt that the Inspector adopted the correct meaning of condition 3 and that he properly directed himself in considering whether, as a matter of fact and degree, the alleged breach had occurred.
24.	Crucial in the Inspector's analysis on that question were the findings he made in paragraphs 10 and 11 of his decision letter.  He recorded in those two paragraphs, as in my view he was perfectly entitled on the evidence ‑ including the appellant's own evidence ‑ to find, that general commercial parking by the letting of spaces, with one exception, to members of the wider public living elsewhere, and including an element of storage, was taking place on the site and that this constituted a breach of condition 3 as alleged in the enforcement notice.  It would be quite impossible, in my view, to stigmatize that finding and that conclusion as being irrational or otherwise bad in law.  This first part of the appellant's challenge therefore fails.
The challenge to the Inspector's treatment of the ground (d) appeal 
25.	The Inspector's findings and reasoning on the ground (d) appeal are to be found in paragraphs 14 to 17 of his decision letter, which state:
"Again the onus of proof on this ground rests upon the appellants and in order for the appeal to succeed it is necessary to show that, on the balance of probability, the alleged breach of planning control commenced before 22 November 1996.  No witnesses of fact were called by the appellants who had personal knowledge of the history of the site prior to its acquisition by them in late 2004, nor did anyone else appear at the inquiry who could give evidence about the use of the premises for the whole of the relevant 10 year period.  In this regard the appellants relied upon documentary evidence, mainly comprised in a note dated 29 August 2007 ... which I was given to understand had been initially prepared by the appellants but checked, amended and agreed by Dorrington Residential Limited, the former owners of the flats and the car park.  
15.  In that note it is stated that Dorrington acquired the freehold of Sylva Court, presumably with the underground garage, some time prior to April 1982.  The garage was only used for parking cars and managed remotely by agents.  It further states that most Sylva Court residents appeared to park their cars in the street and that demand for spaces was limited, so that the parking could not be operated to its full commercial or practical potential.  Just prior to its acquisition by the appellants the garage was mainly empty with ten spaces occupied on licence.  Leases of the Sylva Court flats did not at any time grant any rights in respect of the car parking and if a flat lessee took an interest in the car park it was in the form of a licence to use an individual space at a full market licence fee.  
16.  Also attached to Document 2/3 was a copy of a letter dated 5 July 2006 from Dorrington's surveyor which states that prior to its sale on 19 December 2003, the underground car park 'had been let as individual parking spaces, mainly to residents of Sylva Court'.  The letter goes on to state that at the time of sale it was mainly vacant with 10 spaces let on licence and that those licensees were given notice to quit, coinciding with the completion of the sale.  
17.  Although no‑one was called from Dorrington to be questioned about these documents I have no reason to doubt the accuracy of their content.  Nowhere in them is there any indication of the parking spaces in the garage being let to anyone other than Sylva Court residents, albeit the numbers involved appear to have been less than half the total capacity, at least during the period leading up to the sale of the garage to the appellants.  Use of the phrase 'mainly to residents of Sylva Court' in the 2006 letter from Dorrington might cast some doubt in this regard but there is no other indication of the letting of an odd space or two to a person not living at Sylva Court.  On the balance of probability I conclude that until December 2003 the garage was being used in accordance with condition 3 of the 1965 planning permission and that no material change of use to general commercial parking had occurred prior to that date.  Indeed it was not until after the change of ownership and refurbishment was completed, and letting to the wider public began around May or June 2004 that the breach of the condition and the material change of use took place.  That is several years after the 10 year period commenced and accordingly the appeal on ground (d) must also fail."
26.	Again, in my judgment, the Inspector made unimpeachable findings of fact, albeit on scant evidence.  As he noted, the onus of proof rested on the appellant.  The evidence produced by the appellant comprised the letter from Dorrington's surveyor, Mr Wade, dated 5 July 2006 and the note from Dorrington dated 29 August 2007.  The letter of 5 July 2006 included this paragraph:
"The underground car park was in use up to the date of its sale to Suburban Property Investment Limited on 19th December 2003.  Prior to that date it had been let as individual car park spaces, mainly to residents of Sylva Court.  At the time of the sale it was mainly vacant with ten spaces let on licence and those licensees were given notices to quit coinciding with the completion of the sale ..."
The note of 29 August 2007 stated:
"1.  Sylva Court was acquired freehold by one of the companies in the Dorrington Group, Dorrington Residential Limited ... at a date prior to April 1982.  
2.  During Dorrington's ownership the underground car park ... was used only for parking of cars.  The management of the car park took place from elsewhere at all times ... 
3.  The lessees of the Sylva Court flats were offered the opportunity to buy parking spaces at £12,500 a space, but there were only two expressions of interest.  
4.  Most of the lessees and occupants of Sylva Court ... appeared to park their cars in the street.  
5.  During the time of Dorrington's ownership demand from the residents was limited so that the car park could not be operated to its full commercial practical potential.  
6.  At the time immediately prior to the sale of the car park by way of the 999 year lease to Suburban Property Investment Limited the car park was mainly vacant with ten spaces occupied on licence.  
7.  The leases of the flats did not at any time grant any rights in respect of the car park to lessees of the flats.  If a flat lessee took an interest in the car park it was in the form of a licence to use an individual parking space.  On such occasions a full market licence fee was charged.  
8.  While the car park was in the ownership of Dorrington it was administered as a separate entity from the Sylva Court flats.  The cost of repairs and any outgoings of the car park were dealt with as a separate account and not as part of the service charges for the flats.  
9.  Dorrington Residential Limited granted a lease of the car park to Suburban Property Investment Limited on 19th December 2003.  That is the lease of 999 years from 24th June 2003 at a peppercorn rent.  
10.  Subsequent to that Dorrington Residential Limited sold its freehold interest in the remainder of Sylva Court, subject to the benefit of long leases which had been granted in respect of nearly all of the flats and the head lease of the car park."
27.	In the light of the contents of those two documents, I am at a loss to see how the Inspector can be criticised for his findings and conclusion in paragraph 17 of his decision letter that "there is no other indication of the letting of an odd space or two to a person not living at Sylva Court".  In fact, however, that seems to me to be giving the appellant the benefit of the doubt.  A somewhat more definite finding ‑ that there was no clear evidence at all of any substantial letting of car parking spaces to non‑residents until the end of 2003 ‑ might very well have been justified on the material the Inspector had.  One need not go that far, however.  It is enough to conclude, as I do, that the letter of 5 July 2006 does not have to be read as evidence by default of the commercial letting of car parking spaces at Sylva Court throughout the relevant ten year period to people who were not living in the building, and Dorrington's note of 29 August 2007 takes the matter no further.  In any event, the Inspector's findings on the balance of probability that "until December 2003 the garage was being used in accordance with condition 3 and that no material change of use to general commercial parking had occurred prior to that date", and that:
"... it was not until after the change of ownership and refurbishment was completed and letting to the wider public began around May or June 2004 that the breach of the condition and the material change of use took place.  That is several years after the ten year period commenced and accordingly the appeal on ground (d) must also fail", 
are as plain as one could wish, and again cannot be characterized as being in any respect legally flawed.  This is not an irrational analysis; neither does it lack anything in the reasoning provided, which I consider to be clear and complete.  
28.	I cannot see any inconsistency between the Inspector's approach to the ground (b) appeal and his approach to the appeal on ground (d).  If, as I have held, the Inspector was right in his understanding of the true meaning of condition 3 and justified in identifying the breach of planning control in this case as being the commercial letting of parking spaces to non‑residents, then he was no less justified, on the appellant's own evidence, in finding that the breach had occurred more recently than ten years before the taking of enforcement action.  
29.	I also reject the suggestion that it was incumbent on the Inspector to take into account as a material consideration in his treatment of the ground (d) appeal the commercial letting of car parking spaces, if that is what it was, to residents of Sylva Court as being a breach of planning control and one which had persisted for longer than ten years.  Not only was it unnecessary for the Inspector to do this, it would have been wrong for him to do so, for two reasons: in the first place, that was not the basis upon which the Inspector had identified the breach of planning control; secondly, it could only have been a proper basis for identifying the breach if the correct understanding of condition 3 was that it operated to deny the residents of Sylva Court the use of the car parking spaces in the development if they paid to use them, a notion which I cannot accept.  
30.	For those reasons this second part of the appellant's challenge to the Inspector's decision also fails.  
Conclusion 
31.	It follows, therefore, that this appeal must be dismissed.
32.	 
33.	MR AMRAOU:  First of all, I apologise Miss Busch is not here.
34.	THE DEPUTY JUDGE:  I knew that she was not going to be here, but thank you for apologising on her behalf.
35.	MR AMRAOU:  My Lord, I do ask for our costs.  There is a new schedule of summary assessment which has been produced today.  Perhaps I can hand that up.
36.	THE DEPUTY JUDGE:  Thank you.  You seek an order for those costs summarily assessed as £8,988.
37.	MR AMRAOU:  We do, my Lord.
38.	THE DEPUTY JUDGE:  That is agreed, is it? 
39.	MR PIKE:  My Lord, yes, and there is no objection in principle, my Lord.
40.	THE DEPUTY JUDGE:  Then I so order, that is to say that the appellant will pay the first respondent's costs, summarily assessed in the sum of £8,988.
41.	MR AMRAOU:  I am grateful.
42.	THE DEPUTY JUDGE:  So the appeal is dismissed with that order as to costs.  Now, Mr Pike?
43.	MR PIKE:  My Lord, if this is to go any further I must at this juncture ask your Lordship's permission to appeal to the Court of Appeal.  I will be very brief in my application, with your permission.
44.	THE DEPUTY JUDGE:  Yes.
45.	MR PIKE:  My Lord, in relation to the ground (b) appeal, my Lord two reasons why I say there is a real prospect of the Court of Appeal taking a different view to your Lordship, with respect.  The first is that, in my respectful submission, your Lordship's conclusion as to the proper interpretation of condition 3 requires changing the words in the condition or importing words into it.  My Lord, in the light of the Bleaklow Industries decision, in my submission the proper approach is to consider that the words were deliberate, or alternatively that the condition was not loosely drafted.  Therefore, in my submission, if one looks at the words which were used there is a real prospect the Court of Appeal would take a different view to your Lordship.
46.	The second reason, my Lord, in my submission is that one central aspect of my submissions were that the condition bore a plain meaning on the basis of the words used, there was no reason to depart from that plain reading.  In my respectful submission, my Lord, your Lordship's judgment did not address that point, and my Lord that is why I submit the Court of Appeal might take the view there is a real prospect of appeal.
47.	THE DEPUTY JUDGE:  I do not believe I need call on you, Mr Amraou.  
48.	Mr Pike, I will not give you permission to appeal to the Court of Appeal.  In the first place, I do not believe there is any real prospect of a different result there on the basis that you suggest, that is to say that the proper interpretation of the condition requires the changing or insertion of words.  Nor do I accept that I have done other than deal effectively with your submission as to the meaning of the condition, indicating clearly my understanding as a matter of law what that condition means.  I do not therefore accept the second limb of your application and I do not therefore propose to give you permission to appeal.
49.	Thank you both.