[17] If the 60 spaces, as a consequence of being leased, become unavailable to the "user groups" in the Regency Development then they cannot be said to be ancillary to it. The question which thus arises is whether the leasing of these 60 spaces will have this effect and I am satisfied that it will.
8 He went on to explain that as the proposed leasing was unconditional and, in effect, the future users of the car spaces are likely to not comprise the "relevant user groups" the proposed modification "clearly points to a different and independent purpose for these 60 spaces." He summed up his conclusion as follows at [20], [21] and [22]-
[20] In these circumstances I can comfortably conclude that the 60 spaces would be independent and not incidental or ancillary to the Regency Development as is required by the definition if they are to be excluded from it.
[21] I therefore conclude that to make 60 spaces available for lease as proposed in the lease application, would result in the affected part of the existing Regency Development no longer being subordinate thereto, becoming instead a separate use, in particular a car parking station , which is a prohibited purpose.
[22] For these reasons I reaffirm my earlier conclusion that approval of the lease application would result in the 60 car parking spaces becoming a car parking station as defined and as a consequence would be prohibited by SREP 5. I also reaffirm my decision that on its merits the lease application should be refused for the reasons which I gave in my earlier judgment.
9 The appellant, represented by Mr Clay, contends in this further appeal that in his second decision the Commissioner says he approached the task of applying the definition of car parking station as "one of fact and definition, not degree or characterisation" thereby erroneously deciding that the proposed provision of leased car spaces would be a prohibited use. The alleged error is said to arise as a consequence of determining whether the leased spaces would be ancillary by reference to the user groups in condition 41, rather than the whole development.
10 Although the Commissioner also found against the applicant on the merits of the application Mr Clay contends that the determination of merit issues was infected by error of law so that a rehearing should take place before a different Commissioner. Mr Ayling SC, who appears for the Council, submits that, as the Commissioner decided on the facts that more than 250 spaces were required to meet the demand from the Regency development itself, the determination of the legal question is unnecessary. There is some force in Mr Ayling's submission.
11 I determined the legal question raised on the first appeal because it appeared to me that the underpinning reason for refusal by the Commissioner to grant development consent was that the leasing of car spaces would create a prohibited use as a car parking station. In his September 2004 judgment, Commissioner Bly has reaffirmed his decision on the merits namely that the lease application should be refused for the reasons given in his earlier judgment. Following that confirmation there can be no utility in remitting the matter to Commissioner Bly for yet another hearing.