Barton Park Estates Ltd v The Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 12 May 2021 |
| Neutral Citation | [2021] EWHC 1200 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2774/2020 |
| Date | 12 May 2021 |
[2021] EWHC 1200 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff CF64 2UA
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/2774/2020
and
Mr George Mackenzie (instructed by Stephen Scown LLP) for the claimant
Mr Andrew Parkinson (instructed by Government Legal Department) for the first defendant
Mr Timothy Leader (instructed by County Solicitor, Devon County Council) for the second defendant
Hearing dates: 27–28 April 2021
Approved Judgment
HH Judge Jarman QC:
There has been a caravan park at Bedford Bridge, in the Dartmoor National Park, for over 40 years. It is currently known as the Magpie Leisure Park (the site). In 1987, the second defendant's predecessor as the local planning authority (the authority), granted conditional planning permission for development of the site, the brief particulars of which on the grant of permission were stated to be “Proposed site enhancement scheme involving an amendment of existing provision at site to allow for 9 residential vans, 16 holiday chalets, 18 static vans & 30 touring units at Magpie Caravan Park, Bedford Bridge, Horrabridge.” The conditions did not limit the number of units to those set out in the particulars, as they could have done. Accordingly the claimant as owner applied to the authority in 2018 for a certificate of lawful use or development for the stationing of up to 80 caravans on the site “for the purpose of human habitation” (the proposed use). The application was refused and the claimant appealed under section 195 of the Town and Country Planning Act 1990 (the 1990 Act). The appeal was determined after an inquiry by an inspector appointed by the first defendant (SofS) by dismissing the appeal.
The essential reasoning set out in the inspector's decision letter dated 29 June 2020 (the decision letter) was that the proposed stationing of up to 80 caravans for human habitation is not provided for by the 1987 permission, but would amount to a material change of use for which planning permission would be required. The claimant now appeals that dismissal to this court, with permission, under section 288 of the 1990 Act, and does so on three grounds as ultimately pursued.
The first ground is that the inspector misinterpreted the 1987 permission and should have decided that the lawful use thereunder was simply for a caravan site rather than such a site at which caravans provide both permanent residential accommodation and holiday accommodation. The second is that the inspector should have decided that it is within the scope of that permission for no caravans on site to be used for holidays. The third is that the proposed use would not change the definable character of the use of the park which would still be a caravan site, and so there would be no material change of use.
Each of these grounds is refuted by the SofS and the authority, who submit that the inspector identified the correct principles of law in respect of each of the grounds and applied them appropriately to the facts.
The inspector conducted a site visit to the park in February 2020 immediately after conducting a two day inquiry and hearing evidence from witnesses of the claimant and the authority. She set out the present use of site in paragraphs 51 to 54 of the decision letter. On the western side of the site there are nine caravans in unrestricted residential occupation which are well kept with delineated gardens, parking spaces, porches, fencing and decking. On the eastern end of the site there are five holiday chalets which are wooden buildings in a lodge style with pitched roofs and which are set well apart. To the north and to the front of woodland of the site there are situated static caravans which the evidence suggested were also being used as holiday accommodation. The central part of the site is predominantly laid to grass with some trees and areas of hardstanding with no obvious permanent delineation of pitches, which is used for touring caravans. The remaining part of the site to the south consists of two grassed areas either side of the entrance driveway which lie between the adjoining highway, the A346, and a row of mature trees along the southern boundary of the central area used for touring caravans.
The 1987 permission was granted subject to five conditions, the first of which required the development to be begun within five years. This was followed by a condition requiring improvement to the access to the site, and then one requiring landscaping to the road frontage.
Condition (d) then provided as follows:
“The new sceptic tank and soakaway system, hereby permitted, shall be installed to the satisfaction of the Local Planning Authority before any of the new chalets or the new residential caravans are brought into use.”
The remaining two conditions set out temporal limitations in respect of the occupation or use of various units as follows:
“(e) The chalets, static holiday caravans and pitches for touring units shall only be occupied between 15 March and 15 November in each year.
(f) No touring unit shall remain on the site for more than 3 weeks in each year.”
The reasons given for the last two conditions are then set out in the 1987 permission:
“(e) To protect the character of this part of the Dartmoor National Park during the winter months.
(f) To ensure that part of the site remains available for use by touring caravans.”
At the heart of this appeal is the proper interpretation or construction of the 1987 permission. The relevant principles were not in dispute before me and accordingly may be summarised as follows.
i) Such construction is a matter of law for the court: Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476 at paragraph 28.
ii) As a general rule a planning permission must be construed within the four corners of the consent itself, including the conditions in it and the express reasons for those conditions, unless another document is incorporated by reference or it is necessary to resolve an ambiguity: R v Ashford DC Exp. Shepway DC [1999] PLCR 12 at paragraph 19.
iii) The question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority. In determining objectively what a reasonable reader would understand, it is relevant to consider the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense: Trump International Golf Club v Scottish Ministers [2015] UKSC 74, per Lord Hodge at paragraph 34.
iv) Conditions should be interpreted benevolently and not narrowly or strictly and should be given a common sense meaning: Carter Commercial Developments Ltd (In Administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1200 (Admin) at paragraph 49 and Northampton BC v Secretary of State for the Home Department [2005] EWHC 168 (Admin) at paragraph 22.
There are several difficulties with construing the 1987 permission. The first is that the development which is permitted is expressly that which is described in the application dated 7 July 1986 and the plans and drawings attached thereto numbered F/3.35/895/1986/5826/6. The brief particulars quoted above then immediately follow. None of the application, plans or drawings referred to were available to the inspector or in these proceedings. It is clear that the brief particulars were just that, and that other development was permitted, for example the new septic tank and soakaway referred to in condition (d).
The second is that the brief particulars refer to an enhancement scheme, but it not clear what precisely was being enhanced. The only previous permission made available before the inspector and in these proceedings was granted in 1981 for “Proposed amendment of existing provision at caravan site to allow for 8 residential units, 26 static holiday vans and 10 new pitches for touring caravans, Magpie Caravan Park, Bedford Bridge, Horrabridge.” However, that in turn relates to amendment to the existing provision and there is no document showing what the existing provision was. Moreover, the inspector found that the 1981 permission was not implemented because there was no evidence to indicate that details of improvement to the access were approved in the implementation period as required by conditions to that permission.
Nevertheless, as the inspector observed in paragraph 13 of the decision letter, the reference to ten new pitches for touring caravans strongly suggests an increase in the pre-existing level of provision, for such caravans at least. The same may be said in relation to the chalets and residential caravans described by the word “new” in condition (d) of the 1987 permission. Accordingly, it appears that the enhanced scheme permitted by the 1987 permission was to a caravan site which already included pitches for touring caravans chalets and residential caravans.
The next difficulty is how the absence of conditions limiting the permitted development to the numbers of the various units set out in the brief particulars, or to any other numbers, affects the construction of the 1987 permission as a whole. This issue has been the subject of a good deal of judicial attention, and the main authorities were set out at some length by the inspector. It is not suggested that the principles were incorrectly set out, but rather that they were incorrectly applied. Nevertheless before me each of the parties dealt with the authorities in detail and...
To continue reading
Request your trial
-
Barton Park Estates Ltd v The Secretary of State for Housing, and Local Government
...ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (PLANNING COURT) HIS HONOUR JUDGE JARMAN Q.C. [2021] EWHC 1200 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Andrew Fraser-Urquhart Q.C. (instructed by Stephen Scown LLP) for the Andrew Parkinson......