Barton Park Estates Ltd v The Secretary of State for Housing, and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lord Justice Lewis |
| Judgment Date | 21 June 2022 |
| Neutral Citation | [2022] EWCA Civ 833 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000649 (Formerly C1/2021/1075) |
and
[2022] EWCA Civ 833
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Males
and
Lord Justice Lewis
Case No: CA-2021-000649 (Formerly C1/2021/1075)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (PLANNING COURT)
HIS HONOUR JUDGE JARMAN Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Fraser-Urquhart Q.C. (instructed by Stephen Scown LLP) for the Appellant
Andrew Parkinson (instructed by the Treasury Solicitor) for the First Respondent
Timothy Leader (instructed by County Solicitor, Devon County Council) for the Second Respondent
Hearing date: 13 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be not before 4pm on Tuesday 21 June 2022.
The Senior President of Tribunals:
Introduction
Did an inspector err in law when dismissing an appeal against the refusal of an application for a certificate of lawful use or development for the stationing of up to 80 caravans “for the purposes of human habitation” on land in the Dartmoor National Park? That is the basic question in this case. The relevant legal principles are familiar from previous decisions of this court and above. And in my view, when the inspector's decision is reviewed in the light of those principles, no error of law is to be found in it.
With permission granted by Lord Justice Stuart-Smith, the appellant, Barton Park Estates Ltd., appeals against the order dated 12 May 2021 of His Honour Judge Jarman Q.C., sitting as a deputy judge of the High Court, by which he dismissed an application under section 288 of the Town and Country Planning Act 1990 challenging the dismissal by an inspector appointed by the first respondent, the Secretary of State for Housing, Communities and Local Government, of an appeal under section 195 of the 1990 Act against the refusal by the second respondent, the Dartmoor National Park Authority (“the authority”), of an application under section 192 for a certificate of lawful use or development for the use of land at the Magpie Leisure Park, Bedford Bridge, Horrabridge, near Yelverton for “the stationing of up to eighty caravans for the purposes of human habitation”. The section 192 application was submitted on 1 August 2018, and refused by the authority on 23 November 2018. In her decision letter, dated 29 June 2020, the inspector upheld the authority's refusal to grant a certificate. Barton Park Estates' challenge to the dismissal of the appeal was rejected by the judge on all grounds.
The main issues in the appeal
Permission to appeal was granted on four grounds. Those four grounds present two main issues for us to decide. The first is whether the inspector erred in concluding that the proposed use fell outside the scope of the relevant planning permissions. This embraces the first, second and third grounds of appeal. The second issue is whether the inspector was entitled to conclude that the proposed use would amount to a material change of use without planning permission. This, in effect, is the fourth ground.
Certificates of lawfulness under section 192 of the 1990 Act
Under section 57(1) of the 1990 Act planning permission is required for “the carrying out of any development”, which is defined in section 55(1) as including a “material change in the use of any buildings or land”.
Section 171A(1) provides that either “(a) carrying out development without the required planning permission” or “(b) failing to comply with any condition or limitation subject to which a planning permission has been granted” constitutes a “breach of planning control”.
Section 192 enables an application to be made for a certificate of lawfulness of proposed use or development. Subsection (2) provides:
“(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
The concept of lawfulness is described in section 191. Under subsection (2), uses and operations are lawful if “(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason) …” and “(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force”.
Under section 195 an appeal may be brought against the refusal of an application for a certificate.
The 1987 planning permission
On 10 August 1987, Devon County Council granted planning permission “to carry out the development described in the application dated 7 July 1986 and the plans and drawings attached thereto …”. Unfortunately, those documents have all been lost. But the “brief particulars” of the development given in the decision notice were these:
“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”.
Six conditions were imposed on that planning permission. Condition (a) required that the development be begun within five years; condition (b), that improvements to site access be made; condition (c), that the road frontage be landscaped; and condition (d), that a new septic tank and soakaway system be installed “before any of the new chalets or the new residential caravans are brought into use”. Condition (e) stated:
“(e) The chalets, static holiday caravans and pitches for touring units shall only be occupied between 15 th March and 15 th November in each year.”
The reason given for the imposition of that condition was:
“(e) To protect the character of this part of the Dartmoor National Park during the winter months”.
Condition (f) stated:
“(f) No touring unit shall remain on the site for more than 3 weeks in each year.”
And the reason given for the imposition of that condition was:
“(f) To ensure that part of the site remains available for use by touring caravans”.
The 2013 planning permission
On 29 July 2013, the authority determined an application made under section 73 of the 1990 Act, granting planning permission for the “[variation] of condition e of [the 1987 planning permission] to allow longer time of holiday use from 8 months per year to 11 months, Magpie Leisure Park, Bedford Bridge, Horrabridge”, subject to four conditions. This permission related to three pieces of land within the present appeal site. Condition (2) states:
“(2) Any caravan within the application site shall only be occupied during the period 1 March to 31 January each year.”
The reason given for the imposition of that condition was:
“To prevent the creation of unjustified permanent residential accommodation in accordance with the Dartmoor National Park Authority Core Strategy Development Plan Document and in particular policies COR2 and COR15 together with the Development Management and Delivery Plan Document in particular policies DMD1a, DMD1b and DMD23.”
The inspector's decision letter
The inspector said her assessment was confined to “the narrow issue of determining whether the use described in the application would be lawful if instituted at the date of the application” (paragraph 4 of the decision letter). She said the use of the appeal site was “governed by the 1987 [permission]” (paragraph 28), and that under the 2013 permission the use of the land to which it relates may instead comply with the “varied” condition (paragraph 29). Having noted that there were “no conditions which restrict the number, or type of occupation, of the caravans permitted on the land” (paragraph 30), she considered the first instance decisions in I'm Your Man Ltd. v Secretary of State for the Environment (1999) 77 P. & C.R. 251 and Cotswold Grange Country Park v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin) and that of the Divisional Court in R. (on the application of Resul Altunkaynak) v Northampton Magistrates' Court and Kettering Borough Council [2012] EWHC 174 (Admin) (paragraphs 31 to 33). Although the description of development in the 1987 permission referred to specific numbers of caravans, it was common ground that “this does not limit the use of the land to the numbers specified” and “an increase in the number of caravans would not be a breach of condition, because there is no condition limiting numbers” (paragraph 34). It had been conceded by Barton Park Estates' planning witness, and the inspector agreed, that conditions (e) and (f) “would frustrate any attempt to occupy touring units for permanent residential, rather than holiday, use”. She also agreed, as had been accepted by the council's planning witness, that the occupancy restriction in condition (e) “would be applicable to static caravans in use for holiday purposes, but not those in use for residential purposes” (paragraph 35).
Barton Park Estates had submitted that in the absence of a condition limiting the number of residential caravans on the site, or the use of the residential and static caravans occupied for non-holiday purposes, the 1987 permission expressly provided for an unrestricted number of residential caravans for year-round occupation (paragraph 36). The inspector was “not persuaded that this...
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...s.70(1) of the TCPA 1990). 30 However, in Barton Park Estates Limited v Secretary of State for Housing, Communities and Local Government [2022] PTSR 1699 Sir Keith Lindblom SPT made it clear that a limitation may be expressed in the operative part or grant of planning permission as part of ......