Breckland District Council v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWHC 292 (Admin) |
| Date | 29 January 2020 |
| Docket Number | No. CO/1919/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Lang DBE
No. CO/1919/2019
Mr W. Upton QC (instructed by Birketts LLP) appeared on behalf of the Claimant.
Mr L. Glenister (instructed by the Government Legal Department) appeared on behalf of the First Defendant.
Mr M. Rudd (instructed by Stephens Scown LLP) appeared on behalf of the Second Defendant.
The Claimant applies under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash the decision of the First Defendant made by an Inspector on his behalf on 5 April 2019 in which he allowed an appeal by the Second Defendant against the Claimant's refusal to grant a Certificate of Lawfulness of Proposed Use or Development (a “CLOPUD”) for the siting of mobile homes for permanent residential occupation in the northern part of a Site at Puddledock Farm Caravan Park, Great Hockham, Thetford, Norfolk.
The Claimant also challenges, under section 288(1A) TCPA 1990, the adverse costs order made against it by the Inspector.
The Claimant is the local planning authority for the area in which the Caravan Park is situated. The Second Defendant is the owner of the Caravan Park.
History
Puddledock Farm Caravan Park is an established caravan and camping site which has been in operation for many years under several different owners. The Site originally comprised only the land in the northern part (“the northern land”). Limited planning permission has been granted in respect of its use. Over the years, planning permission has been granted for ancillary development such as toilets and showers, offices, accommodation and electricity supply points. In 1991, planning permission was granted for an extension to existing toilet and shower facilities. The accompanying plan showed the site as comprising both the northern and southern lands, a distinction which I refer to later on in my judgment. In 1992, permission was given for an area to be used for the storage of touring caravans.
The documentation relating to these applications invariably refers to use of the Site as a campsite as well as for caravans. There were representations from neighbours and the Parish Council that, in practice, the Site was used for holiday purposes with visitors staying in tents or touring caravans, but it was not used for static caravans or mobile homes for long-term residential use.
In 2006, the then owners sought to regularise the planning use of the Site for applying for a Certificate of Lawful Existing Use or Development (“CLEUD”), pursuant to section 191 TCPA 1990. The CLEUD, dated 14 June 2006 (hereinafter the “2006 CLEUD”), certifies that the schedule 1 “use of land as a caravan and camping site including associated amenity area” is lawful on the “Puddledock Farm campsite”, which is shown on the plan in schedule 2. It only extends to the northern land. The certificate was granted on the basis that the use began more than 10 years before the application. The certificate was granted in the terms sought by the application, which was supported by evidence of use of the Site by regular visitors staying in caravans or tents.
On 21 January 2010, planning permission was granted in respect of what is now the southern part of the Site (“the southern land”) for the “change of use of land to be used as an extension to existing camping pitches” (hereinafter “the 2010 permission”). Condition 3 restricted the number of occupied pitches on both the northern and the southern lands to a maximum of 160 at any time. The stated reason for the condition was:
“In order that the Local Planning Authority may retain control over development which could become detrimental to the amenities of the locality.”
The Notes on the face of the permission state that:
“The proposal increases the Site area of an existing campsite and not an increase in available pitches.”
At all material times, the owners of the northern land also owned the southern land. In their application, they described the southern land as “fallow” and said they would like to use it as:
“… additional land to camp on during dry, busy spells. The existing grass suffers from bald patches. With this additional land, we would have the option of moving pitches around and be able to rest damaged grass/sections of land.”
Further details were set out in the Design and Access Statement. In the application form, they also stated that, “The existing site is used for camping and caravanning”, which I interpret as a description of the use of the northern land as they had earlier stated that the southern land was fallow and that was the basis of the application.
At the time of the grant of the 2010 permission, there was a site licence in force dated 9 May 2008. It was issued by the Claimant for the stationing of caravans at the site in the exercise of its functions under the Caravan Sites and Control of Development Act 1960. Site licences are mandatory for caravans but not for campsites under this Act. I emphasise that the grant of site licences is not part of the planning regime.
Clause 2.1 of the licence permitted the use of the Site for caravans, as defined by section 29 of the Caravan Sites and Control of Development Act 1960. I shall refer later to the breadth of this statutory definition.
Clause 3 of the licence provided:
“Density
3.1. Site density should not exceed 75 units (caravans or motor caravans) per hectare of usable space, excluding lakes, roads, communal services and other areas unsuitable for the siting of caravans, provided that, where tent camping is also permitted, the maximum number of units stationed on the Site at any one time should be reduced by the number of pitches occupied by main tents stationed for human habitation.
3.2. The total number of units stationed on the Site shall not at any time exceed 160 (one hundred and sixty).”
The Second Defendant became the owner of the Site in 2016. On 26 October 2017 it made an application for a CLOPUD under section 192(1)(a) TCPA 1990 “for proposed use or development for the siting of mobile homes for permanent residential occupation” in respect of the northern land only. I shall refer to this as “the 2017 CLOPUD application”.
In its decision dated 14 December 2017, the Claimant refused the application on the following grounds:
“The Local Planning Authority considers that the applicant has not established that the lawful use of the Land is as an unrestricted caravan site which could be used for residential purposes. This is because more than 10 years has passed since the date of the Certificate of Lawful Use and the actual use of the Land since that date has been as a touring caravan and camping site for holiday purposes.”
The Claimant also issued enforcement notices against the Second Defendant.
The Second Defendant appealed against the decision under section 195 TCPA 1990. The Inspector held a two day inquiry and a site visit. The Inspector concluded at paragraphs 14 and 15 of his decision letter:
“14. The use of the land established by the 2006 LDC was the lawful use of the Land on the date of the application. The use does not, as a matter of fact, specify any restrictions on the type of caravans that can be lawfully sited on the land. It does not, furthermore and also as a matter of fact, limit the use of any caravan so sited to be for holiday purposes only. The 2006 LDC is clear and unambiguous on its face and a mobile home, falling within the definition of a caravan in the CSCDA or in the CSA, can lawfully be sited on the northern land and can be lawfully occupied for human habitation, whether this be by holiday makers or permanently.
15. For the reasons given, and as a matter of planning judgement, the Council's refusal to grant an LDC for the siting of mobile homes for permanent residential occupation at Puddledock Farm Caravan Park, Great Hockham, Thetford, Norfolk was not well-founded and the appeal thus succeeds …”
In a separate decision also dated 5 April 2019, the Inspector made a partial costs order against the Claimant on the basis that it had acted unreasonably and put the Second Defendant to unnecessary expense.
Statutory framework
Section 191 TCPA 1990 provides:
“Certificate of lawfulness of existing use or development.
(1) If any person wishes to ascertain whether —
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
He may make an application for the purpose to the local planning authority specifying the land and describing the...
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