Cotswold Grange Country Park LLP v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Hickinbottom
Judgment Date09 April 2014
Neutral Citation[2014] EWHC 1138 (Admin)
Docket NumberCase No: CO/11164/2012

[2014] EWHC 1138 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

Priory Courts, 33 Bull Street

Birmingham

Before:

Mr Justice Hickinbottom

Case No: CO/11164/2012

Between:
Cotswold Grange Country Park LLP
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Tewkesbury Borough Council
Defendants

Timothy Jones (instructed by Marron Shakespeares) for the Claimant

Suella Fernandes (instructed by the Treasury Solicitor) for the First Defendant

The Second Defendant was not represented and did not appear

Hearing date: 9 April 2014

Mr Justice Hickinbottom
1

This claim concerns land owned and occupied by the Claimant at Cotswold Grange Country Park, Meadow Lane, Twyning, Gloucestershire, which lies within an area for which the Second Defendant ("the Council") is the local planning authority.

2

In May 2005, the Council granted planning permission for the land for: "Change of use from agricultural land to extension to existing holiday caravan park (Stationing of 30 additional static caravans)" (Application No 05/1256/0215/FUL, "the 2005 Permission"). Permission was subject to a number of conditions, including:

"2. The land shall not be used for more than 30 static holiday caravans.

3. Occupation of the holiday caravans on the land shall be restricted to a period between 15 March to 15 January the following year."

3

In May 2010, for the same land, the Council granted planning permission: "To erect static caravan site office and wardens use, replace and re site 40 static caravans and provide 14 additional static caravans (within original area) and ancillary works (partially retrospective) all for year round holiday use" (Application No 09/00388/FUL, "the 2010 Permission"). There was, with this grant of permission, an approved plan (No 5520 SL 02 K), which showed the site, and numbered pitches for 54 caravans and an additional caravan for the warden and office. In the centre of the site, there was a delineated ovoid space with "Amenity space" written in it. There were no caravan pitches in that area.

4

There were a number of conditions attached to the permission, including, as condition 3:

"The re-sited 40 static caravans and additional 14 static caravans shall be occupied for holiday purposes only and shall not be occupied as a person's sole, or main place of residence. The owners/operators shall maintain an up-to-date register of the names of all owners/occupiers of individual caravans on the site, and of their main home addresses, and shall make this information available at all reasonable times to the local planning authority."

The reason for that condition was given as:

"The site is unacceptable for general residential use by reason of its location in open countryside…";

and then it goes on to list the relevant policies from the development plan.

5

On 11 July 2012, the Claimant submitted an application under section 192(1)(a) of the Town and Country Planning Act 1990 ("the 1990 Act") for a Certificate of Lawfulness of Proposed Use or Development for "Siting of six additional caravans on the site for residential use". The application indicated that: "The proposal involves the siting of six caravans in the position shown on the submitted plans for residential purposes". One of the two plans submitted showed the whole site, with the ovoid area. The second plan showed part of the site, including the ovoid area, with numbered pitches around it; and, in the ovoid area, six additional marked pitches. The application relied upon the fact that the permission granted in 2010 did not include a condition limiting the number of caravans on the site; and the proposition, derived from I'm Your Man Limited v Secretary of State for the Environment [1998] EWHC 866 (Admin), (1999) 77 P & CR 251 (which it cited), that a planning condition cannot be implied from a limitation in the description of the development.

6

On 3 December 2012, the Council refused the application.

7

On 18 January 2013, the Claimant appealed that refusal to the First Defendant Secretary of State under section 195 of the 1990 Act. The Secretary of State referred the matter to the Planning Inspectorate, and Mr A U Ghafoor BSc (Hons) MA MRTPI ("the Inspector") was duly appointed to report.

8

The Inspector dismissed the appeal in a decision letter dated 9 July 2013. Regarding the issue of the scope of the existing planning permission – and whether it was restricted to the use of 54 caravans for holiday use only – he concluded:

"Taking the description of the development together with the wording of condition no. 3, I find that the 2010 permission defined the use of the application land and limited the number of static caravans to 54 plus a site office for a warden's use. The stationing of the proposed six caravans for residential occupation would be in conflict with the terms of the 2010 permission."

That was determinative of the appeal. In the circumstances, the Inspector considered that there was no need for him to address the question of whether an additional six caravans would amount to a material change of use, and he declined to do so.

9

In this application under section 288 of the 1990 Act, the Claimant seeks to quash that decision. At the hearing, Timothy Jones has appeared for the Claimant, and Miss Suella Fernandes for the Secretary of State; and I thank them both for their focused and helpful submissions.

10

Mr Jones relies upon a single ground, namely that the Inspector, purportedly applying what he considered to be "common sense" but, in law, wrongly and contrary to the principles enunciated in I'm Your Man, treated the language used in the 2010 Permission relating to numbers of caravans as if it were a condition; whereas in fact there was no condition or enforceable limitation restricting the number of caravans on the site. The real – indeed, sole – issue for the Inspector was whether the number of additional caravans would or would not constitute a material change of use, a question with which the Inspector did not grapple yet alone answer.

11

I will return to I'm Your Man shortly; but the starting point is the statutory scheme, the pertinent parts of which are as follows.

12

By virtue of section 57(1) of the 1990 Act, planning permission is required for "the carrying out of any development". If it is not "development", then the scheme does not seek to restrict it and planning permission is not required. So far as relevant to this application, "development" is defined in section 55(1) as follows:

"… the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or land".

There are, therefore, two limbs to this definition: (i) carrying out of various operations, and (ii) making a material change of use of the relevant land. The placing of caravans on land is not normally in itself a "building, engineering, mining or other operation…" ( Borough of Restormel v Secretary of State for the Environment (1982) JPL 785); but, of course, it does comprise a change of use of that land, and, dependent upon the circumstances, it may amount to a material change in use, thereby falling within the definition of development.

13

The only other statutory provision of relevance is section 70(1) of the 1990 Act, which enables planning authorities to grant planning permission subject to "such conditions as they think fit".

14

In Forest of Dean District Council v Secretary of State for the Environment [1995] JPL 937, David Widdicombe QC, sitting as a Deputy High Court Judge, considered the difference between a planning limitation by way of a restriction inherent in the description of the development, and a limitation in the form of a condition. The case concerned an enforcement notice in respect of the change of use of land from use as a caravan park for holiday purposes to permanent residential use. The inspector quashed the notice. Having taken into account the contemporaneous documents, he found that permission was for the use of the land for the siting of caravans for the purposes of holidays. However, that was not the end of the matter. He said (the report using, of course, reported speech):

"The Inspector had understood the matter correctly. Mr Fookes [Counsel for the appellant Council] was right that the 1984 permission in the case was limited to holiday caravans by the description of the development, but what the Inspector was referring to was the fact that it was not subject to any condition. There was a significant difference in terms of enforcement as between those two methods of restricting permission. In the case of a permission limited by the description of the development, the use of the land could be changed without any breach of planning control so long as the change was not material. But in the case of a permission subject to a condition, a change of use in breach of the condition could be a breach of planning control whether or not the change of use was material….

Therefore, this case being one of limitation by description of the development, the Inspector was correct to consider whether there had been a material change of use, and correct in what he said… about the need for a condition…."

15

As Mr Jones put it, the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden. Simply because something is expressly permitted in the grant does not mean that everything else is prohibited. Unless what is proposed is a material...

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