Frederick Adams v Secretary of State for Housing, Communities and Local Government

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Lang
Judgment Date17 November 2020
Neutral Citation[2020] EWHC 3076 (Admin)
Date17 November 2020
Docket NumberCase No: CO/2189/2020

[2020] EWHC 3076 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/2189/2020

Between:
Frederick Adams
Claimant
and
(1) Secretary of State for Housing, Communities and Local Government
(2) Huntingdonshire District Council
Defendants

Michael Rudd (instructed by Stephens Scown LLP) for the Claimant

George Mackenzie (instructed by the Government Legal Department) for the First Defendant

The Second Defendant did not appear and was not represented

Hearing date: 27 October 2020

Approved Judgment

Mrs Justice Lang
1

The Claimant applies under section 288(1) of the Town and Country Planning Act 1990 (“TCPA 1990”) to challenge the decision of the First Defendant, made on his behalf by an Inspector on 6 May 2020, to dismiss the Claimant's appeal, and to refuse to grant the Claimant a certificate of lawfulness for a proposed use or development (“CLOPUD”), pursuant to section 192 TCPA 1990, in respect of a caravan site known as Fenside Caravan Park, Puddock Road, Warboys, PE28 2UA (“the Site”).

2

The Second Defendant (hereinafter “the Council”) is the local planning authority for the area in which the Site is situated. On 19 December 2018, the Claimant applied for a CLOPUD for the siting of touring caravans, including those used as a person's sole or main place of residence. The Claimant appealed under section 195 TCPA 1990, following the Council's failure to determine the Claimant's application.

3

The issue is whether the Inspector erred in her interpretation of the certificate of lawful use granted on 16 November 2016 when she concluded that it did not authorise the stationing of touring caravans as a person's sole or main place of residence, as opposed to holiday use.

4

Permission was granted on the papers by Kerr J. on 27 July 2020.

Planning history

5

On 10 March 1999, planning permission was granted on appeal for “the proposed change of use to camping and touring caravan site…” (“the March 1999 permission”). This was subject to seven conditions. Condition 4 limited the number of caravans to 16. Condition 6 provided that the caravans (other than the caravan occupied by the site manager) could only be used for holiday purposes and must not remain on site for more than 14 days in any month. Condition 7 prohibited the stationing of caravans (other than the caravan occupied by the site manager) over the winter period between 1 October and 31 March.

6

Condition 7 was “varied” by the Council in a decision dated 18 November 1999 (“the November 1999 permission”), altering the dates of the closed season to between 31 October and 1 March. All other conditions from the March 1999 permission were expressly incorporated into what the Inspector found was “a new and separate permission” (paragraph 10 of the Decision Letter “DL 10”).

7

On 7 April 2004 the Council granted a further planning permission (“the 2004 permission”) described as “Renewal of permission … for use of land as touring caravan site”, subject to 8 conditions. Condition 5 limited the number of caravans to 16. Condition 7 provided that the caravans (other than the caravan occupied by the site manager) could only be used for holiday purposes and must not remain on site for more than 14 days in any month. Condition 8 prohibited the stationing of caravans (other than the caravan occupied by the site manager) between 1 October and 31 March. There were also conditions relating to hard and soft landscaping works. Although phrased as a “renewal”, the Inspector found that this was a new permission. The Inspector said, at DL 12, that it appeared likely that the 2004 permission was implemented, as she was informed that the Council had issued correspondence relating to the issue of conditions, although copies were not supplied to her.

8

On 16 November 2016 the Council issued a certificate of lawfulness of existing use or development in respect of the Site (“the 2016 CLEUD”). The 2016 CLEUD is in the following terms.

“The Huntingdonshire District Council hereby certify that on the 23rd April 2015 the operation described in the First Schedule to this certificate in respect of the land specified in the Second Schedule to this certificate and edged in red on the plan attached to this certificate, was lawful within the meaning of section 191 of the Town and Country Planning Act 1990 (as amended) for the following reason:

1. Note to applicant.

The applicants have provided adequate evidence to satisfy the Local Planning Authority that, on the balance of probability, the claimed use of the site for a caravan site has been implemented, and confirmed by the LPA in the letter dated May 2014. Therefore consent should be issued for the use as it is immune from enforcement action and as such is lawful.

2. Note to applicant.

The applicant is reminded of the restriction of the [ sic.] how many caravan are allowed to be pitched at the site at any one time, and the length of time the caravans can be positioned at the site, i.e. condition 4 – 7 of the planning decision notice from the Planning Inspectorate.

First Schedule

Certificate of lawful use (existing) for use as touring caravan site.

Second Schedule

OS2568 and 3073 Puddock Hill Warboys.

Notes

1. This certificate is issued solely for the purpose of section 191 of the Town and Country Planning Act 1990 (as amended).

2. It certifies that the operation specified in the First Schedule taking place on the land specified in the Second Schedule was lawful, on the specified date and thus was not liable to enforcement action under section 172 of the 1990 Act on that date.

3. This certificate applies only to the extent of the operation described in the First Schedule and to the land specified in the Second Schedule and identified on the attached plan. Any operation which is materially different from that described or which relates to other land may render the owner or occupier liable to enforcement action.”

9

On 19 December 2018, the Claimant applied for a CLOPUD for the siting of touring caravans, including those which were used as a person's sole or main place of residence. The Claimant appealed under section 195 TCPA 1990, following the Council's failure to determine the Claimant's application. The Council subsequently indicated to the Inspector that it would have refused the application, if it had determined the application.

10

The appeal before the Inspector was heard by way of written representations. The Inspector dismissed the appeal, finding that a refusal by the Council would have been well-founded. She held that section 193(5) TCPA 1990 applied and so the conditions previously imposed on an extant planning permission would still be operative, regardless of whether they were expressly referenced in the certificate. She concluded:

“30. On the date of the current application the proposed use would not have been lawful because the use as a touring caravan site could not have included use as a person's sole or main place of residence as it would have been in breach of condition. Whichever permission the use operates under, there is a condition confining the use to holiday purposes only. A condition also required the caravans to be removed for part of the year which is incompatible with a sole or main residence.

31. Therefore, a LDC cannot be issued for the proposed use because it would constitute a breach of condition on a subsisting planning permission.”

Grounds of challenge

11

The Claimant's grounds of challenge were as follows:

i) In determining the lawful use of the Site, the Inspector was not entitled to go beyond the unambiguous words in the First Schedule to the 2016 CLEUD which stated that the lawful use was as a “touring caravan site” without limitation as to the purpose of use, the period of use, or the number of caravans, as contained in the conditions to the 1999 and 2004 planning permissions.

ii) Alternatively, if the Inspector was entitled to go beyond the words of the First Schedule, her interpretation was flawed and inadequately reasoned. There was inadequate evidence to support her conclusion that the use identified as lawful was the use subject to the conditions in the extant planning permission.

iii) The Claimant also submitted that the Inspector erred in applying subsection 193(5) TCPA 1990 to this case, for the reasons set out in the Claimant's representations to the Inspector.

iv) In the course of his submissions, Mr Rudd submitted that the Inspector did not find, and was not entitled to find, that the 2004 permission was implemented.

12

In response, the First Defendant submitted that the Inspector was correct to find that section 193(5) TCPA 1990 applied to the 2016 CLEUD. The conditions attached to the planning permission continued to be effective, as the certificate did not expressly exclude them. The proposed use would have breached the conditions restricting caravan use to holiday purposes only and preventing the Site from being used by caravans in the winter months.

13

The Inspector did not need to “go behind” the 2016 CLEUD in order to identify the conditions as the certificate expressly referred to the existence of planning conditions attached to a planning permission which restricted the use of the Site. Thus, a reader of the CLEUD would have been put on notice that the use was subject to conditions, which could be viewed in a public document. It was not essential for this information to be included within the First Schedule. The form in Schedule 8 of the Town and Country (Development Management Procedure)(England) Order 2015 (“the DMPO”) did not prescribe where conditions/limitations on use should be included.

14

Furthermore, the Inspector was entitled to consider the planning permissions as extrinsic material as an aid to interpretation because they were expressly referred to in the...

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