Mr M Wall, Mr M Black, Mrs S Wall, Mr D Birch, Mr D Carter, Mr M James v Winchester City Council (1st Respondent) Secretary of State for Communities and Local Government (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice McFarlane,Mr Justice Blake |
| Judgment Date | 17 March 2015 |
| Neutral Citation | [2015] EWCA Civ 563 |
| Docket Number | Case No: C1/2013/0473 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2015 |
[2015] EWCA Civ 563
Lord Justice Sullivan
Lord Justice McFarlane
Mr Justice Blake
Case No: C1/2013/0473
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Michael Rudd (instructed by Direct Public Access) appeared on behalf of the Appellants
Mr Trevor Ward (instructed by Winchester City Council) appeared on behalf of the First Respondent
The Interested Party did not appear and was not represented
(As approved)
Introduction
This is an appeal against the order dated 4 February 2013 of Philip Mott QC, sitting as a Deputy High Court Judge, allowing Winchester City Council's appeal, under section 289 of the Town and Country Planning Act 1990 ("the Act"), against a decision of one of the Secretary of State's Planning Inspectors to allow the respondent's appeals against six enforcement notices (enforcement notices A to F) issued by the Council in respect of land at Carousel Park, Basingstoke Road, Micheldever in Hampshire ("the site").
For convenience I will refer to the appellant in this court as "the Council" and to the respondents in this court as "the appellants", as they were before the Inspector.
Background
On 2 October 2003, planning permission was granted for the "change of use of agricultural land to travelling showpeoples' site" at the site. The planning permission was subject to a number of conditions, but an occupancy condition, providing that the site shall not be occupied by any persons other than travelling showpeople, was not imposed. The breach of planning control alleged in the enforcement notices was:
"the material change of use of the Land from use as a Travelling Showperson's site to a use for siting of caravans/residential mobile homes for occupation by persons who are not Travelling Showpersons, and the storage of vehicles, equipment and materials in association with the operation of businesses unrelated to that of travelling showpeople."
The Inspector's Decision
The Inspector corrected the enforcement notice so that the alleged breach of planning control was:
"Without planning permission, the material change of use of the Land from use as a Travelling Showperson's site to a use for the siting of caravan/residential mobile homes for occupation by persons who are not Travelling Showpersons, the erection of buildings/structures on the land and the storage of vehicles, equipment and materials in association with the operation of businesses unrelated to that of travelling showpeople."
The appellants appealed against the enforcement notices on a number of grounds, including ground (b) in subsection 174(2) of the Act. The Inspector summarised their appeal on this ground, in paragraph 12 of the Decision, as follows:
"The appellants submitted two separate arguments on this ground: firstly, that the planning permission should be interpreted as being simply 'use as a residential caravan site' and not restricted to just travelling show people and secondly, that the occupants, in any event, were travelling show people so even if the permission restricted who could occupy the site, the existing occupants came within that restriction. If either argument was successful, there had been no breach of planning control, so the appeals should succeed and the Notices should be quashed."
The Inspector said in paragraph 14 of the decision letter:
"There was no dispute that the permission had been implemented and, so far as could be determined from the available records, conditions that required various matters to be agreed have been submitted and implemented. There was no submission, therefore, that what had taken place was development without any planning permission."
I had thought that it followed from the Inspector's conclusion that the planning permission had been implemented, that, at least initially, the site had been used as a travelling showpeoples' site, and that the Council's complaint was that there had subsequently been a material change of use to a caravan site that was occupied by persons who were not travelling showpersons. Before the Inspector it was submitted, on behalf of the appellants, that the site had historically been used to accommodate showmen and that the majority of the appellants, or their partners, had lived on the site for many years and that four of the appellants had previously been accepted by the Council as travelling showmen.
Neither Mr Rudd, on behalf of the appellant, nor Mr Ward, on behalf of the Council, were able to say, with any certainty, that it had been common ground at the inquiry that initially at least the site had been used as a travelling showpeoples' site. If this appeal is dismissed and the matter is remitted to the Inspector, then further consideration will have to be given as to whether the planning permission was ever implemented in the sense that I have described.
Turning to the appellant's ground (b) appeal, the Inspector considered a number of decisions, including the decision of Mr Robin Purchas QC, sitting as a Deputy High Court Judge in I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 P&CR at page 251. In paragraph 23 of the decision the Inspector said:
"I acknowledge that it is a matter of law but in my view, I'm Your Man decided a point of principle concerning limitations on planning permissions; it was not concerned with the detail of what type of limitation was being debated. In these circumstances I conclude that it is clear that the 2003 planning permission is not limited as there is no condition attached to it that restricts occupancy and the legal agreement, which does contain a restriction, was not incorporated into the permission."
The Inspector's conclusion in respect of the ground (b) appeal was contained in paragraph 26 of the decision as follows:
"Taking all these factors into consideration I conclude that the 2003 permission, in line with the decision in I'm Your Man, is for the use of the land as a residential caravan site with no restrictions on whom may occupy the site. In those circumstances the appeals succeeds on ground (b) and the notices as corrected and varied will be quashed."
So the Inspector allowed the appeals on ground (b) and quashed the enforcement notices.
The Judgment Below
The Council appealed against that decision. The appeal was heard by Philip Mott QC sitting as a Deputy High Court Judge. His judgment is to be found at 2013 EWHC 101 (Admin). Having considered the relevant authorities, including I'm Your Man, Mr Mott concluded in paragraphs 45 to 47 of his judgment:
"45. The unifying feature of I'm Your Man, Altunkaynak and Smout is that the use remained the same, with or without the purported restriction or limitation. The restrictions all related to the manner in which the use could be exercised, not as to the extent of the use itself. This case is very different, because the issue turns on the extent of the use itself.
46. In my judgment everything points to the 2003 grant being one of permission to use the land as a travelling showpeoples' site. Not only is this what was applied for, and was granted in the short description, it is also consistent with the conditions which I have set out in paragraph 6 of this judgment. Nowhere is it described as a residential caravan site, nor are the conditions taken as a whole appropriate for such a site. The only sensible construction is that it was a site for travelling showpeople only.
47. In short, this was not the grant of permission to use the land as a residential caravan site, with an ineffective attempt to limit that use to travelling showpeople. It was the grant of permission to use the land as a travelling showpeoples' site, which is a distinct and narrower use, without any further attempt to limit that use."
Mr Mott allowed the Council's appeal under section 289.
The Appellants' Submissions
On behalf of the appellants, Mr Rudd submitted that the Deputy Judge erred. The Inspector's application of the principles that had been established in I'm Your Man was correct, and applying those principles the permitted use of the site was for the stationing of caravans for residential purposes.
Discussion
I have no doubt that the Deputy Judge's understanding of the effect of I'm Your Man was right and the Inspector's application of that decision was wrong. My reasons for so concluding are as follows. In Wilson v West Sussex County Council (1963) 14 P&CR 301 the Court of Appeal had to consider the effect of a planning permission for the erection of an "agricultural cottage". The local planning authority subsequently modified the planning permission by the addition of an agricultural occupancy condition and the question was whether that modification entitled the owner to compensation. The Lands Tribunal said "no". On appeal the Court of Appeal said that compensation might be payable, because while there was a limitation upon the permitted user of the cottage in the absence of an occupancy condition, it would be a question of fact and degree whether use by a non-agricultural occupant would be a material change of use.
Wilmer LJ, with whom Danckwerts LJ agreed, said at page 311:
"But in the particular circumstances of this case I am satisfied that this particular cottage was subject, by the terms of the respective planning permissions, to a limitation in relation...
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