Norfolk Caravan Park Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 28 July 2021 |
| Neutral Citation | [2021] EWHC 2114 (Admin) |
| Docket Number | Case No: CO/653/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2114 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/653/2021
Andrew Fraser-Urquhart QC (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 dates: 13 & 14 July 2021
Approved Judgment
The Claimant applies for a statutory review, pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), of the decision dated 15 January 2021, made by an Inspector appointed on behalf of the First Defendant, to dismiss the Claimant's appeal against the refusal by the Second Defendant (“the Council”) to issue a lawful development certificate (“LDC”) in respect of Merryhill Country Park, Telegraph Hill, Honingham NR9 5AT (“the Site”), under section 192(1)(a) TCPA 1990.
The Claimant has been the owner of the Site, which is used as a caravan park, since 23 April 2018. It applied for a LDC for residential use of the caravans on the Site.
The Council is the local planning authority for the area in which the Site is situated. It refused the application on the basis that the current planning permission, dated 13 April 2016, was subject to conditions which only allowed caravan occupancy for holidays, and prohibited residential use. The First Defendant dismissed the Claimant's appeal.
I granted permission to proceed with the claim on 30 March 2021.
Planning history
The Site, which is some 5.47 hectares in size, is situated in a rural location. At the date of the appeal, there were some 94 pitches on the Site occupied by static caravans or mobile homes. There is also an area for touring caravans and amenities, including a swimming pool.
Since 1989 there have been a number of grants of planning permission on various parts of the Site, as summarised by the Claimant in its Statement of Case in the appeal. These have included permissions for “holiday home units”, “touring pitches”, “static holiday caravans”, “permanent touring caravan pitches” and “static holiday homes” (also described as “holiday caravans” in the same permission). There were various occupancy conditions restricting use to certain times of the year. There were no grants of planning permission for any use other than holiday use.
The 2004 Permission
The permission was simplified on 3 March 2004 when the Council granted a single planning permission in respect of the major part of the Site (“the 2004 Permission”). The Plan attached to the 2004 Permission was named “Holiday Home Site” by the applicant. The description of the development was “Use of Land for Holiday Caravan Park”. It was subject to 5 conditions.
Condition 4 provided:
“4. The holiday accommodation shall not be occupied by any person for a period exceeding four consecutive weeks and such a person shall not return within two weeks of such period.”
The stated reason for Condition 4 was that “The site of this proposal lies outside an area in which the Local Planning Authority normally permits residential development.”.
Condition 5 provided:
“No static holiday accommodation shall be located within the following areas as shown on the amended plan dated 1 March 2004:
i. The landscaping belt (edged and hatched green),
ii. The two amenity areas (edged yellow),
iii. The existing touring caravan area (edged pink); and,
iv. The two house and garden areas and the covered swimming pool (edged blue).”
The reason for Condition 5 was stated as:
“To ensure the satisfactory development of the site in accordance with Policy GS3 of the Broadland District Local Plan and (RD) GS4 of the proposed Broadland District Local Plan Replacement Version as agreed by the Council for publication of the Revised Deposit.”
The 2004 Permission included a record of the Council's reasons for the grant of permission:
“The Reasons for granting Planning Permission are:
..…
The site lies outside of the development boundary as identified by Policy GS1 of the local plan. However the site is a well-established holiday park which benefits from planning permission. Numerous planning permissions relate to the site and the purpose of this application is to simplify the planning situation. This consent therefore applies to the entire site and is subject to a widely accepted holiday occupation condition. This is a significantly simpler solution to the previous situation and will allow a site licence to be issued. Other benefits include the identification of a wide landscaping belt, which will enhance the Area of Important Landscape Quality, and areas where caravans can be located. There are no residential amenity issues.
..…”
Daffodil Cottage
On 26 October 2015, the Council granted a LDC to the occupiers of a static mobile home on the Site (Daffodil Cottage), because of their continued residential occupation in breach of condition 4 of the 2004 Permission, beyond the expiry of the time for taking enforcement action.
The 2016 Permission
In 2016, the previous owner of the Site applied to vary Condition 4 of the 2004 Permission, pursuant to section 73 TCPA 1990. The application succeeded and planning permission was granted, subject to conditions, on 13 April 2016 (“the 2016 Permission”). The type of application was stated to be “Amendment Section 73”. The description of the development was:
“Variation of Condition 4 (Holiday Occupancy) of Planning Permission 200040023 – Use of Land for Holiday Caravan Park”
The 2016 Permission was granted subject to a single condition with three separate elements, and read as follows:
“1(1) The caravans are occupied for holiday purposes only.
(2) The caravans shall not be occupied as a person's sole or main place of residence.
(3) The owners/operators shall maintain an up-to-date register of the names of all owners/occupiers of individual caravans and of their home address, confirmed by two proofs of residence and shall make this information freely available at all reasonable times to the local planning authority.”
The stated reason for the condition was:
“To prevent the occupation of seasonal holiday accommodation on a permanent basis in accordance with the requirements of Policy E3 of the Development Management DPD 2015.”
The 2016 Permission included an informative as follows:
“This application relates solely to Condition 4 of 20040023 and there are conditions attached to the previous approval of 20040023 permission which may still be applicable.”
The Claimant's application for a LDC
On 23 May 2018, the Claimant applied under 192(1)(a) TCPA 1990 for a LDC for “the use of the land for the siting of caravans for the purposes of human habitation including as a person's sole or main place of residence” (hereinafter “residential use”).
On 22 November 2018, the Council refused the application on the basis that the condition to the 2016 Planning Permission only permitted occupancy for holiday purposes, and prohibited occupancy for residential use. The Council was satisfied that the 2016 Planning Permission had been implemented because the previous owner provided the Council with a copy of the register of occupants in compliance with condition 1(3) of the 2016 Planning Permission.
The Inspector's decision
The Inspector (Mr Stephen Brown MA (Cantab) DipArch RIBA) conducted a virtual hearing. By a decision letter dated 15 January 2021 (“DL”), he dismissed the appeal.
In summary, the Inspector concluded:
i) residential use would not fall within the scope of the 2004 Permission since a holiday use was a “distinctly different purpose from that of everyday or permanent residential accommodation” (DL 14, 18);
ii) residential use would amount to a breach of Condition 4 of the 2004 Permission (DL 15);
iii) as a matter of fact and degree, residential use would amount to a material change of use in that “the effect would be to introduce permanent residential accommodation into an area where it would not normally be permitted” (DL 16);
iv) the condition on the 2016 Permission “imposes the clear restriction that the caravans on the site are to be occupied for holiday purposes only” (DL 18);
v) the 2016 Permission had been implemented (DL 20);
vi) the LDC granted to Daffodil Cottage did not apply to the entire Site and it was open to the Council to issue enforcement notices in respect of individual pitches, defining the alleged breach in each case (DL 21–27).
Grounds of challenge
The Claimant relied on three grounds of challenge.
Ground 1
Ground 1 was founded upon the principle that there was no change of use at the Site. It was divided into three parts:
i) The Inspector erred in law in concluding that Condition 4 to the 2004 Permission was effective to prevent the use of the Site for static residential caravans.
ii) The Inspector therefore erred in his conclusion that, notwithstanding the principles in the I'm Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107 line of authority, the terms of the 2004 Permission did not permit the use of the Site for static residential caravans.
iii) The Inspector erred in concluding that the 2016 Permission (which does contain an effective condition preventing the use of the site for static residential caravans) had been implemented and had the consequence of preventing reliance on the 2004 Permission to render lawful the use of the site for static residential caravans.
Ground 2
The Inspector's conclusion (in DL 16) that “as a matter of fact and degree the proposed use should be seen as a material change in that...
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Decision Nº LC-2022-140. Upper Tribunal (Lands Chamber), 20-01-2023 , [2023] UKUT 16 (LC)
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