Royale Parks Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Dingemans,Sir Nigel Davis |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1101 |
| Docket Number | Case No: C1/2020/1320 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1101
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Mr David Elvin QC (sitting as a deputy High Court judge)
[2020] EWHC 3105 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
Lord Justice Dingemans
and
Sir Nigel Davis
Case No: C1/2020/1320
Mr Paul G Tucker QC and Mr Michael Rudd (instructed by Stephens Scown LLP) for the Appellant
Mr George Mackenzie (instructed by the Treasury Solicitor) for the First Respondent
Mr Gary A Grant (instructed by Tanya Coulter Senior Solicitor, Bournemouth, Christchurch and Poole Council) for the Second Respondent
Hearing date: 16 June 2021
Approved Judgment
Introduction
This case comes to this Court as an application under section 288(1) of the Town and Country Planning Act 1990 (“the 1990 Act”). By that application the Appellant challenges the decision of the Inspector appointed by the Secretary of State, dated 1 April 2020, to dismiss an appeal against the refusal by a local planning authority of a lawful development certificate (“LDC”), certifying the lawfulness of “the stationing of caravans for the purpose of human habitation as a person's sole or main place of residence” on land (“the appeal site”) forming part of a caravan site known as Tall Trees Park, Matchams Lane, Hurn, Christchurch (“the caravan site”).
I would like to thank the parties' legal representatives for their written and oral submissions. At the hearing we heard from Mr Paul Tucker QC for the Appellant; from Mr George Mackenzie for the Secretary of State; and from Mr Gary A Grant for Bournemouth, Christchurch and Poole Council, the local planning authority (“the LPA”).
Factual background
The caravan site was established at some point before the mid-1970s. The original planning permission, which was granted in the 1960s, has not been found but there is in the documents before the Court a minute which refers to the approval (on 5 November 1963) of an application for the siting of three chalets and 11 caravans between 1 March and 31 October each year. This was subject to planning conditions.
As is clear from various maps that were shown to us at the hearing, the caravan site comprises two areas: Area A and Area B. It is Area B which is the appeal site in the present case.
On 29 June 1987, planning permission 8/87/0213 was granted for the “Extension and modification of existing caravan site to provide 59 additional static caravans in lieu of 41 touring units & 4 chalets previously approved”. This related to Area A.
On 4 July 2006, planning permission 8/06/0261 varied condition 2 of planning permission RFR C239. This permission related to the appeal site.
On 20 November 2006, an LDC was issued by the LPA. This related to Area A.
On 13 April 2007, planning permission 8/07/0112 varied condition 2 of 8/87/0213. This related to Area A.
On the same date planning permission 8/07/0111 was also granted for relief of condition 2 and variation of conditions 3 and 4 of planning permission 8/06/0261. This related to the appeal site.
So far as is material for present purposes, planning permission 8/07/0111 was subject to the following conditions. Condition 2 was that: “The caravans and chalets shall be occupied for holiday purposes only except for 1 caravan or chalet which may be occupied by a resident site warden.” Condition 3 was that: “The caravans and chalets shall not be occupied as a person's sole or main residence except for 1 caravan or chalet which may be occupied by a resident site warden.”
It is common ground that, by the material date, those conditions had been breached, in the case of at least some of the units, for longer than 10 years.
In December 2016 and January 2017, the LPA issued a series of enforcement and breach of condition notices in respect of residential occupation of caravans at the site across both the appeal site and Area A. The notices were appealed but the appeal did not proceed, as we shall see later. The caravan site was purchased by a new owner (Royale Parks Limited) shortly afterwards. It is common ground that the caravan site is in single ownership.
Although the planning permissions do not specify any particular number of caravans or set out individual plots on accompanying plans, the practice on the ground has been to give a number to each unit. On 20 March 2017 an LDC was issued in respect of unit 18. This is located on part of the appeal site. On 21 March 2017, an LDC was issued in respect of unit 2 and a separate LDC was issued in respect of unit 6. These are both located on parts of the appeal site. On 23 March 2017, an LDC was issued in respect of unit 7. This is also located on part of the appeal site.
On 16 March 2018, the LPA withdrew the enforcement notices which it had issued in 2016 and confirmed in writing that no further action would be taken on the breach of condition notices. The appeal against the enforcement notices had not yet proceeded because of the unavailability of a suitable Inspector/venue. I will return to this letter in more detail later.
On 30 April 2018, the LPA issued an LDC in respect of Area A, described as “use of land for the stationing of caravans for holiday or residential use”.
On 22 November 2018, Royale Parks Ltd (the Appellant before this Court) applied for an LDC in respect of the appeal site. This application was rejected by the LPA on 21 December 2018.
On 10 January 2019, the LPA wrote a further letter to residents in respect of their intention not to take planning enforcement action on the site. I will return to this letter also in more detail later.
On 23 January 2019 the Appellant applied for a further LDC in respect of the appeal site. This application was rejected by the LPA on 26 March 2019 and an appeal was lodged.
A public inquiry was held by the Inspector on 10 December 2019 and 9 January 2020. He conducted a site visit on 9 January 2020.
On 1 April 2020, the appeal was dismissed by the Inspector in a written decision.
On 14 April 2020, an application was made to the High Court to quash that decision by the Appellant under section 288 of the 1990 Act.
On 1 July 2020 permission to proceed was refused on the papers by Mr Neil Cameron QC (sitting as a deputy High Court judge).
On 30 July 2020, a hearing of the renewed application for permission took place before Mr David Elvin QC (sitting as a deputy High Court judge). Permission to proceed was refused by an order sealed on 4 August 2020.
On the application for permission to appeal to this Court, it was ordered by Stuart-Smith LJ on 30 March 2021 that permission to make the underlying section 288 application should be granted; and that the substantive application should be retained in this Court rather than remitted to the High Court. Accordingly, this Court has considered that application for itself rather than on an appeal from the High Court as such.
The decision of the Inspector
At paras. 2–4, the Inspector set out some preliminary matters. He noted that it was common ground that all the units fell within the definition of caravans. He said that there were about 15 units on the appeal site, with about two units appearing to straddle the site boundary. There was no argument that the relevant planning conditions had been breached for some of the units, and that at least two units continued to be occupied in accordance with the planning permission and conditions.
At paras. 5–20, the Inspector set out his reasoning on the main appeal issue before him under the heading “Planning Unit”.
At para. 10, the Inspector concluded that the relevant planning unit was the whole of the caravan site, including the appeal site. He noted that during the inquiry the LPA had acknowledged this to be the case.
At para. 11, the Inspector then identified the question before him as follows: whether the use of one or more of the caravans on the site for more than 10 years in breach of the conditions meant that other caravans on the site were not covered by the relevant conditions. In this respect he considered that the decision of Sullivan J in R (St Anselm Development Co Ltd) v First Secretary of State [2003] EWHC 1592 (Admin); [2004] 1 P & CR 24 (to which I will return below in detail) was relevant. He then proceeded to analyse that decision at paras. 11–14. The Inspector was of the view that the present case was “a similar situation”.
At para. 15, the Inspector said the following:
“In this case the Council has clearly identified the specific parts of the land that have been used in breach of the conditions for more than 10 years, when issuing the lawful development certificates. I accept that in the original planning permission the number of caravans is not controlled and the positions are not identified on a plan so plot positions could change. However, the units over most of the site are in relatively fixed positions, being accessed from defined hard surfaced drives, and a substantial portion of the units on masonry basis [ sic: that should be “bases”]. Some have some form of physical enclosure around a ‘garden’ area, which is the case in part with some of the four units on the appeal land that have been granted the LDC. While I acknowledge that the units could move and numbers change the physical evidence is that this has not occurred for a long time and there is no evidence that it is going to occur in the future, other than the hypothetical argument raised. The units identified in the LDC are clearly distinguishable on the ground.”
At para. 16, he noted the...
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