St. Anne's Court Dorset Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | James Strachan,Mr James Strachan |
| Judgment Date | 04 November 2021 |
| Neutral Citation | [2021] EWHC 2954 (QB) |
| Year | 2021 |
| Docket Number | Case No: CO/0614/2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2954 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Strachan QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/0614/2021
and
Mr Andrew Fraser-Urquhart QC (instructed by Stephen Scown) for the Claimant
Mr Alistair Mills (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 7 July 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
James Strachan QC
Mr James Strachan QC (Sitting as a Deputy High Court Judge):
This is a claim made under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). It is made by claim form dated 19 February 2021. The Claimant seeks to challenge a decision of a planning inspector appointed by the First Defendant given by decision letter dated 12 th January 2021 (“the DL”). By that DL, the inspector dismissed the Claimant's appeal under section 195 of the 1990 Act against a refusal of Dorset Council to grant a lawful development certificate under section 192 of the 1990 Act in respect of use at land at St Anne's Cottage, Horton, Three Legged Cross, Dorset BH21 6SD (“the Site”) for the stationing of static caravans for the purposes of human habitation.
The claim is brought with the permission of Lang J given by Order dated 15 April 2021.
The main issue raised by this claim is whether the inspector erred in law in interpreting the planning permission describing the development permitted as use of the Site for “touring caravans” as one which was effective to limit the permitted use to “touring caravans” in the absence of any condition imposing such a restriction. In reliance upon I'm Your Man v Secretary of State for the Environment (1999) 77 P&CR 251, the Claimant argues that absent such a condition, the reference to “touring caravans” in the description was not an effective limitation and, in consequence the Inspector should have found that the planning permission permits use of the Site for “static caravans”.
The Claimant was represented by Andrew Fraser-Urquhart QC and the First Defendant was represented by Alistair Mills. I am very grateful to both of them for the clarity and concision of their written and oral arguments. I am also grateful to the parties for the way in which both the claim bundle and bundle of authorities were prepared.
Factual Background
The Claimant is the freeholder owner of the Site has been since 2018. Dorset Council is the local planning authority for the area within which the Site lies.
By notice dated 24 June 1980 conditional planning permission was granted under reference number no 3/80/1284 by Wimborne District Council — the local planning authority for the area at that time — for use of the Site as a “site for Touring Caravans” (“the 1980 Planning Permission”).
Conditions attached to the 1980 Planning Permission included the following:
“2. Not more than 15 touring camping units shall be stationed on the site at any one time and no unit shall remain on the site for more than 14 consecutive nights.”
3. The site shall be used as a touring caravan/camping site only during the period from 1 March to 31 October in any year and no camping units shall be permitted on the site other than during this period.
Reason: To ensure that the site is used as a touring caravan/camping site.
4. No camping units on the site shall be used as permanent residential units.
Reason: To ensure that the site is used as a touring caravan/camping site.”
The reasons given for the imposition of these conditions were:
“Reasons for above Conditions
2. In accordance with the provisions of the approved South East Dorset Structure Plan.
3. and 4. To ensure that the site is used as a touring caravan/camping site.
…”
By a certificate of lawful existing use or development dated 5 April 2016 issued under section 191 of the 1990 Act by East Dorset District Council – the local planning authority for the area at that time – the following was certified as a lawful use of the Site as at 20 November 2015 (“the 2016 Certificate”):
“1. The use of the land as a touring caravan site between the months of the 1 April to the 30 September each calendar year of not more than 50 caravans at any one time;
The use of the land for the siting of non-occupied touring caravans between the months of the 1 October to the 31 March each calendar year: not more than 22 caravans at any one time;
The use for the siting and residential occupation of a mobile home for occupation associated with the day-to-day operation of the site as a touring caravan park.”
The 2016 Certificate explained that its grant was based on there being sufficient evidence, on the balance of probabilities, to show that the claimed use or development described in the First Schedule to the Certificate had existed for a period in excess of four or ten years (as prescribed by the legislation) back from the date of the application. Given the nature of what was described, it is apparent that the relevant period would have been ten years.
By application dated 26 September 2018 made under section 192(1)(a) of the 1990 Act to East Dorset District Council, the Claimant sought certification that “[u]se of land for the stationing of caravans for human habitation (a caravan site)” would be lawful.
East Dorset District Council refused that application by notice dated 29 November 2018. The Claimant appealed against that refusal under section 195 of the 1990 Act (Appeal Reference APP/U1240/X/18/3217904). The planning inspector appointed to determine that appeal dismissed it by a decision letter dated 26 February 2020 (“the 2020 DL”). By the time of the determination of the appeal East Dorset District Council had amalgamated with other local planning authorities to form Dorset Council.
In his decision letter, the Inspector reasoned (amongst other things) as follows:
“The permission and condition 4
9. The planning application form in 1980 required that the brief nature of the proposed development be described. It is described as ‘site for touring caravans’ which is then used on the Council's decision notice.
10. At the hearing, time was spent considering how condition 4 of the permission should be interpreted. This is because some of the planning conditions, but most importantly for the purposes of this appeal condition 4, refer to camping units. I address throughout my decision the reasons for the importance of condition 4.
11. I raised at the hearing whether any of the plans or documentation submitted with the planning application referred to a camping use. Whilst I appreciate this is now held on a microfiche system, and so the quality of the printed copies are poor, the parties were unable to identify any reference to camping units.
12. However, it appears clear to me that the context of the permission does also relate to camping units. This is otherwise to say tents, as defined by the appellant. This is because a camping use is referenced in other planning conditions of the permission as well as in their reasons for being imposed. These therefore cast light on the extent of the permission when it is read as a whole.
13. However, it is highly improbable that a tent would be used as a permanent residential unit; indeed, to give it this effect would amount to an absurdity. Whilst the appellant suggested that for clarity the condition perhaps should have also included the words ‘touring caravans’, it clearly cannot be re-written. I am therefore inclined to interpret the condition, as part of an objective exercise, in a common-sense way to give it a sensible meaning, which a reasonable reader would understand, rather than by what the parties may or may not have intended at the time. My overall approach is consistent with relevant case law in such matters 3.
14. Accordingly, I find that condition 4 does relate to the prohibition of touring caravans on the site used as permanent residential units, noting reference to this type of caravan on both the application form and throughout the decision notice. It is therefore not an invalid or void planning condition and does serve a useful planning purpose.
Whether conditions 2, 3 and 4 of the permission are capable of enforcement action
15. At the hearing the Council accepted that the certificate amounted to a breach of conditions 2 and 3 and therefore these conditions would not be capable of any form of successful enforcement action.
16. The appellant contends that the terms of the certificate, in particular that relating to the residential occupation of a mobile home, amounts to a breach of condition 4 of the permission. This was put forward on the basis that I found condition 4 to relate to caravans as opposed tents, which I have. I will now address the issue of the type of caravan.
17. It was asserted by the Council that the permission had a narrow description which related to touring caravans only. The inference being that a different type of caravan would be outside the scope of the permission and thus be a breach of planning control. The Council however could not provide any authorities to support this strict interpretation. My attention was however later drawn to the Matchams Drive appeal decisions 4, the relevance being that conditions can restrict the use to a...
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