Town and country planning – Lawful development certificate – Caravan site – Appellant challenging decision of first respondent’s inspector dismissing appeal against refusal of lawful development certificate (LDC) – Whether inspector erring in approach to the relevance and application of previously acknowledged breach of condition – Whether inspector erring in interpretation and application of sections 172 and 191(2)(a) of Town and Country Planning Act 1990 – Application dismissed
By an application under section 288(1) of the Town and Country Planning Act 1990, the appellant challenged the decision of an inspector appointed by the first respondent secretary of state to dismiss an appeal against the refusal by second respondent 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 forming part of a caravan site known as Tall Trees Park, Matchams Lane, Hurn, Christchurch.
Following an initial refusal by the High Court, permission to proceed with the application was granted by the Court of Appeal which went on to consider the application for itself rather than on an appeal from the High Court as such.
Planning permission had been granted for the extension and modification of the existing caravan site to provide 59 additional static caravans in lieu of 41 touring units and four chalets previously approved subject to the condition that: “The caravans and chalets shall be occupied for holiday purposes only” and “shall not be occupied as a person’s sole or main residence except for one caravan or chalet which may be occupied by a resident site warden”. It was common ground that, by the material date, those conditions had been breached, in the case of some of the units, for longer than ten years.
The appellant contended that: (i) in determining whether the LDC should be granted the inspector erred in his approach to the relevance and application of the previously acknowledged breach of condition on an extant planning permission; and (ii) the inspector erred in his interpretation and application of sections 172 and 191(2)(a) of the 1990 Act in respect of the formal position adopted by the second respondent as to the expediency of enforcement action in the context of those provisions.
Held: The application was dismissed.
(1) The inspector had identified the question before him as whether the use of one or more of the caravans on the site for more than ten years in breach of the conditions meant that other caravans on the site were not covered by the relevant conditions.
There would be some planning conditions which applied to the entirety of the relevant land and could not sensibly be regarded as being the subject of a partial breach only. The issue whether a case fell on one side of that line or the other was one of fact and degree and called for the exercise of judgment, having regard to the particular facts before the relevant decision-maker, in this case the inspector. The exercise of that judgment would not readily be amenable to challenge in the courts, which would only interfere with it on well-established grounds of law, for example if the inspector had erred in principle or had reached a conclusion which was not reasonably open on the evidence.
The question in such cases turned not so much on the interpretation of the relevant condition but on the proper application of the legislation on enforcement notices. The question was what was the particular breach and what could properly be enforced against. That gave effect to sound planning principle and common sense. It properly balanced the rights of all concerned, including the important public interest at stake: R (St Anselm Development Co Ltd) v First Secretary of State [2003] EWHC 1592 (Admin); [2004] 1 P&CR 24 approved.
The alternative would have the unfortunate consequence that a local planning authority would be compelled to take enforcement action even against those occupiers of units where there was no pressing public interest reason to take action. Alternatively, if it did not take action because there was only one unit which was being used in breach of the condition, it would then be precluded from taking action in the case of any other units at a later stage, because immunity would have been acquired in respect of the entire site. Parliament could not have intended those unfortunate consequences: North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin); [2004] 3 PLR 62 considered.
In the present case, the inspector had not fallen into error as a matter of principle. The question was one of fact and degree for the inspector to decide, provided his conclusion was reasonably open to him on the evidence before him. Here, his conclusion was reasonably open to him on the findings of fact. Moreover, the inspector had the advantage of having conducted a site visit.
(3) Section 172(1)(b) indicated that a local planning authority might issue a notice where it appeared that there has been a breach of planning control and that it was expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. The appellant had submitted that it was not open to the second respondent to take enforcement action in respect of the alleged breach of condition because it had already decided that it was not expedient to do so; and that it had created a legitimate expectation that no such action would be taken. Accordingly, that constituted “any other reason” why enforcement action could not be taken, within section 191(2)(a) of the 1990 Act.
It was accepted on behalf of the first respondent that, in principle, a substantive legitimate expectation amounting to an abuse of power could amount to “any other reason” in section 191(2)(a).
However, on the facts of this case the appellant’s argument failed. The two letters from the second respondent on which reliance was placed and the officer’s report did not amount to the unequivocal, unqualified representations which would be needed: Rastrum Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 1340 considered.
Paul G Tucker QC and Michael Rudd (instructed by Stephens Scown LLP) appeared for the appellant; George Mackenzie (instructed by the Treasury Solicitor) appeared for the first respondent; Gary A Grant (instructed by Bournemouth, Christchurch and Poole Council) appeared for the second respondent.
Eileen O’Grady, barrister
