Town and country planning — Caravan site — Condition in site licence — Landowner had unconditional deemed planning permission to use site as a caravan site — Effect of condition in site licence requiring removal of all caravans from the site between October 31 and March 20 — Whether condition valid — Appeal from decision of Queen’s Bench Divisional Court upholding magistrates’ ruling in favour of the validity of the condition
landowner owned a caravan site of about 8 acres on the cliffs overlooking the
sea at Runton, near Cromer in northern Norfolk — He had an unconditional deemed
planning permission for this use derived from section 17 of the Caravan Sites
and Control of Development Act 1960 — The present dispute arose from a site
licence granted to the appellant by the respondent council containing a
condition with a twofold restriction — The first sentence provided that no
caravan should be occupied between November 1 and March 19 — The second sentence
provided that all caravans should be removed from the site on or before October
31 and no caravan placed on it before March 20 — The appellant failed to
persuade the respondent council to exclude the whole condition — Before the
magistrates and the divisional court the issue was confined to the deletion of
the second sentence, but here again the appellant failed — He succeeded,
however, in the Court of Appeal
Court of Appeal the argument turned on the application of section 5(1)(a) and
(d) of the 1960 Act — Para (a) empowered a local authority to issue a site
licence subject to a condition for restricting the occasions on which caravans
are stationed on the land for the purposes of human habitation, while para (d)
authorised conditions for securing the taking of any steps for preserving or
enhancing the amenity of the land — The divisional court accepted the view that
the restriction imposed by the second sentence of the condition was authorised
by both para (a) and para (d) — The Court of Appeal disagreed with both
conclusions
para (a), the Court of Appeal said that, as a matter of the ordinary use of
English, para (a) was directed to prohibiting caravans on the land from being
used for purposes of human habitation, not to the land being used for the
siting of caravans at all — The first sentence of the condition was concerned
with the question of occupation only and that was the proper exercise of the
power — As regards para (d) of section 5(1), it was the respondent council’s submission
that the removal of caravans during the winter was a step for ‘preserving or
enhancing the amenity of the land’ and could therefore be justified under para
(d) — That interpretation was, however, contrary to the principle of the Court
of Appeal decision in Esdell Caravan Parks Ltd v Hemel Hempstead RDC and to
a dictum by Lord Reid in Hartnell v Minister of Housing and Local Government —
The Esdell case decided that, wide as the language of section 5 is, it does not
justify the inclusion in a site licence of conditions which are imposed for
purely planning reasons — The exclusion from site licences of conditions based
simply on planning considerations is relevant in relation to compensation — No
compensation is payable in respect of conditions properly imposed in a site
licence — If, however, as in the present case, the planning permission
initially imposed no winter removal conditions, it
That explained the comment of Harman LJ in the Esdell case about letting ‘the
licensing authority pull the chestnuts out of the fire for the planning
authority’ — The suggested condition requiring winter removal was based solely
on a planning consideration; its object was to prevent the siting of caravans
for the benefit of the visual amenities of other land
the respondent council were not entitled to impose the restriction contained in
the second sentence of the condition in question — Appeal allowed
The following
cases are referred to in this report.
Esdell
Caravan Parks Ltd v Hemel Hempstead Rural
District Council [1966] 1 QB 895; [1965] 3 WLR 1238; [1965] 2 All ER 1011;
(1965) 18 P&CR 200; 64 LGR 1, CA
Hartnell v Minister of Housing and Local Government [1965] AC 1134;
[1965] 2 WLR 474; [1965] 1 All ER 490; (1965) 63 LGR 103; 17 P&CR 57, HL
This was an
appeal by William Robert Babbage, the owner of a caravan site of about 8 acres
at Runton, near Cromer, from the decision of the Queen’s Bench Divisional Court
on the validity of a condition in a caravan site licence issued by the
respondent authority, North Norfolk District Council.
Jeremy
Sullivan QC and Miss J Wilson (instructed by Hansell Stevenson & Co, of
Norwich) appeared on behalf of the appellant; Hugh Donovan (instructed by Sharpe
Pritchard, agents for M Jepson, solicitor to North Norfolk District Council)
represented the respondent council.
Giving
judgment, FOX LJ said: This is an appeal from a decision of the
Divisional Court of the Queen’s Bench Division relating to the validity of a
condition in a caravan site licence issued under the Caravan Sites and Control
of Development Act 1960 (‘the Act’).
Section 1(1)
of the Act is as follows:
Subject to
the provisions of this Part of this Act, no occupier of land shall after the commencement
of this Act cause or permit any part of the land to be used as a caravan site
unless he is the holder of a site licence (that is to say, a licence under this
Part of this Act authorising the use of land as a caravan site) for the time
being in force as respects the land so used.
Section 1(2)
makes it an offence to contravene the provisions of section 1(1).
Section 3(3)
of the Act provides:
A local
authority may on an application under this section issue a site licence in
respect of the land if, and only if, the applicant is, at the time when the
site licence is issued, entitled to the benefit of a permission for the use of
the land as a caravan site granted under Part III of [the Town and Country
Planning Act 1971] otherwise than by a development order.
Section 5(1),
which is of central importance in the present case, provides:
A site licence
issued by a local authority in respect of any land may be so issued subject to
such conditions as the authority may think it necessary or desirable to impose
on the occupier of the land in the interests of persons dwelling thereon in
caravans, or of any other class of persons, or of the public at large; and in
particular, but without prejudice to the generality of the foregoing, a site
licence may be issued subject to conditions —
(a) for restricting the occasions on which
caravans are stationed on the land for the purposes of human habitation, or the
total number of caravans which are so stationed at any one time;
(b) for controlling (whether by reference to
their size, the state of their repair or, subject to the provisions of
subsection (2) of this section, any other feature) the types of caravan which
are stationed on the land;
(c) for regulating the positions in which
caravans are stationed on the land for the purposes of human habitation and for
prohibiting, restricting, or otherwise regulating, the placing or erection on
the land, at any time when caravans are so stationed, of structures and vehicles
of any description whatsoever and of tents;
(d) for securing the taking of any steps for
preserving or enhancing the amenity of the land, including the planting and
replanting thereof with trees and bushes;
(e) for securing that, at all times when caravans
are stationed on the land, proper measures are taken for preventing and
detecting the outbreak of fire and adequate means of fighting fire are provided
and maintained;
(f) for securing that adequate sanitary
facilities, and such other facilities, services or equipment as may be
specified, are provided for the use of persons dwelling on the land in caravans
and that, at all times when caravans are stationed thereon for the purposes of
human habitation, any facilities and equipment so provided are properly
maintained.
By section 7,
a person aggrieved by any condition subject to which a site licence is issued
to him may appeal to the magistrates’ court and the court if satisfied that the
condition is unduly burdensome, may vary or cancel the condition.
Section 8
permits the holder of a site licence to apply to the local authority to alter
any condition of a site licence and if such application is refused, he may
likewise appeal to the magistrates. Section 8 makes no provision as to the
grounds upon which such an appeal may be made.
As appears
from section 3(3) it is a prerequisite to the grant of a site licence that the
applicant should, at the date of issue of the site licence, have planning
permission to use the land as a caravan site. At the date of issue of the
licence in the present case the landowner (who is the appellant Mr Babbage) had
(and still has) ‘deemed’ planning permission for the use of the site as a
caravan site. That permission was unconditional.
The caravan
site is on the cliffs overlooking the sea at Runton, near Cromer. It comprises
about eight acres. On and for many years before the date when the Act came into
force the greater part of the site had been used as a caravan site. The deemed
(and unconditional) planning permission arises from the provision of section 17
of the Act relating to sites which were in use as caravan sites at the
commencement of the Act and which (as in this case) were also used as caravan
sites on March 9 1960 (the date of the publication of the Bill). The then owner
applied on October 24 1960 for a site licence in accordance with the provisions
of section 17. No planning permission having been granted within the following
six months and no enforcement notice having been served before the end of such
period, the effect of section 17 was the unconditional deemed planning
permission to which I have referred. The existence of the deemed permission is
not in dispute and I need not go further into the detail of the statutory
provisions. The fact that deemed planning permission had been granted seems to
have been overlooked and in 1961 express planning permission was granted, but
it is common ground that it was of no effect.
I should
mention, for completeness, that a very small part of the site (the field OS
177) is subject to express planning permission and these proceedings are not
concerned with it.
A site licence
was granted to the appellant by the respondent council (the North Norfolk
District Council) on November 22 1979. That licence contained the following
condition:
14. Limit of occupation
No caravan
shall be occupied between the 1st November and the 19th March on any part of
the site. All caravans shall be removed from the site on or before the
thirty-first day of October in each year and no caravan shall be placed on the
site before the twentieth day of March in the following year.
In 1987 the
appellant made an application to the council to vary the site licence by
excluding condition 14. That application was rejected on July 29 1987.
The appellant
presented a complaint to the magistrates by way of appeal from that decision.
The complaint was dismissed.
Although the
application to the respondent council was for the deletion of condition 14, the
issue before the magistrates was limited to the question whether the second
sentence of condition 14 (which requires the removal of caravans from the site
between October 31 in every year and March 20 in the following year) should be
deleted. That remains the issue before this court.
The opinion of
the magistrates was that:
(a) The removal condition was properly imposed
in accordance with section 5(1)(a) [of the Act].
(b) The removal condition, although burdensome,
was not unduly burdensome.
(c) There was strong local opinion opposed to
the removal of the winter storage condition.
(d) The site abutted a conservation area where
the landscape was important.
(e) The caravans on the cliff top were
detrimental to the visual amenity.
Accordingly
the magistrates dismissed the appeal. Mr Babbage appealed to the Divisional
Court. In the case which had been stated by the magistrates the questions for
the decision of the Divisional Court were as follows:
(1) Whether we [the magistrates] are entitled to
take into account evidence relating to the visual amenity afforded by the
removal in deciding whether the respondent [ie the council] was entitled to
take into account the visual amenity afforded by the removal of the caravans in
deciding whether the respondent was entitled to impose a condition under
section 5(1)(d) requiring winter removal.
(2) Whether there was evidence upon which we
could find that winter removal was not unduly burdensome.
The Divisional
Court answered the first question ‘Yes’. On that answer, it was agreed between
the parties that it was unnecessary to answer the second question.
In the
argument before us, the paragraphs of section 5(1) of the Act upon which the
debate concentrated were (a) and (d). It is the respondents’ case
(and the Divisional Court was of the opinion) that the restriction imposed by
the second sentence of condition 14 was specifically authorised by para (a).
That was on the basis that there were two ways in which a condition could
effectively restrict the occasions on which caravans were stationed on the land
for the purposes of human habitation. One is by requiring them to be removed
completely. If they are not stationed on the land they cannot be stationed on
it for the purposes of human habitation. The other is by requiring them to be
vacated and not to be used for purposes of human habitation during certain
periods of the year.
I do not feel
able to accept that approach. It seems to me that, as a matter of the ordinary use
of English, para (a) is directed to prohibiting caravans which are on
the land from being used for purposes of human habitation. It is not directed
to prohibiting the land being used for the siting of caravans at all during
specified periods. In the present case it seems to me that the power in para (a)
was exercised by the first sentence of condition 14. That was the proper
purpose of the power. The second sentence, in my view, is not within (a)
at all. The words ‘for the purposes of human habitation’ would not, it seems to
me, have been added if Parliament was intending in para (a) to give a
power to direct total removal of the caravans. If that had been the intention I
would have expected it to read:
. . . for
restricting the occasions on which caravans are stationed on the land.
I turn, then,
to the wider aspects of the case upon which the argument before us has turned.
Section 5(1) authorises the licensing authority to impose such conditions as
they may think necessary or desirable in
the interests
of the persons dwelling [on the land] in caravans, or of any other class of
persons, or of the public at large; and in particular, but without prejudice to
the generality of the foregoing, a site licence may be issued subject to . . .
and there then
follow paras (a) to (f). None of those paras (having regard to
the view which I have taken as to the construction of para (a))
authorises in specific terms the imposition of a condition requiring the
removal of all caravans from the land during part of the year.
It is,
however, the council’s case, which was accepted by the Divisional Court, that
the removal of the caravans during the winter is a step for ‘preserving or
enhancing the amenity of the land’ (see para (d)) for the benefit of
persons living in the vicinity or of members of the public at large walking
upon or in the neighbourhood of the cliffs who are then enabled to enjoy a more
open and uncluttered landscape.
The law on
this subject was considered by the Court of Appeal in Esdell Caravan Parks
Ltd v Hemel Hempstead RDC [1966] 1 QB 895. That case concerned a
condition in a site licence limiting the number of caravans on the site to 24.
I take the case as deciding that wide though the language of section 5 is, it
does not justify the inclusion in a site licence of conditions which are
imposed for purely planning reasons. One of the matters which the magistrates
took into account was that the land was green belt land and that under the
green belt plan a new caravan site would not be allowed on the land. The Court
of Appeal, in allowing the appeal, held that the magistrates should not have
taken this fact (which was item (1)) into consideration in that it was purely a
planning matter.
As to the
principle, Lord Denning MR at p 925 said:
I do not
think the magistrates were entitled to have regard to the fact that, under
the Green Belt provisions, an application for a new caravan site on this
field would be refused (item (1)). The magistrates were bound to accept the
fact that there was an existing right to use this site as a caravan site, even
though it was in the Green Belt. There was ‘deemed permission’ for it. That was
solely a planning consideration for the planning authority and not a site
consideration for the site authority. It was ‘outline’ and not ‘detail’.
Harman LJ at
pp 930-931 said:
Nevertheless
the terms of section 5 are very wide and extend on the face of them to all
conditions desirable in the interests (a) of the caravan dwellers, (b) of any
other class of persons, or (c) of the public at large. There must be some
limitation on these wide words, and they are to be found I think in the fact
that this part of this Act is devoted to caravan sites; and it seems to me to
follow that the conditions must be relevant to that subject-matter — compare
the observations of Lord Denning in Pyx Granite Co Ltd v Ministry of
Housing and Local Government. In other words, conditions must be such as
concern the site looked at either from the point of view of the people who live
on it in caravans or of their neighbours — which I take to be the second class
of persons here referred to, or the general public. It appears to me that the
general public can be left out of this present instance as not being concerned.
The question,
therefore, is whether the facts taken into account by the magistrates and set
out in paragraph 3 of the case stated fall within this limit. So far as the
conditions down to (j) are concerned, there is no dispute that they are the
legitimate subject of such considerations and none of them tends against the
company. It is the conditions (k) to (q) which raise the doubts.
As to (k)
[which was the social desirability of producing a balance between those living
locally in houses and those in caravans], this was no doubt a planning
consideration, but in my judgment it was also one which under the terms of the
Act of 1960 might influence the magistrates, because it vitally concerned the
interests of those living in the neighbourhood who are, I think, the class of
persons pointed to. This in my judgment was a legitimate factor for the
magistrates to weigh. (1), on the other hand, seems to me to be a pure planning
consideration. The site will be a caravan site, however few or many caravans
are allowed on it having regard to the planning authority’s decision, and Green
Belt considerations have nothing to do with this site.
Winn LJ said
at p 936:
. . . Sachs J
said that the licensing authority must not take it upon itself to do work which
they may feel the planning authority omitted to do: I agree with that observation.
The judge also said that ‘a local authority cannot be entitled (to cut down
without compensation the site owner’s existing rights) by reviewing the
position in the same way as if they were acting under (section 17 of the Act).’ The meaning that the judge no doubt intended
to convey by the phrase ‘in the same way as if’ is that such a cutting down by
the licensing authority could not be within their lawful powers if the
considerations which moved them to impose it were solely and exclusively
relevant to a planning decision: understood in this sense the ruling appears to
me to be wholly correct; . . .
The approach
of the court as expressed in these paragraphs is in line with the observations
of Lord Reid in Hartnell v Minister of Housing and Local Government
[1965] AC 1134 at p 155 where he said that
. . . the
local authority is entitled by section 5 to attach conditions including a
condition limiting the number of caravans on the site. But any such condition
would not be based on planning but on public health and similar considerations
That was obiter
but the speech was concurred in by Lord Hodson and Lord Guest.
The exclusion
from site licences of conditions based simply upon planning considerations is
of practical importance in relation to the compensation provisions of the
planning legislation. A site licence cannot be granted unless the applicant has
obtained planning permission for use of the land as a caravan site. When
granting planning permission the planning authority could impose a condition as
to removal of the caravans in winter. If they do so, no compensation is
payable. But if, as in the present case, the planning permission imposes no
winter removal conditions, the planning authority could, subsequently, impose
one for legitimate planning reasons, but compensation would have to be paid. No
compensation is, however, payable in respect of conditions properly imposed in
a site licence. Hence the remarks of Harman LJ in the Esdell case (supra)
at p 930:
. . . I
cannot think that the legislature could have intended in this way to let the
licensing authority pull the chestnuts out of the fire for the planning
authority by imposing without compensation conditions which the local authority
might desire on planning grounds to impose but which would involve the latter
in compensation.
In the present
case, the removal of the caravans in the autumn of each year and their return
in the following spring is a burden upon the appellant. It takes three weeks to
remove them and three weeks to return them. I refer generally to the facts set
out in para 2 of the case stated regarding the problems relating to removal and
return.
As regards the
approach of the licensing authority in the present case the following is
recorded in para 3 of the case stated:
(b) David Evans, the Deputy Chief Planning
Officer for the North Norfolk District Council, gave evidence as to the
supervision of planning applications and the criteria involved. He stated that
visual amenities were a relevant consideration in planning terms and regardless
of planning policy visual amenities are preserved. He referred to a map showing
the location of the licensed site in relation to areas of landscape importance
and also to the Norfolk County Structure plan policies, E1, E2, TR1 & TR5A.
He said the existence of caravans on the cliffs was detrimental to visual
amenity because the site was in a prominent location and very
site licence applications but was unaware of any environmental health reasons
being advanced in respect of this application.
(c) Raymond Harper Hughes gave evidence that he
had been a member of the North Norfolk District Council since 1974, and was a
member of their Health and Works Committee, and received representations from
people regarding the cliffs at East Runton. He felt there would be much more
opposition if the caravans were allowed to remain on the site all the time. He
was opposed to the winter use of caravans on the cliffs. People did not like
seeing them on the cliff top all the year and it was a relief to the eye. . .
when they were removed in winter.
. . .
(e) Peter Arthur Page, Environmental Manager for
North Norfolk District Council, gave evidence that it was a pre-requisite for
the grant of a site licence that planning permission had already been granted
and it was usual to reproduce conditions in planning permissions in site
licences. He stated that an Environmental Health report had not been submitted
in this case.
It was the
submission of the council to the magistrates that the condition requiring
winter removal was inherited by the council from the Erpingham Rural District
Council and was retained to preserve visual amenity so as not to make the
position worse.
Now the
distinction between planning considerations and what may be called ‘site’
considerations may often be difficult to identify with clarity. But in the
present case the condition, it seems to me, is not directed to the nature of
the use of the site as a caravan site. What it is doing is requiring that,
during about five months of the year, the site should not be used for the
siting of caravans at all. The condition is not directed to the public health
or traffic considerations or to the number of persons using the site or the
number of caravans upon it or to the parts of the site where caravans may be
placed. The condition is requiring total cessation of use for siting of
caravans during the specified period and notwithstanding that the appellant has
unconditional planning permission to use the site as a caravan site. Moreover,
there is nothing in the case stated to suggest that the council had any reason
for imposing the condition except to improve the aspect for the benefit of
persons occupying or using other land. That seems to me to be solely a planning
consideration. It is preventing use of the site for the siting of caravans
solely for the benefit of the visual amenities of other land.
It is, of
course, the case that the statute specifically authorises the preservation of
the amenity of the caravan site land for the benefit of any class of persons or
of the public at large. But as Winn LJ observed in the Esdell case (supra)
at p 937:
The
references to those interests [ie the general public and others] does not
extend their powers; it restricts them to measures of control by which one or
more of those interests is protected against misuse of the site. The manner of
use of the site is controllable, not its existence in the locality nor the
extent to which it is used, save in so far as misuse of the site to the
prejudice of those interests is involved in such extent of user.
There is
nothing here which could be called misuse of the site. The council simply
object to its existence in the locality during the winter months.
Nobody suggests
that, as a matter of planning law (apart from the licence) it is unlawful for
the applicant to keep unoccupied caravans on this site during the winter
period. It is difficult to see why the licence should simply expunge that right
without compensation. Section 1(4) of the Act defines a ‘caravan site’ as ‘land
on which a caravan is stationed for the purposes of human habitation’. The
first sentence of condition 14 prohibits human occupation during the winter
period. That, it is accepted, is permissible. But that emphasises the purely
‘planning’ content of the second sentence, which is not concerned with control
of caravans for human habitation. It is dealing with the control of caravans.
Such control may be desirable but, if so, I think it should be exercised by the
powers of the planning authority.
With respect,
therefore, to the contrary view of the Divisional Court, I am of the opinion
that the respondent council were not entitled to impose the condition contained
in the second sentence of condition 14 and I would allow the appeal
accordingly.
MANN LJ and SIR ROUALEYN CUMMING-BRUCE agreed and did not add
anything.
Appeal
allowed with costs; leave to appeal to the House of Lords refused.