Caravan site licence — Conditions — Unconditional planning permission — Condition requiring winter removal — Application to exclude condition — Whether condition lawfully imposed
The appellant owns an 8-acre caravan site
at Runton, Cromer, Norfolk. By virtue of section 17 of the Caravan Sites and
Control of Development Act 1960, the appellant has an unconditional deemed
planning permission for the use of the site. In 1979 a site licence was granted
to the appellant subject to a condition that no caravan can be occupied between
November 1 and March 19 in any year and that all caravans must be removed by
October 31 and not brought back before March 20 the following year.
The appellant’s appeal to the Divisional
Court, against a decision of the magistrates dismissing his appeal against a
refusal of the respondent council to exclude all or part of the condition, was
dismissed. The Divisional Court decided that the magistrates were entitled to
take into account evidence relating to the visual amenity afforded by the
removal of the caravans in deciding whether the respondents were entitled to
impose the condition under section 5(1)(d) of the 1960 Act requiring
winter removal.
The appeal was allowed.
Section 5(1)(a) of the 1960 Act
permits the imposition of a condition ‘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 . . .’. The
respondents’ contention that that empowered the requirement in the second
sentence of the condition relating to the removal of caravans from the site
between October 31 and March 20 the following year could not be accepted: see p
68E-G.
In general terms, section 5 does not
justify the inclusion in a site licence of conditions which are imposed for
purely planning reasons. A site licence cannot be granted unless the applicant
has obtained planning permission. When granting planning permission the local
planning authority could impose a condition as to the removal of caravans in
winter. If they do so, no compensation is payable. But if, as in the present
case, there is no planning permission condition, compensation would be payable
if a condition were later imposed for amenity reasons; a local planning
authority cannot avoid the compensation obligation by imposing such a condition
in a site licence: see pp 68G-71C.
The condition is directed not to the site
as a caravan site but to the improvement of the visual amenity during winter.
It is an invalid condition: see p 71C-H.
Esdell Caravan Parks Ltd v Hemel Hempstead Rural
District Council [1966] 1 QB 895; [1965] 3 WLR 1238; [1965] 2 All ER 1011;
(1965) 64 LGR 1; 18 P&CR 200, CA
Hartnell v Minister of Housing and Local
Government [1965] AC 1134; [1965] 2 WLR 474; sub nom Minister of Housing
and Local Government v Hartnell [1965] 1 All ER 490; (1965) 63 LGR
103; 17 P&CR 57, HL
Appeal against a decision of the
Divisional Court
This was an appeal against a decision of
the Divisional Court (July 15 1988) dismissing the appellant’s appeal against a
decision of the Cromer magistrates who had dismissed his appeal against a
refusal by the respondents, North Norfolk District Council, to exclude all or
part of a site-licence condition under the Caravan Sites and Control of Development
Act 1960.
(instructed by Hansell Stevenson & Co, of Norwich) appeared for the
appellant, William Babbage.
Sharpe Pritchard for the solicitor to North Norfolk District Council) appeared
for the respondents.
FOX LJ: 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
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
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 1155
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 visible. He also stated that the
environmental Health Department dealt with the site licence applications but
was unaware of
(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
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: I have had the advantage of reading in
draft the judgment of Fox LJ. I agree with it, and for the reasons he gives
would allow the appeal.
SIR ROUALEYN CUMMING-BRUCE: I also agree.
Appeal allowed with costs; leave to
appeal to House of Lords refused.
