Planning appeals – Permission granted on appeal for siting of gypsy caravans – Original application seeking permission for three caravans for residential use – Inspector granting permission for three plots with maximum of four static caravans and up to eight caravans in total – Judge upholding decision in proceedings brought by appellant and awarding costs to third and fifth respondents – Whether permission unlawful as being substantially different from that applied for – Whether costs award flawed – Appeal allowed in part
In 2008, the first respondent’s inspector determined an appeal by the second respondents, under section 78 of the Town and Country Planning Act 1990, against the local planning authority’s refusal of planning permission for the siting of three caravans for use as all-year-round dwellings. At the same time, the inspector determined appeals by the third to sixth respondents, under section 174 of the 1990 Act, against enforcement notices issued in respect of their use of the site. The third to sixth respondents lived a nomadic life within the meaning of ODPM Circular 01/2006.
The inspector refused the section 174 appeals but allowed the section 78 appeal. Although he refused permission for the retention of the existing structures on the appeal site, he found that the site was suitable in principle to be used as a gypsy caravan site for three plots. He therefore granted the planning permission sought, subject to conditions. These included a requirement that the site should contain no more than three separate pitches, which could not be subdivided and could be used only by gypsies or travellers as defined by the circular. Condition 5 specified that the number of caravans permitted on site, namely: not more than two caravans, including one static caravan, on plot 1; three caravans, including two static caravans on plot 2; and three caravans, including one static caravan on plot 3. “Caravan” was to be defined as set out in Part I of the Caravan Sites and Control of Development Act 1960 and section 13 of the Caravan Sites Act 1968.
The High Court dismissed a challenge to the inspector’s decision brought by the appellant and the local authority under section 288 of the 1990 Act. The judge awarded costs to the third and fifth respondents, who lived on the appeal site, mainly because they might be at risk of losing their homes. The appellant appealed. He submitted that the planning permission, construed with condition 5, permitted the siting of eight caravans instead of the three for which permission had been sought, created a risk of more being added by legitimate intensification, and that the first respondent had granted a permission that was substantially different from that applied for. The appellant also challenged the costs award.
Held: The appeal was allowed in part.
(1) It was not open to a planning inspector to grant planning permission for something substantially different from the subject of the application: Wheatcroft (Bernard) Ltd v Secretary of State for the Environment (1981) 257 EG 934 applied. However, that was not what the inspector had done in the instant case. Considered on its own wording and in the context of policy guidance relating to caravan sites, the permission, read with its conditions, confined the positioning of caravans to three separate pitches. The prohibition against subdivision showed that each pitch was to be used by one family. Against the background of planning guidance, any touring caravans were to be used ancillary to the static caravans, by the family that occupied the static caravan. Although the inspector could have expressed his intentions more clearly, it appeared that he had intended to limit, by conditions, the total number of caravans to be permitted on the site, and the wording that he had adopted achieved that effect. The conditions were used as a means of restricting on the maximum use that could be made of the site for caravans; otherwise, the concepts of intensification of use and of ancillary use would have left a vagueness that could give rise to future disputes. Accordingly, the pitching of more than eight caravans, including four static caravans, on the site would breach planning control, which could lead to enforcement proceedings. The conditions were lawful and sufficiently clear as to define the extent and limits of the permission granted: R (on the application of Dowling) v Secretary of State for Communities and Local Government [2007] EWHC 738 (Admin) applied. Although, in the absence of any detailed reasoning by the inspector, it was necessary to construe the conditions creatively to reach that conclusion, a condition should not be held void for uncertainty unless it could be given no sensible and ascertainable meaning: Fawcett Properties Ltd v Buckinghamshire County Council (1960) 176 EG 1115.
(2) The secretary of state could be expected to defend his own appeal decisions. The third and fifth respondents had not dealt with separate issues. Although they had had a separate interest in their section 174 appeal, they had no direct interest in the section 78 appeal that had proceeded to the High Court. Although the judge had a broad discretion on costs, there was no basis on which he could properly award costs to the third and fifth defendants in the instant case since they had not shown a separate issue on which they were entitled to be heard or that they had an interest that required separate representation: Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 1043. The likelihood that, had the claim been allowed, the case would have been remitted to the secretary of state for a further consideration of the planning issues, which might have put their homes at risk, was not a sufficient basis for a costs award.
Iain Colville (instructed by DMH Stallard LLP, of Brighton) appeared for the appellant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first respondent; Stephen Cottle (instructed by Community Law Partnership, of Birmingham) appeared for the third and fifth respondents; the other respondents did not appear and were not represented.
Sally Dobson, barrister