R (on the application of Usk Valley Conservation Group and others) v Brecon Beacons National Park Authority

Planning permission — Validity – Discontinuance order – Interested parties obtaining planning permission for different development than one applied for – Defendant authority taking enforcement action rather than making discontinuance order – Claimants seeking judicial review of planning permission – Whether defendants erring in taking enforcement rather than discontinuance action – Application grantedThe interested parties applied for planning permission to relocate a camping facility on land outside of a flood zone located within an area controlled by the defendant local planning authority. Although the planning application did not refer to caravans, several caravans and tents were located on the new site; the defendants granted permission on condition that no more than 50 tents and 50 caravans were to be erected or sited within the relevant area.The defendants received complaints from local residents about the persistent and significant disregard of the planning conditions with regard to the number of caravans on the site, the duration of their use and their storage. That gave rise to doubts over the validity of the planning permission, since it appeared that the scale of the development was greater than was envisaged in the particulars on which permission was granted.The defendants considered making an order, under section 102 of the Town and Country Planning Act 1990, requiring the discontinuance of the use of the land for caravans and camping. However, that would have involved the payment of compensation to the interested parties and, following a report on the possible levels of compensation payable, the defendants decided to take enforcement action against the activities deemed to be in breach of the planning permission pursuant to section 172 of the 1990 Act.The claimant local residents applied for judicial review of the decision to grant planning permission and for enforcement rather than discontinuance proceedings. They argued that: (i) the planning permission was invalid; (ii) the defendants were not lawfully entitled to consider the financial consequences of paying compensation in deciding whether to take enforcement or discontinuance proceedings; and (iii) the anticipated compensation levels were misconceived.Held: The application was granted. The parties agreed that the permission granted was for a change of use of the land for a limited number of caravans and tents for camping. However, the application had not mentioned caravans and should not have been interpreted as including them. Permission for caravans could not lawfully be granted on the application. The permission was for a different development from the one applied for or the use of the site was different from that applied for. Either way, the permission was invalid. Where an ambiguity in the application went to the heart of what was proposed, a permission that reflected that ambiguity would in turn be legally uncertain in a way that could not be remedied by examining the application. An unambiguous permission would not be for the development applied for. The grant was not the time or place to resolve such an ambiguity in the application; it was not for the conditions to define the scale of the application in a way that went to the heart or nature of the application, as opposed to controlling the permitted development. A public authority had a duty to make reasonable enquiries to obtain the necessary factual information to provide a rational basis for a decision on the application before it, especially where it depended on a factual issue: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 applied.In the instant case, the level of enquiries had been perfunctory and had failed to fulfil the duty of obtaining the necessary information. In particular, the issue of whether the proposal should have been screened for its potential environmental impact, under the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, had been wholly ignored. Accordingly, the planning permission was invalid and had to be quashed.The decision to take enforcement proceedings rather than discontinuance proceedings, on the basis that no compensation was payable in respect of the former, was lawful, as was the implicit decision to postpone any final decision on discontinuance proceedings until after enforcement proceedings had confirmed the planning bases on which compensation could be payable on discontinuance.Section 102 of the 1990 Act involved a decision as to whether a discontinuance order was expedient in the interests of the proper planning of the area. The development plan, and any other material considerations, would guide the decision on what were the interests of the proper planning of the area. The authority would then have to decide whether it was expedient, in those interests, to take any of the decisions for which the section provided. The decision might be that no action should be taken; the authority was not obliged by statute to take the decision that achieved what it had determined were in the interests of the proper planning of the area. An expedient decision would require attention to be paid to the advantages and disadvantages of taking any of the available steps under section 102.Where public money was at stake, because statute made compensation part of the statutory scheme being invoked, its cost was, in the absence of clear contrary words, a consideration relevant to expediency. The word “expediency” was apt to require attention to be paid to that and wholly inapt to exclude consideration of the consequential liability that would face the authority taking the discontinuance or revocation decision. It would be extraordinary for parliament to require a decision that could have large adverse financial consequences to be taken by a public body that at no stage could lawfully consider those consequences, however great or disproportionate the cost. That was even more so where those compensation consequences were an essential part of the statutory provisions pursuant to which the decision was being made. For parliament to legislate to that effect would require clear wording. That approach was supported by established authority that a local planning authority, in reaching a planning decision, were entitled to take into account that one course of action would lead to the payment of compensation and to choose the option that avoided that payment: Westminster Bank v Beverley Borough Council [1971] AC 508; Hoveringham Gravels Ltd v Secretary of State for the Environment [1975] 1 QB 754; R v Bassetlaw District Council, ex parte Oxby [1998] PLCR 283; and R v North West Leicestershire District Council ex parte Moses (no 2) [2000] Env LR 443 considered; R v Caradon District Council, ex parte Knott [2000] 3 PLR 1 and R v Exeter City Council, ex parte JL Thomas & Co Ltd [1991] 1 QB 471 applied.Stephen Davies QC and Ross Fentem (instructed by M&A Solicitors, of Cardiff) appeared for the claimants; Morag Ellis QC and Robin Green (instructed by the legal department of Brecon Beacons National Park Authority) appeared for the defendants; Anthony Porten QC and Ian Albutt (instructed by Robert Davies Partnership LLP, of Newport) appeared for the interested parties. Eileen O’Grady, barrister