Meaning of caravan — Planning permission subject to conditions — Caravans and no structures — Chalet erected on site — Chalet a caravan by statutory definition — Whether chalet a caravan by ordinary meaning — Whether ‘caravan’ has ordinary meaning or meaning in Caravan Sites and Control of Development Act 1960
In 1961 the
Wyre Forest District Council’s predecessors granted planning permission for the
continued use of land as a caravan site subject to planning conditions. Only
caravans were permitted, and any other structures required express consent. A
chalet was erected on the site without express consent, and enforcement notices
were issued in 1985. The chalet fell within the definition of ‘caravan’ for the
purposes of the Caravan Sites and Control of Development Act 1960. The
Secretary of State for the Environment allowed
(Estates) Ltd, and quashed the notices.
The appellant
appealed against the decision of the Court of Appeal ([1989] 1 PLR 79) which
held that the word ‘caravan’ must be given its ordinary meaning and not the
enlarged meaning, which would have included the chalet, introduced by the 1960
Act. This was because the planning conditions restricting structures other than
caravans was imposed following an application in November 1960 for the
continued use of the site, and the introduction of the 1960 Act the previous
August did not enlarge the ordinary meaning. The appellant contended that the
word ‘caravan’ must be given its statutory meaning unless there is a clear
indication to construe it otherwise. There should not be a dislocation between
the meaning for the purposes of planning conditions under the Town and Country
Planning Act 1971 and that under the 1960 Act.
was allowed.
The
proposition that the word ‘caravan’ in a planning application submitted, or in
a planning permission granted, at any time either before or after the date on
which the 1960 Act came into force prima facie meant a caravan in its
ordinary, popular sense and not a caravan as defined by the Act, was untenable:
see pp 102-104. If Parliament in a statutory enactment defines its terms, it must
intend that, in the absence of a clear indication to the contrary, those terms
as defined shall govern what is proposed, authorised or done under or by
reference to that enactment: see p 102 et seq.
In relation to
the argument that the word ‘caravan’ in the planning application and the
planning permission, properly construed, meant a caravan in its ordinary
popular sense, the question of construction must be considered in the light of
an important principle of planning law: a planning permission is not a mere
personal licence granted to the applicant but can be said to run with the land:
see p 106A et seq.
Any
uncertainty which exists or could be claimed to exist as to the meaning of the
planning permission should be resolved by adhering to the statutory definitions
which prima facie represent the meaning of the words defined: see p
107A.
to in the opinions
Backer v Secretary of State for the Environment [1983] 1 WLR 1485;
[1983] 2 All ER 1021; (1983) 46 P&CR 357; [1983] JPL 602
Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297; (1972) Cr App
R 799; sub nom Cozens v Brutus [1972] 3 WLR 521, HL
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
Hammond v Horsham District Council (1989) 58 P&CR 410; [1989] 3
PLR 56; [1989] JPL 805
Holt
& Co v Collyer (1881) 16 ChD 718
R v Kent Justices, exparte Crittenden [1964] 1 QB 144, [1963]
2 WLR 1124; [1963] 2 All ER 245; (1963) 61 LGR 346; 14 P&CR 456, [1963] EGD
622; 187 EG 753, DC
R v Secretary of State for the Environment, ex parte Reinisch
(1971) 70 LGR 126; 22 P&CR 1022, DC
Slough
Estates Ltd v Slough Borough Council (No
2) [1971] AC 958; [1970] 2 WLR 1187; [1970] 2 All ER 216; (1970) 21
P&CR 573, HL
Appeal against
decision of the Court of Appeal
This was an
appeal against the decision of the Court of Appeal ([1989] 1 PLR 79), which had
allowed an appeal against a decision of Mr David Widdicombe QC (sitting as a
deputy judge of the Queen’s Bench Division), dismissing an appeal against the
decision of the Secretary of State for the Environment, who had allowed two
appeals against two enforcement notices issued by the second respondents, Wyre
Forest District Council.
Ian Ashford-Thom (instructed by the Treasury Solicitor) appeared for the
appellant, the Secretary of State for the Environment.
Joseph and David Brownbill (instructed by Tozers, of Exeter) appeared for the
first respondent, Allen’s Caravans (Estates) Ltd.
Macdonald QC and Timothy Jones (instructed by Sharpe Pritchard, for the
solicitor to Wyre Forest District Council) appeared for the second respondents.
following opinions were delivered.
LORD BRIDGE
OF HARWICH: I have had the advantage of reading in
draft the speech of my noble and learned friend Lord Lowry. I agree with it and
for the reasons he gives I would allow the appeal.
LORD
BRANDON OF OAKBROOK: For the reasons given in the
speech to be delivered by my noble and learned friend, Lord Lowry, I would
allow this appeal.
LORD
GRIFFITHS: I have had the advantage of reading in
draft the speech of my noble and learned friend, Lord Lowry. I agree with it
and for the reasons he gives I, too, would allow the appeal.
LORD OLIVER
OF AYLMERTON: I have had the opportunity of reading
in draft the speech prepared by my noble and learned friend, Lord Lowry. I
agree with it and would allow the appeal for the reasons which he has given.
LORD LOWRY: The issue in this appeal is whether the word ‘caravan’ in an
application for planning permission dated November 16 1960 and relating to what
is now known as Sladd Lane caravan site (‘the site’) and in the grant of
planning permission dated December 5 1961 should be given its ordinary meaning
or the meaning assigned by the definition contained in section 29(1) of the
Caravan Sites and Control of Development Act 1960 (‘the Act of 1960’). If it
has the ordinary meaning, then, as the parties agree, the enforcement notices
of December 3 1985 served by Wyre Forest District Council (‘the council’) on
Allen’s Caravans (Estates) Ltd (‘Allen’s Caravans’) are good and the appeal of
the Secretary of State for the Environment must be dismissed; but, if the word
‘caravan’ has the meaning given to it by the Act of 1960, then the enforcement
notices are bad and the appeal succeeds.
In order to
understand the arguments on either side it is necessary to look at the
statutory background. At the time of the planning application the relevant Act
was the Town and Country Planning Act 1947 (‘the Act of 1947’), section 12 of
which dealt with the obligation to obtain permission for development. Section
12(2) defined development and section 12(5) provided as follows:
Notwithstanding
anything in this section, permission shall not be required under this Part of
this Act —
(a) in the case of land which, on the appointed
day, is being used temporarily for a purpose other than the purpose for which
it is normally used, in respect of the resumption of the use of the land for
the last-mentioned purpose;
(b) in the case of land which, on the appointed
day, is normally used for one purpose and is also used on occasions, whether at
regular intervals or not, for any other purpose, in respect of the use of the
land for that other purpose on similar occasions after the appointed day;
(c) in the case of land which on the appointed
day is unoccupied, in respect of the use of the land for the purpose for which
it was last used:
Provided that
—
(i) in determining for the purposes of
paragraph (a) of this subsection the purposes for which land was
normally used and in determining for the purposes of paragraph (c) of
this subsection the purposes for which
contravention of the previous planning control within the meaning of section
seventy-five of this Act;
(ii) paragraph (c) of this subsection
shall not apply to land which was unoccupied on the seventh day of January
nineteen hundred and thirty-seven and has not been occupied since that date.
The Town and
Country Planning General Development Order and Development Charge Application
Regulations 1950 (SI 1950 no 728) (‘the 1950 order’) made under the Act of 1947
contained inter alia directions for the making of planning applications.
Sections 21
and 22 of the Act of 1960 provided:
21. — After the commencement of this Act the use of any land as a
caravan site shall not be treated by virtue of subsection (5) of section twelve
of the Act of 1947 as a use for which permission is not required under Part III
of the Act of 1947 unless the land has been so used on one occasion at least
during the period of two years ending with the ninth day of March, nineteen
hundred and sixty.
22. — (1) Before a local planning authority grant permission for the
use of land as a caravan site under Part III of the Act of 1947 they shall,
unless they are also the authority having power to issue a site licence for
that land, consult the local authority having that power.
(2) This section shall apply in relation to permission
granted on an application in that behalf whether or not the application was
made after the commencement of this Act.
(These sections
were preceded by the cross-heading: ‘Amendments of planning law in relation to
caravan sites’.)
Section 29(1),
so far as relevant, provides:
In this Part
of this Act, unless the context otherwise requires — ‘caravan’ means any
structure designed or adapted for human habitation which is capable of being
moved from one place to another (whether by being towed, or by being
transported on a motor vehicle or trailer) and any motor vehicle so designed or
adapted, but does not include —
(a) any railway rolling stock which is for the
time being on rails forming part of a railway system, or
(b) any tent;
‘caravan
site’ has the meaning assigned to it by subsection (4) of section one of this
Act;
Section 1(4)
provides:
In this Part
of this Act the expression ‘caravan site’ means land on which a caravan is
stationed for the purposes of human habitation and land which is used in
conjunction with land on which a caravan is so stationed.
(I need not
trouble about section 13 of the Caravan Sites Act 1968, which dealt with
twin-unit caravans and amended the definition of ‘caravan’ in the Act of 1960.)
On the same
date as the Act of 1960, August 29 1960 (which for the sake of brevity I shall
call ‘D-Day’), there came into force the Town and Country Planning General
Development (Amendment No 2) Order 1960 (SI 1960 no 1476) (‘the 1960 amendment
order’), which amended the 1950 order by inserting in article 2(1) thereof the
Act of 1960 definitions of ‘caravan’ and ‘caravan site’. It also amended the
First Schedule to the 1950 order, which listed 22 classes of development
permitted under article 3 of the order by removing use as a caravan site from
the permissions granted by article 3 and Classes IV and V and by adding new
Classes XXIII (which dealt with uses as
sites).
The Town and
Country Planning Act 1962 (‘the Act of 1962’) is entitled ‘An Act to
consolidate certain enactments relating to town and country planning in England
and Wales’. By virtue of section 221(1) ‘caravan site’ had the meaning assigned
to it by section 1(4) of the Act of 1960. The material provisions of the Act of
1947, including section 12 (as well as sections 21 and 22 of the Act of 1960),
were repealed and section 13(7) of the Act of 1962 provided:
Notwithstanding
anything in subsections (2) to (4) of this section, the use of land as a caravan
site shall not, by virtue of any of those subsections, be treated as a use for
which planning permission is not required, unless the land was so used on one
occasion at least during the period of two years ending with the ninth day of
March, nineteen hundred and sixty.
On reading
this subsection it becomes clear why a definition of ‘caravan site’ was
included in this consolidating statute, although no such definition had in 1960
been inserted in the Act of 1947. It is because the new section 13(7) was to perform
the function which had been conferred on section 12(5) of the Act of 1947 by
section 21 of the Act of 1960. This definition was carried forward into section
290(1) of the Town and Country Planning Act 1971 (‘the Act of 1971’), section
23(7) of which repeats and replaces section 13(7) of the Act of 1962.
The planning
history of the site was submitted by the council. For present purposes I can
start with application KR 26/58 made by Mr R Wentworth on February 6 1958,
which was an ‘outline’ application for a ‘Luxury Caravan Holiday Centre’ and
was approved by the Worcestershire County Council on June 2 1958 as an outline
permission for a caravan site subject to siting, design and external appearance
of the caravans and subject also to additional conditions one of which was —
(b) That the site be used for the stationing of
genuine mobile trailer caravans for holiday purposes only.
On April 3
1958 Mr Wentworth made application KR 70/58/A for the siting of 50 trailer
caravans. This was approved by the county council on July 3 1958 subject to
conditions which included —
1. The
permission hereby granted shall expire on the December 31 1968 by which date
the land shall be cleared.
2. The number
of caravans on the site shall not exceed 50 without the consent of the planning
authority and only genuine trailer caravans of approved design will be allowed
on this site and bus bodies, tramcar bodies, railway vehicle bodies or any
other type of vehicle bodies, aeroplane fuselages, or similar structures,
whether on wheels or not and howsoever adapted, will not be permitted.
3. This site
shall be occupied by holidaymakers only between Good Friday and 30 September in
any one year.
On November 16
1960 Kingsford Holiday Camp Ltd, Mr Wentworth’s company and the predecessors in
title of Allen’s Caravans, made the application with which this appeal is
concerned, KR 277/60/A, to Kidderminster Rural District Council, the statutory
predecessors of the council, for development which was described in the
application as —
Continuation
of use of existing caravan site with revised layout. Use of additional area as
caravan site.
This
application was the subject of three different approvals by the
1961) was produced as an exhibit.
(1) The application was initially approved on
April 25 1961, comprising 205 caravans and subject to the following conditions:
1. The
permission hereby granted shall expire on December 31 1968 by which date the
caravans shall be removed and the use of the land as a caravan site shall be
discontinued.
2. This
permission shall allow for the use of the land as a holiday caravan site only.
3. A tree
planting scheme shall be carried out to the satisfaction of the local planning
authority before 31 March 1962.
An appeal was
lodged with the Minister of Housing and Local Government against conditions 1
and 3, but in the terms of the appeal notice the minister was informed of
negotiations taking place between the appellant and the local planning authority.
These
negotiations led to:
(2) A second approval of the application on
November 7 1961 (Reference KR 277/60/A (Revised)) subject to eight conditions
the first of which was:
1. This
permission shall allow the use of the land as a holiday caravan site only
during the period 1 March — 31 October in each year; and . . .
(3) A third approval dated December 5 1961
(Reference KR 277/60/A (Revised)), in which the period specified in condition 1
was amended to read February 1 — December 31. The other seven conditions were
the same as in the second approval and included:
2. This
permission applies only to the land edged in red on the plan submitted with the
application and the site shall be laid out in accordance with the plan.
3. No
structures shall be used for all-the-year round living accommodation.
4. This
consent relates to the siting of 205 caravans only and no fresh structure shall
be allowed on the site without the specific consent, in writing, of the
planning authority.
This third and
last permission was accepted in substitution for those preceding it and the
appeal to the minister was thereupon withdrawn.
At this point
I would recall that Mr Joseph, for Allen’s Caravans, advanced before your
lordships for the first time a supplemental argument that, since there could
not properly be three permissions granted in respect of one application, the
council have exhausted their power when granting the permission dated April 25
1961. Therefore, he contended, there must have been a new application which
became the subject of the permission dated December 5 1961 and the terms of
that permission (videlicet, ‘the council hereby permit development
comprising 205 caravans etc’) made it probable that the new application had
been not ‘for confirmation of use of existing caravan site’ but ‘for
development comprising 205 caravans’, a fact which removed any obstacle that
might otherwise be thought to stand in the way of construing ‘caravan’ in its
statutory sense. Your lordships, however, in the absence of any evidence of a
second or third application, considered that such a submission at such a stage
in the proceedings could not in the face of the council’s summary of the facts
be realistically sustained. Respectfully expressing my own view to the same
effect, I would also point out that not only the December 1961 permission but
also the permission given in April in response to the November 1960 application
was stated to be ‘for development comprising 205 caravans’.
In June 1985
Allen’s Caravans erected a chalet structure on the site which, as is common
ground, is a caravan within the meaning of the Act of 1960 but is not a caravan
within the ordinary meaning of that word. On December 3 1985 the council served
on Allen’s Caravans two enforcement notices under the Act of 1971 requiring the
removal of the chalet structure on the grounds (as stated in one notice) that
it had been erected in breach of condition 4 in the planning permission dated
December 5 1961 and (as stated in the other notice of the same date) that the
chalet structure had been erected without planning permission. Allen’s Caravans
appealed against the enforcement notices under section 88 of the Act of 1971
and, in the case of each notice, the issue for determination was the same, namely,
whether the planning permission allowed the erection of ‘caravans’ (up to a
maximum of 205) as defined by the Act of 1960, in which event the erection of
the chalet structure was lawful, or only allowed the siting of caravans in the
ordinary sense of that word, in which event the erection of the chalet
structure was unlawful.
The Secretary
of State’s inspector allowed the appeal. The council then appealed to the High
Court under section 246 of the Act of 1971 and the appeal was dismissed by Mr
David Widdicombe QC (sitting as a deputy judge of the Queen’s Bench Division).
The council then, by leave of the deputy judge, appealed to the Court of Appeal
[1989] 1 PLR 79, which allowed the appeal and refused leave to appeal to your
lordship’s House. This House, however, gave the Secretary of State leave to
appeal on condition that he did not seek to disturb the order as to costs below
and that he pay the costs of the council in this House. Thus the question falls
to be resolved by your lordships.
The appellant
and Allen’s Caravans have contended that, by virtue of sections 1(4), 21, 22
and 29(1) of the Act of 1960 and the amendments introduced into the 1950 order,
with effect from D-Day, the expressions ‘caravan’ and ‘caravan site’, when used
in planning applications and planning permissions, have (at least prima
facie) the meaning assigned to them by the Act of 1960. They support this
argument, which found favour with the inspector and the deputy judge, by
pointing to the close link between general planning control and the Act of 1960
requirement to obtain licences for caravan sites which is illustrated by a
number of statutory provisions including sections 3, 4, 16(1)(b), 17,
18, 20, 21 and 22 of the Act of 1960 and is noted in such cases as R v Kent
Justices, ex parte Crittenden [1964] 1 QB 144 and Esdell Caravan Parks
Ltd v Hemel Hempstead Rural District Council [1966] 1 QB 895. They
also rely on the absence from the planning permission granted on December 5
1961 of any restrictions on the type of caravans permitted such as are found in
the permissions dated June 2 and July 3 1958, which in turn referred to
‘genuine mobile trailer caravans’ and ‘genuine trailer caravans of approved
design’. They submit that to ascribe different meanings to the expressions in
question under the planning system and the caravan site licensing system would
dislocate the two systems of control and that the word ‘caravan’, when used in
a planning context, must be given its statutory Act of 1960 meaning unless
there is a clear indication to construe it otherwise.
Both Mr
Macdonald QC and Mr Jones, for the council, advanced as their main general
argument the proposition that the word ‘caravan’ in a planning application
submitted, or in a planning permission granted, at any time either before or
after D-Day prima facie meant a caravan in its ordinary, popular sense
and not a caravan as defined by section 29(1) of the Act of 1960, regardless of
the fact that the application and permission were, respectively, submitted and
granted under the Act of 1947 and the 1950 order (as amended in 1960) or their
modern equivalents and uninfluenced by the use of forms which indicated the
statutory code under which the application and grants of
put it, the idea that an ordinary word like ‘caravan’ should bear the same
meaning in a planning application as the meaning assigned to that word in the
order under which the application was submitted was a ‘novel doctrine’.
My lords, I
have to say that I regard the council’s proposition as quite untenable: if
Parliament in a statutory enactment defines its terms (whether by enlarging or
by restricting the ordinary meaning of a word or expression), it must intend
that, in the absence of a clear indication to the contrary, those terms as
defined shall govern what is proposed, authorised or done under or by reference
to that enactment. If after D-Day, there being no relevant planning history, an
owner has submitted an application to use his land ‘as a caravan site for 50
caravans’ and, the planning authority having granted permission without
imposing any restriction on the type of caravan allowed (I am not for the
moment thinking of conditions as to colour, design or layout), stations on the
site something which is a caravan as defined by the Act of 1960, although not a
caravan in the ordinary sense, could the planning authority then serve a good
enforcement notice requiring the landowners to remove the unauthorised
structure from the site? I scarcely
think so, yet that would be the consequence of accepting the council’s
argument. It would also seem to follow from this reasoning that, in order to be
able to bring statutory caravans on to the site, a developer must seek express
permission for ‘caravans as defined in the Order under which this application
is made’. The council’s written case makes this point by saying that any
planning authority or applicant can specify that ‘caravan’ means the word as
defined in the Act of 1960 if this is intended and by arguing that: ‘The
appellant’s case involves adding to the planning application and the planning
permission the following words: ‘as defined in the Caravan Sites and Control of
Development Act”.
Then counsel
strongly relied on Cozens v Brutus [1973] AC 854 in which an
anti-apartheid demonstrator disrupted a tennis match at Wimbledon and was
charged with insulting behaviour contrary to section 5 of the Public Order Act
1936. They submitted, by analogy, that a word like caravan in a legal document
such as a planning application or a planning permission should (as in Cozens
v Brutus) be given its ordinary, natural meaning without any artificial
restriction or expansion of that meaning. This argument, however, disregards
the obvious fact that in Cozens v Brutus the choice was between
the ordinary meaning of ‘insulting behaviour’ and the forced and unnatural
meaning adopted by the court below, whereas here the choice is between the
ordinary meaning of the word ‘caravan’ and its meaning as defined by the
relevant Act and order. The case therefore does not assist the council because
it is not relevant to the point in issue. The same can be said of Holt &
Co v Collyer (1881) 16 ChD 718 (mentioned in the council’s printed
case), which was concerned with the alleged breach of a restrictive covenant in
a lease and with the primary and secondary meanings of the word ‘beerhouse’.
The council also based an argument on the contention that members of the public
on reading a developer’s notice of application would believe that the notice
referred to ordinary caravans and so might not object to the development. This
argument, apart from any other infirmities, is founded on the debatable
assumption that the anxieties of potential objectors would be allayed by the
consoling reflection that only trailer caravans were involved.
Finally, in
support of the council’s main general argument, Mr Jones relied on Hammond
v Horsham District Council (1989) 58 P&CR 410*. The
decided to settle down and bought a piece of land on which he stationed a
twin-unit mobile home which had been designed to comply with the measurements
laid down in section 13 of the Caravan Sites Act 1968. The appellant lacked the
proper bolts but fixed the two halves of the mobile home together as tightly as
he could, leaving a gap of 2.5 cm, which meant that the home as erected
exceeded the maximum permitted width by 2.4 cm. An enforcement notice had been
issued which prohibited the unauthorised use of the land as a caravan site and
required the removal of all caravans. The council instituted proceedings
against the appellant for breach of the enforcement notice. His defence before
the magistrates was that the mobile home, because it exceeded the width
permitted by section 13, was not a caravan, but the magistrates accepted the
council’s argument that the mobile home was a caravan since it complied with
section 13 when properly erected as intended by the manufacturers. The appellant
was convicted and appealed by case stated. The headnote shows what happened in
the Divisional Court, which did not answer the questions put but remitted the
case to be determined in the light of the court’s opinion:
Held,
remitting the case back to the justices, the approach adopted by other parties
before the justices was wrong. It was fallacious to assume that the Caravan
Sites Act 1968 applied to the case. Although the 1971 Act adopts for certain
purposes the definition of ‘caravan site’ contained in the 1968 Act, there was
no such definition of ‘caravan’ in like manner. The enforcement notice was to
be construed according to the language used, not in accordance with some
assumed or presumed intention on the part of the draftsman. There was no evidence
that the local planning authority in using the term ‘caravan site’ or ‘caravan’
in the enforcement notice in this case intended that it should be used as a
term of art. Accordingly, the justices should only have been concerned with
whether such use as the appellant had made of the land at Cousins Copse was
used as a caravan site. This meant that if they were satisfied that it was used
for the appellant’s mobile home, then the only live question before them was
whether the mobile home was properly to be regarded, in the ordinary use of
language, as a caravan.
*Editor’s
note: Also reported at [1989] 3 PLR 56.
I feel bound
to say that the Divisional Court (almost inevitably, when one recalls that both
sides had prepared their arguments on what I would have regarded as the
justifiable assumption that the statutory definitions held sway) seems to have
lacked the benefit of the detailed examination of the statutory provisions with
which counsel in this appeal have provided your lordships. For example, I can
find no reference in the judgment of Leggatt J to the close link between the
Planning Acts and the Act of 1960 or to the unqualified incorporation for
general purposes of the 1960 definitions of ‘caravan’ and ‘caravan site’ in the
General Development Order of 1977 made under the Act of 1971.
The most
significant portions of that judgment for present purposes are as follows, at p
413:
When the case
was called before us, on behalf of the appellant Mr Mould accordingly expected
that he would have to deal principally with the width of the mobile home.
However, in consequence of questions put to him by the court, he was obliged to
consider first whether the width of the caravan had anything to do with the
question which ought properly to have been considered by the justices. The
fallacy of the approach adopted by both parties would appear to be the
assumption that the Caravan Sites Act 1968 applied to the case. The best that
counsel for either party was able to do in this court in seeking to suggest
that the definition contained in the Act of 1968 should be treated as material
was this. The enforcement notice was made
certain purposes the definition of ‘caravan site’ contained in the relevant
Caravan Sites Act 1960. That definition corresponds with the definition which I
have read from the Act of 1968. Accordingly it is suggested that when one finds
an enforcement notice which itself is issued under the Act of 1971 one ought to
proceed on an assumption that the use of the term ‘caravan site’ will bear the
same connotation as in the definition sections of the Caravan Sites Acts, which
are adopted in the Act of 1971 by reference, direct or indirect.
It seemed to
us, however, when that argument was relied upon in this court, that it would
lead to unsatisfactory results in law. The first objection to the reasoning
must plainly be that even if the term ‘caravan site’ were to be treated as
having been adopted in the fashion that I have indicated from the Caravan Sites
Acts themselves, there is no definition of the term ‘caravan’ which has in like
manner, or at all, been adopted for purposes of the enforcement notice.
At p 414
(after referring to Backer v Secretary of State for the Environment
[1983] 1 WLR 1485) Leggatt J said:
It is to be
observed in that case that the deputy judge concluded that the local planning
authority had used the term ‘caravan’ as a term of art when they used it in the
enforcement notice. It seems to me that that is a very dubious approach to
adopt when construing an enforcement notice. One must construe it according to
the language used, not in accordance with some assumed or presumed intention on
the part of the draftsman. In any event, in the present case there is no such
evidence that the local planning authority in using the term ‘caravan site’ or
‘caravan’ in the enforcement notice with which we are concerned, intended that
it should be used as a term of art.
And further at
p 414:
It is quite
plain from the language of the enforcement notice that there was no attempt
made in using the terms ‘caravan’ or ‘caravan site’ to confine them to any
particular definition, whether called from the Caravan Sites Act or elsewhere.
It follows that when the justices in the present case were concerned with the
question whether Mr Hammond had acted in contravention of the enforcement
notice they should only have been concerned with the question whether such use
as he had made of the site at Cousins Copse was use as a caravan site.
Dissecting that question, if they were satisfied that he had used the land as a
site for his mobile home, then the only question live before them ought to have
been whether his mobile home was properly to be regarded, in the ordinary use
of language, as a caravan. That, however, was not, for reasons I have
explained, the question which the magistrates considered.
My lords, I
have to say that none of the foregoing observations dissuade me from the view
that the terms ‘caravan’ and ‘caravan site’, when used at any time since D-Day
in a formal document under the Planning Acts, prima facie have the
meaning which they are given by the Act of 1960 as amended.
This brings me
to the council’s second argument (which was put forward as supporting, and
supported by, the main argument) that the word ‘caravan’ in the planning
application and the planning permission, properly construed, meant a caravan in
its ordinary, popular sense. This submission, of course, can stand up by itself
and indeed, subject to what I shall say later about planning principles, is a
more tenable and attractive proposition than the main argument. But the second
argument, if I am right so far, has now to be considered on the basis that prima
facie in planning applications and planning permissions the terms ‘caravan’
and ‘caravan site’ bear their statutory meanings. The party who contends for
the ordinary meaning must therefore show in each particular case that that is
the right meaning.
What the
developer sought in November 1960 was ‘continuation of use of existing caravan
site with revised layout. Use of additional area as caravan site’. Counsel
argued that, since the current use of the existing caravan site had been use as
a caravan site on which were stationed 50 trailer caravans, ‘continuation of
use’ involved continuing to use the site in the same way, that is, for the same
kind of caravans, with the layout altered and the permitted number extended to
205 (changes which would necessitate an application for planning permission,
even if the type of caravan remained the same). They referred in support to the
plan submitted with the application, on which caravans or caravan spaces were
without exception represented by ‘thin rectangular outlines’ in the shape of
ordinary caravans and to condition 2 of the permission which said, as your
lordships will recall:
This
permission applies only to the land edged in red on the plan submitted with the
application and the site shall be laid out in accordance with the plan.
Counsel also
pointed to the dichotomy, as they called it, between the words ‘caravan’ and
‘structure’ in the planning permission as indicating that the planning
authority were keeping clear of the statutory definition of ‘caravan’ under
which all ‘caravans’, including ordinary caravans, were classified as
structures.
As against
these arguments:
1. In a
situation where the word ‘caravan’ prima facie had its statutory meaning
the planning authority did not see fit to restrict development to trailer
caravans. This was in contrast to the express insistence on trailer caravans in
both of the permissions granted in 1958 at a time when none but ordinary
caravans would have been accepted as ‘caravans’. One can therefore say that
both in 1958 and in 1961 the effect of the permission was simply to restrict
development to the kind of caravans that would in each of those years have been
recognised as lawful. It would therefore be surprising to find no express
restriction in the 1961 permission if the planning authority’s intention had
been to restrict the permitted type of caravan to ordinary caravans by
excluding a type of ‘caravan’ which by then constituted lawful development.
2. The
reference to ‘continuation of use’ should not (because it need not) be
construed so as to confine the proposal to ordinary caravans and exclude
‘caravans’ which were then prima facie lawful.
3. The
outlines on the plan were consistent with the stationing of ‘caravans’ of
non-trailer type; this helps to show that the word ‘caravan’ is not by virtue
of the plan confined to its ordinary meaning.
4. The
expressions ‘layout’ and ‘laid out’ signify the way in which the caravans are
to be placed and distributed on the site and not the type or shape of caravan
proposed or permitted and condition 2 should be construed accordingly.
5. Condition 2
was not relied on in the enforcement notice, although condition 4 was expressly
alleged to have been breached.
6. It is
debatable whether the alleged contrast between ‘caravan’ and ‘structure’ exists
but, rather than explore that question, I would give a shorter answer: the
contrast relied on does not serve to narrow the meaning of ‘caravan’ to
‘ordinary caravan’. I cannot, incidentally, entertain the proposition that, by
contrasting ‘caravan’ with ‘structure’, the planning authority showed that it
was consciously avoiding the statutory definition. On that assumption it would
again be difficult to believe that the planning authority would have failed to
impose an express restriction on the type of caravan to be allowed. It is
equally unlikely that the authority charged with the
statutory definition in the Act of 1960.
The arguments
on either side should also be considered in the light of an important principle
of planning law: a planning permission is not a mere personal licence granted
to the applicant but can be said to run with the land. A purchaser of land has
an interest to know what development is permitted thereon, but neither the
planning application (if available) nor the planning permission will reveal the
history of the use of the land. How, then, can the document granting permission
best be construed?
In Slough
Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at p 962,
Lord Reid made the following observations:.
My Lords, for
the reasons given by my noble and learned friend, Lord Pearson, I would dismiss
this appeal. But I wish to add a few observations about the question of law
which is involved. The appellants argued that in construing the planning
permission with which we are concerned it is proper to have regard to all
relevant facts known to the planning authority when the permission was given —
in this case correspondence which had passed between the parties. We did look
at this correspondence before deciding whether it was admissible, and in my
view it does not help the appellants so it is unnecessary to reach a decision.
But as the matter was argued and is of general importance I think I should
state my opinion.
It is well
settled that the court in construing a will or a contract must put itself in
the shoes of the testator or the parties by admitting in evidence all relevant
facts known at the time by the testator or by both the parties. But in my view
it does not at all follow that the same applies to a public document. It could
not possibly apply to a Minister making a statutory instrument. How far can it
apply to a written grant of planning permission? This is available to purchasers from the
person who originally obtained the permission. They may have no means of
discovering what facts were known to the planning authority. It is true that
the person who originally obtained the permission would be likely to know. But
the question may arise after many years. And it could hardly be that the
permission could mean one thing in the hands of the original owner and
something different in the hands of a purchaser from him.
There is not
much authority on the matter. We were referred to two cases. In Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196 the
permission granted was, if its words were given their ordinary meaning, wider
than what had been asked for in the owner’s application. But it was held not
proper to use the application to cut down the ordinary meaning of the
permission. On the other hand, in Sussex Caravan Parks Ltd v Richardson
[1961] 1 WLR 561 there are observations by Harman LJ, at pp 566-567, to the
effect that in construing an entry in a valuation list it is permissible to
have regard to extrinsic evidence and the appellants relied on them. They were
not essential to the decision and are not supported by the judgment of Holroyd
Pearce LJ.
Of course,
extrinsic evidence may be required to identify a thing or place referred to,
but that is a very different thing from using evidence of facts which were
known to the maker of the document but which are not common knowledge to alter
or qualify the apparent meaning of words or phrases used in such a document.
Members of the public, entitled to rely on a public document, surely ought not
to be subject to the risk of its apparent meaning being altered by the
introduction of such evidence.
And in R
v Secretary of State for the Environment, ex parte Reinisch (1971) 22
P&CR 1022 at p 1029 (a case relied on by the council to show that a plan
may be a guide to the meaning of a planning permission) Lord Widgery CJ said:
Planning
permissions are not construed by the canons appropriate to contracts; the
intention of the parties, which is all important in the
planning permission. A planning permission is effective if it so accurately
describes the development to be carried out that anyone taking the permission
and its accompanying plans and applications to the land will be able to see,
without doubt, precisely what it is which has been authorised.
Therefore, in
a case like the present, any uncertainty which exists or could be claimed to
exist as to the meaning of the planning permission should, it seems, be
resolved by adhering to the statutory definitions which prima facie
represent the meaning of the words defined.
Mylords, I
turn to the judgment of Mann LJ, in the present case in the Court of Appeal,
with which the other members of the court agreed. In the course of reciting the
facts he said [1989] 1 PLR 79 at p 80H:
It is to be
recollected that the application to which reference is made, and which can be
taken into account in accord with established authority in construing the permission,
was ‘the continuation of use of existing caravan site’.
(This could
help the council only if the planning application on its true construction
referred exclusively to ordinary caravans.)
Having set out
conditions 1 to 4 of the planning permission, the lord justice said at p 81A:
It is to be
observed that there is a dichotomy between ‘caravans’ and ‘structures’.
He then said
at p 81B:
As to
‘ordinary and natural meaning’, reference may be made to, for example, Viscount
Dilhorne’s speech in Cozens v Brutus [1973] AC 854 at p 865G.
My lords, I
believe that I have already dealt sufficiently with those three points.
A later
paragraph in the judgment, at p 81G reads:
The Town and
Country Planning Act 1947, which was the primary legislation in force at the
time of the planning application in 1960 and of its determination, does not
refer to ‘caravan’ or ‘caravan site’ at all. Its innocence in that regard was
disturbed by sections 21 and 22 of the 1960 Act which were repealed by the Town
and Country Planning Act 1962. Section 21 of the 1960 Act provided:
‘After the commencement of this Act the
use of any land as a caravan site shall not be treated by virtue of subsection
(5) of section 12 of the Act of 1947 as a use for which permission is not
required under Part III of the Act of 1947 unless the land has been so used on
one occasion at least during the period of two years ending with the ninth day
of March 1960.’
The purpose
of that provision was to take away certain existing use rights — that is rights
existing on July 1 1948. The Act of 1947 permitted a reversion and some
temporary use and permitted occasional uses to continue, and also dealt with
unoccupied land.
My respectful
comment is that this treatment fails to recognise the full effect of section 21
of the Act of 1960, which was in reality to add to section 12(5) some such
words as: ‘This provision does not permit use as a caravan site, as defined by
the Act of 1960, unless the land has been so used at least once during the
period of two years ending on 9 March 1960’. I refer again to section 13(7) of
the Act of 1962 and section 23(7) of the Act of 1971 and to the definition of
‘caravan site’ in those Acts as already noted.
The lord
justice then dealt with the amendment by the 1960 amendment
with respect, that the general importance of inserting the relevant definitions
into the 1950 order has been understated and that it is obligatory for the
argument in favour of the council to deal with the addition of those
definitions to the 1950 order, which governs both planning applications and
planning permissions in general, as well as catering for the particular matters
noted by the lord justice. That, in my view, has not been done.
In a passage
which noted the present appellant’s change of front in the Court of Appeal the
lord justice then said, at p 82E:
The
[Secretary of State] suggested, but withdrew the suggestion, that the
application of November 16 1960 in the terms which I have recited must be taken
to have been enlarged by the change in the law effected as from August 29 1960.
I cannot accept that for a moment. An application is for what it is and is not
capable of enlargement in the way suggested.
I must
respectfully disagree. If my conclusion as to the soundness of the council’s
main argument is correct, then your lordships are concerned not with the
enlargement of the terms in an application but with the possible narrowing of
their prima facie statutory meaning as defined in the Act of 1960.
The lord
justice continued, at p 82E:
On behalf of
[Allen’s Caravans] Mr Joseph, in the course of his careful argument, suggested
that as from August 29 1960, any application in regard to caravans must be
considered against the background of the definition of ‘caravan sites’ injected
into the law as from that date. For my part, and with respect, I regard that as
quite unrealistic. The application was for continuation of use of an existing
caravan site with revised lay-out. That must have been an application which
regarded caravan in the traditional or ordinary and natural meaning of the
word. I am reinforced in that view by the permission in fact granted, which
differentiates between caravans and structures. If it had been intended to grant
a permission — which I do not think could have been granted because it would
have enlarged the terms of the application — in terms of the recently
introduced definition of ‘caravan’, it would have been easy to say so and there
would have been no differentiation such as one finds in the conditions.
This
paragraph, consistently with the preceding one, by necessary implication
accepts the council’s main point and contains a further reference to
continuation of use and the dichotomy theory. The last sentence follows
logically from what goes before but reverses the onus of proof which my
conclusion involves. For my part, I adopt the reasoning of the deputy judge
which the Court of Appeal rejected:
In a document
issued under the Town and Country Planning Act this phrase (that is, the
expression ‘caravan site’) must bear the meaning which it has in that Act (I
would add ‘and in the General Development Order’), unless there is some clear
reason why it should not do so.
Like the
deputy judge, I can see no such reason here and therefore I would allow this
appeal.
Appeal
allowed.
