England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR. TIMOTHY CORNER QC
(Sitting as a Deputy Judge of the High Court)
[2009] EWHC 754 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/02/2010

Lord Justice Pill :

1. This is an appeal by Mr Roger Michael Green ("the appellant") against the judgment of Mr Timothy Corner QC, sitting as a Deputy Judge of the High Court, on 19 March 2009 whereby applications by the appellant and by Canterbury City Council under section 288 of the Town & Planning Act 1990 ("the 1990 Act") were refused. They sought to quash a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") dated 24 June 2008 by which planning permission was granted for development on land at Moate Farm, Stodmarsh Road, Fordwich, Canterbury, Kent ("the appeal site").
2. The decision was taken by an Inspector appointed by the Secretary of State following a three day Inquiry, which included site visits, in early April 2008. The Inspector's task was to determine an appeal under section 78 of the 1990 Act, as amended, against a decision of Canterbury City Council refusing an application by Mr Shane Jones for planning permission in relation to the appeal site. The development proposed was "the siting of 3 x 40 ft x 20 ft caravans for all year round dwellings". A previous decision of the Secretary of State, issued on 7 May 2004, to allow the appeal had been quashed by order of the High Court, affirmed in the Court of Appeal.
3. The Inspector also had to determine appeals made by Mr Joseph Jones, Ms Angie Jones and Mrs Bridie Jones under section 174 of the 1990 Act, as amended, against enforcement notices issued by the local planning authority in relation to their use of the appeal site. The third to sixth respondents are accepted to be persons of nomadic habit of life within the meaning of paragraph 15 of ODPM Circular 01/2006.
4. The Inspector allowed the appeal under section 78 and granted planning permission, "subject to the conditions set out in the formal decision below". Having corrected the relevant enforcement notices, the Inspector dismissed the appeals against them and upheld the notices. He refused to grant planning permission on the applications deemed to have been made, under section 177(5) of the 1990 Act, as amended, by reason of the section 174 appeals.
5. In relation to the Inspector's decision, the appellant submitted that three issues are raised on this appeal:

(i) Did the judge err in finding, without giving reasons, that the Secretary of State could lawfully grant on appeal planning permission for development that is substantially different from that applied for or consulted upon?

(ii) Did the judge err in finding that the Secretary of State's reasons for granting planning permission for eight caravans, as defined in the Caravan Sites & Control of Development Act 1960 ("the 1960 Act") and the Caravans Sites Act 1968 ("the 1968 Act"), together with a timber shed and all ancillary development on the appeal site, but refusing to grant permission for the retention of the continued use of the existing structures on the site, could not be impugned?

(iii) Did the judge err in awarding costs against the appellant in favour of the third and fifth respondents?

6. Section 29 of the 1960 Act 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) . . . "

7. Section 13 of the 1968 Act provides:

"(1) A structure designed or adapted for human habitation which -

(a) is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and

(b) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer),

shall not be treated as not being (or as not having been) a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 by reason only that it cannot lawfully be so moved on a highway when assembled.

(2) For the purposes of Part I of the Caravan Sites and Control of Development Act 1960, the expression "caravan" shall not include a structure designed or adapted for human habitation which falls within paragraphs (a) and (b) of the foregoing subsection if its dimensions when assembled exceed any of the following limits, namely -

(a) length (exclusive of any drawbar): 65.616 feet (20 metres);

(b) width: 22.309 feet (6.8 metres);

(c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres)."

Issue (i)

8. The issue, as stated by the appellant, was the starting point for submissions but these ranged over a broader area covering the relevance and impact of the concepts of lawful intensification of use and ancillary uses and the extent of the permission granted when read with the conditions attached to it. Issues (ii) and (iii) can be considered separately and within the parameters stated by the appellant.
9. The main issue before the Inspector was whether any planning permission for caravans should be granted. In the decision letter, the Inspector dealt with the environmental issue in a way which could not be and is not challenged. He considered the effect of the proposed development on the character and appearance of the surrounding rural area and on the residential amenity of nearby residents. He had regard to policies about gypsy accommodation needs.
10. The Inspector concluded, at paragraph 46, that "the development is acceptable in principle as a gypsy caravan site for 3 plots". He expressed his conclusions at paragraph 49:

"I conclude on the section 78 appeal that the proposed development would preserve the character and appearance of the rural area, it would not harm residential amenity, it would not harm the setting the Conservation Area or views into and out of it, that it could be satisfactorily screened, and that it is in a sustainable location as a gypsy site. All the relevant Development Plan policies are satisfied."

Condition 2 limits use of the appeal site to "persons of nomadic habit of life".

11. Under the heading "conditions" the Inspector stated:

"47. The use of the land is clearly only appropriate for gypsies or travellers who fall within the definition in the Circular, and I shall impose a condition to restrict the use of the land in that regard. It is necessary to prevent unacceptable encroachment on the countryside and therefore I shall limit the area to be used for residential purposes and the use of the access road. It is also necessary to limit the number of pitches and statutorily defined caravans to protect the rural area.

48. It is also reasonable and necessary to control commercial or industrial activities on the site to protect the character of the area. As there is a need for enhancement of the landscaping and for clarification of the proposed layout, a condition to deal with this is also necessary, with a timetable to ensure that it is complied with, failing which the use will cease. I have also attached a condition for replacement planting and to ensure that the structure on Plot 3 is removed."

12. The Inspector's formal decision appears at paragraph 63:

"I allow the section 78 appeal, and grant planning permission for the siting of 3 x 40ft x 20ft caravans for all year round dwelling at [the appeal site] in accordance with the terms of the application dated 6 June 2001, and the plans submitted with it, subject to the following conditions.

1) The development hereby permitted shall begin not later than three years from the date of this decision.

2) This permission does not authorise the use of the land as a caravan site by any persons other than Gypsies and Travellers, as defined by paragraph 15 of ODPM Circular 01/2006.

3) Only that part of the land shown hatched black on the plan annexed to this decision shall be used for residential purposes, and that part of the land shown cross-hatched black on the plan shall only be used for an access road and shall not otherwise be used for the purposes hereby permitted including any purposes ancillary thereto.

4) At no time shall the residentially occupied part of the land be subdivided into more than 3 separate pitches.

5) No more than 2 caravans including no more than 1 static caravan shall be stationed on Plot 1; no more than 3 caravans including no more than 2 static caravans shall be stationed on Plot 2; and no more than 3 caravans including no more than 1 static caravan shall be stationed on Plot 3. All of the caravans shall be as defined in Part 1 of the Caravan Sites and Control of Development Act 1960 and section 13 of the Caravan Sites Act 1968 as amended by Statutory Instrument 2006 No.2374: The Caravans Sites Act 1968 and Social Landlords (Permissible Additional Purposes) (England) Order 2006 (Definition of Caravan) (Amendments) (England) Order 2006.

6) No commercial or industrial activities shall take place on the land, including the storage of materials, and no vehicles exceeding 7.5 tonnes shall be kept on the land."

13. Condition 7:

"The use hereby permitted shall cease and all caravans, structures and materials brought on to the land for the purposes of such use shall be removed within 28 days of the date of failure to meet any of the requirements set out in (i) to (iv) below."

14. Paragraph (i)(a) of condition 7 provides:

"(i) within 3 months of the date of this decision:

(a) a scheme for the layout of the site including the extent of each of the 3 pitches, the position on each pitch of the caravan bases for static caravans and the position of the touring caravans; associated parking and other hard-surfaced areas; and a scheme for the landscaping of the site which shall include details of plant species, plant sizes and proposed numbers and densities, fencing, gates, external lighting and surface treatment including the access drive."

On the plan annexed to the permission the 3 'plots' or 'pitches' are described as 'units'.

15. For the appellant, Mr Colville submitted that the permission is unlawful because it permits a development substantially different from the development applied for. On its face, and read with condition 5, 4 "static caravans" are permitted when only 3 "all year round dwellings" were applied for. (It is common ground that the expression "all year round dwellings" in the application is to be treated as having the same meaning as "static caravan" in condition 5). One reason for this rule is that members of the public will know, or at least have the opportunity to know, what the applicant for planning permission is seeking. That will determine their reaction to the application and any representations they make.
16. Further, the general law would permit an intensification of the use without rendering the use unlawful provided the character of the use was maintained. That is different from residential developments consisting of housing where the construction of an additional building, as well as its use, would require permission.
17. The permission, read with condition 5, permits 8 caravans and, that being so, it is feared that the effect of the permission would be that substantially more caravans could be put on the site as a legitimate intensification and without breaching planning control. It is submitted that permission for 8 may constitute a bench mark against which further intensification of use is to be measured.
18. Consideration has not been given to the effect of the permission read with the conditions, it was submitted. Whether or not what is granted is substantially different from what was applied for, the lack of clarity and the ambiguity in the expressions used makes the permission unlawful. If issues of intensification of use are to be dealt with by way of condition that must be done clearly and unambiguously. Mr Colville does not dispute, and indeed asserts, that when considering whether the permission granted is substantially different from that applied for, it is to be construed together with the conditions imposed. He cited R v Ashford BC Ex parte Shepway District Council [1999] PLCR 12 at 19.
19. A further possibility arises, it was submitted, of the positioning of further caravans on that part of the appeal site which on the plan accompanying the position is shown as a vehicle park and which is not cross-hatched as access road. It is feared that, on the permission as worded, further caravans could be positioned on that part of the site. The concern is about the positioning of further static caravans on the plots and the positioning of both types of caravan on the vehicle park. A person affected, not knowing of these possibilities, should have the opportunity to make representations on a fresh application for permission.
20. For the Secretary of State, Mr Forsdick submitted that, on a true and fair reading, the effect of the permission is clear and it is lawful. Both Mr Forsdick and Mr Cottle, for the third and fifth respondents, emphasised that the permission with its conditions is to be read in the context of well-established principles of planning law and practice, as applied to caravan sites, which emerge from the statutes and from policy guidance.
21. Mr Forsdick accepted that it is not open to a planning authority to grant permission for something substantially different from that applied for (Wheatcroft (Bernard) Ltd v Secretary of State for the Environment [1982] 43 P&CR 233). Once permission for use as a caravan site is granted, intensification of use does not in itself constitute a material change unless it is intensification of such a degree as to amount to a material change in the character of a use (Blum v Secretary of State for the Environment & Anr [1987] JPL 278 at 280). Further, such a permission inevitably brings with it permission to carry out ancillary development permitted, and indeed required, by the 1960 Act. Inherent in a planning application for the siting of three large static caravans for all year round dwellings is the potential for a more intense use of the site.
22. It is accepted that where permission is granted to "persons of nomadic habit of life" for a static caravan, the positioning on the pitch of a touring caravan is legitimate as an ancillary use. Mr Forsdick's central submission is that, with concepts of intensification of use and ancillary use in mind, the Inspector has, by conditions, effectively limited the full extent of the use which can be made of the site by the positioning of caravans. Given the nature of the application for permission, he has removed and not created uncertainty. Moreover, on analysis the grant is not substantially different from that applied for.
23. The wording of the conditions is such that any potential ambiguity can now be resolved by the court thereby making clear what is and is not permitted, it was submitted. Under section 171A of the 1990 Act, as amended, failure to comply with any condition or limitation subject to which planning permission has been granted constitutes a breach of planning control.
24. At the inquiry, there was a "round table" discussion as to what conditions should be imposed if permission were to be granted. The respondents rely on the absence of complaints or counter-submissions by the appellant, who was represented by counsel, to the conditions submitted by a witness on behalf of the respondents, which in the event were substantially accepted by the Inspector.
25. I do not regard that lack of complaint as an important factor in the present appeal. An objector who totally opposes a form of development such as this one is in a difficult position when conditions are discussed. He may in present circumstances be reluctant to make positive proposals as to what conditions might lawfully be imposed if permission is granted. In any event, whatever lack of objection, conditions can only stand if they are lawful. I note the assurance of the represented respondents, given on their behalf by their counsel at this hearing and (including the sixth respondent who made the planning application) before the Inspector, that they are not seeking a development such that the fears of the appellant as to its extent would materialise.
26. The underlying issue in the case is whether a planning permission which on its face is subject to forceful criticism on the grounds that it grants more than was applied for, that it lacks clarity and is based on sparse reasoning can be upheld in the context of an application of planning law, backed by planning guidance, in the particular context of a caravan site. Before referring further to submissions, I refer to the documents cited to the court.
27. Mr Forsdick referred to the 1960 Act, section 1 of which provides that it is unlawful to cause or permit any land to be used as a caravan site unless a licence under the Act is in place. No such licence can be issued unless there is a planning permission for the use of the site as a caravan site (section 3(iii)). Once a licence is granted, planning permission is automatically granted by Class B of Part 5 of Schedule 1 to the Town & Country Planning (General Permitted Development) Order 1995 for the wide range of developments required by the conditions of the site licence under the 1960 Act.
28. Section 5 of the 1960 Act confers a power on local authorities to attach conditions to site licences and section 5(vi) provides that the Minister may specify for the purposes of the section model standards with respect to the layout of, and the provision of facilities, services and equipment for, caravan sites. Department of the Environment Circular 14/89 provided standards which deal with density and space between caravans, internal roads, gateways and footpaths, hard standings and fire fighting appliances, water supply and drainage, sanitation and washing facilities. The regime provided under the 1960 Act permits detailed control of the use which may be made of caravan sites.
29. ODPM Circular 01/2006, accepts in annex C, paragraph 7, that, while setting a maximum number of caravans as a blanket policy is arbitrary, "any maximum should be reached through planning conditions but should be related to circumstances of the specific size and location of the site and the surrounding population size and density". Provision must be made for touring caravans as well as permanent residential accommodation. A good practice guide issued in May 2008 by the Department for Communities and Local Government provides, at paragraph 7.12:

"Nevertheless, as a general guide, it is possible to specify that an average family pitch must be capable of accommodating an amenity building, a large trailer and touring caravan, (or two trailers, drying space for clothes, a lockable shed (for bicycles, wheelchair storage etc), parking space for two vehicles and a small garden area."

30. Guidance issued by the Planning Inspectorate dealing with appeals under section 78 and section 174 of the 1990 Act recommends that numbers required should be established early on in the proceedings and likely intention should be clarified. It is stated:

"One mobile home and one tourer (often used for sleeping in throughout the year where there is inadequate space in the mobile home) is the normal minimum for a single gypsy family."

31. Suggested conditions in gypsy permissions in advice produced by the Planning Inspectorate suggests conditions limiting, in several possible ways, the number and type of caravans permitted (paragraphs 8 to 11). The use of the word "pitches" in permissions is also advised.
32. These policy documents are cited with a view to demonstrating the context in which planning permissions for gypsy caravan sites and conditions contained in them should be read.
33. Mr Colville referred to the absence of any definition of the expression "static caravans" in the permission or of the expression "touring caravans". The condition does not limit the positioning of caravans on that part of the appeal site shown as a vehicle park, as distinct from plots 1, 2 and 3. It was submitted that if a caravan was not "plumbed into" the appeal site it could be argued by a user that it was neither a "static" caravan nor a "touring" caravan so that, as a legitimate intensification of use, a further caravan could lawfully be placed on the plot. Nor did the conditions make clear that the towing caravans contemplated in addition to the static caravans in condition 5, were allowed as ancillary to the static caravans, that is to be used by the same family unit. The appellant's fear is that the planning permission read with the conditions permits 8 caravans and the number could be increased significantly without breaching planning control unless the character of the use of the site is altered.
34. Mr Forsdick submitted that conditions 4, 5 and 7 must be read together. The "touring caravans" in condition 7(i)(a) are clearly the caravans other than static caravans contemplated in condition 5. Thus there is a total limit of 8 caravans on the 3 pitches, 4 static and 4 touring. The expression "touring caravans" in condition 7 is used in the planning guidance and bears the meaning of a caravan capable of being towed by a bar and hitch.
35. The 3 "plots" in paragraph 49 by the Inspector's report and condition 5 are clearly the same areas as the "3 pitches" in condition 7 and condition 4 (also described as 'units' in the plan annexed to the planning decision). The effect is to confine the positioning of caravans to those 3 plots or pitches which, under condition 4, cannot be sub-divided. The prohibition against sub-division in condition 4 demonstrates that each pitch is for one family. Further, the residentially occupied part on the land is to be on the 3 pitches identified and the positioning of caravans on that part of the appeal site proposed for a vehicle park would be contrary to the conditions stipulated. Against the background of planning guidance, the touring caravans mentioned are plainly intended for a use ancillary to the static caravans, that is by the same family which occupies the static caravan.
36. I will not conceal my discomfort in having to construe the conditions creatively, particularly in the absence of any detailed reasoning by the decision maker.
37. In Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636, the House of Lords considered a submission that a condition attached to a permission to build a pair of cottages was ultra vires or was void for uncertainty. Members of the Committee conducted a detailed analysis before concluding, by a majority, that the condition was valid. Lord Keith of Avonholm stated, at page 671:

"Reading the condition as a whole I do not find any insuperable difficulty in arriving at a reasonable and clear idea of the content of the condition."

38. Lord Cohen agreed with the analysis of Lords Denning and Jenkins. Lord Denning stated, at page 678:

"For I am of opinion that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents."

Following a very detailed analysis of the condition in its statutory context, Lord Jenkins reached the same conclusion.

39. Encouraged by the willingness of their Lordships to conduct that analysis, I have come to the conclusion that, considered on its own wording and in the context of policy guidance in relation to caravan sites, the permission, with its conditions, is capable of being read and should be read in the manner advocated by Mr Forsdick, whose analysis I adopt. The positioning of more than 8 caravans, including 4 static caravans, on the appeal site would constitute a breach of planning control which could lead to enforcement proceedings. I have no doubt that the Inspector was intending to limit by conditions the total number of caravans to be permitted on site and the wording he has adopted, in my view, achieves that object. Development beyond that contemplated by the conditions, as so construed, would be in breach of planning control.
40. If the Inspector's decision is read in the context of the planning guidance, and model conditions, it appears clear to me what the Inspector intended, though his intentions could, with respect, have been expressed more clearly, including in the conditions imposed. He found the development acceptable "as a gypsy caravan site for 3 plots" (paragraph 46). At paragraph 47, he said it was "also necessary to limit the number of pitches and statutorily defined caravans". He intended to use planning conditions as a way of imposing a specific restriction on the maximum use which could be made of the site for caravans. The concepts of intensification of user and of ancillary use would otherwise have left a vagueness which could have given rise to future disputes. I have come to the conclusion that the conditions are lawful and are sufficiently clear to define the extent and limits of the permission granted. In any future cases, it should be possible to express the decision maker's intentions in a plainer way.
41. A similar approach was followed by Davis J in Dowling v Secretary of State [2007] EWHC 738 (Admin). Davis J stated, at paragraph 28:

"Such condition is not designed to and does not have the effect of expanding or enlarging the planning permission granted. Rather it is designed and has the effect of regulating and controlling it."

Davis J added, at paragraph 29:

"That, to my way of thinking, makes excellent sense. It seems to me to be that which was intended and it seems to me to be adequately covered by the wording of the condition used."

42. It follows from my conclusion that the planning permission is upheld. The sixth respondent obtains what he seeks and the appellant obtains a clarification of the extent of the permission.

Issue (ii)

43. Mr Colville submitted that the Inspector could not rationally conclude that the development at present on the appeal site is materially worse than that to be permitted. Having concluded that the enforcement notices should be upheld because the present use of the site is unacceptable, the Inspector could not rationally conclude that the expanded use for which he gave permission was acceptable.
44. The Inspector stated his reasons succinctly:

"53. There seems to me to be a significant difference on this issue compared with the section 78 appeal. That is that the development on the site is substantially more than is acceptable under the section 78 appeal, with one of the structures being marginally outside the definition of a caravan, with other structures being wholly outside the definition of a caravan and almost certainly not able to be moved, and other items seemingly randomly scattered on the land.

54. The site is unattractively developed, and is harmful in the countryside due to its out-of-keeping and insensitive intrusion. It has a damaging impact on the countryside, and is not covered by the very specific guidance in the Circular, which relates to gypsy and traveller caravans, properly controlled to make their effect acceptable. For these reasons I find the development unacceptably harmful to the character and appearance of the rural area, which it fails to protect. In consequence it fails to satisfy the relevant Development Plan policies."

45. Even leaving aside the issue of intensification of use beyond 8 caravans, it could not rationally be concluded, it was submitted, that the impact of the permitted development, by reference to planning policies, was less than that found by the Inspector to be "substantially more than is acceptable".
46. What the Inspector had in mind when using that expression were features of the current use other than the number of caravans on site, that is the presence of structures outside the definition of caravan, and the unattractive nature of the present use with "items seemingly randomly scattered on the land". The Inspector's view appears to have been that the permission granted, with its detailed conditions as to the use and landscaping of the site, involves an improvement which justifies the grant of permission whereas the condition of the existing site is unacceptable.
47. There is force in the appellant's submissions but I bear in mind the reluctance of courts to embark on planning assessments, which are the function of the planning authority. Notwithstanding the brevity of the reasons given, they are, in my judgment tenable and I am not prepared to hold that the Inspector's decision to allow the section 78 appeal, having upheld the enforcement notices, was irrational.

Issue (iii)

48. The judge awarded a second set of costs to the successful third and fifth respondents Mrs Bridget Jones and Ms Angie Jones who live on the appeal site. The fifth respondent is recorded as having been an appellant at the Inquiry. The third appellant did not give evidence and is not recorded as having made an appearance at the inquiry but we are told by counsel that she was present.
49. The judge accepted that these respondents did not deal with separate issues and that the basic principle is that the Secretary of State can be expected to defend her own appeal decisions. He stated that they should recover no more than half their costs and assessed the sum at £2,000.00 of which half was to be paid by the Appellant.
50. The order appears to have been made on the basis that the third and fifth respondents were at risk of losing their homes, a risk which Mr Cottle underlined when seeking to uphold the judge's ruling. Mr Cottle also submitted that the position of the Secretary of State was not clear to his clients, written submissions not having been submitted until one week before the hearing. The judge cited the decision of Sullivan J in London Borough of Bromley v Secretary of State & Anr [2001] EWHC Admin 561 where the judge awarded a second set of costs on the basis that the second defendants were "in a peculiarly good position to put that background material before the court and, indeed, did so very helpfully".
51. Mr Shane Jones, whose appeal under section 78 of the 1990 Act led to the hearing in the High Court, did not have separate representation. The third and fifth respondents had a separate interest in their appeals under section 174 of the Act but did not have a direct interest in the section 78 appeal which proceeded to the High Court.
52. I accept, of course, the broad discretion a judge has on costs, but there was in my judgment no basis upon which the judge could properly award a second set of costs to the third and fifth respondents in this case. I do not consider that they have shown a separate issue on which they were entitled to be heard or that they had an interest which required separate representation (Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176 at 1178). The likelihood that, if the appeal had 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 is not a sufficient basis.
53. I would dismiss the appeal on issues (i) and (ii) and allow it on issue (iii).

Lady Justice Arden :

54. I agree.

Lady Justice Smith :

55. I also agree.