ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
MR JUSTICE BLAKE
|MR M WALL, MR M BLACK, MRS S WALL, MR D BIRCH,|
|MR D CARTER, MR M JAMES||Appellants|
|WINCHESTER CITY COUNCIL||1st Respondent|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Interested Party|
(DAR Transcript of
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Mr Trevor Ward (instructed by Winchester City Council) appeared on behalf of the First Respondent
The Interested Party did not appear and was not represented
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"the material change of use of the Land from use as a Travelling Showperson's site to a use for siting of caravans/residential mobile homes for occupation by persons who are not Travelling Showpersons, and the storage of vehicles, equipment and materials in association with the operation of businesses unrelated to that of travelling showpeople."
The Inspector's Decision
"Without planning permission, the material change of use of the Land from use as a Travelling Showperson's site to a use for the siting of caravan/residential mobile homes for occupation by persons who are not Travelling Showpersons, the erection of buildings/structures on the land and the storage of vehicles, equipment and materials in association with the operation of businesses unrelated to that of travelling showpeople."
"The appellants submitted two separate arguments on this ground: firstly, that the planning permission should be interpreted as being simply 'use as a residential caravan site' and not restricted to just travelling show people and secondly, that the occupants, in any event, were travelling show people so even if the permission restricted who could occupy the site, the existing occupants came within that restriction. If either argument was successful, there had been no breach of planning control, so the appeals should succeed and the Notices should be quashed."
"There was no dispute that the permission had been implemented and, so far as could be determined from the available records, conditions that required various matters to be agreed have been submitted and implemented. There was no submission, therefore, that what had taken place was development without any planning permission."
I had thought that it followed from the Inspector's conclusion that the planning permission had been implemented, that, at least initially, the site had been used as a travelling showpeoples' site, and that the Council's complaint was that there had subsequently been a material change of use to a caravan site that was occupied by persons who were not travelling showpersons. Before the Inspector it was submitted, on behalf of the appellants, that the site had historically been used to accommodate showmen and that the majority of the appellants, or their partners, had lived on the site for many years and that four of the appellants had previously been accepted by the Council as travelling showmen.
"I acknowledge that it is a matter of law but in my view, I'm Your Man decided a point of principle concerning limitations on planning permissions; it was not concerned with the detail of what type of limitation was being debated. In these circumstances I conclude that it is clear that the 2003 planning permission is not limited as there is no condition attached to it that restricts occupancy and the legal agreement, which does contain a restriction, was not incorporated into the permission."
"Taking all these factors into consideration I conclude that the 2003 permission, in line with the decision in I'm Your Man, is for the use of the land as a residential caravan site with no restrictions on whom may occupy the site. In those circumstances the appeals succeeds on ground (b) and the notices as corrected and varied will be quashed."
So the Inspector allowed the appeals on ground (b) and quashed the enforcement notices.
The Judgment Below
"45. The unifying feature of I'm Your Man, Altunkaynak and Smout is that the use remained the same, with or without the purported restriction or limitation. The restrictions all related to the manner in which the use could be exercised, not as to the extent of the use itself. This case is very different, because the issue turns on the extent of the use itself.
46. In my judgment everything points to the 2003 grant being one of permission to use the land as a travelling showpeoples' site. Not only is this what was applied for, and was granted in the short description, it is also consistent with the conditions which I have set out in paragraph 6 of this judgment. Nowhere is it described as a residential caravan site, nor are the conditions taken as a whole appropriate for such a site. The only sensible construction is that it was a site for travelling showpeople only.
47. In short, this was not the grant of permission to use the land as a residential caravan site, with an ineffective attempt to limit that use to travelling showpeople. It was the grant of permission to use the land as a travelling showpeoples' site, which is a distinct and narrower use, without any further attempt to limit that use."
Mr Mott allowed the Council's appeal under section 289.
The Appellants' Submissions
"But in the particular circumstances of this case I am satisfied that this particular cottage was subject, by the terms of the respective planning permissions, to a limitation in relation to its user. What the position would have been if there had been no modification order, and supposing, after being occupied by a person bona fide engaged in agriculture, there had been a change of occupant to somebody not engaged in agriculture, I do not think it is possible for this Court here and now to decide. It would be a question of fact having regard to all the circumstances of the case whether the change amounted to a material change of use. Whether the possible right to install a subsequent non-agricultural occupant had a cash value, which has been lost as a result of the condition now imposed by the modification order, is a matter which the parties no doubt will consider. If they cannot agree the question will have to be determined by the Lands Tribunal."
Diplock LJ said at page 315:
"The permission was thus a permission for two kinds of development, development by erection of a building viz. a cottage, and development by change of use, viz. to use the cottage after erection for occupation by a person engaged in the business of agriculture. It is not, I think, strictly accurate to say that it was a permission to erect a cottage subject to an implied condition that it should not be occupied by a person who was not engaged in the business of agriculture. In any context other than that of the Town & Country Planning Act, 1947, this might be a convenient way of putting it; but Section 23 draws a distinction between carrying out development without permission and non-compliance with conditions subject to which permission was granted, and this distinction is an important one. (See Francis v. Viewsley Urban District Council, 1958, 1 Q.B., 478 ). The true legal position in my view under the outline and final permissions granted in 1956 and 1959 respectively is that if the cottage upon erection were used for occupation by a person not engaged in the business of agriculture, this would be a material change of use of the land from its use as grazing or for pig-styes for which permission had not been granted; while if, after erection and occupation for some time by a person engaged in the business of agriculture, the cottage were occupied by someone not so engaged, this would be a change of use and it would be a question of fact whether it were a "material change of use" and thus the carrying out of development without permission."
Though the Court of Appeal in Wilson was concerned with the Town and Country Planning Act 1947 the same distinction between the carrying out of development without permission and non-compliance with conditions subject to which permission has been granted, remains in the 1990 Act.
"Mr Marder [who was counsel for the complainant] argues that such a limitation is not capable of enforcement. He refers to the definition of gypsies as in section 16 of the Caravan Sites 1968 namely:
It means persons of nomadic habit of life whatever their race or origin but does not include members of an organised group of travelling showmen or of persons engaged in travelling circuses travelling together as such.
and says that great difficulties could be encountered on deciding who are 'persons of nomadic habit.' What is a site owner to do if a person comes along asking for a site and he says he is of nomadic habit and he is not? He gave other demonstrations of the difficulty of enforcing that limitation. As I listened I heard echoes of the illustrations given in the case of Fawcett Properties Limited v Bucks County Council, where great play was made of the difficulty in enforcing a condition restricting a house to occupation by agricultural workers. But whether the limitation would be difficult to enforce is not the question before me. When there is a limitation, the question is whether it is a valid limitation. If there is a difficulty that either the Planning Authority overcome it or they fail to enforce the limitation; that does not invalidate the limitation as such, nor do I think, to deal with another argument, that there is no power to grant a permission subject to a limitation."
Having referred to the judgments in Wilson, Sir Douglas Frank continued:
"So there was a case where it was held that in an expressed permission granted by the planning authority the words in dispute were a limitation.
Returning to the matter of the difficulty of enforceability, of course whether there has been a breach of a condition of limitation becomes a question for the planning authority (or an appeal to the Secretary of State), and whether occupation is by gypsies as defined would have to be determined on the particular facts at the time. In any event, even assuming in Mr Marder's favour that the words concerned are not a limitation, the question arises whether it would be a material change of use to use the land as a site for 'general caravans'. In my judgment there can be no doubt that it would be a material change of use. The County Council has gone out of its way to make specific provision for fulfilling a duty in relation to sites for gypsies..."
"1. If planning permission was granted for use A it did not permit the recipient to carry on use B, even though use B would not be a material change of use from use A. Planning permission for use A only permitted use B if, on a proper construction of use A, it comprehended use B. The question whether another use would be a material change of use was immaterial.
2. If there was planning permission for use A and the land was actually being used for use A, then no planning permission was needed for use B, if use B was not a material change of use from use A. This was not because planning permission for use A included use B but because there was no material change of use from the one being used, that question being of course one of fact and degree.
3. If there was planning permission for use A and the land was used for use X and a further change of use from use X to use B was made it was wholly irrelevant that use B would not be a material change of use from use A, because the change was not from A but from X.
In those equations in this case, A equalled use as a depot for cattle lorries, B equalled general haulage use and X equalled the intermediate use found to have taken place ..."
"had no doubt that the word 'cattle' had just as functional a meaning as 'agricultural' and 'for the use of gipsies'. The word 'cattle' could no more be construed as descriptive of a particular type of vehicle than the word 'agricultural' could be construed as describing a particular type of building. Nor did he find anything vague in the word 'cattle': it seemed to be every bit as clear and precise a limitation as those in the cases to which he had referred."
(i) In I'm Your Man the same warehouse/factory for sales, exhibitions and leisure activities use continued after the expiration of the 7-year period. Plainly, a continuation of the same use did not amount to a material change of use. It simply does not follow that the planning permission for the change of use was granted for a period of more than 7 years.
(ii) In Altunkaynak  EWHC 174 (Admin) the same restaurant takeaway and hot food takeaway business was continuing, but in No 15B alone and not in No 15 - see paragraph 20 of Cotswold Grange County Park LLP v Secretary of State for Communities and Local Government  EWHC 1138 (Admin). Continuing a use which has been taking place in two adjoining premises in only one of those premises is not a material change of use of the premises in which the use continues.
(iii) In Cotswold Grange the use of the site for the stationing of caravans remained the same. There was simply an increase in the number of caravans - a further six caravans in addition to 54 existing caravans. While the planning permission permitted the stationing of 54 and not 60 caravans, there was no material change of use from the permitted 54 caravans.
(iv) Smout v Welsh Ministers and Wrexham County Borough Council  EWCA Civ 1750 was concerned with planning permissions for landfilling which envisaged, but did not require, that the landfilling would be carried out in phases lettered A to F. Simply changing the order in which the permitted landfilling was carried out did not amount to either a material change of use or operational development without planning permission.
"...the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden. Simply because something is expressly permitted in the grant does not mean that everything else is prohibited. Unless what is proposed is a material change of use – for which planning permission is required, because such a change is caught in the definition of development – generally, the only things which are effectively prohibited by a grant of planning permission are those things that are the subject of a condition, a breach of condition being an enforceable breach of planning control."
"20. In my judgment the inspector was right. Specifically, there is nothing in the planning permission to require the phases to be developed in alphabetical order. If a planning authority desires to impose a restriction or limitation upon development being permitted by the permission in hand, that must be done by means of a condition attached to the planning permission: see the decision of Mr Robert Purchas QC, sitting as a divisional judge of the Queen's Bench in I'm Your Man Limited v Secretary of State  77 P&CR 251. Here the conditions attached to the planning permission are set out in Annex C. There is no condition requiring the phases to be developed in alphabetical order. Mr Harwood referred this morning to the terms of the environmental statement in the case, consolidated as I have indicated in 1992. He says that that shows the importance of fulfilling the phases in order. However, the environmental statement plainly does not constitute a planning condition."