Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH NUMBER46
XA99/09	OPINION OF LADY DORRIAN in appeal to the Court of Session under Section 239 of the Town and Country Planning (Scotland) Act 1997 by ALAN CARTLEDGE Appellant; against A decision of Alan M. G. Walker, a Reporter appointed by the Scottish Ministers dated 18 May 2009 ­­­­­­­­­­­­­­­­­________________

Appellant: INFOMacIver, Lindsays

DefenderRespondents: INFOMackenzie, M. Sinclair

1 April 2010

1[1] The issue in this case is whether the number of vans allowed on the appellant's caravan park is controlled by the planning permission for the site orsite or by the caravan licence for the site.

Background

2[2] The appellant is the proprietor of a caravan park at Glenfinart, Ardentinny, Dunoon. Planning permission for the formation of such a caravan park had been granted by Argyll County Council on 4 October 1972. That planning permission states that the Council:

"Hereby permit formation of a caravan park and conversion of building into office, laundry accommodation at Glenfinnart, Ardintinny in accordance with the plan(s) submitted to the Council and docquetted as relative hereto, also the information given in the application form and my letter of 4 October 1972.

This permission is granted subject to (a) the development being commenced before the expiration of a period of five years from the date hereof and (b) due compliance with the building regulations and general statutory provisions in force."

The plan which was docquetted relative to the permission bears the caption "Glenfinart Holiday Park proposed site layout". The site is divided into four numbered sections 1 to 4. Buildings in areas 1 to 3 of the plan are marked with shaded hatching to which the plan gives the legend "buildings to be demolished". In the areas marked 1, 2 and 3 are numerous boxes representing caravan stances. The legend attached to these states "caravans connected to water and drainage". No caravans are shown on the area of the site marked number 4 which bears the legend "mixed trees and undergrowth". A road entering the site and going into area 3 is shown as extending across an area of banking into part 4 of the site where it comes to a halt. A further legend appears on the plan as follows: "Development of site 1 and 2 - 1972-3, 3 - 1973-4, 4 - 1974". The number of caravan stances which appear in the areas 1 to 3 is 64.

3[3] On the same day as the grant of planning permission a caravan licence under the Caravan Sites and Control of Development Act 1960 was granted in respect of the site. That authorised the use of the land at Glenfinart House, Ardentinny, extending to 8.75 acres or thereby, as a caravan site in terms of the Act subject to a number of conditions. Conditions are made for the distance between the caravans, the nature of the hard standing to be used, the supply of services and so on. Condition 2 states:

"Not more than 30 static holiday caravans and 30 towing caravans shall be stationed on the site at any one time, and the caravans shall be used only during the period 1 March to 31 October in any year, for the purpose of human habitation."

Similar licences were issued to subsequent owners of the site. The licence granted to the appellant is dated 18 May 2000 and Condition 2 now states:

"Not more than 64 caravans shall be stationed on the site at any one time and the caravans shall be used at any time during the year, excluding the months of November and February of any year, for the purpose of human habitation."

4[4] A further planning application in respect of the site had been made by a previous proprietor in 1987. Planning permission was given on 16 March 1988 which stated that it was for "siting of residential caravan and various proposals as detailed in attached list" and the attached list reads as follows

"Conditions relative to application 670/87

1. The residential caravan hereby permitted shall only be occupied by persons and their families employed in the management of the Glenfinart Caravan Site.

2. Any play or recreational facilities over four metres in height being approved by the planning authority prior to them being erected.

3. The use of the caravans proposed for use as reception point (item 3 in the submitted description) and laboratory (item 7 in the submitted description) being restricted to those uses only and not being used for general accommodation.

Reasons:-

1 and 3. These caravans are considered to be supernumerary to the existing authorised caravans on the site.

2. In the interests of visual amenity."

5[5] The appellant approached the council in 2007 to apply for a new site licence to cover an increase in the number of units on site. He was advised that he had no planning permission to increase the number of caravans on site from 64 and that a fresh planning permission was required. The appellant applied under Section 150 of the Town and Country Planning (Scotland) Act 1997 for a certificate of lawful use. Such a certificate was issued on 19 November 2008 in the following terms:

"Use of the land as a holiday caravan park with site access, internal access road, converted laundry and toilet accommodation and limited to the siting of 64 caravan units in the position of the pitches, all shown on the proposed layout plan approved by Argyll County Council on 4 October 1972. Also the siting of a residential caravan ... approved ... on 16 March 1988."

The issuing of that certificate was appealed to the Scottish Ministers on 29 January 2009 and the reporter issued his decision notice on 18 May 2009, dismissing the appeal and refusing to grant a certificate of lawful use in terms sought. He made a number of findings, including the following:

"(iv) Site 4 is simply annotated on the said plan as mixed trees and undergrowth with no reference to caravans being sited there; (v) the legend on the said plan refers to development of site 4, but it gives no indication whatsoever of what form that development is to take, or indeed whether it was to be operational development as defined in Section 26 of the Act; (vi) the complete absence of detail for site 4 is in complete contrast with the clear information shown on the plan for the development of sites 1 to 3; (vii) the fact that planning permission for the formation of a caravan park was granted in October 1972 does not mean that development beyond that shown on the docquetted drawing is exempt from the need to secure planning permission; (viii) there is no evidence before me of planning permission having been granted for any other layout of pitches in the caravan park than that approved in October 1972, for any permitted increase in caravan numbers beyond 64, for the siting of caravans on site 4, or for the formation of access roads, the provision of services, the formation of hard standings or any other related facilities on site 4; (ix) extension of the access road from site 3 into the northwest corner of site 4 as shown on the said drawing is no more than indicative, it offers no indication of engineering works necessary to transcend the steep bank or the route which it might possibly take within site 4 itself; and (x) the said drawing offers no indication whatsoever of the purpose of the indicative road extension, or for that matter the pedestrian steps indicated midway along the steep bank, and there is no evidence whatsoever that they were to be used in connection with locating caravans on site 4."

The reporter goes on to state:

"Based on my findings I conclude that the evidence presented in support of the requested variations to the certificate is most certainly not precise and unambiguous and I am unable to accept on the balance of probabilities that the planning permission granted on 4 October 1972 allows the siting of caravans or for any form of operational development on site 4."

That decision is challenged on the basis that the reporter has reached the a decision which on the evidence he could not reasonably have reached.

Submissions for appellant

6[6] The argument for the petitioner was that planning permission for the whole site was approved on 4 October 1972 without restriction on the number of caravans to be placed on the site. The number and siting of caravans was dealt with separately by way of the caravan site licence and the certificate of lawful use should not contain a restriction as to the number of caravans on the site, which is a matter to be dealt with by way of a site licence. The reporter erred in construing the planning permission as one which restricted the use of the caravan park to those pitches depicted in the drawing and to a certain number of caravans whose use would not involve building, engineering or other operations elsewhere on the site.

7[7] Counsel submitted that the legend on the plan showing development over the period 1972 to 1974 including development of phase 4 indicated that permission had been granted in respect of the whole site. Under the Caravan Sites and Control of Development Act 1960 an authority may only issue a site licence if the applicant is entitled to the benefit of permission for the use of the land as a caravan site. The issuing of a licence may be subject to conditions, including conditions: restricting the occasions when caravans are stationed on the site or the total number of caravans; controlling the type of caravan; regulating the position of the caravans; and taking steps to ensure the amenity of the site. Had the planning permission been intended to limit the number of caravans to stances actually shown on the plan (64) it was not logical for the licence to restrict the number of caravans to 60. This divergence of numbers indicates that the planning permission stood alone as permission for the development of a caravan park, while the actual number of caravans permitted was a matter to be dealt with by site licences from time to time. The planning permission granted was for the whole 8.75 acre site for the formation of a caravan park. It was not restricted only to development of areas 1, 2 and 3 with a limitation of 64 caravans. Had this been the intention the planning permission would have been in different terms and for a lesser area yet the plan indicates four separate phases of development. Since the appellant has the benefit of planning permission for development of the whole site, a site licence for any part of the site and for a number of vans limited only by permissions conditions contained in the site licence may be granted. Since any development of the site required by the conditions of a licence is permitted development under the Town and Country Planning (General Permitted Development) (Scotland) Order of 1992, (S.I. 1992 Number 223) Schedule 1, Part 5, Class 17, no fresh planning permission is required in respect of such development. The reporter's findings 4 to 8 are challenged as being inconsistent with the legend on the plan which shows development of site 4 in 1974. The planning permission was for the formation of a caravan park in respect of the whole 8.75 acre site and included the development of site 4 which was to take place in 1974. The conditions of any site licence granted would deal with works relating to the formation of access roads, provision of services, the formation of hard standing or any other related facilities on site 4 all of which would be permitted development. As to finding 9, in relation to the extension ??

of the access road, the road line is clearly marked on the plan and shows that the carriageway was to be extended into site 4. It would have been open to the council to require more specification of that at the time but they did not do so. It was entirely understandable that that the council would have envisaged a site licence to deal with any increase in numbers and the development of phase 4. As to finding 10 the purpose of the indicative road extension is clearly meant to be for the development of site 4. Accordingly the reporter erred in construing the planning permission as one which restricted the use of the caravan park only to those pitches specifically depicted on the plan. If the plan is considered to be set in concrete then the planning permission would have made reference to 64 units and for phases 1, 2 and 3 only. This was a very old consent and would not be the type of consent likely to be obtained now. As to the planning and licensing history of the site, the 1988 planning consent was for caravans which would not normally be part of the formation and use of a caravan site including a residential caravan for management and a laboratory. These were not for people visiting the site.

8[8] Counsel referred to Trustees of Walton-on-Thames Charities v Walton and Weybridge Urban District Council 1970 68 L.G.R. 488 for the proposition that conditions cannot be implied into a planning permission. Conditions should be express, they should be clear and they should be contained within the document granting the permission. The limitation imposed by the reporter did not meet these conditions and the decision should be quashed.

Submissions for repondentrespondent

9[9] The submission for the respondent was that the planning permission incorporated the plan and in doing so prescribed the number and location of the caravans permitted at the subjects. The caravan site licence was complimentary to, and did not supersede, the grant of planning permission. Subsequent planning history of the site was consistent with such a restriction having been imposed by the original planning permission. Where planning permission expressly incorporates a plan, the plan becomes part of the permission and it is necessary to have regard to the plan when construing the permission. Rowan Robinson, Scottish Planning Law and Procedure, 2001 edition, paragraph 11.100; Slough Borough Council v Secretary of State for the Environment and Ouri, (1995) 70 P and CR 560. When one has regard to the plan it is clear that permission allows a particular number of vans only and in particular locations. The plan showed that caravans were to be sited in areas 1, 2 and 3 but not in area 4. The appellant seeks to ignore the plan completely. Equally if the appellant's approach is to have regard to some features of the plan but not others (a) it is not clear what features of the plan the appellant accepts forms part of the consent and those which do not and (b) the most important feature of the plan showing how the caravan park is to be formed (ie. the proposed number and stances of the caravans) is, on the appellant's approach, ignored. It is not a valid method of construction of a planning consent to ignore express words in their consent incorporating the plan or to ignore the most important feature of the plan.

10[10] In the present case one cannot or should assume that development of part 4 of the site was a development which would involve the placing of caravans. Counsel accepted that in modern planning practice the whole matter might be rather more clearly expressed. However ultimately whether further permission was required for development of part 4 of the site would depend on what the nature of that development would be. The development of the site might not be operational development at all. The subsequent planning and licensing history of the site is consistent with the reporter's interpretation of the consent. If the 1972 permission did not prescribe the number of vans on the site then the subsequent planning permission sought in 1988 would not have been required. However he conceded that it might have been required in respect of the laboratory caravan. The GPDO is irrelevant to the central question of interpretation of the 1972 planning permission. The findings of the reporter are unobjectionable and self evident from the face of the plan.

11[11] This is not a case in which the respondent is seeking to imply conditions attaching to the consent. The respondent seeks to construe the permission in order to ascertain what development is permitted by the consent. A distinction is to be made between the development permitted by a consent and conditions attached to that permission. It is a fine distinction but in this case the development permitted was as set out in the plan regarding the number and location of the caravans. That was the nature of the permit and one is not looking at conditions at all. Counsel's alternative position was that if this was a condition it was an express not an implied one.

12[12] As to the interplay between the planning and licensing regimes, counsel submitted that there was an overlap between the two. Because of that overlap, certain matters may legitimately be the subject of control under both regimes. The controls under the licensing regime operate within the limits of the planning permission. Reference was made to Rowan Robinson, supra, paragraph 8.60A onwards; R v Kent Justices ex parte Crittenden [1964] 1 Q.B. 144; Esdell Caravan Parks Limited v Hemel Hempstead RDC [1966] 1 Q.B. 895 and Babbage v North Norfolk DC (1990) 59 P and CR 248. Counsel recognised that in the case of Esdell Caravan Parks Limited there are passages in the opinion of Lord Denning which suggest that a planning authority ought to direct their attention to matters in outline, leaving the site authority to deal with all matters of detail.

"Thus the planning authority should ask themselves this broad question: ought this field to be used as a caravan site at all? If 'yes', they should grant planning permission for it, without going into details as to the number of caravans and the like, or imposing any conditions in that regard. Once planning permission is given, or deemed to be given, the site authority should deal with the details. They should say how many caravans should be permitted; whether they should be residential caravans or holiday caravans; or the like. They must have regard to the model standards but are not bound by them."

Counsel, however, submitted that there was a contradiction between that passage (at page 923) and a later passage (at page 925) which suggests that the number of vans allowed on a site may be a planning consideration as equally a site consideration. In any event counsel submitted that these passages were obiter and have not been approved or followed elsewhere since.

.

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Discussion

[13] The authorities referred to by counsel for the respondent in relation to the overlap between planning and licensing did not really advance matters because the propositions contained therein were not in dispute. It was not disputed that a restriction on the number of vans could validly be contained within a planning consent. The question was whether this had in fact been done in the present case. Equally it was not disputed that where such a restriction was imposed as part of planning consent, a licence could not be granted for a greater number of vans than provided for in the planning conditions. It was also not in dispute that such a restriction might only be contained within a caravan license.

14[14] It is essentially my opinion that the precise number of vans on the site is in this case to be governed by the site licence and not by the planning permission. The planning permit relates to the whole site as shown on the plan. It is permission for the formation of a caravan park and what appears on the plan as a "proposed layout" is no more than that; it should not be read as being prescriptive of the formation of the caravan park. In particular, it is not, as the reporter found it to be, the only and "approved" layout. The plan clearly shows that it was anticipated that development of the site would be in three phases and would eventually include area four as well as areas one to three. I do not find that I can read the planning permit, with the plan, as indicating that the consent is for a number of vans restricted only to the number and location as shown in the proposed layout. Nor can I read them in such a way as to conclude that this is an express condition of the grant. Even if it could be read as a condition that would very much be by implication. Any restriction on development to be contained within a planning permission should be clearly stated and precise. It should not be left effectively to implication.

15[15] The licence which was granted is consistent with the number of vans being controlled by the licence not the permit. The licence authorizes the use of the whole site, 8.75 acres as a caravan park. The limitation on the number of vans is dealt with by way of a condition in the licence. The original licence, granted on the same day as the planning permit, was for 60 vans on the site. In fact, if the issue were controlled by the planning permit rather than the licence, then the original licence would have to have been for 64 vans as shown in the proposed layout. The fact that it was for 60 only is a strong indicator that the intention was that this was a matter to be determined by the site licence not the planning permit.

16[16] In considering this issue it is in my view of fundamental importance to recognise that this is a fairly old planning permission. It was granted in 1972. There was really no argument between the parties that one would expect today to see planning permission granted in clearer and more precise terms. It is important however not to transpose modern day planning practice onto a permission which was granted nearly 40 years ago. I think that Counsel for the appellant was correct in saying that whatever may be the position today, the words of Lord Denning in the case of Esdell, a case in 1966, have considerable relevance to the appropriate construction to be adopted in this case. I do not for one second dispute that it would be possible for the detail to be covered by a planning permission; or that there can be areas where planning and licensing overlap. However, where the planning permission is given in the terms as shown here I think it must be the case that the limitation on the number of vans is for the licensing authority. In making their decision about this they are entitled to take into account

17[17] As to the subsequent application for planning permission, I can fully understand why it was thought necessary to apply for this. The items covered by that permission included a laboratory (to study midges) which would not be covered by the original permit and also a fully residential caravan for staff accommodation which would also not be covered.

Decision

18 The appeal will be allowed and the decision dated 18^th May 2009 will be quashed.