July 19
The claimant owned a caravan site. The relevant planning permission attached to the site stipulated that the caravans and chalets on site could only be occupied for holiday purposes and not as a person’s sole or main residence save for one unit being available for use by the site warden. While the planning permission did not specify a particular number of units or set out individual plots, each unit was allocated with a given number. It was common ground that the non-occupation condition had been breached at some of the units for over ten years, and certificates of lawful development (LDCs) were issued by the local planning authority in relation to some units on the site since, by section 171B(3) of the Town and Country Planning Act 1990, enforcement action for that type of breach of planning control was subject to a ten-year time limit. Subsequently, the local planning authority issued enforcement and breach of condition notices concerning residential occupation of caravans on the appeal site, but later withdrew the enforcement notices and confirmed it would take no further action on the breach of condition notices. The claimant unsuccessfully applied for an LDC under section 191 of 1990 Act certifying the lawfulness of certain caravans being stationed for the purpose of habitation as their occupiers’ sole or main place of residence for the whole appeal site, and its appeal against that decision was dismissed by the Secretary of State’s planning inspector. The claimant sought to challenge that decision pursuant to an application under section 288 of the 1990 Act, by which it contended, inter alia, that the inspector had fallen into error in his approach to the relevance and application of the previously acknowledged breach of condition of the extant planning permission. The High Court refused permission to proceed with the application but, on appeal by the claimant, the Court of Appeal granted permission and ordered that the substantive section 288 application be retained for determination by the Court of Appeal.
On the application—
Held, application dismissed. There would be some planning conditions which applied to the entirety of the relevant land and could not sensibly be regarded as being the subject of a “partial breach” only, while others would not and would allow for enforcement in relation to a breach on part of the land. The issue whether a case fell on one side of that line or the other was one of fact and degree and, like so many questions in planning law, called for the exercise of judgement, having regard to the particular facts before the relevant decision-maker. That approach applied equally to questions of enforcement and to certifying lawful development since the two sets of provisions were interrelated.The exercise of that judgement would not readily be amenable to challenge in the courts, which would only interfere with it on well-established grounds of law, for example if the there had been an error in principle or a conclusion reached which was not reasonably open on the evidence. The question in such cases turned not so much on the interpretation of the relevant condition but on the proper application of the legislation on enforcement notices. The question was what was the particular breach and what could properly be enforced against? That gave effect to sound planning principle and common sense, and properly balanced the rights of all concerned, including the important public interest at stake. The alternative would have the unfortunate consequence that a local planning authority would be compelled to take enforcement action even against those occupiers of units where there was no pressing public interest reason to take action. Alternatively, if it did not take action because there was only one unit which was being used in breach of the condition, it would then be precluded from taking action in the case of any other units at a later stage, because immunity would have been acquired in respect of the entire site. That could not have been Parliament’s intention. In the present case there were well defined plots for each caravan unit: although they were not marked out on any plans accompanying the planning permission, they were identifiable on the ground and that was sufficient. There was no requirement that the plots had to be delineated on any plan which was the subject of the planning permission, provided that they were well defined and identifiable on the ground. The inspector did not fall into error as a matter of principle. The question was one of fact and degree, for the Inspector to decide, and his conclusion was reasonably open to him on the findings of fact made by him (paras 55, 56, 57, 58, 59, 61, 62, 63, 70, 71, 85, 90, 91, 92).
Paul G Tucker QC and Michael Rudd (instructed by Stephens Scown LLP, Exeter) for the claimant.
George Mackenzie (instructed by Treasury Solicitor) for the Secretary of State.
Gary A Grant (instructed by Senior Solicitor, Bournemouth, Christchurch and Poole Council) for the local planning authority.