Jeffery & Anor v First Secretary of State & Anor

This appeal concerns a challenge to a discontinuance order made by the Teignbridge District Council (“the Council”) under section 102 of the Town and Country Planning Act 1990 (“the Act”) and confirmed by the First Secretary of State under section 103 of the Act by a decision dated 25 July 2005. The order concerned two fields just over 7 hectares in area near Dawlish Warren in Devon. That land was owned by the appellants. The order required that within 28 days after it took effect

“the use of the land for the purposes of siting touring caravans and tents approved under planning reference number 99/2069/29/04 shall be discontinued.”

The appellants objected to the order as made by the Council and, as required by section 103(5) of the Act, a public inquiry took place in May 2005. The inspector who conducted that inquiry recommended that the order be confirmed and the Secretary of State, agreeing with his inspector’s conclusions and recommendations, confirmed the order on 25 July 2005. The appellants then by an application under section 288 of the Act dated 2 September 2005 sought the quashing of the Secretary of State’s decision on a number of grounds. Those grounds were amended some 11 months later on 2 August 2006 so as to raise what are now the only live issues in this appeal. The application was dismissed by Sullivan J by a decision dated 24 October 2006.

It will have been already noted that the discontinuance order made reference to a planning permission for the siting of touring caravans and tents. There is nothing surprising about the making of such an order in respect of a permitted use of land – indeed it is the normal situation, since if the use were unlawful the local planning authority would usually be able to issue an enforcement notice and avoid the payment of compensation which follows under section 115 from the confirmation of a discontinuance order. But in the present case the planning permission was granted in circumstances which were far from usual.

It was dated 13 April 1999 and resulted from an application made on behalf of the appellants for a change of use to use for siting caravans and tents from 31 July 1999 to 15 August 1999 to meet an exceptional holiday demand associated with a solar eclipse. Permission was in fact granted for the period from 31 July 1999 to 22 August 1999, though nothing now turns on that difference in date. The permission was a conditional one, condition 2 of which read:

“As stated in the Applicant’s Agent’s letter of 31 March 1999 the land shall only be used for the stationing of caravans between 31 July 1999 and 15 August 1999 inclusive.”

A note on the permission stated that a permanent use of the site for touring caravans would not be acceptable as it would be contrary to policies in the Local Plan and Structure Plan.

In the event, the permission was not implemented at the time of the solar eclipse in 1999. Nothing further happened until March 2003, when the appellants applied for planning permission to erect a permanent toilet and shower block on the site to replace existing portable structures. The accompanying letter from their agent stated that the site had a long history of use for 28 day tented camping (a reference to temporary uses permitted under the General Permitted Development Order, 1995) and that the appellants proposed “to resume the use of these fields for tented camping.” It became clear that the appellants were relying on the 1999 permission as authorising the use of the site for tented camping and, indeed, after taking legal advice, the Council accepted that the permission had “inadvertently allowed year round camping use (but not caravans)”: see officers’ report to development control committee, 17 November 2003.

The application for permission for the new toilet and shower block came back to the relevant committee in December 2003. The history of what then happened is set out in detail in Sullivan J’s judgment and I need not repeat it in full, but the essential facts are that the committee had before it a letter from solicitors for a third party objector which suggested revocation of the 1999 permission; a discussion between councillors at a site meeting as to the merits of such revocation was reported to the committee; and the advice of the Council’s solicitor on the topic of revocation was also reported. That advice pointed out, correctly, that it was only legally possible to revoke a planning permission (under section 97 of the Act) where the change of use had not taken place. The advice went on to say:

“The Council is unsure whether the planning permission has been implemented and this is likely to require further investigation. If it is the case that the permission has been implemented then the power to revoke is lost but Section 102 of the Town and Country Planning Act 1990 provides that local planning authorities have a discretionary power to make orders requiring the discontinuance of use or alteration or removal of buildings or works. The definition is wide and includes discontinuance action against any form of land use which does not involve actual physical alteration of the land.”

It seems that at this stage at least the Council was concentrating on the tented camping use of the land, that being the use which the appellants’ agent was saying had begun. The committee decided to defer a decision on the application in respect of the proposed toilet and shower block “in view of the need to consider further the aspect of potential revocation or discontinuance of the earlier [1999] planning permission.”

The matter came back to committee on 9 February 2004, when the officers’ report reminded members of the reason for deferring a decision and reminded them also of the terms of the 1999 permission, i.e. “change of use from agricultural land to use for siting touring caravans and tents from 31 July 1999 until 22 August 1999.” The report referred to the fact that the appellant’s agent had pointed out that the permission had been implemented. It then continued:

“The Council’s solicitor has commented that the Applicant’s agent has advised that the 1999 planning permission for camping was implemented when two fields were used for camping in the last weekend in August 2003. If this is the case the planning permission may not be revoked but the Council could, subject to the Secretary of State’s approval, proceed by way of a Discontinuance Order. If this order was confirmed the Council would be liable for compensation based on the difference between the value of the land with permission and the value without permission.”

The minutes of the meeting itself record as follows:

“The Head of Development Control confirmed that planning permission had been granted for tents for the site. The applicant’s agent had claimed that this planning permission had been implemented and therefore the correct course of action would be the serving of a Discontinuance Notice rather than a Revocation Order of the previous planning permission.

The Solicitor to the Council advised that the intention of the applicant was relevant when considering whether the permission had been implemented. The agent had claimed that it was his client’s intention to implement the planning permission. If it is the case that the permission has not been implemented, the revocation of the previous permission is appropriate.

The Committee considered that the site, in a Coastal Preservation Area, was not suitable for use by tents and that the current application for erection of a toilet and shower black to replace portable structures was therefore not appropriate on such a site. It was therefore

Resolved

(a)

That permission be refused for the following reason:

Contrary to Coastal Preservation Area Policies

(b)

That the Solicitor to the Council be authorised to pursue either a Revocation Order or a Discontinuance Notice (whichever is appropriate) with regard to the 1999 permission.”

After that committee meeting but before the discontinuance order was made on the 22 April 2004, the appellants’ agent wrote to the Council on 23 March 2004 seeking a site licence under the Caravan Sites and Control of Development Act 1960 and asserting that the 1999 permission was a permanent planning permission for both touring caravans and tents. The letter spelt out the reasons why the permission was said to be valid and extant for that whole use. In accordance with that approach, the appellants began using the site for the stationing of caravans over the Easter period in early April 2004.

The discontinuance order was then made on 22 April 2004 in the terms set out earlier, requiring the use of the land for siting touring caravans and tents to be discontinued. In subsequent correspondence the appellants’ agent continued to maintain that the land enjoyed a permanent planning permission for both caravans and tents, the change of use having begun in August 2003. Indeed, in supporting the application for a site licence, the agent relied in a letter dated 7 May 2004 on the fact that the discontinuance order showed that

“the Council accepts that the land is used for the purpose of siting touring caravans and tents approved under planning reference 99/2069/29/04.”

The appellants objected to the discontinuance order, but before any public inquiry could take place the Council issued an enforcement notice dated 20 October 2004, alleging an unauthorised change of use to a mixed use for agriculture and the stationing of caravans. It appears that the Council did so in reliance on the inclusion of condition 2 on the permission dated 13 April 1999. The appellants appealed against the enforcement notice also, and the inquiry which took place in May 2005 concerned both that appeal and their objections to the discontinuance order.

The inspector recommended that the discontinuance order be confirmed but that the appeal against the enforcement notice be allowed on grounds (b) and (c) of section 174(2) of the Act and that the enforcement notice be quashed. His decision on ground (b) was made on the basis that the site had planning permission for the stationing of caravans and so there was no breach of planning control. Ground (c) succeeded because the inspector concluded that condition 2 on the 1999 permission had no clear meaning and was invalid. The Secretary of State accepted those recommendations, quashed the enforcement notice and confirmed the discontinuance order.

At this stage it is necessary to set out the provisions of the Act relevant to this appeal. Section 102 deals with the making of a discontinuance order by a local planning order. The relevant part for present purposes is section 102(1), which provides:

“(1)

If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) –

(a)

that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or

(b)

that any building or works should be altered or removed,

they may by order –

(i)

require the discontinuance of that use, or

(ii)

impose such conditions as may be specified in the order on the continuance of it, or

(iii)

require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the cause may be.”

Section 103(1) states that

“An order under section 102 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modification as he considers expedient.”

It is clear that a discontinuance order is of no effect until it is confirmed by the Secretary of State. There is no provision for a “stop notice”, as there is in connection with an enforcement notice, nor is there any expedited procedure whereby the order takes effect if unopposed, as there is under section 99 in the case of orders revoking or modifying a planning permission. The Secretary of State’s confirmation of a discontinuance order is always required if it is to take effect. In addition, he has the power to modify the terms of the same order if he considers such a course expedient. The Secretary of State thus has a crucial role in respect of discontinuance orders.

The appellants’ objections to the discontinuance order, as presented to the inspector appointed by the Secretary of State, fell into two categories. First, there were certain objections to the validity of the order; secondly, there were objections as to its justification on the planning merits. Those in the first category were that the Council had not properly considered whether the order was “expedient in the interests of the proper planning of their area”, as required by section 102(1), save for a bare reference in one of the reports to committee, and that there was only brief reference to “the development plan and other material considerations” (ibid). Only the Coastal Preservation Area Policies were mentioned and none of the other relevant policies. The inspector rejected these arguments, finding that the reports to committee adequately reminded members of the statutory test and of the factors, including development plan policies, to which they had to have regard. Nothing now turns on those issues. What, however, is clear and indeed is not disputed is that no objection was raised before the inspector or the Secretary of State to the effect that the Council had not properly considered the merits of making the order apply to caravans as well as tents, even though that was the scope and effect of the order.

As for the planning merits, the inspector dealt with both the discontinuance order and the enforcement notice appeal together. He identified the main issue as being whether, bearing in mind the recently adopted structure plan policies,

“the development has resulted in serious harm to the character and appearance of the Area of Great Landscape Value and Coastal Preservation area and if so, whether the claimed need for additional touring caravan and camping sites is sufficient to overcome this objection.”

After analysing the relevant policies, the characteristics of the area and of the use in question, he concluded that the use was

“a highly intrusive and alien form of development that seriously harms the character and appearance of this area of sensitive landscape.”

He referred in particular to the fact that many of the caravans were brightly coloured with reflective surfaces and that the tents were often large and also brightly coloured. He went on to conclude that the harmful impact was not outweighed by any need for such provision or by the appellants’ landscaping proposals.

It is to be noted that, in the course of their appeal against the enforcement notice, the appellants relied on the fact that the earlier discontinuance order would itself result in the removal of the caravan use and that the committee which subsequently authorised the enforcement notice had not been told this. This perhaps underlines the fact that no challenge was mounted to the inclusion of caravans within the discontinuance order, as opposed to the validity generally of the order on the grounds set out earlier in this judgment. Had it been, it would have been open to the Secretary of State, if persuaded that the order should be confined to tented camping use, to modify it to that effect.

A series of issues were raised and pursued before Sullivan J., many of which are no longer live ones. Those which do arise in this appeal are twofold. The first can be dealt with briefly. It is contended on behalf of the appellants that the inspector failed to apply the statutory test of asking whether it was “expedient” in the interests of the proper planning of the area to confirm the order. Mr Harwood, who appears on their behalf, submits that the inspector erred by dealing with the planning merits of the order and the enforcement notice together and so treating the order as if it were an application for planning permission. In particular, the inspector failed to bear in mind that the use covered by the discontinuance order was a lawful one, authorised by a planning permission.

Like Sullivan J., I find this contention wholly unpersuasive. The inspector had expressly set out the relevant part of section 102(1) earlier in his report, including the reference to whether it was “expedient in the interests of the proper planning” of the area for there to be a discontinuance order. He then went on to repeat that test in two other parts of his report when recording the case for the appellant and that for the Council (see paragraphs 21 and 25). It is inconceivable that he was not applying it. Indeed, when he came to his own conclusions, he set the test out yet again. He had, before coming to the planning merits of the use in question, made a finding that it was a lawful use – that was one of the main reasons why he recommended the quashing of the enforcement notice. That aspect of expediency cannot have been overlooked by him.

It is true that towards the end of his report he concentrates on the planning merits of the use. That was understandable, not merely because that is normally bound to be the most important consideration but also because the appellants’ own planning expert had in his evidence adopted a similar approach. As Mr Harwood accepted in the course of argument, that witness had conceded that a discontinuance order would be justified if serious planning harm would result from the use. The inspector clearly found that such harm was already occurring.

The Secretary of State in his decision on the discontinuance order expressly set out the statutory test under section 102(1) in paragraph 6 of his decision letter. He again cannot sensibly be held to have failed to apply that test. Sullivan J spelt out his reasons for rejecting the appellants’ arguments on this issue at somewhat greater length in his judgment at paragraphs 33 to 61. I agree with that reasoning and do not propose to repeat it here. For my part, I would reject this part of the appellants’ case.

The other issue raised, and seemingly given more prominence now than it had at first instance, concerns the Council’s processes in making the discontinuance order in the first place. There is here no criticism of the inspector or the Secretary of State, because the matters now raised were not raised before them. They concern the extent to which the Council considered the caravan part of the composite use before the order was made. The argument has two limbs to it. First, it is said that the resolution of the committee on 9 February 2004 did not authorise the making of an order which embraced the caravan part of the use as well as the tented camping part of it. Secondly, it is argued that the Council did not properly consider the matters relevant to making an order covering caravans as well as tents and that all their consideration was of the use of the land for tents.

On the first of those aspects, Mr Harwood submits that the committee resolution was not framed in terms broad enough to cover the discontinuance order eventually made. The argument is that the resolution has to be construed in the light of the preceding discussion recorded in the minutes and that this only referred to tents and not to caravans. Mr Strachan, who appears on behalf of the Secretary of State, submits that one looks to the wording of the resolution actually passed by the committee and that that wording was apt to cover both the camping part of the use and the caravan part of it.

I agree. The resolution authorised “either a revocation order or a discontinuance notice (whichever is appropriate) with regard to the 1999 permission.” That permission patently related to the combined use for both tents and caravans. One cannot seek to construe it or the committee resolution in such a way as to sever the two uses. Indeed, Mr Harwood accepted in argument that, if the Council officers had concluded that a revocation order was the more appropriate course, such an order would have covered caravan use as well as camping use because that was what was permitted under the 1999 permission, and he accepted also that such a revocation order would have been authorised by the committee resolution of 9 February 2004. That being so, it seems to me to be impossible to say that the terms of the resolution did not authorise a discontinuance order of similar breadth.

The other contention concerns the consideration given to the merits of the caravan use before the discontinuance order was made. The appellants submit that the committee’s attention before and at the meeting of 9 February 2004 was focused on the issue of tented camping, as can be seen from the officers’ reports referred to earlier in this judgment. No mention is made in those reports of use for stationing caravans, and indeed that was not a use taking place prior to early April 2004. Consequently, say the appellants, the Council never applied its mind to whether it was expedient in the interests of the proper planning of its area to make a discontinuance order which embraced a caravan use as well as a camping use.

Mr Harwood submits that the consequence of that is that there was no validly made order for the Secretary of State to confirm. It should therefore be quashed. He acknowledges that this issue was not raised before the Secretary of State’s inspector and that the inspector consequently made no findings of fact on the issue, but he submits that the facts are clear on the documentation. There is no bar as a matter of law to challenging such an order on a section 288 application on a ground not raised at the hearing before the Secretary of State’s inspector.

Some reliance is placed in this connection by the appellants on the decision of Mr George Bartlett Q.C., sitting as a Deputy High Court Judge in the case of South Oxfordshire District Council v. Secretary of State for the Environment [2000] 2 All ER 667. That was a section 288 challenge to the grant of planning permission by an inspector, it being argued by the local planning authority that the inspector had overlooked a material planning consideration which had not been raised at the inquiry. Mr Bartlett refused to allow this point to be advanced, but in the course of his judgment he said at page 329:

“I do not think that there can be any general rule that a party to a planning appeal decision is to be prevented from raising in a challenge to that decision an argument that was not advanced in representations made on the appeal. If the inspector has omitted a material consideration which could have affected his decision the decision may on that account be rendered unlawful, notwithstanding that the matter was not raised in the representations. In an enforcement notice appeal, on the other hand, where an appellant does not raise, or withdraws, a particular ground of appeal (as the appellant in West Cheshire withdrew ground (b)) the effect is to render that ground immaterial. An appeal under what is now section 174 of the 1990 Act defines the issues through an identification of the grounds relied on, and what is and is not as a matter of law material is determined by such definition of the issues. In an appeal against the refusal of planning permission, by contrast, the issue, defined by the appeal, is whether planning permission should be granted; and the test of materiality is essentially that of relevance (see Stringer v. Minister of Housing and Local Government [1970] 1 W.L.R. 1281).

The failure of a party to raise at the inquiry a contention which he seeks to advance in a challenge to the decision is, in my view, undoubtedly of significance if, having omitted the contention from the grounds set out in the notice of motion, he later seeks to amend those grounds so as to include it for the first time. In the present case it did not seem to me that the interests of justice warranted permission being granted to introduce at a very late stage of the proceedings arguments that the Inspector left out of account considerations which the applicant council had not raised at the inquiry.”

Mr Strachan does not contend that an applicant can never advance new points as to the validity of a discontinuance order at the stage of a section 288 challenge in the courts. But he submits that it will be rare for it to be appropriate for the court to allow such a course to be taken, especially where the new point relates back to the earlier conduct of the local planning authority in making the order. If the order as made by the local planning authority is bad on the face of it, it may be a nullity and be incapable of being confirmed by the Secretary of State. But a section 288 application ought not to provide a method of raising issues which could and should have been raised before the Secretary of State and his inspector. In the present case this present issue was one which the appellants sought to raise by way of amendment to their original section 288 application to the court. It was put forward nearly a year after the application itself was lodged, and there is no evidence before the court from the local planning authority. The court is not in a position to make a proper determination of the facts relevant to this issue. That could have been done at the time of the public inquiry. Indeed, emphasises Mr Strachan, the appellants at that inquiry did challenge the validity of the order, but not on the ground now raised.

I accept that there cannot be an absolute bar to challenging the validity of a discontinuance order on a new ground in the course of a section 288 application. New information may have emerged since the Secretary of State’s confirmation of the order which clearly demonstrates its invalidity. It may also be that an order is bad on the face of it, though it would seem highly unlikely that such an order would survive the Secretary of State’s scrutiny. But I also accept Mr Strachan’s submission that the courts should be slow to admit a challenge to validity on a ground not taken before the inspector, who is in a significantly better position than the court in section 288 proceedings to establish the facts. Especially should a court exhibit such a reluctance where the point concerns the earlier stage of the consideration by the local planning authority of the making of an order, subsequently confirmed by the Secretary of State, since that could allow the possibility of a multiplicity of arguments about how far all material considerations had been taken into account by the authority before the order was made. That could turn such section 288 proceedings into a re-run of the public inquiry. The South Oxfordshire case, relied on by the appellants, possessed a significant difference from the present case. The new point sought to be taken in those court proceedings did at least concern the vires of the inspector’s decision, since it amounted to an argument that he had overlooked a material planning consideration. In contrast, there is no suggestion in this appeal that the inspector or Secretary of State erred in any way: the contention advanced on behalf of the appellants seeks to go back to the earlier stage of the local planning authority’s actions.

There is the additional consideration that a party is expected to put forward all his arguments and the evidence in support thereof at the proper time, which in this situation means at the inquiry to which the landowner or occupier is entitled as of statutory right. He is not entitled to hold back material in his possession or any arguments to the later section 288 stage. Of course, if the relevant material only emerges subsequent to the inquiry, the position may be different, but that is not the case in the present proceedings.

I am also mindful of the fact that a discontinuance order is wholly dependent on the Secretary of State’s decision. The making by the local planning authority of such an order is only a first step, the order having no effect unless and until it is confirmed by the Secretary of State. The section 288 challenge on the ground that “the order is not within the powers of this Act” is concerned with the order in the form in which it is confirmed by the Secretary of State, perhaps a modified form, not with the form in which it left the local planning authority. Indeed, there is authority that compensation payable to the landowner or occupier as a result of the order will cover plant acquired by him between the date when the local planning authority made the order and the date when it was confirmed by the Secretary of State, the court there saying that there was

“no order as such until is confirmed”: K and B Metals Ltd v. Birmingham City Council [1976] 33 P and C.R. 135.

Given these considerations, it seems to me to follow that a challenge to the validity of a discontinuance order, confirmed by the Secretary of State, on the ground that there was some defect in the way in which the local planning authority handled the original making of the order should only be entertained when there is clear-cut evidence that the order is ultra vires as a result. If the order is good on the face of it, there will need to be convincing evidence that the order is nonetheless defective, and if the alleged defect has not been ventilated at the public inquiry the court will normally require some good reason for that omission, such as the unavailability of the relevant evidence at that stage.

Does the present case meet those requirements? True it is that the documents available to the court do not disclose any consideration by the relevant committee on 9 February 2004 of the merits of making an order in respect of the caravan use. But the discussion by the members of the committee is covered extremely briefly in the relevant minute, in no more than two lines of text. We do not have the detail of the discussion, whatever it may have been. We do know that the committee was prepared to authorise the revocation of the 1999 permission, which covered caravan use as well as camping. We have no evidence about what happened in this local authority, once it was learned, before the making of the discontinuance order, that the site was in fact being used for the siting of caravans as well as tents, and that the appellants were saying that that use was authorised by the 1999 permission. That aspect simply has never been investigated. There is no evidence either about the extent of delegated powers possessed by officers under the standing orders of this local authority. Mr Harwood confirmed to us that as a matter of law a local planning authority can delegate almost all its planning decisions to its officers, the exception relating to policy matters.

The appellants argue that the Council could have cured these deficiencies in our knowledge by putting in evidence in these proceedings. That may be. The Council has taken no part in these proceedings. But this issue was not raised when these section 288 proceedings were started, the Council at that stage apparently being content to leave it to the Secretary of State to defend his decision, and one does not know what happened when the Council learned of the proposed amendment to the grounds of challenge in August 2006. The Council had given evidence at the public inquiry in response to the criticisms then made of its decision-making process. The fact remains that the result of this line of argument not being raised before the Secretary of State and his inspector is that this court does not have sufficiently convincing evidence available to it to demonstrate that the Council failed in their approach to the making of the order. Nor has there been any good reason provided for the failure to raise the point before the Secretary of State and his inspector: it appears, so far as one can tell, to have emerged now simply from the involvement of new counsel on behalf of the appellants.

I conclude, therefore, that, while there is some evidence in favour of the appellants’ argument, the court cannot be satisfied that the argument is a sound one. The onus is on the appellants to demonstrate that the order is ultra vires. It is an onus which, in my judgment, they have not discharged. I would dismiss this appeal.

I agree with the Judgment of Keene LJ. I would only add that it should be clearly understood that this case has been argued on the assumption that the 1999 permission had the legal effect of granting permanent permission for caravans and tents even though its express terms were for “change of use … to siting touring caravans and tents for [the solar eclipse weekend]” and that only use for that weekend had ever been sought.

This assumption was on the basis that I’m Your Man v SoS for the Environment (1999) 77 P. & C.R. 251 [1998] 4 P.L.R. 107 [1999] P.L.C.R. 109 [1998] N.P.C was correctly decided. We heard no argument on the point and, speaking for myself, I would reserve the question of whether that is so.

I too agree with the judgment of Keene LJ. Like Jacob LJ, I think that we should express no opinion on either (a) whether the 1999 permission had the effect conceded of granting permanent permission for caravans and tents; and (b) whether the decision in I’m Your Man v. SoS for the Environment or its import requires any further consideration. We have heard no argument on either topic.