ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE SULLIVAN
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
-v-
WINCHESTER CITY COUNCIL
1st Respondent
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Interested Party
(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Michael Rudd (instructed by Direct Public Access) appeared on behalf of the Appellants
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
J U D G M E N T
Introduction
LORD JUSTICE SULLIVAN: This is an appeal against the order dated 4 February 2013 of Philip Mott QC, sitting as a Deputy High Court Judge, allowing Winchester City Council's appeal, under section 289 of the Town and Country Planning Act 1990 ("the Act"), against a decision of one of the Secretary of State's Planning Inspectors to allow the respondent's appeals against six enforcement notices (enforcement notices A to F) issued by the Council in respect of land at Carousel Park, Basingstoke Road, Micheldever in Hampshire ("the site").
For convenience I will refer to the appellant in this court as "the Council" and to the respondents in this court as "the appellants", as they were before the Inspector.
Background
On 2 October 2003, planning permission was granted for the "change of use of agricultural land to travelling showpeoples' site" at the site. The planning permission was subject to a number of conditions, but an occupancy condition, providing that the site shall not be occupied by any persons other than travelling showpeople, was not imposed. The breach of planning control alleged in the enforcement notices was:
"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
The Inspector corrected the enforcement notice so that the alleged breach of planning control was:
"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 appealed against the enforcement notices on a number of grounds, including ground (b) in subsection 174(2) of the Act. The Inspector summarised their appeal on this ground, in paragraph 12 of the Decision, as follows:
"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."
The Inspector said in paragraph 14 of the decision letter:
"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.
Neither Mr Rudd, on behalf of the appellant, nor Mr Ward, on behalf of the Council, were able to say, with any certainty, that it had been common ground at the inquiry that initially at least the site had been used as a travelling showpeoples' site. If this appeal is dismissed and the matter is remitted to the Inspector, then further consideration will have to be given as to whether the planning permission was ever implemented in the sense that I have described.
Turning to the appellant's ground (b) appeal, the Inspector considered a number of decisions, including the decision of Mr Robin Purchas QC, sitting as a Deputy High Court Judge in I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 P&CR at page 251. In paragraph 23 of the decision the Inspector said:
"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."
The Inspector's conclusion in respect of the ground (b) appeal was contained in paragraph 26 of the decision as follows:
"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
The Council appealed against that decision. The appeal was heard by Philip Mott QC sitting as a Deputy High Court Judge. His judgment is to be found at 2013 EWHC 101 (Admin). Having considered the relevant authorities, including I'm Your Man, Mr Mott concluded in paragraphs 45 to 47 of his judgment:
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.
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.
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
On behalf of the appellants, Mr Rudd submitted that the Deputy Judge erred. The Inspector's application of the principles that had been established in I'm Your Man was correct, and applying those principles the permitted use of the site was for the stationing of caravans for residential purposes.
Discussion
I have no doubt that the Deputy Judge's understanding of the effect of I'm Your Man was right and the Inspector's application of that decision was wrong. My reasons for so concluding are as follows. In Wilson v West Sussex County Council (1963) 14 P&CR 301 the Court of Appeal had to consider the effect of a planning permission for the erection of an "agricultural cottage". The local planning authority subsequently modified the planning permission by the addition of an agricultural occupancy condition and the question was whether that modification entitled the owner to compensation. The Lands Tribunal said "no". On appeal the Court of Appeal said that compensation might be payable, because while there was a limitation upon the permitted user of the cottage in the absence of an occupancy condition, it would be a question of fact and degree whether use by a non-agricultural occupant would be a material change of use.
Wilmer LJ, with whom Danckwerts LJ agreed, said at page 311:
"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.
The Court of Appeal's decision in Wilson was followed by Sir Douglas Frank QC, President of the Lands Tribunal in Williamson and Stevens v Cambridgeshire County Council [1997] 34 P&CR 117. The Lands Tribunal had to determine the compensation payable for land, which had been acquired for use by the County Council as a Gypsy caravan site. The land had the benefit of a deemed planning permission for use "as a site for caravans occupied by gypsies". Compensation was sought upon the basis that the planning permission permitted a use as a general caravan site. Sir Douglas Frank, applying the Court of Appeal's decision in Wilson, rejected that submission. Having concluded that the words "occupied by gypsies" had a functional significance and were to be construed as limiting the proposed use to one as to occupation by gypsies (see page 119), Sir Douglas Frank continued:
"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..."
Both Wilson and Williamson and Stevens were applied by Hodgson J in Waverly District Council v Secretary of State for the Environment [1982] JPL page 105. Planning permission had been granted for the use of an old brickworks "as a depot for cattle transport lorries". Following another intermediate use, the land was then used as a general haulage depot. The Secretary of State allowed the appeals against the enforcement notices upon the basis that a general haulage depot use was not materially different from a depot for cattle transport lorries. The local planning authority appealed. Hodgson J accepted the following propositions, which were advanced on behalf of the local planning authority:
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.
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.
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 ..."
It was submitted on behalf of the Secretary of State that the limitation to "cattle" transport lorries was meaningless except as a description of a certain type of vehicle. Hodgson J said at page 107 that he:
"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."
Those cases included, as I have mentioned, both Wilson and Williamson and Stevens. Hodgson J concluded that use as a general haulage depot did not fall within the permitted use as a depot for cattle transport lorries, and allowed the Council's appeal.
Applying these principles to the present case, 'A' is a planning permission for a change of use to travelling showpeoples' site and 'B' is alleged in the enforcement notice to have been a material change of use to a use for the siting of caravan/residential mobile homes by persons who are not travelling showpersons.
The planning permission in the present case was for a change of use of agricultural land to travelling showpeoples' site. It permitted that change of use and no other. It did not permit a change of use to a use for the stationing of caravans for residential purposes by persons who were not travelling showpeople. Since there was no occupancy condition use of the site by occupiers who were not travelling showpeople was not prohibited. Whether the site was being used by non-travelling showpeople and, if so, whether that use was a material change of use from an initial use by travelling showpeople, were matters of fact and degree, which the Inspector should have determined, but did not, because he misunderstood the effect of the decision in I'm Your Man.
The limitation of the use to a site for travelling showpeople is just as much a functional limitation on the 2003 planning permission as were the limitations to "agricultural cottage" or "site for caravans occupied by gypsies" or "depot for cattle transport lorries". When the planning permission was granted in 2003 it was clear from Circular 22/91 "Travelling Showpeople" that there were specific characteristics that sites had to meet if they were to be suitable for travelling showpeople.
The I'm Your Man line of authorities has, in my judgment, been misunderstood by the appellants, and it was misapplied by the Inspector in paragraph 26 of his decision. It was not relevant, in the circumstances of the present case, when the allegation in the enforcement notice was that there had been a material change of use from use as a travelling showpeoples' site to use as a caravan site for persons who were not travelling showpersons. As Mr Mott said in paragraph 45 of his judgment, the unifying feature of the I'm Your Man line of authorities is that the use remained the same. Thus:
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.
In Altunkaynak [2012] 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 [2014] 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.
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.
Smout v Welsh Ministers and Wrexham County Borough Council [2011] 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.
It can be seen that in none of these cases was there an alleged change of use from the permitted use to some other use. If such a change is alleged in an enforcement notice, then in the absence of any condition limiting the use of the site to the permitted use, the question in every case will be: has the alleged change of use taken place and, if so, is it a material change of use for planning purposes? If the answer to either of these questions is "no" there will have been no development, so planning permission will not be required. If the answer to both these questions is "yes" there will have been development and planning permission will be required. The position was accurately summarised by Hickinbottom J in paragraph 15 of his judgment in Cotswold Grange Country Park:
"...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."
There is no suggestion in I'm Your Man, Cotswold Grange Country Park or Altunkaynak that the Court of Appeal's decision in Wilson or the decisions in which Wilson was subsequently applied were wrong, nor could there have been such a suggestion since I'm Your Man and Cotswold Grange Country Park were first instance decisions and Altunkaynak was a Divisional Court decision. Understandably, in these circumstances, Mr Rudd placed considerable emphasis upon the decision of the Court of Appeal in Smout in support of his submission that the imposition of a limitation in the 2003 planning permission to travelling showpeoples' site was unlawful. The basis for this submission was said to be paragraph 20 of the judgment of Laws LJ, with whom Pitchford LJ and Lloyd Jones J, as he then was, agreed.
Having referred to the Inspector's conclusion that there was nothing in either the planning permission or the plans which required the permitted landfilling to be carried out in any particular sequence, Laws LJ said this in paragraph 20 of his judgment:
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 [1999] 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."
In the context of the planning permissions for landfill in that case, the proposition that if the local planning authority wished to ensure that the landfilling was carried out in a particular sequence of phases, then it had to impose a condition to that effect is wholly unexceptional. However, those observations of Laws LJ are not authority for the proposition that any limitation in the form of a description of the development that is permitted in a planning permission is unlawful. Wilson is not referred to in Smout. That is not surprising as there was no need to do so, because in Smout there was no change from the operational development that had been permitted, namely landfilling.
It is possible that the use of the word "limitation" in the judgments has contributed to the misunderstanding of the effect of the I'm Your Man line of authorities. The simple proposition which should not be lost sight of is that the use for which a planning permission is granted must be ascertained by interpreting the words in the planning permission itself. Whether other uses would or would not be materially different from the permitted use is irrelevant for the purpose of ascertaining what use is permitted by the planning permission. If the permitted use has been implemented, and a change to the permitted use takes place, then it will be a question of fact and degree whether that change is a material change of use.
Conclusion
For these reasons the Deputy Judge's conclusion was correct. This appeal must be dismissed and the appellant's appeal under section 174 of the Act must be remitted to the Inspector so that he can consider whether the 2003 planning permission was implemented in the sense the site was initially used as a travelling showpeoples' site, whether the alleged change of use has taken place and, if so, whether that alleged change of use amounts to a material change of use. If the answer to the last of those questions is "yes", then the Inspector will have to go on to consider whether planning permission should be granted for that material change of use under the appellants' ground (a) appeal.
LORD JUSTICE McFARLANE: The planning inquiry in this case opened as long ago as 11 October 2011 and with admirable dispatch the Inspector concluded the process when he handed down his decision on 9 December 2011. More than 3 years have now been spent in analysing whether or not the Inspector was correct in his approach to the decision that fell to him to make. Although the result of the decision that my Lord has announced today means that the whole process will now have to be reopened, and the inquiry before a different Inspector may well see the fourth anniversary of the opening of the first inquiry, I am entirely in agreement with all that my Lord has said in his judgment and I agree that the appeal has to be dismissed.
MR JUSTICE BLAKE: I agree that the appeal should be dismissed for the reasons given by Sullivan LJ.