Swalecliffe Chalet Owners' Association, R (on the application of) v First Secretary of State

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of one of the first defendant's Inspectors allowing an appeal made by the second interested party under section 195 of the Act and granting a lawful development certificate for the siting of static holiday caravans on land at Seaview Holiday Village St Johns Road, Swalecliffe, Whitstable ("Seaview"). The appeal was dealt with by way of written representations and the Inspector's decision letter is dated 13th April 2004.

The planning history of Seaview is summarised in the decision letter. For present purposes it is sufficient to say that for very many years Seaview has been used partly for caravans and partly for chalets. The second interested party wishes to increase the number of caravans at Seaview. This would displace the chalets which the claimants are anxious to protect.

The second interested party had applied to the first interested party for a Lawful Development Certificate in respect of the use of the chalet field at Seaview "for the siting of caravans in pursuance of planning consent dated 14th March 1961". The first interested party's refusal of the application was the subject of the appeal before the first defendant.

There was no dispute that the 1961 planning permission was still extant and the question for the Inspector was whether it permitted the siting of caravans on the chalet field at Seaview. The Inspector concluded that it did. He therefore allowed the appeal and granted a certificate. In his reasons, the Inspector correctly took as his starting point the terms of the permission itself. Permission was granted:

Pausing there, the parties are agreed that this is one of these cases where it is permissible, indeed essential, to have regard to the terms of the application in construing the planning permission: see the second of Keene J's (as he then was) propositions on page 19 of the R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12.

Turning to the application, it is an application for a licence to use the land as a caravan site under section 3 of the Caravan Sites and Control of Development Act 1960 ("the 1960 Act"). Question (2) on the application form asks for the applicant's interest in the land and asks for particulars of lease or tenancy, if any. The answer to that question was:

Under the heading "For Caravan Sites already in use on or before 9th March 1960, without planning permission from the Local Planning Authority", question (12) asks:

The application plan showed a number of areas in different colours. The areas coloured brown, yellow and pink were shown with a key under the heading "Users". The key said that the yellow land related to chalets, the brown land to caravans and the pink land to the car park. On the yellow land the layout of the chalets was shown. In addition to showing "users" the key also showed what was described as "zoning" which related to surrounding land used as residential, industrial and public open space.

At first sight it might appear surprising that an application for a site licence under the 1960 Act should have resulted in a grant of planning permission under the Planning Acts, but section 17 of the 1960 Act made specific provision for certain applications for site licences made under section 3:

The 1960 Act came into force on 29th August 1960, so the application dated 25th October 1960 was made within the two-month period mentioned in sub-section (1). "Existing site" is defined in section 13 of the 1960 Act which provides, so far as relevant:

The 1960 Act generated a great deal of litigation. It is unnecessary to refer to all of the authorities which are helpfully cited by Miss Olley in her skeleton argument on behalf of the claimant because it is well established (and not disputed by Mr Brown on behalf of the Secretary of State) that section 17 only applied to an application which related to an existing site. In Williams-Denton v Watford Rural District Council [1963] 15 P&CR 11, Lord Parker CJ said this at page 17:

Those observations were cited with approval in all the subsequent cases, of which the most helpful for present purposes is R v Axbridge Rural District Council ex parte Wormald [1964] 1 WLR 442. In that case the applicant owned two and a half acres of land on which were sited a bungalow and a caravan. He applied for a site licence in respect of the whole site. The local planning authority failed to issue a decision within the prescribed time and the applicant claimed he had the benefit of the deemed planning permission for a caravan site over the entirety of the two and a half acres, by virtue of section 17(3).

The Court of Appeal did not accept that contention. Lord Denning MR said this at page 445:

In this case there is an express permission and so the local planning authority is bound by the terms of that express permission. It is, of course, possible that Whistable Urban District Council, on behalf of the Kent County Council as local planning authority, acted unlawfully in 1961 and granted planning permission under section 17(2) for land which did not fall within the definition of an "existing site in the 1960 Act. If that had been the case, Miss Olley acknowledges that it would now be far too late to challenge that illegality, and the local planning authority and the Secretary of State would be bound by the terms of the planning permission granted.

However, it is to be presumed, in the absence of any evidence or indication to the contrary, that the Whitstable District Council acted lawfully rather than unlawfully in granting planning permission under section 17(2). The starting point must therefore be that planning permission would have been granted in 1961 for so much of the application site as was an "existing site" for the purposes of the 1960 Act, and planning permission would not have been granted for so much of the site as was not an "existing site".

While the court should not adopt a strained interpretation of the planning permission, when construed together with the application incorporated into it, if it is possible to construe the permission so it relates to land which was, on the evidence available on the application, an existing site rather than to land which was not an existing site, then the court should do so. I emphasise the words "on the evidence available in the application" because I accept Mr Brown's submission that it is not permissible to look at extrinsic evidence to determine what was the extent of the existing site and then to use that evidence to cut down the terms of the planning permission. In my judgment, recourse to extrinsic evidence is unnecessary, even if it would have been appropriate, because the extent of the existing site was clearly defined by the application when read together with the accompanying plan, bearing in mind the statutory framework within which the application was submitted and considered and planning permission granted.

Although question (12) on the form was not completed, it will be recalled that the key on the application plan referred to "users" and contrasted "users" with "zoning". The fact that the application was treated as an application in respect of an existing site explains why planning permission was granted under section 17, and why planning permission was not granted for a change of use of the Kite Farm Camp to caravan site but for "continuation of use as seasonal caravan camp". Plainly such a description of the development would have been inappropriate unless there was an existing site, permission for the continuation of which was being sought.

If one asks the question what seasonal caravan camp use was being permitted to continue, the answer is the seasonal camp use described in the application for the site licence. It is true that the combined acreages given in response to the question "Acreage of site" totalled 29.25, but it is also plain that the application related to both caravans and chalets (see the answer to question (7)) and, in any event, the application form cannot sensibly be read in isolation from the application plan, since without the plan there is no means of knowing which areas are referred to in the application or what, if anything, was the significance of the references to brown, yellow and pink colouring.

Once the plan is considered in conjunction with the form, it is clear that the caravans, and hence the existing caravan site which was permitted to continue, were confined to the brown land. Since the chalets on the yellow land did not fall within the definition of caravans (see section 29 above) they could not have formed part of the existing site. Such a conclusion does not require the use of any extrinsic evidence, merely a common sense reading of the application form and accompanying plan against the background of the statutory framework within which those documents were submitted for consideration by the Urban District council.

Mr Brown submitted, correctly, that the extent of the existing site in 1960 was a question of fact and degree (see the judgment of Salmon LJ in the Axbridge case cited above). That would have presented a difficulty if the applicant for the site licence had not helpfully defined on the application plan, by means of brown and yellow colouring, those areas which were occupied by caravans and chalets respectively, and if the Urban District Council had not incorporated that plan, together with the application form, into the planning permission itself. Mr Brown pointed to the definition of "caravan site" in section 1(4) of the 1960 Act and submitted that in addition to land on which caravans are stationed, a caravan site can comprise other land which is being used in conjunction with such land. He submitted that there was no evidence as to the extent of the land that might have been used in conjunction with the land on which caravans were stationed.

In my judgment, that is a wholly unrealistic approach to the interpretation of this application form and the application plan. It must be borne in mind that those documents were not being submitted to the UDC in a legislative vacuum. They were being submitted in a particular statutory context where applications in respect of existing sites had to be made by 29th October 1960 if the applicant wished to take advantage of the provisions of section 17 and receive not simply a site licence but a planning permission. In that statutory context, it is simply unrealistic to postulate that the brown land was confined to that land on which caravans were actually stationed and excluded land which was being used in conjunction therewith, not least because there would have been no conceivable reason, from the applicant's own point of view, to have so cut down the extent of the existing site for which he was seeking permission.

Mr Brown laid emphasis upon the figure of 29.25 acres given in parenthesis in the permission notice, but that figure cannot be considered in isolation. The position would have been different if planning permission had simply been granted for a "change of use to use as seasonal caravan camp" without reference to any further document. Such a permission would, on a natural reading, grant permission for a change of use over the whole 29.25 acres, whatever the intention of the local planning authority might have been. Here, however, the permission relates not to a change of use but to the continuation of an existing use "as seasonal caravan camp". Such an existing use might have been taking place over all or part of the 29.25 acre site. Absent any admissible evidence to the contrary, I would accept that it might well be reasonable to construe a planning permission which merely referred to a site area and to a continuation of an existing use as meaning that the existing use took place over the whole of the site area. In the present case, however, one is spared that uncertainty because the application has been expressly incorporated into the planning permission. The application form, read together with the plan, tells us the extent of the existing seasonal caravan camp -- on the brown land -- which was being permitted to continue within the 29.25 acre Kite Farm Camp. It also tells us that the yellow land could not have been part of the seasonal caravan camp because it was occupied by chalets.

The conclusion that planning permission was granted in 1961 for the continuation of the use of the brown, but not the yellow, land as a seasonal caravan camp gives proper effect to the whole of the information that is contained in the application form, the application plan and the permission notice; requires the consideration of no extrinsic evidence; and has the merit of being consistent with a lawful rather than an unlawful exercise of the UDC's powers under section 17 of the 1960 Act. For these reasons I am satisfied that the Inspector's conclusions were erroneous and his decision and the certificate itself must be quashed. Thank you.

Yes, Miss Olley.

MS OLLEY: My Lord, the claimants are grateful. I have an application for their costs in the sum indicated on the schedule which I hope has been placed before you.

MR JUSTICE SULLIVAN: I think I have got one. I will see if I can find it. I think it might have gone walkabout somewhere. (Handed). Thank you very much. Yes.

MS OLLEY: There is attached to the back an explanation -- well, a breakdown of the statement of costs.

MR JUSTICE SULLIVAN: Shall I just find out a from Mr Brown what he says about principle and detail?

MR BROWN: My Lord, on principle I cannot contest. The detail I have some observations about.

MR JUSTICE SULLIVAN: Are they the sort of observations better dealt with during a summary assessment or is, as it were, the real point that this ought to go for detailed assessment?

MR BROWN: I think my clients are quite happy you should deal with it on summary assessment. I suspect the costs of going to taxation probably outweigh --

MR JUSTICE SULLIVAN: I would have thought so.

MR BROWN: My Lord, I appreciate that one cannot automatically compare the Treasury's own costs in this with a claimant's because the claimant has to make the running. Secondly, the Treasury Solicitor does not charge market rates for his time.

MR JUSTICE SULLIVAN: Or for counsel's time, but I am not allowed to say that.

MR BROWN: My Lord, in the present case our costs are just under £3,000. The claimant's are around £14,500. That is nearly four and a half times the amount. That calls for some sort of explanation. In terms of the paperwork involved, this is not a particularly complicated case. It is a relatively slim bundle of documents, most of which is have presumably been available initially for the written representations appeal in any event. My Lord, in that context if I look to my learned friend's schedule of costs, when it comes to "attendances on others" -- I do not know who "others" are -- just there alone there is something of 14.7 hours of time attending on others. You turn to work done on documents and there is a total of 30 hours spent preparing a bundle. Your Lordship will have an idea of how long it took for your Lordship to read the bundle. I appreciate those instructing my learned friend had to do a little more than read it but 30 hours seems to us to be a disproportionate amount.

MR JUSTICE SULLIVAN: Certainly it is a very commendable brief bundle. Compared to many of the planning bundles I see in cases like this, it is commendably short.

MR BROWN: That is true, but I am not sure it justifies a greater amount. Your Lordship will know the relation of claimant's costs to Treasury costs. It is not unusual to find the claimant's costs two or three times ours. Were they to be, I could not quibble but four or five times, I do. I am quite happy for your Lordship to take a broad brush approach to it. I would be very happy for your Lordship's judgment to what, if any, discount is appropriate.

MR JUSTICE SULLIVAN: What do you want to say to that, Miss Olley? It does seem quite a lot, the amount of hours spent. Treasury Solicitors' costs are quite light for a case of this kind. They are not infrequently round about the £5,000 mark. As Mr Brown rightly says, the claimant's costs are normally times two or a bit more.

MS OLLEY: I am instructed that "attendance on others" is courts and counsel and interested parties who only indicated relatively recently that they would not be taking part. The work on the documents, the most noticeable 15.6 hours I am instructed that includes the train journeys it was necessary to take in order to file and serve documents. That is by way of explanation for that. Other than that I would submit that the times put down are genuine, and other than that we are happy for your Lordship to assess it within his discretion.

MR JUSTICE SULLIVAN: Yes. I suspect, although I do not know, that it is more time-consuming and burdensome to deal with an association of a number of owners than dealing with one developer, say, or one particular claimant, because you simply have a number of people to explain that it takes two rather than one person to say yay or nay. I see that. On the other hand I do feel the sum is a little high. Is there anything else you would like to say?

MS OLLEY: No, my Lord.

MR JUSTICE SULLIVAN: Right. I can accept that for various reasons advanced, the costs might be expected to be slightly more than might normally be expected. On the other hand, I do think £14,230 is a bit steep for the reasons Mr Brown gives. Doing the best I can, and bearing in mind the claimants had to make the running, and the solicitors were representing not one lay client but a number which would inevitably have increased the burden, I think the acceptable thing to do is to summarily assess the costs in the sum of £12,000 to include VAT. The application is allowed. I will have to quash the certificate as well, will I not, Mr Brown?

MR BROWN: My Lord, yes.

MR JUSTICE SULLIVAN: Decision and the certificate quashed. Defendant to pay claimant's costs, those costs summarily assessed in the sum of £12,000. Do you have an application Mr Brown?

MR BROWN: My Lord, I do. Obviously my client wants to take time to consider what your Lordship says. I rise to preserve the position. I do ask for permission to appeal. Bearing in mind what your Lordship has said, I appreciate that I am not going to succeed in persuading your Lordship to say I have a reasonable chance. But were I to put it at all, that is how I would put it.

MR JUSTICE SULLIVAN: One can be quite firm in one's views but always with interpretation cases some people always have firm views the other way.

MR BROWN: My Lord, I would say I do have a reasonable prospect. Can I have permission for that reason?

MR JUSTICE SULLIVAN: No, I think once the permission is analysed in the statutory context I do not think there is a real prospect of success. I think I refuse you permission. Obviously you would have to go to the Court of Appeal if those instructing you think this is a point that ought to be pursued further.

MR BROWN: I am grateful.

MR JUSTICE SULLIVAN: Thank you very much indeed. Thank you both for your particularly helpful skeleton arguments. I apologise for slightly stealing your thunder, Miss Olley and you, Mr Brown, for bouncing you into things, but thank you both for responding as you did.