Winchester City Council v Secretary of State for Communities and Local Government & Ors

On 9 December 2011 a Planning Inspector appointed by the Secretary of State for Communities and Local Government (“SSCLG”) issued a Decision Letter in respect of six appeals against enforcement notices issued by the Winchester City Council (“WCC”) and one appeal against the failure of WCC to determine a planning application submitted to it (“the planning appeal”). The Inspector quashed the enforcement notices and took no further action on the planning appeal.

WCC now applies for permission to appeal under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the quashing of the enforcement notices, and challenges under section 288 of the 1990 Act the decision on the planning appeal.

By consent it was ordered on 8 March 2012 that the two matters be heard together, and that the substantive and permission stage in relation to the section 289 appeal be held together as a rolled up hearing.

I have concluded that permission should be granted under section 289 and the appeals allowed. As a result, it is agreed, the matter will have to go back to the SSCLG to appoint another Inspector to determine the enforcement notice appeals afresh. As to the section 288 challenge, I dismiss this on the merits and on a discretionary basis.

The premises concerned are at Carousel Park, Basingstoke Road, Micheldever, Hampshire. On 16 April 2002 a planning application was submitted for “Change of use of land to travelling showpeople’s use”. The existing use of the land was stated to be “Redundant agricultural”. A block and location plan was submitted which was not put before me.

On 2 October 2003 permission was granted for “Change of use of agricultural land to travelling showpeoples’ site” in accordance with the plans and particulars submitted with the application, subject to 15 conditions. The relevant conditions for present purposes are as follows:

4.

No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a plan for each pitch indicating the positions, design, materials and type of boundary treatment and gates to be erected, the position of all areas of hardstanding and storage, the position and sizes of all residential caravans and any other temporary or permanent structures or buildings and the areas of open amenity space. Development shall be carried out in accordance with the approved details before the pitches are first occupied.

5.

No vehicles, equipment, caravans, mobile homes or other structures on the site are to exceed 4.5 metres in height above ground level.

7.

No maintenance, repairs or testing of equipment or vehicles shall be carried out other than between the hours of 0730 and 1800 Monday to Friday and 0730 and 1800 Saturdays and at no time on Sundays and Bank Holidays, unless otherwise agreed in writing by the Local Planning Authority.

10.

There shall be a maximum of three caravans or mobile homes occupied for residential purposes on each pitch. Any additional touring caravans used by the travelling showpeople may be stored within the defined storage areas but may not be occupied for residential purposes at any time.

11.

There shall be no more than 9 family pitches on the site and the pitches may not be sub-divided at any time.

13.

In the event that the site ceases to be used for the purposes of travelling showpeople, it shall be restored to its former condition. All structures, hardstandings, equipment, vehicles and materials brought onto the site in connection with the use shall be permanently removed from the land within 12 months of the use ceasing.

15.

No more than 50 people shall occupy the site at any time.

None of the conditions attached to the planning permission expressly restricted the occupation of the site to travelling showpeople, as they could have done.

At the same time as the grant of the planning permission a section 106 agreement was entered into, which was designed to restrict the occupation of the site to travelling showpeople. However it appears to have been defective, and in any event was not expressly incorporated into the planning permission as it could have been.

Enforcement notices were issued by WCC on 6 September 2010 because it was thought that the site was being occupied by gypsies and travellers who were not travelling showpeople. Whether this is so in fact is disputed. The notices alleged that this constituted a material change of use from that permitted by the 2003 planning permission. Whether such a change of use would be “material” is also disputed. Neither issue has been the subject of any finding on appeal to the Inspector, and neither arises for determination in these proceedings.

The notices were appealed on a number of grounds, as follows:

At the appeal hearing the notices were amended by agreement, and Grounds (c) and (d) were withdrawn in their entirety. The Inspector decided the appeals only on one limb of Ground (b), namely that the planning permission should be interpreted as being simply “use as a residential caravan site” and not restricted to travelling showpeople. He made no findings in respect of the remaining limb of Ground (b), which was that the occupants were in fact travelling showpeople. He also did not consider Grounds (a), (f) or (g), and took no further action on the planning appeal.

The basis of the Inspector’s decision to allow the enforcement notice appeals was one of law, as he acknowledged. It arose from the decision of this court in I’m Your Man Limited v Secretary of State for the Environment (1999) 77 P&CR 251, a decision of Robin Purchas QC sitting as a Deputy High Court Judge. The Inspector set out his interpretation in paragraph 23 of his Decision Letter:

“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.”

Having concluded that he could not look to the terms of the section 106 agreement as it was not incorporated into the terms of the planning permission (a conclusion which is not challenged in this appeal), he concluded in paragraph 26 of his Decision Letter:

“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 who may occupy the site. In those circumstances the appeals succeed on ground (b) and the notices as corrected and varied will be quashed.”

Section 57 of the 1990 Act provides that, in general, “permission is required for the carrying out of any development of land”. By section 55(1) “development” is defined as including “the making of any material change of use of any buildings or other land”.

Section 55(2) provides that certain operations and uses of land shall not be taken to involve development. They include, by paragraph (f), “in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of buildings or other land … for any other purpose of the same class”.

The Secretary of State has made such an order setting out various categories known as “Use Classes” in the Town and Country Planning (Use Classes) Order 1987. Uses which do not fall within any use class are considered “sui generis”. These will include, for instance, theatres, scrapyards and petrol filling stations.

Section 75 of the 1990 Act sets out the effect of planning permission. It is a grant which enures for the benefit of the land, and thus runs with the land. The section continues:

(2)

Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.

(3)

If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed.

Section 171A of the 1990 Act provides that:

(1)

For the purposes of this Act –

(a)

carrying out development without the required planning permission; or

(b)

failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.

Section 172 allows the local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control, and that it is expedient to issue the notice.

The case concerned a permission granted to use two aircraft hangers for sales, exhibitions and leisure activities “for a temporary period of seven years”. No condition was imposed to require cessation of that use at the end of the seven year period. The court held that there was no express or implied power for a local planning authority to impose limitations on a planning permission, and so the grant of permission was a permanent one.

The Judge noted that there is an express power, in section 60(1) of the 1990 Act, for permission granted by a Development Order to be subject to such conditions or limitations as may be specified in the Order. Section 70(1), which allows a local planning authority to grant permission, allows the imposition of conditions, but gives no power to impose limitations. Therefore, he concluded, there was no such express power, and none should be implied.

The Judge dealt with a submission that the time limit was part of the use authorised by the permission, so that “the use itself should be seen as a use limited for that period”. He rejected this submission, saying:

“I have doubt whether the character of a use for the purpose of section 55(1) of the 1990 Act can properly include without more whether the use was temporary or permanent. Change of use is from one use or non-use to another use and should be considered in terms of the character of the use of the land. Materiality for the purposes of section 55(1) should be judged as a matter of degree on a comparison between the use before and after the change. I do not consider that generally the character of a use would alter whether it was to last for one year or seven years or was permanent. In most cases the use of the land on each basis would be for planning purposes identical.” [emphasis added]

The appeal in Jeffery v First Secretary of State & Teignbridge District Council [2007] EWCA Civ 584 was decided on the basis of a concession that I’m Your Man applied and was correctly decided. Both Jacob LJ and Hughes LJ expressly reserved the question of whether that was so.

The Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates’ Court [2012] EWHC 174 (Admin) expressly approved I’m Your Man, and applied it to a case where permission to use premises at 15B Silver Street Kettering as a hot food takeaway was expressed to be “as an extension to the present premises at number 15”. The Court held that these words were not valid to limit the way in which the new use of number 15B could be exercised. Indeed, in paragraph [39] Richards LJ said:

“But the reasoning in I’m Your Man Limited contains nothing to justify confining its application to temporal limitations. The relevant principle, drawn from the wording of the statute, is a general one: if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition.”

Clearly the I’m Your Man principle means that when permission is granted for a certain use, any limitation on the way in which that use is exercised must be imposed by condition. It does not matter whether the limitation is by way of a time limit (as in I’m Your Man), or by linking it to the use or occupation of other premises (as in Altunkaynak). Nor is the principle limited to those two examples.

The underlying principle, as explained in I’m Your Man, is that “limitation” is a technical term used in the statute only when imposed by Development Order. Any restriction seeking to have the effect of a limitation, but imposed by a local planning authority, can only be effective if included in a condition.

That leaves the question of what use is permitted by a grant of permission, as opposed to any restriction or limitation on that use. Where the permission is also for the erection of a building, section 75 applies. Where the use described is covered by one of the specified use classes, it will cover all uses within that class unless restricted by conditions. But where, as here, the permitted use (however it is defined) is “sui generis”, the description or definition of the use permitted must come from somewhere.

It cannot be that, absent a specified use class, planning permission for change of use must be interpreted as permission to do absolutely anything, unless that freedom is circumscribed by conditions. Neither Respondent espoused such a proposition. Both argued that the grant is to be found from the planning permission as a whole, including the application and plans if (as here) they are incorporated into the permission by reference.

Mr Ward submits on behalf of WCC that the 2003 grant of permission was for a “sui generis” use as a travelling showpeoples’ site. The I’m Your Man principle does not apply because WCC are not seeking to rely on any restriction or limitation on that use. The limits on permitted use come from the grant itself, not from any derogation from or limitation upon that grant, which it is accepted would have to be imposed by condition. The grant of permission for use as a travelling showpeoples’ site defines the character and nature of the use itself. If the words “travelling showpeople” have no functional significance in planning terms, there is nothing left in the grant to explain the use permitted.

In support of those submissions, Mr Ward relies additionally on Wilson v West Sussex County Council [1963] QB 764, where the word “agricultural” attached to the word “cottage” was held to be of “functional significance”, not merely architectural or descriptive. Whilst the case may be distinguishable, and I do not rely on it as authority for my conclusion, it points to the fact-specific issue of construction of the permission actually granted in an individual case.

In like manner, Mr Ward cites Williamson and Stevens v Cambridgeshire County Council (1977) 34 P&CR 117, a Lands Tribunal interim decision, and Waverley District Council v Secretary of State for the Environment and Miller and Davies [1982] JPL 105, where Hodgson J concluded on the particular facts that the word “cattle” when attached to “transport lorries” had a functional significance. I look on these cases as merely examples of the application of normal principles of construction to particular facts.

For the First Respondent, Mr Whale submitted that WCC could and should have imposed a condition. It is not doubted that it could have done so, and therefore there is no need to strain construction of the planning permission to accommodate its failure. The First Respondent relies heavily on I’m Your Man and Altunkaynak. In addition, reference is made to Smout v Welsh Ministers [2011] EWCA Civ 1750, in which a submission that permission to develop land in phases A-F meant that the development had to be carried out in alphabetical order was roundly dismissed by the Court of Appeal.

Mr Whale accepted that there must be some limit on the use to which the land could be put, and submitted that this came from the whole of the application, plans and permission. Whether a descriptive word was significant would depend on the circumstances. He agreed that I’m Your Man was not authority for a proposition that the wording of the permission could simply be ignored, but the answer would come from the whole suite of documents.

Mr Whale also accepted that there was a practical and visual difference between a site for travelling showpeople and one for general residential use, or even one for gypsies and travellers, but did not accept that they would amount to a different planning use or that there was any significant land use distinction.

Mr Rudd, for the Second Respondents, made submissions similar to those of Mr Whale. He too submitted that there is no fundamental difference in land use terms between travelling showpeople, gypsies and travellers, or New Age travellers.

There is a longstanding recognition of the particular needs of travelling showpeople. Circular 22/91 was effective at the time of the grant of permission in 2003. It described the category as follows:

“2.

Showpeople are self-employed business people who travel the country holding fairs, chiefly during the summer months. Although their work is of a peripatetic nature, showpeople nevertheless require secure, permanent bases for the storage of their equipment and more particularly for residential purposes. Such bases are most intensively occupied during the winter, when many showpeople will return there with their caravans, vehicles and fairground equipment. For this reason, these sites traditionally have been referred to as “winter quarters”. But increasingly showpeople’s quarters need to be occupied by some members of the family permanently; older family members will stay on for most of the year and there are plainly advantages in children living there all year to benefit from uninterrupted education.”

The Circular goes on to distinguish showpeople from gypsies, and points out that:

“4.

The nature of showpeople’s sites is unusual in planning terms. The sites illustrate the showpeople’s characteristic self-sufficiency by combining residential, storage and maintenance areas. Typically a site comprises areas set aside for the showpeople’s accommodation – usually caravans and mobile homes – and areas where vehicles and fairground equipment can be stored, repaired and tested. This means that the sites do not fit easily into existing land-use categories. Some of the difficulties showpeople have experienced with the planning system can be attributable to this.” [emphasis added]

In August 2007 new Guidance was issued, headed “Planning for Travelling Showpeople”. This was in force at the date of the appeal to the Inspector. It repeats the passages quoted above in substantially the same terms. It also comments, at paragraph 9(a), that “Travelling showpeople do not in general share the same culture or traditions as Gypsies and Travellers”.

In March 2012 a new document was issued by the Department for Communities and Local Government entitled “Planning policy for traveller sites”, which covers both travelling showpeople and gypsies and travellers. The Glossary makes clear that “travelling showpeople” are distinct from “gypsies and travellers”, who are excluded from the former group definition.

None of these documents can be used to change or even interpret the terms of the planning permission granted, but in my judgment they do point to the following conclusions:

Having concluded that a travelling showpeoples’ site may be a significant and separate land use in planning terms, the next question is whether the 2003 planning permission, on its proper construction, granted permission only for that use.

The fundamental question is whether this was a limited grant of permission to use the site as a travelling showpeople’s site, or an attempt (which would be ineffective as a result of the I’m Your Man principle) to impose a limitation or restriction on a more general grant.

The Inspector did not address this question, having come to his decision on the basis that I’m Your Man provided an entire answer as a matter of principle, regardless of the details of the particular case.

It would be possible simply to allow the appeal and leave a second Inspector to come to a conclusion. Since this is very much a question of law (though heavily fact-specific), I think it just and proportionate to come to a conclusion myself.

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 showpeople’s site, which is a distinct and narrower use, without any further attempt to limit that use.

The planning appeal arose out of an application dated 7 October 2010 by Mr Black for permission for “Use of land as travelling showmans site”. The existing use of the land was described on the application form as “Travelling Showperson site”. WCC accepted and processed the application, but made no determination within the time provided under the law.

In those circumstances the applicant is entitled to appeal to the Secretary of State under section 78(2) of the 1990 Act. The powers of the Secretary of State (exercised through an Inspector) are set out in section 79(1) as follows:

(1)

On an appeal under section 78 the Secretary of State may –

(a)

allow or dismiss the appeal; or

(b)

reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

In the present case the Inspector decided that the permitted use was already wider than that applied for, and therefore took no further action on the section 78 appeal.

Mr Ward submits that the Inspector had no power to take no further action. He had either to allow or dismiss the appeal. The powers under section 79(1)(b) do not apply where there has been no decision by the local planning authority. Although the Inspector has the further power to deal with the application as if it had been made to him in the first instance, that did not include taking no action. The power of a local planning authority to decline to determine planning applications is very limited and none of the relevant circumstances applied here.

Mr Whale submits that this Court has no jurisdiction to entertain this challenge under section 288 of the 1990 Act. That section only applies (in a case such as this) where there has been “any decision on an appeal under section 78” (see section 284(3)(b)). It does not apply where the Inspector has taken no further action, and therefore not made any decision on the appeal. He cites, by parity of reasoning, Golding v SSCLG [2012] EWHC 1656 (Admin) at paragraphs [40] to [43]. WCC’s only remedy would have been by judicial review, and it is now far too late for that.

Alternatively, Mr Whale submits, the Inspector had the power to act as he did by virtue of the concluding words of section 79(1), and it was a perfectly reasonable decision since the application was for the same use as was granted in 2003 on any interpretation of that permission.

In an attempt to understand the practical significance of the decision to take no further action, I asked Mr Whale what would happen if the section 289 appeals succeeded. He had no instructions, but expressed the view that the Secretary of State would be unlikely to reopen the planning appeal.

Mr Rudd submits that the 2010 application was wider in terms than the 2003 permission as interpreted by WCC, but became superfluous once the Inspector had decided as he did. Mr Rudd supported the submissions of Mr Whale and did not seek, on behalf of his client, to have the planning appeal reopened, even if the section 289 appeals succeeded.

I do not need to decide whether this challenge should have been brought by way of judicial review. My preliminary view is that a challenge under section 288 is available, because in my judgment the Inspector did make a decision on the appeal, but it was one which he was entitled to make.

WCC did not rely on any specific powers to decline to determine the 2010 application. As Mr Ward said, none of those circumstances applied. WCC simply made no decision and let the time for doing so elapse. In other words, they accepted and processed the application but then took no further action. The Inspector was entitled to deal with the appeal as if the application had been made to him in the first instance. He did exactly what WCC did.

If I am wrong about the legal position, I would also refuse relief under section 288 on discretionary grounds.

Mr Ward sought to argue that it was important to have the file closed. That is a curious submission when his own client did nothing to conclude the application. If Mr Black had not appealed, the file would still nominally be open. In any event, it seems to me that the only person with any interest in having the appeal re-opened is Mr Black, and Mr Rudd on his behalf has declined to support this challenge.

I will leave counsel to agree the appropriate form of order. If there are any issues about costs, these should if possible be decided on written submissions.