Adams v Secretary of State for Housing, Communities And Local Governmen & Anor

The Claimant applies under section 288(1) of the Town and Country Planning Act 1990 (“TCPA 1990”) to challenge the decision of the First Defendant, made on his behalf by an Inspector on 6 May 2020, to dismiss the Claimant’s appeal, and to refuse to grant the Claimant a certificate of lawfulness for a proposed use or development (“CLOPUD”), pursuant to section 192 TCPA 1990, in respect of a caravan site known as Fenside Caravan Park, Puddock Road, Warboys, PE28 2UA (“the Site”).

The Second Defendant (hereinafter “the Council”) is the local planning authority for the area in which the Site is situated. On 19 December 2018, the Claimant applied for a CLOPUD for the siting of touring caravans, including those used as a person’s sole or main place of residence. The Claimant appealed under section 195 TCPA 1990, following the Council’s failure to determine the Claimant’s application.

The issue is whether the Inspector erred in her interpretation of the certificate of lawful use granted on 16 November 2016 when she concluded that it did not authorise the stationing of touring caravans as a person’s sole or main place of residence, as opposed to holiday use.

Permission was granted on the papers by Kerr J. on 27 July 2020.

On 10 March 1999, planning permission was granted on appeal for “the proposed change of use to camping and touring caravan site…” (“the March 1999 permission”). This was subject to seven conditions. Condition 4 limited the number of caravans to 16. Condition 6 provided that the caravans (other than the caravan occupied by the site manager) could only be used for holiday purposes and must not remain on site for more than 14 days in any month. Condition 7 prohibited the stationing of caravans (other than the caravan occupied by the site manager) over the winter period between 1 October and 31 March.

Condition 7 was “varied” by the Council in a decision dated 18 November 1999 (“the November 1999 permission”), altering the dates of the closed season to between 31 October and 1 March. All other conditions from the March 1999 permission were expressly incorporated into what the Inspector found was “a new and separate permission” (paragraph 10 of the Decision Letter “DL 10”).

On 7 April 2004 the Council granted a further planning permission (“the 2004 permission”) described as “Renewal of permission … for use of land as touring caravan site”, subject to 8 conditions. Condition 5 limited the number of caravans to 16. Condition 7 provided that the caravans (other than the caravan occupied by the site manager) could only be used for holiday purposes and must not remain on site for more than 14 days in any month. Condition 8 prohibited the stationing of caravans (other than the caravan occupied by the site manager) between 1 October and 31

On 16 November 2016 the Council issued a certificate of lawfulness of existing use or development in respect of the Site (“the 2016 CLEUD”). The 2016 CLEUD is in the following terms.

Note to applicant.

Note to applicant.

This certificate is issued solely for the purpose of section 191 of the Town and Country Planning Act 1990 (as amended).

It certifies that the operation specified in the First Schedule taking place on the land specified in the Second Schedule was lawful, on the specified date and thus was not liable to enforcement action under section 172 of the 1990 Act on that date.

This certificate applies only to the extent of the operation described in the First Schedule and to the land specified in the Second Schedule and identified on the attached plan. Any operation which is materially different from that described or which relates to other land may render the owner or occupier liable to enforcement action.”

On 19 December 2018, the Claimant applied for a CLOPUD for the siting of touring caravans, including those which were used as a person’s sole or main place of residence. The Claimant appealed under section 195 TCPA 1990, following the Council’s failure to determine the Claimant’s application. The Council subsequently indicated to the Inspector that it would have refused the application, if it had determined the application.

The appeal before the Inspector was heard by way of written representations. The Inspector dismissed the appeal, finding that a refusal by the Council would have been well-founded. She held that section 193(5) TCPA 1990 applied and so the conditions previously imposed on an extant planning permission would still be operative, regardless of whether they were expressly referenced in the certificate. She concluded:

The Claimant’s grounds of challenge were as follows:

In determining the lawful use of the Site, the Inspector was not entitled to go beyond the unambiguous words in the First Schedule to the 2016 CLEUD which stated that the lawful use was as a “touring caravan site” without limitation as to the purpose of use, the period of use, or the number of caravans, as contained in the conditions to the 1999 and 2004 planning permissions.

Alternatively, if the Inspector was entitled to go beyond the words of the First Schedule, her interpretation was flawed and inadequately reasoned. There was inadequate evidence to support her conclusion that the use identified as lawful was the use subject to the conditions in the extant planning permission.

The Claimant also submitted that the Inspector erred in applying subsection

In the course of his submissions, Mr Rudd submitted that the Inspector did not find, and was not entitled to find, that the 2004 permission was implemented.

In response, the First Defendant submitted that the Inspector was correct to find that section 193(5) TCPA 1990 applied to the 2016 CLEUD. The conditions attached to the planning permission continued to be effective, as the certificate did not expressly exclude them. The proposed use would have breached the conditions restricting caravan use to holiday purposes only and preventing the Site from being used by caravans in the winter months.

The Inspector did not need to “go behind” the 2016 CLEUD in order to identify the conditions as the certificate expressly referred to the existence of planning conditions attached to a planning permission which restricted the use of the Site. Thus, a reader of the CLEUD would have been put on notice that the use was subject to conditions, which could be viewed in a public document. It was not essential for this information to be included within the First Schedule. The form in Schedule 8 of the Town and Country (Development Management Procedure)(England) Order 2015 (“the DMPO”) did not prescribe where conditions/limitations on use should be included.

Furthermore, the Inspector was entitled to consider the planning permissions as extrinsic material as an aid to interpretation because they were expressly referred to in the certificate.

The First Defendant’s fallback submission was that the 2016 CLEUD was ambiguous because the text in the “Reasons” section of the certificate referred to a planning permission with conditions which restricted the lawful use set out in the First Schedule. Because of the ambiguity, it was permissible to consider extrinsic material as an aid to interpretation, although this was not the approach taken by the Inspector.

any operations which have been carried out in, on, over or under land are lawful; or

any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

the time for taking enforcement action in respect of the failure has then expired; and

it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

A certificate under this section shall—

specify the land to which it relates;

describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

give the reasons for determining the use, operations or other matter to be lawful; and

specify the date of the application for the certificate.

Section 191 TCPA distinguishes between certification of the lawfulness of (a) existing use of buildings or land; (b) operations which have been carried out over land; and (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted.

Section 171A TCPA 1990 defines what is meant by taking enforcement action, and distinguishes between two different types of breach of planning control – carrying out development without the required planning permission and failure to comply with conditions or limitations subject to which planning permission has been granted.

Section 187A TCPA 1990 provides for the enforcement of conditions subject to which planning permission has been granted.

Section 193(5) TCPA 1990 provides that:

The Planning Practice Guidance (“PPG”) advises on the grant of a certificate where there is an extant grant of planning permission with conditions (Reference ID: 17c011-20140306):

Article 39 of the DMPO provides, in so far as is material:

An application for a certificate under section 191(1) or 192(1) of the 1990 Act (certificates of lawfulness of existing or proposed use or development) must be made on a form published by the Secretary of State (or on a form substantially to the same effect) and must, in addition to specifying the land and describing the use, operations or other matter in question in accordance with those sections, include the particulars specified or referred to in the form.

An application to which paragraph (1) applies must be accompanied by—

a plan identifying the land to which the application relates drawn to an identified scale and showing the direction of North;

such evidence verifying the information included in the application as the applicant can provide; and

a statement setting out the applicant's interest in the land, the name and address of any other person known to the applicant to have an interest in the land and whether any such other person has been notified of the application.

Paragraph 1 of Article 9 reflects the distinction made in section 191 TCPA 1990 between certificates of lawfulness for “use, operation or other matter in question”.

The prescribed form in Schedule 8 to the DMPO is annexed to this judgment. The body of the form contains the formal certification and the reasons for it, to be inserted by the local planning authority. It provides that the use or operations or other matter which is certified as lawful is described in the First Schedule. The Council is required, by note (d), to insert a “full description of use, operations or other matter, if necessary by references to details in the application or submitted plans …” in the First Schedule. The site is specified in the Second Schedule.

Section 195 TCPA 1990 confers a right of appeal against a refusal of a certificate, wholly or in part, under section 191 TCPA 1990. By subsection (4), the right of appeal includes “a modification or substitution of the description in the application of the use, operations or other matter in question”. In my view, this could include the description in any part of the form; it is not limited to the description in the First Schedule.

Because of the overlap between the Claimant’s grounds, it is convenient to address them together.

The Claimant submitted that the Inspector erred in applying section 193(5) TCPA 1990 to this case. He submitted that subsection 193(5) applied in specific circumstances only, such as where a certificate was expressly granted on the basis of an extant planning permission, in which case it would not be necessary to list all the conditions in the permission. Subsection 193(5) could also apply where a certificate was issued in respect of a specific breach of condition referenced in the certificate, in which case other conditions which were not referenced in the certificate would remain

In my judgment, the Claimant’s narrow interpretation of the scope of subsection 193(5) TCPA 1990 was not supported by the words of the statute, the PPG or any authority. I agree with the Inspector who said that its effect was that “the LDC procedure cannot be used to circumvent conditions imposed on an existing permission, unless the permission itself is invalid” (DL 22). The Inspector rightly rejected the Claimant’s submission that it was simply “a mechanism to clarify that a specific certificate identifying a breach of one condition does not suggest immunity to other conditions”. The Inspector correctly said that it “clearly encompasses a situation where a LDC is issued for development implemented under a planning permission which is subject to conditions and where no breach of condition has occurred” (DL 25).

Turning to the application of subsection 193(5) TCPA 1990 in this case, the Inspector reviewed the planning history and found that the 1999 and 2004 permissions included conditions which would prevent the proposed use of caravans for use as a sole or main residence. The conditions included a restriction on caravan use for holiday purposes only and caravans were prohibited at the Site during the winter months. The Inspector found that it was likely that the 2004 permission was implemented (DL 12). She based this conclusion on the representations of the Claimant’s planning consultant who said that on 17 May 2013 the Council issued correspondence in respect of the discharge of conditions on the Site, although he failed to provide a copy of the letter. At the hearing Mr Rudd submitted that the Inspector had not reached a concluded view that the permission was implemented, and on the evidence the Inspector was not entitled to conclude that the permission had been implemented. I allowed Mr Mackenzie’s application to adduce in evidence the letter of 17 May 2013 from the Council’s Planning Services Manager which clearly stated that the development had been commenced within the specified period, the permission remained valid, and the conditions remained in force. Therefore, I consider that the Inspector’s finding that it was likely that the 2004 permission had been implemented was sound.

The Claimant submitted that the effect of the 2016 CLEUD was that the lawfulness of the use described in the First Schedule as a touring caravan site was conclusively presumed, pursuant to subsection 191(6) TCPA 1990. The Claimant relied upon the well-established principle in Broxbourne Borough Council v Secretary of State for the Environment [1980] QB 1 that the use that is presumed to be lawful is that set out in the certificate, which precludes the necessity to investigate the actual use at the date of the grant of the certificate.

In Broxbourne, the description of the use in the certificate was wider than the actual use. Goff J. held at [10 C]-[11 D]:

The principle in Broxbourne was approved in R (Tapp) v Thanet DC [2001] EWCA Civ 559, [2002] 1 P & CR 7 and in Hannan v Newham LBC [2014] JPL 1101 at [23].

In response, Mr Mackenzie correctly submitted that the application and the certificate only related to the lawfulness of the use (despite the erroneous reference to an “operation” in the certificate). There was no application and no certificate relating to the continued lawfulness of the conditions attached to any extant planning permission. The statutory scheme clearly distinguishes between certification for use, or for operations, or for other matters (conditions and limitations).

Furthermore, the Inspector distinguished Broxbourne and the subsequent authorities at DL 17 – 20:

Clearly, the 2016 LDC a ‘consent’ operating as a planning permission. By virtue of section 195 it could only certify the existing use which was considered to be lawful. The lawfulness of the use of the appeal site as a touring caravan site is conclusively presumed from the 2016 LDC (section 191(6)).

An LDC cannot be subject to conditions, but it can specify the precise level or scale of use. R v Thanet DC ex parte Tapp & Anr [[2000] EWHC, [2001] EWCA Civ 5592] concerned the limits on a local planning authority in granting a LDC for a

That scenario is not on a par with this appeal where planning permission had already been implemented. There was no risk of allowing unfettered intensification because the 2016 LDC does no more than confirm that the use which was granted permission was lawful on the application date.”

In my judgment, the Inspector’s legal analysis was correct. The certificated use in the Broxbourne line of authorities was not subject to conditions attached to an extant planning permission which had been implemented, and section 193(5) TCPA 1990 was not engaged in those cases.

The Claimant submitted that the Inspector was not entitled to go beyond the words in the First Schedule of the 2016 CLEUD when determining the scope of the certificate of lawfulness, relying on the terms of Article 39 and Schedule 8 of the DMPO. The only mention of planning permission and conditions was in the “Note to applicant”, 1 and 2. These were “informative notes” which were not authorised by the form in Article 8 of the DMPO and accordingly they did not carry any legal status or weight: see PPG paragraph 026 Reference ID: 21a-026-20140306, and QB Developments Ltd v Warrington Borough Council [2020] EWHC 1511 (Admin), per Dove J. at [20].

I accept Mr Mackenzie’s submission that, on a proper reading of the form in Article 8

However, in my view, it is a valid criticism of the drafting of the certificate that more detail, in particular, references to the extant planning permission and the conditions attached to it, should have been included in the First Schedule, for clarity and the avoidance of doubt. But faced with the task of interpreting an imperfect document, I consider that the Inspector was entitled to read it as a whole, and to take into account the text in the body of the certificate (including the Notes), as well as the First and Second Schedules.

I draw support for that conclusion from Lambeth LBC v Secretary of State for Housing Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317, where the Supreme Court overturned the decisions of the Inspector, the High Court, and the Court of Appeal, which held that Lambeth LBC’s recital of the proposed variation of a condition restricting sales, contained in the body of the decision notice, did not take effect as a condition in the new permission. It was common ground at the hearings below that the text would have taken effect as a condition if the notice had been correctly drafted, by inserting the relevant text into the section of the notice headed “Conditions”. Lord Carnwath, giving the judgment of the Supreme Court, took a less rigid approach than the Courts below, reading the decision notice as a whole and holding that its wording was “clear and unambiguous”, despite the admitted drafting error. He held that the only natural interpretation of the notice was that Lambeth LBC was approving what was applied for, that is, the variation of the condition from the original wording to the proposed substituted wording (at [29]).

In Lambeth, Lord Carnwath reviewed the principles set out in Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85, stating:

We have received extensive submissions and citations from recent judgments of this court on the correct approach to interpretation. Most relevant in that context is Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85. An issue in that case related to the interpretation of a condition in a statutory authorisation for an offshore wind farm, requiring the developer to submit a detailed design statement for approval by Ministers. One question was whether the condition should be read as subject to an implied term that the development would be constructed in accordance with the design so approved.

In the leading judgment Lord Hodge (at paras 33-37) spoke of the modern tendency in the law to break down divisions in the interpretation of different kinds of document, private or public, and to look for more general rules. He summarised the correct approach to the interpretation of such a condition:

He rejected a submission that implication had no place in this context:

In my own concurring judgment, having reviewed certain judgments in the lower courts which had sought to lay down "lists of principles" for the interpretation of planning conditions, I commented:

In summary, whatever the legal character of the document in question, the starting-point - and usually the end-point - is to find "the natural and ordinary meaning" of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”

In Trump, Lord Hodge also set out, at [34] the well-established basis upon which extrinsic documents may be used as an aid to interpretation, if they are incorporated by express reference or needed to resolve ambiguity.

Applying these principles of interpretation, I consider that the Inspector was entitled to interpret the certificate in the way that she did, at DL 26 to 29:

Caselaw makes clear that it is not possible to import significant limitations into a historic LDC, but that does not override the operation of section 193(5). An existing planning permission under which the appeal site has operated cannot simply be ignored or disregarded on the basis that an informative note was unclear as to which specific permission applied.

All that the 2016 LDC confirms is the lawfulness of the use as a touring caravan site. It was lawful because planning permission had been implemented for such use. That is plain from the reasons for issuing the LDC (which explicitly say the use was ‘implemented’) without looking behind the LDC. The certified use is precisely that for which planning permission was granted. It does not certify a use in breach of condition. The question was not asked whether it had been lawful to use the site as a touring caravan site in breach of planning permission. Thus, this is not a case where a LDC has been issued for breach of the conditions restricting its use or a different use from that already approved. The 2016 LDC does no more than establish, as a matter of fact, that the approved use remained lawful at the date of the application.

The appellant acknowledges that where a LDC confirms a particular permission is extant, it would not be necessary to list all the conditions that would be enforceable as the LDC would simply confirm an extant permission. That is effectively what has happened here.”

Furthermore, I consider that, since a planning permission and conditions were expressly referenced in the certificate, the Inspector was entitled to examine the planning permissions as an aid to interpretation, in order to determine which was the extant permission and the relevant conditions. The Inspector found that the certificate referred to the conditions in the March 1999 planning permission – the references to the numbering of the conditions in the certificate matched the numbering in the March 1999 permission. The permissions which followed the March 1999 permission were described on their face as a variation and a renewal. However, the Inspector found that their effect was to replace the previous permissions, and so the extant permission was the 2004 permission. As the conditions were nearly identical, the error was not significant.

Whilst I acknowledge the importance of clarity and certainty in a certificate of this nature, any reasonable reader of the 2016 CLEUD would have been put on notice that the use certified as lawful, namely, a use as a touring caravan site, was subject to a number of conditions in a planning permission. The planning permissions have at all times been readily available on the planning register to members of the public, and interested professionals such as conveyancing solicitors and planning consultants.

For these reasons, the decision of the Inspector does not disclose any error of law. It is not necessary for me to determine the First Defendant’s fallback submission.

The claim under section 288 TCPA 1990 is dismissed.