Barton Park Estates Ltd v The Secretary of State for Housing, Communities and Local Government

There has been a caravan park at Bedford Bridge, in the Dartmoor National Park, for over 40 years. It is currently known as the Magpie Leisure Park (the site). In 1987, the second defendant’s predecessor as the local planning authority (the authority), granted conditional planning permission for development of the site, the brief particulars of which on the grant of permission were stated to be “Proposed site enhancement scheme involving an amendment of existing provision at site to allow for 9 residential vans, 16 holiday chalets, 18 static vans & 30 touring units at Magpie Caravan Park, Bedford Bridge, Horrabridge.” The conditions did not limit the number of units to those set out in the particulars, as they could have done. Accordingly the claimant as owner applied to the authority in 2018 for a certificate of lawful use or development for the stationing of up to 80 caravans on the site “for the purpose of human habitation” (the proposed use). The application was refused and the claimant appealed under section 195 of the Town and Country Planning Act 1990 (the 1990 Act). The appeal was determined after an inquiry by an inspector appointed by the first defendant (SofS) by dismissing the appeal.

The essential reasoning set out in the inspector’s decision letter dated 29 June 2020 (the decision letter) was that the proposed stationing of up to 80 caravans for human habitation is not provided for by the 1987 permission, but would amount to a material change of use for which planning permission would be required. The claimant now appeals that dismissal to this court, with permission, under section 288 of the 1990 Act, and does so on three grounds as ultimately pursued.

The first ground is that the inspector misinterpreted the 1987 permission and should have decided that the lawful use thereunder was simply for a caravan site rather than such a site at which caravans provide both permanent residential accommodation and holiday accommodation. The second is that the inspector should have decided that it is within the scope of that permission for no caravans on site to be used for holidays. The third is that the proposed use would not change the definable character of the use of the park which would still be a caravan site, and so there would be no material change of use.

Each of these grounds is refuted by the SofS and the authority, who submit that the inspector identified the correct principles of law in respect of each of the grounds and applied them appropriately to the facts.

The inspector conducted a site visit to the park in February 2020 immediately after conducting a two day inquiry and hearing evidence from witnesses of the claimant and the authority. She set out the present use of site in paragraphs 51 to 54 of the decision letter. On the western side of the site there are nine caravans in unrestricted residential occupation which are well kept with delineated gardens, parking spaces, porches, fencing and decking. On the eastern end of the site there are five holiday chalets which are wooden buildings in a lodge style with pitched roofs and which are set well apart. To the north and to the front of woodland of the site there are situated static caravans which the evidence suggested were also being used as holiday accommodation. The central part of the site is predominantly laid to grass with some trees and areas of hardstanding with no obvious permanent delineation of pitches, which is used for touring caravans. The remaining part of the site to the south consists of two grassed areas either side of the entrance driveway which lie between the adjoining highway, the A346, and a row of mature trees along the southern boundary of the central area used for touring caravans.

The 1987 permission was granted subject to five conditions, the first of which required the development to be begun within five years. This was followed by a condition requiring improvement to the access to the site, and then one requiring landscaping to the road frontage.

Condition (d) then provided as follows:

The remaining two conditions set out temporal limitations in respect of the occupation or use of various units as follows:

The reasons given for the last two conditions are then set out in the 1987 permission:

At the heart of this appeal is the proper interpretation or construction of the 1987 permission. The relevant principles were not in dispute before me and accordingly may be summarised as follows.

Such construction is a matter of law for the court: Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476 at paragraph 28.

As a general rule a planning permission must be construed within the four corners of the consent itself, including the conditions in it and the express reasons for those conditions, unless another document is incorporated by reference or it is necessary to resolve an ambiguity: R v Ashford DC Exp. Shepway DC [1999] PLCR 12 at paragraph 19.

The question is not what the parties intended but what a reasonable reader would understand was permitted by the local planning authority. In determining objectively what a reasonable reader would understand, it is relevant to consider the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense: Trump International Golf Club v Scottish Ministers [2015] UKSC 74, per Lord Hodge at paragraph 34.

Conditions should be interpreted benevolently and not narrowly or strictly and should be given a common sense meaning: Carter Commercial Developments Ltd (In Administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1200 (Admin) at paragraph 49 and Northampton BC v Secretary of State for the Home Department [2005] EWHC 168 (Admin) at paragraph 22.

There are several difficulties with construing the 1987 permission. The first is that the development which is permitted is expressly that which is described in the application dated 7 July 1986 and the plans and drawings attached thereto numbered F/3.35/895/1986/5826/6. The brief particulars quoted above then immediately follow. None of the application, plans or drawings referred to were available to the inspector or in these proceedings. It is clear that the brief particulars were just that, and that other development was permitted, for example the new septic tank and soakaway referred to in condition (d).

The second is that the brief particulars refer to an enhancement scheme, but it not clear what precisely was being enhanced. The only previous permission made available before the inspector and in these proceedings was granted in 1981 for

Nevertheless, as the inspector observed in paragraph 13 of the decision letter, the reference to ten new pitches for touring caravans strongly suggests an increase in the pre-existing level of provision, for such caravans at least. The same may be said in relation to the chalets and residential caravans described by the word “new” in condition (d) of the 1987 permission. Accordingly, it appears that the enhanced scheme permitted by the 1987 permission was to a caravan site which already included pitches for touring caravans chalets and residential caravans.

The next difficulty is how the absence of conditions limiting the permitted development to the numbers of the various units set out in the brief particulars, or to any other numbers, affects the construction of the 1987 permission as a whole. This issue has been the subject of a good deal of judicial attention, and the main authorities were set out at some length by the inspector. It is not suggested that the principles were incorrectly set out, but rather that they were incorrectly applied. Nevertheless before me each of the parties dealt with the authorities in detail and there were some nuances between them as to how they should be applied. It is necessary, therefore, to deal with some of that detail.

The statutory framework is now set out in the 1990 Act, the predecessor of which was the act with the same title passed in 1971. For present purposes there is no material difference between the relevant provisions in each act respectively and I shall refer only to those set out in the 1990 Act so far as material to these proceedings.

Part III of the 1990 Act deals with control over development, which is defined by section 55(1) as “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” Section 57(1) provides that planning permission is required for the carrying out of any development of land. Permission is granted or refused by a local planning authority under section 70(1) either unconditionally or subject to such conditions as the authority thinks fit.

By section 72(1) conditions may be imposed on the grant of permission:

Part VIII of the 1990 Act deals with enforcement. Section 171A(1) provides that for the purpose of the 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 192(1) allows an application to the local planning authority by anyone wishing to ascertain whether any proposed use of buildings or other land would be lawful. Under subsection (2) the authority if satisfied that the use described in the application would be lawful if instituted or begun at the time of the application shall issue a certificate to that effect and in any other case shall refuse the application. By section 193(5) such a certificate shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission had been granted unless the matter is described in the certificate.

Section 195(1) allows an appeal to the SofS where such an application is refused. Section 288(1)(b)(i) allows an application to the High Court by any person aggrieved by an action on the part of the SofS, which includes a decision by an inspector appointed to hear an appeal under section 195(1), on the grounds that the action is not within the powers of the 1990 Act.

It is now well established that a section 288 application may be made on judicial review grounds. However, in considering such grounds, inspectors’ decisions must be construed in a reasonably flexible way and need only refer to the main issues in dispute. It is not appropriate on hearing an application under section 288 to carry out a review of the planning merits of the decision. In St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA 1643, Lindblom LJ reiterated these principles at paragraph 6 and the following warning at paragraph 7:

The relationship between limitations to and condition of planning permissions, and the phrase “conditions or limitations” in the enforcement provisions of the 1990 Act, has been considered by the courts on several occasions. In I’m Your Man Ltd v Secretary of State for the Environment (1998) 4 PLR 107, Mr Robin Purchas QC sitting as a judge of the High Court considered a planning permission for a certain use “for a temporary period of seven years.” No condition was imposed under section 72(1)(b) requiring discontinuance of the use at the end of that period. The judge, in rejecting the argument that the wording of the permission imposed a time limitation, said at page 115:

That case concerned a temporal limitation, but the principle is one of general application. In R (on the application of Altunkaynak) v Northamptonshire Magistrates Court [2012] EWHC 174 (Admin), Richards LJ after referring to I’m Your Man Ltd said at paragraph 39:

In Cotswold Grange County Park v Secretary of State for Communities and Local Government [2014] JPL 981, Hickinbottom J, as he then was, considered similar facts to the present case, in that the planning permission there was for “54 caravans” but with no condition limiting the use of the park to that number of caravans. At paragraph 15, the judge said:

At paragraph 30, he concluded:

In Winchester City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 563, the Court of Appeal again considered the principle. Sullivan LJ said at paragraph 19:

Sullivan LJ then went on in paragraphs 21 and 22 to refer to the decision appealed in that case of Mr Philip Mott QC sitting as a High Court judge and to the decision of Hickinbottom J in Cotswold Grange:

At paragraph 26, he concluded thus:

After dealing with this line of authorities and decisions of her colleagues in other appeals, the inspector at paragraph 46 said this:

The regard which the inspector paid to that description is revealed in the next paragraph of the decision letter:

Accordingly the inspector had regard to the description in the 1987 permission, not as imposing a limit on the number or type of caravans which may be stationed on the site, but to interpret that permission as permitting permanent residential accommodation and holiday accommodation. The description only uses the word “holiday” in relation to the chalets, but condition (e) also refers to the static caravans as “holiday” and prevents occupation of them, the chalets or the pitches for touring units in the winter months. Condition (f) prevents the latter from remaining on site for more than three weeks each year.

Mr Mackenzie, for the claimant, submits that such an interpretation is not justified. The inspector referred to the site as already in use by 1981 as “a caravan site” in paragraph 7 of the decision letter and accepts in paragraph 50 that it would “remain a caravan site” even after implementation of the proposed use.

He refers to the interpretation provision of the 1990 Act, section 326(1) of which defines “caravan site” as having the meaning set out in section 1(4) of the Caravan

Moreover, where terms or words are defined in a statute, they bear the same meaning, in the absence of any indication to the contrary, in any proposals or authorisations made pursuant to that statute (see Wyre Forest District Council v Secretary of State for the Environment [1990] 2AC 357, where the House of Lords held that the word “caravan” in a planning permission had the same meaning as in section 29(1) of the 1960 Act so as to include a chalet).

Accordingly, Mr Mackenzie submits that the 1987 permission should be interpreted as permission simply for a caravan site. There is no condition attached requiring mixed permanent residential and holiday occupation of the caravans. Alternatively, if the 1987 permission should be read as including such a requirement, it should further be interpreted that the holiday occupation applies only to the chalets permitted and the caravans permitted can provide either permanent residential accommodation, or holiday accommodation, or both. The description includes the phrase “holiday chalets” but does not use the word “holiday” to describe the use of any of the types of permitted caravan. It refers to “residential vans” but does not specify what type of van is referred to, so any type of structure as set out in section 29(1) of the 1960 Act must be included. Moreover there was no condition limiting the number of such vans.

Mr Mackenzie submits that on a proper interpretation of the 1987 permission, it would be permissible (although not required) for the site operator to use the caravans only for permanent residential accommodation.

Mr Parkinson for the SofS and Mr Leader for the authority submit that that argument ignores the fact that the description in the 1987 permissions sets out the type of use of the different structures permitted on site, and also ignores conditions (e) and (f) and the reasons given for them. When all these factors are taken into account, the inspector was correct to interpret the 1987 permission in the way she did in paragraph 47 of the decision letter.

I have come to the conclusion that that interpretation of the inspector is correct. Applying the principles of interpretation set out in paragraph 10 above, and the observation of Hickinbottom J in paragraph 15 of Cotswold Grange as approved by the Court of Appeal in Winchester, it is clear that there is no numerical limitation on the various types of unit set out in the description of the 1987 permission. Had the matter stopped there, then Mr Mackenzie’s submissions may have had some force.

However, regard must be had to the whole of the 1987 permission. In particular, condition (e) provides that the chalets, static holiday caravans and pitches for touring units shall not be occupied in the winter months, and the reason given is to protect the character of this part of the Dartmoor National Park during those months. In my judgment, such a limitation is inconsistent with permanent residential occupation caravans on most of the site. Moreover, condition (f) provides that no touring unit shall remain on site for more than 3 weeks in each year, for the stated reason that part

Accordingly in my judgment, the inspector was correct in paragraph 47 of the decision letter to interpret the 1987 permission as permitting a caravan site providing both permanent residential accommodation, and holiday accommodation, the latter in the sense that year round use is prevented by condition. Ground 1 fails.

Ground 2 is that inspector was mistaken in concluding that the proposed use would fall outside the scope of the 1987 permission, and should have decided that it permits use of the site where no caravans are to be used for holiday purposes. It was common ground before me, as it was before the inspector, that if the proposed use is within the scope of that permitted by the 1987 permission it would be lawful even if it amounted to a material change of use.

Mr Mackenzie submits that there are three reasons for advancing this ground. First, there is nothing in the 1987 permission which requires as opposed to permits a holiday use of any of the caravans on site. Accordingly all caravans currently on site could lawfully be used for permanent residential accommodation. Second, the inspector was mistaken to read the phrase “for the purposes of human habitation” in the proposed use as referring just to residential use. That phrase refers to a spectrum of uses which includes residential use and holiday use (per Lang J in Breckland District Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 292 (Admin)). Third, in paragraph 47 of the decision letter the inspector assumes that the stationing of 80 caravans for permanent residential accommodation would terminate holiday accommodation.

Against this, Mr Parkinson and Mr Leader submit that in paragraphs 46 and 47 of the decision letter in the inspector compared the use permitted under the 1987 permission with the proposed use, which was the correct comparison when considering whether the proposed use comes within the scope of the 1987 permission. The phrase “for the purpose of human habitation” in the proposed use would include the use of all the caravans for permanent residential occupation which the inspector had to consider as permitted under the proposed use.

Mr Parkinson emphasises the word “encompass” in paragraph 47 of the decision letter. He accepts that there may be a number of scenarios under the proposed use, some of which may be within the scope of the 1987 permission. However, he maintains the scenario which was focussed upon before the inspector was the possibility that all 80 caravans referred to in the proposed use could be used for permanent residential accommodation. Even within that scenario, the inspector did not proceed on the basis that the proposed use would mean no use of the site for holiday accommodation.

Mr Leader relies upon a decision of the Divisional Court in Wipperman & Buckingham v Barking LBC [1966] 17 P&CR 225 where it was held that the cessation of one of the uses in a mixed use of land does not amount to development unless one use is allowed to absorb the whole site to the exclusion of the other. It is then a matter of fact and degree whether there has been a material change of use. He submits that whilst the mere cessation of the holiday accommodation on site might not amount to development, its absorption by a residential use would be outside the terms of the 1987 permission.

In so far as there is any overlap between grounds 1 and 2, then my reasoning, set out above in respect of the former, applies. As to the remainder of the arguments under ground 2, construing the decision letter in a reasonably flexible way and without excessive legalism, it is clear that the inspector did focus on one of the scenarios of the proposed use where all 80 caravans referred to therein would be used as permanent residential accommodation. However, it is also clear from paragraph 47 of the decision letter that she understood that the proposed use would “encompass the use of any and all of the caravans” to provide such accommodation. In other words she understood that the proposed use could include such a scenario but could include other scenarios. She also understood that even in this extreme scenario, holiday accommodation, limited by condition (e) to occupation other than in the winter months, could continue. In paragraph 60 of the decision letter she observed that the proposal for stationing of up to 80 caravans on site could only be in addition to the existing chalets and not in place of them.

Accordingly, I am not satisfied that the inspector’s reasoning in this regard displays the errors suggested by Mr Mackenzie and ground 2 also fails.

That leaves ground 3. This alleges that the inspector erred in deciding that the proposed use would amount to a material change of use, despite also deciding that the planning unit would remain a caravan site. At paragraph 50 of the decision letter, the inspector said this:

In the following paragraphs the inspector then assessed the distinct elements which contribute to the existing character of the site, as outlined in paragraph 5 of this judgment. At paragraph 56, she concluded that the western part of the site, where the permanent residential caravans currently stand, would experience little change if the site as a whole were to be used for up to 80 caravans for that same purpose.

At paragraph 57 she observed that the character and appearance of the central area varies with the seasons. The effect of the proposed use on this part of the site, and to some extent to the east where the chalets are situated, was summarised in paragraph 59 as follows:

At paragraph 62 she observed that there would no longer be large number of touring caravans arriving and leaving, but instead the majority of movements would occur in the rush hours, and by way of deliveries or socials calls. At paragraph 63 she said that the most notable visual change would be the stationing of caravans on the open grassed areas at either side of the site entrance which would be clearly visible from the road, whereas currently the caravan site is largely secluded from public view and well-integrated within the landscape. This would have the effect of visually extending the caravan site and domesticating the existing areas of open grass, at the expense of the rural character of this part of the countryside. She concluded at paragraph 66 therefore that the proposed use would amount to a material change of use of the site, for which planning permission would be required.

It was common ground before me that the test for deciding whether a material change of use has occurred is whether there has been a change in the character of the use, or as Mr Mackenzie put it, in the definable character of the use. That latter phrase, used by Ouseley J, was approved by the Court of Appeal in Hertfordshire County Council v Secretary of State for Communities and Local Government & Anor [2012] EWCA Civ 1473. The case concerned whether a larger scale use of a scrap yarded amounted to a material change of use. The Court of Appeal agreed with Ouseley J that it did not.

At paragraph 25, Pill LJ, giving the lead judgment, dealt with the issue of which changes in their effects are capable of creating a material change of use. It was not in dispute that it is permissible to consider off-site effects. Pill LJ said this:

Mr Mackenzie submits that the recognition by the inspector at paragraph 50 of the decision letter that the proposed use would not be of a different type to the existing lawful use, in that the site would remain a caravan site, is the beginning and end of this ground of challenge. The error that she made in that paragraph is to treat the type of use as different to the character of the use of the site when conceptually they are the same thing. He submits that the situation described by the inspector is on all fours with that in Hertfordshire. The proposed use would encompass use as a caravan site “on a larger scale” but its definable character of the use would remain that of a caravan site. This is to be contrasted with that in Cotswold Grange and Winchester where there was a change in the definable character of the use.

Mr Parkinson and Mr Leader submit that it was open to the inspector to find that the proposed use would involve a material change in the character of the use even though

In my judgment, the inspector applied the correct test in this regard. Although she had regard to off-site effects, this was very much in the context of deciding whether the proposed use would bring about a change in the character, or definable character, of the use on site. The proposed use would not simply amount to a caravan site “on a

In conclusion, the application is dismissed. I am grateful to each counsel for his thorough and focussed submissions. Each helpfully agreed that any consequential matters not agreed can be dealt with on the basis of written submissions. I invite the parties to submit a draft order, agreed as far as possible, and any such submissions within 14 days of handing down this judgment.