SPVRG LTD (R on the application of) v PEMBROKESHIRE COUNTY COUNCIL

Introduction

This judicial review claim is a challenge to the decision of Pembrokeshire County Council (“the Council”) to grant the interested party’s application (19/1340/PA) for planning permission under section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”) in relation to an established caravan park at Heritage Park, Pleasant Valley, Narbeth. When the claim was issued the challenge was to the resolution to approve the application made by the Council’s planning committee on 9 February 2021. Subsequently, on 27 May 2021, the decision notice granting the permission (“the 2021 Permission”) was issued and that is the ultimate target of this claim.

The 2021 Permission varies conditions 2 and 7 of a planning permission granted on 14 March 2016 (“the 2016 Permission”). The 2016 Permission was itself granted under s.73 of the 1990 Act, varying two conditions of a permission granted on 14 July 1983.

The caravan park known as Heritage Park is situated in Pleasant Valley, Stepaside. A Scheduled Ancient Monument (SAM) (Stepaside Ironworks) and associated listed buildings are situated within or adjacent to the site. The claimant is a company incorporated by the Stepaside and Pleasant Valley Residents Group who were originally formed to oppose another planning application made by the interested party in 2019.

The claimant’s application for permission to bring these proceedings advanced 18 grounds of challenge in respect of three decisions of the Council relating to Heritage Park. On 22 June 2021, I granted permission to pursue seven grounds in respect of the 2021 Permission only, namely: the second limb of Ground 11 and Grounds 12-17 (as they appear in the claimant’s amended statement of facts and grounds). I refused the claimant’s application for an extension of time, and permission, to challenge the grant of the 2016 Permission and to challenge a decision made on 2 June 2020 to discharge a number of the conditions relating to the 2016 permission.

The seven grounds on which the decision to grant the 2021 permission (“the Decision”) is challenged, which overlap, are:

The Decision was taken in ignorance of relevant considerations, namely, the 1987 Permission and the s.52 Agreement (“Ground 1”, formerly the last sentence of ground 11);

The Council failed to deal rationally with the visual amenity impact of variation of condition 2 (“Ground 2”, formerly ground 12);

The Council failed to properly understand or apply policy GN19 of the local development plan (“Ground 3”, formerly ground 13);

The Council failed to consider (lawfully or at all) a relevant consideration, namely, the flood risk (“Ground 4”, formerly ground 14);

The Council’s conclusion that the application complied with the development plan was flawed and irrational (“Ground 5”, formerly ground 15);

The Council failed to assess the fallback position properly (“Ground 6”, formerly ground 16); and

The Council failed to apply s.38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to condition 7 (“Ground 7”, formerly ground 17).

The facts

Mr Alec Cormack has given three witness statements on behalf of the claimant. He refers to himself as a “relative newcomer to Pleasant Valley”, but he has been a Director of SPVRG Ltd since it was incorporated on 15 September 2020; and he describes having spent many hundreds of hours, along with his wife, on the task of coordinating and collating the research done by the claimant’s supporters. His evidence is very largely based on the documents.

The Council’s Chief Planning Officer, Mr David Popplewell, has also given three witness statements in these proceedings, including a statement confirming that the conclusions set out in the detailed grounds of defence on the questions of implementation of the 1987 Permission and the application and/or enforcement of the s.52 Agreement properly accord with and reflect his professional view, having undertaken a full and detailed review of all the documentation of which he is aware which appears to be relevant to the Heritage Park development.

The history of development at Heritage Park is long and rather complicated. Although the challenge is limited to the 2021 Permission, it is necessary to give some historical context to address the claim fairly.

The Council’s evidence is that, on 16 June 1971, planning permission was granted for static and touring caravans in respect of what is now known as Heritage Park. I have not seen that permission, but it is immaterial. The permission was varied on 28 January 1982 which limited the holiday caravans to 95 static caravans and 55 touring caravans (“the 1982 Permission”).

On 14 July 1983, planning permission was granted to vary the condition in respect of layout in the 1982 Permission, and it was similarly restricted to the provision of 95 static caravans and 55 touring caravans (“the 1983 Permission”).

On 3 March 1987, planning permission was granted by Dyfed County Council for the change of use of the site to a heritage project – the ‘Stepaside Industrial Heritage Project at Stepaside’ - (“the 1987 Permission”), subject to a s.52 Town and Country Planning Act 1971 agreement (“the s.52 Agreement”). The 1987 Permission states:

The parties to the s.52 agreement were Saundersvale Holiday Estates Limited (the owner of the caravan park), Dyfed County Council (the local planning authority) and South Pembrokeshire District Council (which was involved in promoting the heritage project). The s.52 agreement required the relocation of caravans from the northern part of the site to the southern part and extinguished the use of the northern part as a caravan site 12 months following the commencement of works; and it permitted the northern part of the site to be used only as a car park and for no other form of development without prior written approval.

The preamble to the s.52 Agreement states at (2):

Clause 3 of the s.52 Agreement states:

The Second Schedule to the s.52 Agreement provides:

It is common ground that the highway works referred to in Clause 3(iv) were undertaken, but the sewage works were not.

There is a dispute between the parties as to whether the 1987 Permission was implemented, which is the subject of ground 1. In short, the Council’s position is that it has not been (and as a consequence the s.52 agreement requirements do not ‘bite’); and, in any event, it is no longer relevant given the 2016 Permission. Whereas the claimant contends it was implemented and remained a material consideration in making the Decision.

On 8 April 1991, planning permission was granted for a change of use of land (adjacent to the northern part of the site) to a commercial bird park (“the 1991 Permission”). Condition 3 of the 1991 Permission prevented the commencement of development unless a car park was provided for a minimum of 50 cars on land adjacent to or within 100 yards of the application site and was made available for use by visitors to the proposed bird park.

On 3 December 1992 permission was granted for an extension (to the south) of this bird park (“the 1992 Permission”).

On 6 July 1994 permission was granted for a further extension of the Stepaside Bird and Animal Park (“the 1994 Permission”). This much larger extension was adjacent to the southern car park. Conditions 3 and 4 of the 1994 Permission provide:

It is common ground that the 1991, 1992 and 1994 Permissions (together “the Bird Park Permissions”) were implemented and that the Bird Park operated during the 1990s (at least between 1991 and 1997, according to Mr Cormack). An application to renew the 1994 Permission (the last such renewal application) was granted on 17 May 1999, which required cessation of use if a minimum of 50 car parking spaces were not made available at all times.

The claimant contends that these permissions are relevant because they were conditional upon there being a car park available for visitors to the Bird and Animal Park. The claimant contends the car park used to satisfy condition 3 of the 1991 Permission was the northern car park; and that this confirms the 1987 Permission was implemented. The Council contends the car park envisaged by the 1994 Permission is another car park: and that the 1994 Permission was granted after the time for expiry of the (unimplemented) 1987 Permission.

In 1996 the Council had become the freehold owner of Heritage Park.

On 20 March 2001, planning permission was granted by Pembrokeshire Coast National Park Authority, on application by the Council, for 65 caravans and the rebuilding of a derelict dwelling at Heritage Park (“the 2001 Permission”), located to the south of the southern car park. It is common ground that this permission was not implemented.

By a lease dated 14 June 2007 the Council, in its capacity as landowner, granted the interested party a long lease (999 years) of Heritage Park (“the Lease”). Both the northern and southern car parks are located within the leased property. The Lease granted by way of easement the right “for the general public free of charge at all times to pass and repass on foot and with vehicles over and along the car park … together with the right for the general public to park vehicles on the car park” (“the northern car park covenant”). The latter reference to the car park is to the northern car park.

In February 2010, in its capacity as lessor, the Council proposed draft Heads of Terms to the interested party relating to the variation of the northern car park covenant. The draft Heads of Terms proposed entering into a contract under which the restrictions relating to the northern car park would be transferred to the southern car park, but conditional upon the interested party securing planning consent for an ‘approved scheme’ which would include a multi-user path to be developed by the Council. The draft Heads of Terms were ‘subject to contract’ and no further documentation was concluded.

In 2011, the interested party made an application pursuant to s.73 of the 1990 Act to vary two conditions in the 1983 Permission. These related to the layout of the site as well as the replacement of the 95 static and 55 touring caravans with 132 static pitches, which would involve the relocation of the existing northern car park.

A delegated decision report by a case officer, dated 23 January 2013, recommended that permission should be granted subject to the completion of a s.106 agreement. It is common ground that on 28 February 2013, a month after the officer’s report was drafted, the Council adopted a new local development plan, which was not referenced in the report. The officer addressed the flooding implications at paragraph 8.5 in these terms:

On 14 March 2016, the s.73 application for the varied layout and the 132 static pitches was granted. The delay in issuing the decision notice was due to delays in concluding the s.106 agreement.

The Council took the view, when granting the 2016 Permission, that the 1983 Permission was extant. This claim originally challenged that view, but the 2016 Permission is one of the decisions that the claimant was refused permission to challenge, first by HHJ Harman QC on the papers on 28 April 2021 and then by me at an oral hearing of the claimant’s renewed application on 22 June 2021.

On 15 August 2019, the interested party submitted a further planning application in respect of Heritage Park for the installation of 75 bases for the siting of holiday caravans and associated facilities including a spa, holiday apartments, café and equestrian stables. In a report dated 10 March 2020 (“the March 2020 Report”), the Director of Community Services recommended the application be refused. Amongst other matters, the March 2020 Report addressed the flood risk, stating:

The application was withdrawn by the interested party prior to its consideration by the planning committee in March 2020.

In March 2020 the interested party applied to discharge Conditions 3, 4, 5 and 6 of the 2016 Permission. This application was approved on 2 June 2020 (“the 2020 Permission”), following the recommendation of a delegated officer’s report dated 1 June 2020. This is the other decision that the claimant sought, but was refused, permission to challenge in this claim.

In March 2020 the interested party also made an application pursuant to s.73 to vary conditions 2 and 7 of the 2016 Permission (“the Application”) which conditions stated:

The Application sought the removal of the requirement in condition 2 that none of the 29 units should be twin-unit caravans. In relation to condition 7, the Application sought to vary the condition to enable caravan units in the north of the site (but not on the site of the northern car park) to be occupied prior to the “proposed public car park” (that is, the southern car park) being constructed and made available at all times thereafter for public use. The proposed variation of condition 7 continued to prohibit occupation of any caravan units located on the site of the northern car park until such time as the southern car park had been constructed and dedicated to the public. It is common ground that the southern car park already exists (and existed). The additional steps required to comply with the construction element of condition 7 would involve addressing matters such as putting up appropriate signage.

The Application was referred to the Council’s planning committee, which resolved at a meeting held on 10 November 2020 to approve the Application subject to a deed of variation in respect of the s.106 agreement.

On 8 January 2021, the claimant sent the Council a pre-action letter in respect of the resolution of 10 November 2020 (and the 2016 Permission), to which the Council responded on 29 January 2021 highlighting, among other matters, the very significant delay in respect of the 2016 Permission. Following receipt of the pre-action letter, the Application was referred back to the committee on 9 February 2021.

The report of the Director of Community Services to the Council’s planning committee, dated 9 February 2021 (“the Officer’s Report”), asked members to “consider matters afresh”. The Officer’s Report recommended that the Application be approved subject to the conclusion of a Deed of variation. The Officer’s Report noted that the “part of the site that is subject to the relevant planning conditions is a level parcel of land towards the site’s northern boundary part of which is a car park. It benefits from planning permission for 29 static caravans…”.

The Officer’s Report stated:

Under the heading “evaluation”, the Officer’s Report included the following:

Flood risk, potential pollution and effect on wildlife are matters considered at the time of the original application and are not a material factor in the determination of this application. Nevertheless on flood risk, the part of the site subject to this application is located within flood zone C2 – an area of the floodplain without significant flood defence infrastructure. Natural Resources Wales (NRW) did not request the imposition of condition 2, it was placed on the consent for visual amenity reasons. Nevertheless, as addressed in the report, the size of either single caravans or twin-units is ultimately governed by the size of the bases that have already been approved; the maximum size of a twin unit caravan could thus be similar to what could be achieved with a single unit. Thus there is no evidence to suggest that the number of occupants would be materially greater with twin units when compared to single units. …” (Emphasis added.)

The Officer’s Report concluded:

At the meeting of the planning committee on 9 February 2021, a number of councillors referred to the site visit that members had undertaken in September 2020. Mr Popplewell addressed the statement in paragraph 6.13 of the Officer’s Report that flooding is not a “material factor” and advised that “flooding is a material consideration” and “TAN 15 is a relevant consideration”. The transcript of the meeting sets out the advice he gave orally as follows:

There was then an exchange between the Chair of the committee and Mr Popplewell as follows:

Mr Simmons, the case officer for the planning application, also advised the committee at that meeting, stating:

The Committee resolved to grant the 2021 Permission subject to the conclusion of a deed of variation.

The Officer’s Report did not refer to the 1987 Permission or to the s.52 Agreement. Nor was either document drawn to the committee’s attention during the meeting on 9 February 2021. Mr Popplewell has explained that the 1987 Permission (which was granted by a predecessor council) was not on the electronic file and did not form part of the Council’s planning database. The claimant had made a number of requests of the Council for documents and, as part of the disclosure exercise, the Council obtained copies of files relating to the 1987 Permission. The 1987 Permission was first considered by Mr Popplewell on 7 May 2021, after the Council had resolved to grant the 2021 Permission (and after permission to challenge that resolution had been refused on the papers) but before the final decision notice had been issued. Mr Popplewell did not refer the matter back to the committee again.

Mr Popplewell has explained his view in evidence that neither the 1987 Permission nor the s.52 Agreement were relevant to the determination of the Application. First, even if the 1987 Permission had been implemented, the 2016 Permission was the lawful and relevant fallback position by reference to which the Application had to be assessed. And the existence of the s.52 Agreement – even if the relevant provisions ‘bite’ – does not prevent planning permission from being granted in respect of the northern part of the site.

Secondly, Mr Popplewell’s view, having now (subsequent to the Decision) undertaken a review of all documentation of which he is aware and that appears to be relevant, is that the 1987 Permission was not implemented. The 1987 Permission was for a change of use only and it envisaged further planning applications for any new buildings, alterations and other operations. The nature of the change of use was such that the development to be covered by the anticipated applications was closely linked to, if not inseparable from, that change of use. No such applications were ever received for the proposed car park or otherwise and, in the absence of any further applications or evidence of some change in activity on site, his view is that there is nothing to support the contention that the change of use in fact occurred.

Although there is a car park in the northern part of the site, he considers that the works to construct it were separate from the 1987 Permission because it does not accord with the approved plans in terms of layout or size. It is significantly smaller than the car park proposed as part of the 1987 Permission, it is not laid out on an engineered surface and it does not provide for any marked bays. Mr Popplewell expresses the opinion that “the works required to facilitate the formation of the car park identified in the 1987 Permission would have comprised operational development”. He also notes that “any operational development carried out by South Pembrokeshire District Council could have been carried out using its permitted development rights as a local authority”. Mr Popplewell does not consider that the correspondence on which the claimant relies (see paragraphs 82 to 86 below) demonstrates that the 1987 Permission had been implemented and the s.52 Agreement was valid, or that Dyfed County Council’s view of the matter can be clearly ascertained.

Thirdly, the s.52 Agreement only provided for the extinguishment of the use of the northern part of the site for the siting of caravans following 12 months from the date of commencement of any works on the site (clause 3(i)). Mr Popplewell’s view is that there is no evidence that the works referred to (as defined in the s.52 Agreement) commenced.

Fourthly, the detailed grounds state, and Mr Popplewell has confirmed that this reflects his view having considered the full circumstances, that:

The s.106 agreement was executed by the interested party on 10 May 2021 and received by the Council on 12 May 2021. On 27 May 2021 the Council issued a final decision notice in respect of the 2021 Permission.

The legal and policy framework

A developer may make an application pursuant to s.73 of the 1990 Act to develop land without compliance with the conditions to which a previous planning permission was granted. Section 73 provides, so far as material:

Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides:

It is well established and common ground that a successful s.73 application results in a new permission. The Council had to have regard to the current development plan and any other material considerations (in accordance with s.70(2) of the 1990 Act) and determine the application in accordance with the development plan unless material considerations indicated otherwise (in accordance with s.38(6) of the 2004 Act). See for example R (Stefanou) v Westminster City Council[2017] EWHC 908 (Admin) at [36].

In R (Corbett) v Cornwall Council [2020] EWCA Civ 508 Lindblom LJ (with whom Leggatt and Lewison LJJ agreed) referred to the principles that emerge from BDW Trading Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 493, [2017] PTSR 1337 and stated:

In R (Samuel Smith Old Brewery) (Tadcaster) v North Yorkshire County Council [2020] UKSC 3, [2020] 3 All ER 527 Lord Carnwath observed at [21]:

The proper approach to challenges to decisions based on officer’s reports is settled. In Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, [2019] PTSR 1452 Lindblom LJ (with whom the Chancellor of the High Court and Hickinbottom LJ agreed) observed:

In Mansell, Lindblom LJ addressed the law relating to fallback positions at [27]:

In Stefanou Gilbart J held at [91] to [92]:

The claimant also draws attention to the authorities regarding the admissibility of ex post facto reasons. In Inclusion Housing Community Interest Company v Regulator of Social Housing[2020] EWHC 346 (Admin), Chamberlain J summarised the principles at [78]:

Prior to the adoption of the Council’s Local Development Plan (“the LDP”) on 28 February 2013, the relevant local plan was the Joint Unitary Development Plan for Pembrokeshire (“the JUDP”), which had been adopted in 2006. Policy 113 of the JUDP (Development and the risk of flooding) provided:

The LDP provides, so far as material:

Paragraph 6.85 of the LDP states:

Technical Advice Note 15 – Development and Flood Risk (“TAN 15”) was published in July 2004 and paragraph 6.2 provides:

Ground 1: Failure to take into account relevant considerations - the 1987 Permission and the s.52 Agreement

As I have indicated, the Council’s officers were not aware of the 1987 Permission or the s.52 Agreement prior to the planning committee’s resolution to grant the 2021 Permission. It is common ground that the Council did not take the 1987 Permission or the s.52 Agreement into account when making the Decision.

The claimant contends that this amounts to a failure to take into account a matter that, acting lawfully, the Council was required to consider. In response, the Council contends, first, that it was not required to take these matters into account. They were not obviously material or mandatory considerations. Secondly, if that is wrong, the Council would, in any event, have made the same decision if it had taken into account the 1987 Permission and the s.52 Agreement, and so relief should be refused.

The claimant raises a preliminary objection to the Council’s evidence, insofar as Mr Popplewell advances reasons why the omission to consider the 1987 Permission and s.52 Agreement is said to be immaterial. The claimant points out that there is no contemporaneous record of any reasons the Council’s officers may have had for deciding not to re-refer the Application to the committee when the 1987 Permission and the s.52 Agreement came to their attention. The claimant submits that the Council’s case as to the immateriality of the 1987 Permission and s.52 Agreement, in its detailed grounds and Mr Popplewell’s statements, goes beyond admissible elucidation of reasons recorded prior to the impugned decision and so, in accordance with the case-law to which I have referred in paragraph 61 above, should be disregarded.

The Council suggests this preliminary objection is flawed as there is no reasons based challenge in this case. It is common ground that these matters were considered for the first time by officers on 7 May 2021, many months after the resolution to grant permission. The timing of the Council’s explanation is readily understandable in the context of these proceedings. The Council is entitled to respond to the claimant’s amended grounds and to adduce evidence going to the question of relief.

I am not persuaded that the Council’s evidence is inadmissible. This is not a challenge to the officers’ decision not to re-refer the Application to the committee. There is no reasons challenge. The case-law with respect to ex post facto reasons is concerned with the situation where a decision-maker puts forward evidence as to the reasons it claims to have had at the time of making the impugned decision. That is not the position here. It is fully acknowledged that no consideration was given to the materiality or otherwise of the 1987 Permission and the s.52 Agreement when the Council resolved to grant the 2021 Permission as neither the officers nor the committee were aware of those documents at the time.

The claimant was granted permission on 22 June 2021 to amend its grounds to rely on the 1987 Permission and the s.52 Agreement. The Council was entitled to address those grounds in its detailed grounds and evidence, including by contesting the alleged obvious materiality of those documents. I also consider that it was open to the Council to adduce the evidence that it has in support of the contention that no relief should be granted, although I acknowledge that the natural tendency to seek to defend a decision that is under challenge has to be borne in mind when evaluating such evidence.

The reasons for the Decision were given in the Officer’s Report, supplemented by the discussion at the committee meeting on 9 February 2021. No reference was made to the 1987 Permission or the s.52 Agreement because it had not been considered either by the officers or the committee. The s.52 Agreement was disclosed as part of the conveyance of the long leasehold interest to the interested party and it was registered as a local land charge, so the material was available to the Council to present to the committee.

The Application falls foul of two policies in the LDP, namely, those relating to flood risk (GN.1(7), together with TAN 15) and those relating to caravans (GN.19), and so is contrary to the LDP. In these circumstances, the grant of the 2021 Permission could only be justified by relying on the fallback position. By acting in ignorance of the 1987 Permission and, especially, the s.52 Agreement, the Council has misunderstood the nature of the fallback position and therefore made an unlawful decision.

The claimant contends that even if the 1987 Permission has been superseded by the 2016 Permission, and so is itself irrelevant, the s.52 Agreement prevents development of the northern part of the site and so it is a fundamental feature of the fallback position. Although it is acknowledged that the 2016 Permission has been implemented, the claimant submits it cannot be implemented in the area of the northern car park because that would breach the s.52 Agreement which states that land can only be used for car parking purposes. The fallback position for the northern car park area is use as a car park, not use as a caravan site.

This contention is based on the premises, first, that the 1987 Permission was implemented and, second, that clauses 3(i) and/or 3(ii) of the s.52 Agreement (cited in paragraph 14 above) were triggered.

The claimant contends the evidence demonstrates that there has been a northern car park in use continuously since the late 1980s. Mr Cormack states in his second statement, at paragraph 9 (and see his third statement at paragraphs 19 and 21):

The article from the Western Mail dated 27 May 1989 states:

In light of Mr Popplewell’s evidence (see paragraph 99 below), the claimant accepted at the hearing that the reference in the Western Mail was to a separate, small scale attraction outside the site, not to the opening of the Stepaside Industrial Heritage Park. Nevertheless, the claimant maintains that this shows the existence of the northern car park as motorists could only access the interpretative centre, shop and tea room by parking in the northern car park.

The claimant refers to the Minutes of the South Pembrokeshire District Council Stepaside Project Sub-Committee dated 4 September 1990 which recorded:

The claimant submits that these minutes show the land was being used as a car park, while acknowledging the arrangements referred to are a matter of private law. Nevertheless, the claimant relies on this as evidence that the use of the land had changed from a caravan and camping site to a car park, with an associated change of use to the southern area which could now be used for camping.

The claimant relies on the Bird Park Permissions. The claimant contends that the only candidate for the car park required to meet the third condition of the 1991 Permission was the northern car park, as it was the only car park within the location of the area of the Bird Park at that time. The fact that the northern car park existed and was used for the Bird Park is shown by the report for the committee in relation to the 1994 Permission, which states:

The claimant contends that contemporaneous evidence shows that Dyfed County Council took the view that the change of use had been implemented and the obligation under clauses 3(i) and (ii) of the section 52 triggered. In a letter dated 17 June 1991, the county planning officer wrote to Saundersvale Holiday Estates:

Saundersvale Holiday Estates responded on 20 June 1991 in these terms:

This letter, and a letter from South Pembrokeshire District Council which was described as confirming the assertions made by Mr Caine (of Saundersvale Holiday Estates) “about the commencement in full of the Stepaside Heritage Project as approved/amended”, prompted the county planning officer to send internal correspondence to the county secretary on 25 June 1991 which stated:

The claimant also relies on a letter of 4 October 1993 from the county planning officer at Dyfed County Council to Mr Frost of Heathfield Court Caravan Park (as Heritage Park was then known). The county planning officer referred to the 1987 Permission and wrote:

The claimant relies on a further lengthy letter dated 15 April 1994 from the county planning officer regarding the planning history of Heritage Park. Amongst other matters, having referred to the grant of the 1987 Permission and the s.52 Agreement (which was described as applying to all successors in title of the land to which the Agreement relates), the officer wrote:

Mr Cormack states, in his second statement at paragraph 15:

The claimant contends a note on the 2001 permission from the Environment Agency which refers to the extant use “for up to 95 static caravans and 30 tourers” is significant. This is because the 1983 Permission allowed 95 static caravans and 55 tourers. The claimant contends the inference to be from this discrepancy is that the Environment Agency understood caravan use had been extinguished by virtue of the implementation of the 1987 Permission and s.52 Agreement and so the number of touring caravans which could be accommodated had decreased.

The claimant submits that the geographical scope of the Council’s application for the (unimplemented) 2001 Permission (see paragraph 24 above), which related to the southern part of the site, evidences the Council’s understanding that caravan use had been extinguished in favour of car park use in the northern area.

In relation to the question whether clauses 3(i) and/or 3(ii) of the s.52 Agreement were triggered, the claimant contends that the obligations falling upon South Pembrokeshire District Council and Dyfed County Council under the s.52 Agreement were performed as the county council granted the 1987 Permission and the district council carried out highway works (conferring a benefit on the caravan park owner). The developer performed its obligations in terms of acquiring land and then dedicating it for highway purposes. The obligation under clause 3(i) was to remove caravans and tents from the northern area and that was done.

The claimant emphasises that clause 3(i) refers to ‘works’ rather than operational development. Further, the obligation to use the northern area for car park purposes under clause 3(ii) is not said to be contingent on ‘works on site’. It is a stand-alone covenant which either becomes operative upon the consent being granted or, alternatively, upon the caravans and tents being removed from the orange land pursuant to clause 3(i). In any event, the claimant contends that the formation of the site entrance or the provision of the car park would constitute ‘works on site’.

If the s.52 Agreement is no longer valid and effective, it ought to have been removed from the local land charges register. The fact that it has not been, and that it was disclosed before the grant of the Lease, is relied on as showing it remains valid.

The claimant contends that Mr Popplewell’s view that the 1987 Permission and the s.52 Agreement were not material is irrational. He has failed to acknowledge or deal with the contemporaneous evidence that the northern car park was established and has been used continuously for car parking purposes since 1989; no permission other than the 1987 Permission provides consent for this change of use; and the parties to the agreement performed a number of obligations under it, in particular the highway works and the removal of caravans and tents. The fact that existence of a valid s.52 Agreement would not prevent the permission being granted is no answer to the submission that the fallback position has been misunderstood. It is part of the package of planning control and cannot be ignored.

In response to the Council’s contention that if the s.52 Agreement is operative, it would not enforce it, the claimant submits no such decision has been taken by the Council. Any such decision would be likely to be taken by a committee, it would be reasoned and it would be subject to judicial review. The reasons expressed by Mr Popplewell are, the claimant submits, irrational because the considerations underlying the s.52 Agreement, which the claimant contends are the provision of public car parking and prevention of over-intensification of the caravan park use, continue to apply. The northern car park, on which £140,000 was spent in 2006, still provides space for the public to park when accessing the SAMs or the coast.

On flood risk grounds alone, the claimant contends that a local planning authority, acting rationally, should welcome the rediscovery of the s.52 Agreement as providing a means to regulate development in a way that is consistent with the LDP and national policy on flood risk.

The Council maintains that in not having regard to the 1987 Permission or the s.52 Agreement it has not failed to take into account obviously material considerations.

First, it is not disputed that the 2016 Permission has been implemented. It follows that even if the 1987 permission had been implemented, it has been superseded by the 2016 permission. The 1987 Permission is spent: see Cynon Valley v Secretary of State for Wales [1986] JPL 760 . The 1987 Permission is just part of a previous chapter of the site’s planning history. The 2016 Permission was the lawful and relevant fallback position by reference to which the Application had to be assessed. As the 1987 Permission is spent, it is of no obvious relevance to the Council’s determination of an application to vary two conditions in the 2016 Permission.

Secondly, for the reasons given by Mr Popplewell, the Council considers that the 1987 Permission was not implemented and so the s.52 Agreement did not come into effect: see paragraph 48 above. The fundamental point is that the change of use permitted by the 1987 Permission was a change to use as an industrial heritage park, with an associated car park. It was not a change of use to a free-standing car park. That change of use never happened.

Mr Popplewell has addressed the article that appeared in the press in May 1989 (see paragraphs 76 to 77 above) in his third statement at paragraph 5:

The 1987 Permission envisaged further planning applications for new buildings, alterations and other operations. No such applications were ever received, whether in respect of buildings, the car park or otherwise. The removal of tents and caravans did not change the use of the site. The Council does not dispute that there is a car park in the northern part of the site, but it is not a car park for an industrial heritage park. The Council submits it is instructive that the northern car park is not what was envisaged in the 1987 Permission, namely, a car park with up to 100 bays for cars and 8 for coaches. The northern car park is much smaller than envisaged, it is not laid out on an engineered surface and there are no marked bays. It may have been operated in accordance with the Council’s permitted development rights. In any event, Mr Popplewell’s view is that such changes as occurred did not occur pursuant to the 1987 Permission.

As regards the correspondence, the Council submits that it should not lead the court to draw conclusions contrary to those drawn by Mr Popplewell. The correspondence is incomplete and it contains errors and inaccuracies. The complexity of the planning history was recognised. Moreover, to the extent that the officer appears, in the April 1994 letter, to consider the 1987 Permission to have been implemented and the s.52 Agreement to be valid, this view does not bind the Council and is inconsistent with its current view.

Thirdly, the s.52 Agreement only provided for the extinguishment of the use of the northern part of the site for the siting of caravans following 12 months from the date of commencement of any works on the site. The s.52 Agreement envisaged development works in furtherance of the Stepaside Industrial Heritage Project. It clearly did not include the highway works undertaken by the district council. The Council submits there is no evidence that the “works” referred to commenced.

Fourthly, even if the relevant provisions of the s.52 Agreement are deemed to be operative, the s.52 Agreement does not prevent planning permission from being granted in respect of the northern part of the site, and the Council would need to consider the planning purpose served by the covenant in deciding whether or not to enforce the obligation. Mr Popplewell, the officer empowered to make enforcement decisions, having considered the full circumstances, does not consider that there is any planning purpose for the covenant and the car park as envisaged by the 1987 Permission and so the Council would not use its discretion to enforce it.

The primary purpose of the s.52 Agreement was the development of the industrial heritage project. Clause 3(ii) provided for the northern area (the land edged orange) to be used only as a car park “for the purposes of the Stepaside Industrial Heritage Project”. That Project ceased long ago and the industrial heritage park does not and never has existed. The car park is not needed for the purpose envisaged in the s.52 Agreement. It is not required in connection with any development on site or even in connection with an adjoining site, the Bird Park for which the northern car park was at one stage used having ceased to operate many years ago.

The Council relies on these matters both in support of the argument that the 1987 Permission and the s.52 Agreement were not obviously material and also, in the alternative, that if they had been considered it is highly likely that the decision would have been the same and so, applying s.31(2A) of the Senior Courts Act 1981, no relief should be granted. The Council submits its view on these matters, as explained in detail in its detailed grounds and evidence, is far from irrational.

The essential question is whether the 1987 Permission and the s.52 Agreement were “so obviously material” that in omitting to consider them when making the Decision the Council has erred in law: see R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council[2020] UKSC 3 at [30]-[32] and [41]. It is not enough for the claimant to show that it would have been open to the Council to take into account the 1987 Permission and the s.52 Agreement, the claimant has to establish the Council was legally obliged to do so.

In my judgment, whether or not the 1987 Permission was implemented, the Council was not obliged to consider it because it has been superseded by the 2016 Permission. I agree with the Council that it is spent and so it is merely part of the planning history of the site. I am not persuaded that it was of any relevance in determining an application to vary two conditions of the 2016 Permission, still less that it was so obviously material that the Council was legally obliged to have regard to it.

The planning history of the site is undoubtedly complex. However, the reasons that Mr Popplewell has given for concluding that the 1987 Permission was not implemented are persuasive and, in my view, far from irrational. The 1987 Permission was for the Stepaside Industrial Heritage Project; it was not a change of use to a car park. No operations to establish that project ever began. Indeed, no applications for permission for any of the buildings, alterations or other operations for the Industrial Heritage Project were ever submitted. I accept Mr Popplewell’s evidence that the article in the Western Mail in May 1989 was referring to an entirely separate attraction, established under a different planning permission, outside the site.

It is evident that a small car park has existed in the northern part of the site for many years, but Mr Popplewell’s view that this was not established pursuant to the 1987 Permission is not irrational given the striking differences between the existing car park and what was envisaged by the 1987 Permission. His view that that car park could have been developed using the council’s permitted development rights is not irrational.

There is much in the contemporaneous documents that can be relied on by both parties. While some of the correspondence seems to indicate that the county planning officer believed, at the time, that the 1987 Permission had been implemented and the s.52 Agreement was valid, the Council is entitled to put relatively little weight on that given the fragmentary nature of the available records and the indications that there were serious questions at the time as to whether that was the case.

In any event, it would only be a breach of clause 3(i) of the s.52 Agreement to place caravans on the northern area if, 12 months or more ago, the works envisaged in that clause had commenced. Clause 3(ii) has to be read in the light of that triggering provision in clause 3(i). In my judgment, the phrase “any works on site” in clause 3(i) is referable to the development works in furtherance of the Stepaside Industrial Heritage Project, which it was proposed would be undertaken pursuant to full, detailed planning permission, as is made clear in paragraph 2 of the preamble and the second schedule. I accept the Council’s submission that even if the 1987 Permission was implemented, the extinguishment (as a matter of private law) of the use of the northern area as a caravan and camp site was never triggered.

I accept the Council’s substantive submissions on ground 1 and reject the contention that the Council erred in not having regard to the 1987 Permission or the s.52 Agreement. It is unnecessary in these circumstances to address the question whether, if I had found an error of law, I would have refused relief pursuant to s.31(2A) of the Senior Courts Act 1981.

Ground 2: Rationality – visual impact on amenity of removal of condition 2

Condition 2, which prevented caravans in the northern part of the site being twin unit caravans, was imposed in the interests of visual amenity. The claimant submits that paragraph 1 of the Officer’s Report (see paragraph 40 above) seriously misled the committee and that the Council failed to deal rationally with the impact on visual amenity of removing condition 2. The Officer’s Report evaluated the impact of removing the constraint on twin unit caravans on what the claimant contends is a “wholly theoretical and fanciful basis” that single unit caravans of the same size as twin unit caravans could be placed in the north of the site in accordance with the 2016 Permission.

In essence, the claimant contends the committee was misled because the Officer’s Report failed to assess the likelihood of the developer siting outsize single unit caravans on the northern part of the site, if condition 2 were not removed; or to draw attention to factors demonstrating that was unlikely. The factors on which the claimant relies are, first, that as “a matter of common sense and economies of scale” non-standard large single unit caravans would be more expensive than similarly sized twin unit caravans, and therefore less attractive to the developer.

Secondly, in a letter dated 24 March 2020, the interested party informed the Council:

Thirdly, the claimant contends the Council failed to consider whether transporting oversized single units by road was physically possible given road constraints in the vicinity of Heritage Park. The claimant contends that the Council ought, rationally, to have approached the variation of condition 2 on the basis that it would result in larger caravans on the northern part of the site.

The claimant also contends that unless the Council releases the interested party from the northern car park covenant contained in the Lease, the implementation of the 2021 Permission would lead to an incoherent layout, a factor the Council failed to consider.

The Council submits the assessment of the impact on visual amenity arising from the variation of condition 2 in paragraphs 6.1 to 6.5 of the Officer’s Report was both lawful and rational, and resulted from the application of planning judgment. At paragraphs 6.2 and 6.3, the Officer’s Report expressly considered the visual impact by reference to twin-units, standard single-units and non-standard single units. It did so having recognised that in reality, because the 20 narrower bases “lend themselves more to the accommodation of single units”, there was likely to be a mix of twin and single unit caravans.

Realistically, the impact was confined to nine bases on which twin rather than single units (whether standard or non-standard) would be likely to be based if condition 2 were removed. The officer’s planning judgment was that the appearance of the twin-units, in accordance with the design parameters submitted by the interested party, “could be considered to be aesthetically more attractive than a typical single static caravan of any likely size”. In addition, compliance with design parameters would ensure that “any single-unit static caravans have an enhanced appearance compared to those achievable under the existing consent”. The officer’s planning judgment was that the impact on appearance was an enhancement. That conclusion did not depend on a comparison of twin units with outsize single units, rather than standard single units. The Council submits there is nothing in the criticism of its approach, noting also that the members of the committee undertook a site visit and they were impressed by the site.

The Council submits that the issue with respect to the northern car park covenant was noted, correctly, as a distinct issue in the Officer’s Report (at §6.13), and there was no requirement to address this private law matter further.

In my judgment, the Council’s assessment of visual impact was clearly lawful and rational. It resulted from the application of planning judgment. I agree with the Council’s submissions on this issue. Even assuming it was unrealistic to consider that outsize single-unit caravans might be placed on the site if the prohibition on twin-units was not removed, it would not assist the claimant’s contention that the assessment of visual impact was flawed. Quite simply, that assessment was not predicated upon presence of non-standard single units. I agree with the Council that there is nothing in this ground.

Ground 3: proper application of policy – GN.19 of the LDP

The claimant contends that the assessment in the Officer’s Report at paragraph 6.19 of whether the proposals complied with policy GN.19 of the LDP was so inadequate as to render the Decision unlawful.

It is common ground that paragraph C of GN.19 was applicable and that neither subparagraph 1 nor 2 of paragraph C were satisfied, as the Officer’s Report recognised. The Council also accepts (as was again acknowledged in the Officer’s Report) that subparagraph 3(iii) of paragraph C was not satisfied because parts of the site are in Amroth and Saundersfoot. The claimant meanwhile accepts that paragraph subparagraph 3(i) was satisfied.

However, the claimant contends that the analysis in the Officer’s Report was flawed in relation to GN.19C, although the conclusion that paragraph was not satisfied was correct, because the officer failed to address the question whether subparagraph 3(ii) of GN.19C was satisfied i.e. whether the proposal would result in “a demonstrable overall environmental improvement both for the site and its setting in the surrounding landscape”.

The claimant’s initial position was that the proposal also breached paragraphs A and B of GN.19 and that the Officer’s Report was flawed in determining that those paragraphs were inapplicable. At the hearing, the claimant acknowledged – and so it is now undisputed – that paragraph B of GN.19 is not applicable. That is because the proposal does not involve an “enlargement of the area of a static caravan or chalet site”.

The claimant maintains that paragraph A of GN.19 was engaged (and not satisfied). In support of this argument, the claimant relies on the officer’s earlier report in relation to the Application (which was submitted to the meeting of the planning committee on 10 November 2020). In that report the officer stated:

This contrasts with paragraph 6.9 of the Officer’s Report (for the 10 February 2021 meeting) which stated that “Parts A and B of [GN.19] are not applicable”. The claimant submits the officer’s earlier view was correct. At the hearing the claimant sought to support the earlier conclusion on the basis that the policy is concerned with the reality on the ground that the northern area is not in fact occupied by caravans (rather than what is permitted), whereas the proposal will result in caravans being placed in that area.

In addition, the claimant submits that this aspect of the Council’s analysis was (again) flawed because the Council failed to take into account the s.52 Agreement and so misunderstood the fallback position. The Council considered the non-compliance with GN.19C was mitigated because the 2016 permission could be implemented as a fallback. Whereas the claimant contends that the effect of the s.52 Agreement was that “the use of the northern car park as a caravan and camping site was extinguished long ago”. Therefore, there were no lawful touring pitches to be upgraded and the assessment of the Application against GN.19 was fundamentally flawed and unlawful.

The Council submits that on a plain reading of the policy it is obvious that paragraph A had no bearing on the Application. Paragraph A applies to proposals for new static caravan and chalet sites “or extensions to existing sites by an increase in the number of pitches”. There was no application to increase the number of pitches in this case. Equally, paragraph B was inapplicable, as is now accepted. To the extent that there is any difference in approach between the two reports, the Council was entitled to reconsider matters when the Application was referred back to committee. What matters is that the Officer’s Report, on which the Decision is based, correctly interpreted and applied GN19.

Only paragraph C is applicable and the Officer’s Report dealt with the policy, correctly concluding that there was “some conflict” with GN.19C. The Officer’s Report addressed subparagraph 3(ii) of GN.19C in paragraph 6.10 which cross-references paragraphs 6.2 and 6.2, where the officer explains his assessment that the proposal would create an enhancement in terms of the visual appearance of the units and the landscaping scheme. The Officer’s Report clearly demonstrates that the assessment of compliance with GN.19 cannot properly be faulted.

The Council further submits that the fallback position is not a necessary part of its defence of ground 3, it was only an alternative raised in paragraph 6.11. In any event, for the reasons addressed under ground 1, the Council refutes the contention the s.52 Agreement extinguished the use of the northern part of the site as a caravan and camping site.

I am satisfied that this ground, too, must fail for the reasons given by the Council (as summarised in paragraphs 129 to 131 above), applying the approach described in Corbett and Mansell (see paragraphs 56 and 58 above). The Officer’s Report properly addressed policy GN.19, recognising that there was some conflict between the proposal and paragraph C of GN.19, but determining as a matter of planning judgment that the proposal accorded with the LDP. Each of the subparagraphs of paragraph C were addressed in the Officer’s Report. In particular, the report adequately addressed subparagraph 3(ii). I agree with the Council that GN.19A was plainly not engaged as the proposal involved no increase in numbers of pitches, and it was not an application for a new caravan site. The difference between the earlier and later reports on the Application does not assist the claimant in the face of the plain interpretation of GN.19A.

Ground 4: Failure to take into account or lawfully consider the flood risk

The claimant contends the Decision is rendered unlawful because of the Council’s failure to deal properly with flood risk. The starting point, the claimant submits, is that the 2016 Permission was granted by reference to the JUDP rather than the LDP. When the report that led to the 2016 Permission was written in 2013, the development plan was the JUDP but it ceased being the development plan a month later upon the adoption of the LDP. There was a long delay between the report and the grant of the 2016 Permission, because the Council was waiting for the interested party to execute a s.106 agreement. The application was not re-assessed by reference to the LDP before the 2016 Permission was granted.

When the Council considered the Application, it was the first occasion on which caravan development in the northern part of the site had been assessed by reference to the LDP. The Council was obliged to determine the Application by reference to the current development plan. While the 2016 Permission is valid and a material consideration, the Council could not simply adopt the reasoning and assessment set out in the report for the 2016 Permission because it was assessed by reference to the wrong development plan.

The claimant contends that officers failed to provide the committee with clear and reasonable guidance in respect of flood risk. Paragraph 6.13 of the Officer’s Report wrongly described flood risk as not a material factor (see paragraph 40 above). The claimant acknowledges that Mr Popplewell corrected that during the meeting when he informed the committee that flood risk was a material consideration. But the claimant contends, first, that the officers relied upon the assessment of flood risk which underpinned the 2016 permission, even though the officer’s report of 2013 failed to apply TAN 15. In making this correction ‘on the hoof’, Mr Popplewell failed to take the members through TAN 15, said (in effect) that flood risk had been considered before in the context of granting the 2016 Permission and failed to give the chairman the clarity on this issue that he sought (see paragraph 43 above).

Secondly, in comparing the Application with the 2016 Permission, the claimant submits that the officers downplayed the impact of removing condition 2 and failed to acknowledge the obvious point that twin units would be bigger and occupied by more people. Condition 2 prevented twin units being provided in the northern area. Removing that prohibition would enable larger caravans to be located in the flood risk zone. The claimant submits that twin units would be larger than single units. There were commercial and regulatory reasons why the interested party would be unlikely to provide outsize single unit caravans (as addressed in ground 2). Larger units would be likely to have a larger number of occupiers, putting more people into danger in the event of a flood. In this regard, the claimant relies on paragraph 6.40 of the March 2020 Report (see paragraph 31 above).

The Council submits the statutory test required it to consider the question of the conditions subject to which permission should be granted (s.73(2) of the 1990 Act), which it clearly did. Regard must also be had to the current development plan and any other material considerations, which, again, the Council did. The analysis in paragraphs 6.8, 6.9 and 6.10 is impeccable.

The Council contends the treatment of flood risk in the Officer’s Report at paragraphs 6.10 and 6.13 was lawful and adequate in circumstances in which the focus of the s.73 application was on varying two conditions which did not engage flooding matters. As the Officer’s Report noted, part of the site subject to the application was located within flood zone C2. But neither of the conditions which it was sought to vary had been imposed to address the flood risk. In particular, the predecessor to Natural Resources Wales, the Environment Agency of Wales, had not objected to the application which resulted in the 2016 Permission or required the imposition of condition 2, which was instead imposed solely for visual amenity reasons.

The Officer’s Report described the flood risk as being “not a material factor in the determination of this application” (§6.13, emphasis added) because it was assessed that the proposal resulted in a “neutral effect when compared with the implemented consent” (§6.10). The Officer’s Report did not suggest that flood risk was not a material planning consideration. But in any event, if the wording of the Officer’s Report gave any cause for concern, the point was rectified at the meeting during which Mr Popplewell made clear that TAN 15 and the flood risk were material considerations, albeit the officers’ assessment was that it did not merit significant weight in this instance.

The Council submits that it is clear from the transcript of the meeting that the officers did not, as the claimant alleges, accept the assessment that underlay the 2016 Permission at face value. They adopted it having looked at in detail and assessed the position by reference to paragraph 7 of GN.1 and TAN 15.

The Council submits that the March 2020 report was addressing a proposal for a significant development which would have increased the number of bases permitted. As Mr Popplewell explained, the flood risk issue was included in that report as a ‘hook’ to enable the Council to raise it in the event of an appeal.

I reject the contention that the Council failed to consider or lawfully take into account the flood risk. When the adequacy of a planning officer’s advice is called into question, the court does not expect to find a flawless discussion of every planning issue. If the Officer’s Report had remained uncorrected, there may have been a risk that the committee might have mistakenly considered that the flood risk was not a material planning consideration, rather than that it was a material consideration which officers considered did not warrant significant weight. However, it is manifest that any such risk was averted by the way in which the officers addressed the issue orally. Mr Popplewell informed the committee repeatedly that TAN 15 and the flood risk were material considerations. It is plain from the transcript of the committee meeting that the members of the committee understood that they had to consider TAN 15 and the flood risk in determining the Application, and they did so.

As there was no failure to take into account the flood risk, the weight given to it was a matter for the Council, subject to challenge by reference to the rationality standard. I agree with the Council that it is clear the officers did not simply adopt the assessment made in 2013, but reassessed the issue. This is evident in the transcript of the committee meeting in February 2021: see especially paragraph 42 above.

The assessment that removing the prohibition on twin-units was unlikely to significantly increase the number of occupiers was based in part on the fact that the width of 20 of the 29 bases was 12 feet. The size of the base restricted the size of caravan that could be put in place, and officers made a rational assessment that those bases would be likely to be used for standard single unit caravans.

Nine of the bases were 20 feet in width and it was only those that were likely to be used for larger caravans. When advising the committee that the prohibition on twin units did not prevent single units of a similar size to twin units being put in place on those larger bases, Mr Popplewell expressly recognised that the likelihood of non-standard size units, rather than “off-the-shelf” standard single-units had to be considered. But his view was that the use of non-standard size units is becoming more of a factor as the leisure industry grows (see paragraph 43 above).

The Council properly considered the impact on the flood risk of varying condition 2 and reached a decision that is within the bounds of reasonable conclusions that were open to it.

Ground 5: Irrational and flawed assessment of compliance with the LDP

The claimant submits that the conclusion in the Officer’s Report in paragraph 6.15 that the proposal complied with the LDP was flawed and/or Wednesbury unreasonable. This contention is based on the allegation that there was a clear failure to deal lawfully with two of the most relevant policies, namely, policy GN.19 relating to caravans (which is the subject of ground 3) and TAN 15 relating to flood risk (which is the subject of ground 4). The claimant acknowledges that it is not sufficient to say that there is a tension between the proposal and aspects of the LDP, but submits that there is here nothing pulling in the other direction that warranted the conclusion that the proposal was compliant.

The Council submits it is trite law that conflict with one policy does not mean conflict with the plan overall, citing Cornwall County Council v Corbett (see paragraph 56 above). In this case, having appropriately identified the plans, the Officer’s Report assessed the proposals against the development plan and concluded that they accorded with the local plan when considered as a whole. The claimant has failed to identify any legal error with the Council’s approach. Given that the sole reason condition 2 was included in the 2016 Permission related to visual impact, the size of the bases was such that the removal of condition 2 was likely to affect only nine caravans, and the proposed variation to condition 7 was very minor, the Council’s assessment was plainly rational. In reality, the Council submits this ground of challenge is nothing more than an attack on its planning judgment.

When planning decisions are made, the policies of the local plan must always be properly understood and lawfully applied. In this case, in my view, the Council did not misconceive the relevant policies or apply them unlawfully. The premise for this ground is that grounds 3 and/or 4 are well-founded. As those grounds have failed, it follows that this ground, too, must be dismissed.

Ground 6: failure to assess the fallback position properly

The claimant contends that the Council failed to properly assess the likelihood of the fallback position being implemented. First, the 2016 permission cannot be implemented in the area of the northern car park unless and until the lease is varied. This was a factor to which the Officer’s Report paid no regard.

Secondly, the claimant submits that it is significant that the interested party has not taken steps to implement the 2016 Permission in the north of the site. The Council should have considered whether such implementation was improbable precisely because of conditions 2 and 7. In relation to condition 2, the claimant contends that single unit caravans are far less commercially attractive to the interested party than twin units. The rest of Heritage Park consists of twin unit caravans. The idea that, if the constraint on twin unit caravans in the northern area were not removed, that area would be developed by bringing in outsize single unit caravans was unrealistic. In relation to condition 7, the claimant contends that the interested party may not wish to take the step of dedicating the southern car park to the public (or removing any doubt as to the rights of the public to use that car park).

Thirdly, the claimant contends that by reason of the s.52 Agreement the 2016 Permission could not be implemented in the north of the site, a factor which the Council ignored (as alleged in ground 1).

The Council’s case is that the Officer’s Report specifically addressed the fallback position, in particular at paragraph 6.11 (see paragraph 40 above), and officers addressed it in the meeting (see paragraph 42 above). The Council noted that the 2016 Permission had been implemented. The 29 caravan units could lawfully be provided under that consent. In concluding that the fallback position was realistic and should be accorded substantial weight, the Council explicitly considered, among other factors, the northern car park covenant and the likelihood of non-standard sized single unit caravans being used, if the application were not granted. The Council submits that the s.52 Agreement was not a material consideration for the reasons addressed under ground 1.

In my judgment, this ground too must fail. The officers did not misunderstand any principle of law relating to a fallback development. There is no dispute as to the law on this issue, including as described in Stefanou. But I agree with the Council that the outcome in Stefanou is, naturally, fact-specific.

The Lease is a matter of private law. The Officer’s Report addressed it at paragraph 6.13. There was no need to do more. Moreover, insofar as the Lease restrains the placing of caravans on the part of the northern area occupied by the northern car park, the position remains unaltered by the 2021 Permission compared to the 2016 Permission. In particular, the variation of condition 7 does not permit caravans on the site of the northern car park to be occupied before the southern car park is completed and dedicated to the public.

I have addressed the claimant’s contention that the possibility of non-standard units being used in the northern area is unrealistic in paragraphs 144 to 145 above. I have rejected the contention that the 2016 Permission is not the correct fallback position because implementing it in the northern area would breach the s.52 Agreement in the context of ground 1. For the reasons that I have given, I am of the view that the Council’s assessment of the fallback position was lawful and rational.

Ground 7: Failure to apply s.38(6) of the Planning and Compulsory Purchase Act 2004 to condition 7

The claimant submits that to satisfy condition 7 the interested party would have to dedicate the southern car park to the public (or remove any doubt as to the rights of the public to use that car park). The interested party may not wish to take that step. The development of the northern car park is, the claimant contends, contrary to the development plan, due to its breach of GN.19, and its contravention of local and national policy on flood risk, and so contrary to the public interest. The officer failed to point out these features to the committee who therefore failed to deal lawfully with the removal of condition 7. Further, it was irrational not to regard condition 7 as a useful constraint on development that is contrary to the public interest.

The claimant also contends that the justification for the imposition of condition 7 given in 2016, namely, to ensure adequate parking provision for the public, continues to apply. There was no challenge to the condition when it was imposed in 2016, and there was nothing objectionable about condition 7 remaining in effect.

In my judgment, this challenge is unsustainable. The Officer’s Report undertook precisely the exercise required by s.38(6) of the 2004 Act at paragraphs 6.8 to 6.11 (see paragraph 40 above), most notably lawfully addressing GN.19 (as I have found in the context of ground 3) and GN.1 together with TAN 15 (as I have found in the context of ground 4). Moreover, the purpose of ensuring adequate parking provision for the public is unaffected by the minor variation to condition 7 which does not permit any caravans to be sited on the northern car park before the southern car park is completed and made available at all times to the public. Paragraph 6.7 of the Officer’s Report addressed this point, lawfully and rationally explaining why the objective of condition 7 was not prejudiced and there was no conflict with policy GN.1.

Conclusion

For the reasons I have given, the claim is dismissed.