CA-2025-000342 - [2025] EWCA Civ 1442

On the other hand, some cases have decided that a purely planning consideration can be irrelevant to site licensing. What were the circumstances in which that conclusion was reached?

These cases concerned sites which were being used as caravan sites when the 1960 Act came into force and already had planning use rights as a caravan site for the purposes of the TCPA 1947. The categories of existing use rights were explained by Lord Reid in Hartnell v Minister of Housing and Local Government [1965] AC 1134 at 1155. They included uses which began before 1 July 1948 and uses which had become immune from enforcement after 4 years’ uninterrupted use. Ordinarily a pre-1948 use right or a use right gained through immunity would not have been subject to any conditions as might be attached to a planning permission, such as a defined limit on the number of caravans that could be stationed on the land. Before the 1960 Act a local planning authority would not have been entitled to impose a restriction on the number of caravans to be located on such a site without obtaining a discontinuance order and paying compensation to the landowner. When the 1960 Act came into force, site owners with such use rights had to apply for a site licence and by s.17(2) the local planning authority had to decide what planning permission should be granted to them (pp. 1155-7). In Hartnell the House of Lords decided that the authority could not impose conditions on the grant of such a permission which materially cut down, without compensation, the scope of the landowner’s pre-existing use rights.

In Esdell s.17(3) of the 1960 Act resulted in planning permission being deemed to be granted for the use of the land as a caravan site without any condition or limitation. The local authority issued a site licence restricting the number of caravans on the site to 24. The Court of Appeal decided that such a condition could be imposed under the 1960 Act so long as the imposition of that restriction was for licensing reasons related to the use of the land as a caravan site and were not for purely planning purposes. It was improper for a site licensing authority to impose, for purely planning reasons, requirements on a site licence which were more restrictive than existing planning use rights and which could not be achieved by a planning authority without payment of compensation.

But what did the courts have in mind when referring to “purely planning considerations”? In Esdell Lord Denning stated that planning considerations and site considerations could not sensibly be divided into distinct groups. That would be devoid of reality and certainty. Restrictions relating to the same issue can be justified both on licensing and planning grounds dealing with both on-site and off-site effects (e.g. education facilities, sewerage capacity and traffic). There is a large overlap where conditions can be justified on both licensing and planning grounds, which would be lawful. The point was illustrated by the range of site licence conditions which the Court of Appeal upheld at p.924G-925F. By contrast, what Lord Denning considered to be a pure planning consideration in that case was the magistrates’ reliance upon Green Belt policy to conclude that planning permission would have been refused for a new caravan site on the land in question (para.3(l) of the case stated at p.900C and see p.925G). That was the irrelevant factor which the magistrates wrongly took into account in their decision on site licensing. Instead, they should have proceeded on the basis that for the purposes of planning control there was an existing, unrestricted right to use the land as a caravan site (pp.925G-926A). The reasoning of Harman LJ (pp.929B-931E) and Winn LJ (pp.936C-939B) was to the same effect.

Similarly, in Babbage v North Norfolk District Council (1989) 59 P & CR 248 the site operator had the benefit of an unconditional planning permission under the deeming provision in s.17(2) of the 1960 Act. But in 1979 a site licence was granted with a condition which between November and March each year (a) prohibited occupation of any caravans and (b) required the removal of all caravans from the site. The only issue related to requirement (b). The local authority contended that this fell within s.5(1)(d) of the 1960 Act as a “step for preserving or enhancing the amenity of the land for the benefit of persons living in the vicinity or members of the public at large” (p.252). Their concern related to visual impact on the wider landscape.

The Court of Appeal pointed out that, as in Esdell, the local planning authority would have been liable to pay compensation to the site owner if it had sought to impose that restriction by way of a modification of the planning permission (p.254):

“Now the distinction between planning considerations and what may be called "site" considerations may often be difficult to identify with clarity. But in the present case the condition, it seems to me, is not directed to the nature of the use of the site as a caravan site. What it is doing is requiring that, during about five months of the year, the site should not be used for the siting of caravans at all. The condition is not directed to the public health or traffic considerations or to the number of persons using the site or the number of caravans upon it or to the parts of the site where caravans may be placed. The condition is requiring total cessation of use for siting of caravans during the specified period and notwithstanding that the appellant has unconditional planning permission to use the site as a caravan site. Moreover, there is nothing in the case stated to suggest that the council had any reason for imposing the condition except to improve the aspect for the benefit of persons occupying or using other land. That seems to me to be solely a planning consideration. It is preventing use of the site for the siting of caravans solely for the benefit of the visual amenities of other land. It is, of course, the case that the statute specifically authorises the preservation of the amenity of the caravan site land for the benefit of any class of persons or of the public at large. But as Winn L.J. observed in the Esdell case (at p.937):

The references to those interests [i.e. the general public and others] does not extend their powers; it restricts them to measures of control by which one or more of those interests is protected against misuse of the site. The manner of use of the site is controllable, not its existence in the locality nor the extent to which it is used, save in so far as misuse of the site to the prejudice of those interests is involved in such extent of user.

There is nothing here which could be called misuse of the site. The council simply objects to its existence in the locality during the winter months.”

The Court referred again to the difficulty of distinguishing between “licensing” and “planning considerations”. But it was clear that the restriction in question did not simply regulate the use of the land as a caravan site. Instead, it was altogether prohibiting that usage during a specified period of each year. The justification for the restriction was similar in nature to the Green Belt point in Esdell which, as Lord Denning said, really went to the question whether the land should be used as a caravan site at all. The disputed restriction was not controlling what would otherwise be a misuse of the site as a caravan site.

Each of these cases involved the imposition of a restriction which was unlawful under the 1960 Act because it was only justified in planning terms and had the effect of preventing reliance upon a planning permission not so restricted and without compensation which would have been payable under planning legislation. Thus, properly read, these decisions are consistent with the principle laid down in Crittenden and Cartledge that the site licensing regime must be operated in harmony with the planning permission which is the prerequisite for the grant of a site licence. The licensing regime cannot be used so as to extend the rights conferred by that planning permission or to relax the conditions to which it is subject.