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

From the above analysis it follows that the determination of the site licence had to be made taking into account, and consistently with, the decision on the enforcement notice appeal relating to the operational development. The appellant failed to show that that development was required by the 1968 site licence and so it was not permitted by the Class B right. The appellant did not claim that the operational development was authorised by the 1952 and 1966 planning permissions. It was therefore unlawful development without planning permission. The site licence should not have approved any plots which were the subject of the enforcement notice, save that it was proper for the licence to authorise plots in respect of which no action under the enforcement notice needed to be taken. That approach was in harmony with the proper application of the planning regime and did not render any other part of the site licensing decision by the Council (or by the UT) unlawful.

It also follows that the decision to grant the site licence had to take into account the terms of the 1952 and 1966 permissions so as to be in harmony with those consents in the sense explained above ([89]-[97]). That included compliance with condition 2 of the 1966 permission. In the UT the Deputy President recorded that it had been assumed that the site layout referred to in condition 4 of the 1968 site licence reflected the layout referred to in condition 2 of the 1966 planning permission. That is supported by the observations of the Planning Inspector in her decision on the enforcement notice appeal (see e.g. DL 100-104 and DL 114). I did not understand Mr. Harwood to disagree with that assessment, although he fairly made the point that some of the plots within groups C, D and H were not aligned in a north-east to south-east direction as required by condition 2 of the 1966 permission. Nevertheless, the point remains that the 1968 licence layout, reflecting the layout approved by the 1966 planning permission, shows the locations and groupings of the 60 plots. The Inspector decided that the operational development carried out was inconsistent with the 1968 licence layout (DL 107) and therefore is unlikely to have been consistent with condition 2 of the 1966 permission.

Accordingly, the FTT erred in deciding that the operational development enforcement notice and the determination of the appeal against that notice were irrelevant to site licensing. I would uphold the decision of the Deputy President of the Lands Chamber. I have expressed my analysis primarily in terms of the purposes, construction and legal interaction of the two regimes (as he did in [55]). The appellant’s argument only serves to demonstrate why the principle of harmony between the 1960 Act and the planning regime is essential.

Furthermore, the appellant’s argument that it would be irrational for the Council to require compliance with the 2019 enforcement notice when the appellant would be entitled to rely upon “future” Class B rights, is itself irrational, as the Deputy President found. It would require a site licensing authority to ignore requirements (or restrictions) in relevant planning permissions and an extant enforcement notice, but would allow that authority to impose conditions resulting in Class B rights which may be used to justify non-compliance with those requirements, without any opportunity for the planning consequences to be considered. Fortunately, the legislation enacted by Parliament does not operate in that way.