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

On 18 May 2022 the appellant appealed against the conditions on the licence to the FTT. On 6 July 2023 the FTT issued its decision as finally amended. It increased the number of caravan plots from three to eighteen.

The FTT recorded that the appellant’s plan for the site proposed 36 caravan plots [16]. They were sized to accommodate twin-unit mobile homes. The engineering operations the subject of the enforcement notice cost £0.75m ([37] and [38]).

Mr. Arkle the Council’s head of Housing and Growth, gave evidence. The Council had decided that the licence should not allow any of the appellant’s proposed plots which conflicted with the requirements of the operational development enforcement notice or the tree replacement notice ([66]-[67] and [69]). One of the problems was that the tree replacement notice could not be complied with in full until the remedial requirements of the enforcement notice had been fully complied with [70]. He also pointed out that the caravans previously located on the site had been single static and towing caravans which took up only one quarter of the space occupied by the hardstandings which the appellant had constructed [68].

In cross-examination Mr. Arkle accepted that the three plots which the Council had allowed under the 2022 licence were in fact located within the area covered by the operational development enforcement notice. But he explained that the council had considered it reasonable for those plots to remain because the enforcement notice did not require those areas to be reprofiled. He accepted that that also applied to five other plots.

Mr. Harwood submitted on behalf of the appellant that the restriction on the number of caravan plots to three was not justified by the tree replacement notice and the enforcement notice because:

The FTT decided that the Council had been entitled to require the precise location of the plots to be fixed in the site licence under the 1960 Act. This was because the site was in a highly sensitive, important woodland setting, where the location of plots had a significant effect on the amenity of the site for its uses and the protection of its environment ([134]-[136]).

On the number of plots the FTT decided that the constraints imposed by the enforcement notice were legally irrelevant to the site licensing decision. The site licence addresses how the site will be operated in future, and when granted gives rise to permitted development rights for any development necessary in order to comply with the terms of the licence [140]. By contrast, the enforcement notice was not forward-looking; it imposed requirements for the restoration of the site to remedy unlawful development in the past [141]. Case law discourages duplication of other regimes by planning controls ([101]-[106] and [144]).

It is surprising that the FTT then said that the view they had reached should not be seen as releasing the appellant in any way from full compliance with the enforcement notice, suggesting that that was a matter for planning authorities [146]. They did not explain how that should be reconciled with their acceptance in [140] that their decision on the number and location of caravan hardstandings would give rise to permitted development rights.

However, at [148]-[155] the FTT treated the tree replacement notice differently. In part they based this on s.5(1)(d) of the 1960 Act. They decided that that statutory responsibility under the 1960 Act to preserve amenity with regard to trees did not involve any unjustified duplication of controls “arising under legislation governing the protection of trees”. It was a standalone duty upon the Council as a site licensing authority under the 1960 Act. The FTT saw the tree replacement notice under s.207 of the TCPA 1990 as a legitimate constraint upon the number and location of caravan pitches licensable under the 1960 Act.

The Council appealed to the UT against the FTT’s decision. However, the appellant did not cross-appeal to the UT, either in relation to the FTT’s treatment of the tree replacement notice or its decision to reject the appellant’s proposal for 36 plots rather than 18. The appellant accepts that if its appeal to this court were to succeed, the outcome would be the reinstatement of the FTT’s decision that a site licence be granted for 18 plots.