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

The difficulty in this case was of the appellant’s making. It could have made an application for planning permission for the operations necessary to create its preferred layout or for any other layout it considered to be consistent with planning constraints. It could have sought to obtain the Council’s consent to do work to the woodland trees. It did neither but proceeded unlawfully to carry out the operational development. The appellant was seeking to benefit from its own unlawful activities by seeking a site licence the effect of which could be to legitimise that wrong without the application of any scrutiny on planning grounds, by arguing that it would be pointless (or irrational) to require the unlawful development to be removed when something similar would be required under a modern site licence. As a matter of principle, the appellant should not be allowed that advantage [49];

The FTT reversed the order in which matters ought to have been considered. All major planning issues should be resolved before any decision to issue a site licence. That is reflected in s.3(3) of the 1960 Act. The appellant has the benefit of the planning permissions granted in 1952 and 1966 and does not have planning permission for the operational development which it has carried out [51];

The UT’s decision of 16 March 2020 determined that the planning issues had to be resolved before the application for the site licence could sensibly be determined (see [51] above). That dispute had been resolved by the Planning Inspector, but the conditions determined by the FTT allowing 18 plots in the locations identified and the consequential Class B rights were inconsistent with that planning baseline [52];

The FTT avoided facing up to the inconsistency between that baseline and the Class B rights. It erred in law by assuming that the Council would be able to insist on full compliance with the enforcement notice once the site licence had been granted and those rights acquired [53];

The FTT’s approach, in which it washed its hands of any consideration of planning matters and imposed conditions undermining the enforcement of planning control, was irrational. It was not “unduly burdensome” for the Council to limit in the site licence the number and position of caravans on the site so as to be consistent with the operational development enforcement notice and the tree replacement notice [54];

The fact that those were planning considerations did not render the Council’s approach to the site licence unlawful. That approach did not involve asking the FTT to determine purely planning considerations. Rather it was illegitimate for the FTT to disregard the definitive determination under the TCPA 1990 of the planning issues and restrictions on the use of the site as a caravan site [55].