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

On 27 March 1952 planning permission was granted under reference BER/352/12 to use 7.5 acres of land at the site for the siting of 30 mobile dwellings. Condition 2 restricted the siting of those units to a particular part of the site.

On 17 June 1966 planning permission was granted under reference BER/964/39 to extend the existing caravan site from 30 to 60 caravans. Condition 1 stated that this consent was supplementary to the 1952 permission and that no more than 60 mobile dwellings should be stationed on the site at any one time. Condition 2 required all caravan standings to be sited within areas defined on an attached plan as areas A to H subject to compliance with conditions 7 to 9. Condition 2 also limited the number of caravans within areas A, B and F. Condition 7 required the provision of additional landscaping. Condition 8 required the approval of the local planning authority to be obtained for the details of any works authorised or required by the permission which involved the felling of an existing tree. Condition 9 required a central green to be kept permanently open for recreation and free of caravans, tents and buildings.

The 1966 planning permission recorded the authority’s “reasons” which included:

“This is a site of great scenic importance in a stretch of the Derwent Valley indicated in the approved development plan as an area of great landscape value… This part of the Valley is the gateway for many travellers by road or rail to the National Park further north.”

Reason (a) stated:

“The further concentration of caravans, otherwise than in the approved groupings, would be likely to expose them to view from the A6 Trunk Road and the Derby-Manchester railway line, from both at which they are at present effectively concealed, and from many vantage points in the surrounding area.”

In her decision letter dated 20 August 2021 the Inspector dealing with the enforcement notice appeals recorded at DL 114 evidence from various witnesses familiar with the area that the caravan site had been “largely nestled in woodland and relatively inconspicuous”. The Inspector concluded that even in September 2016 there was still a “sustained woodland character” within the site (DL 115). That was before the appellant felled 121 trees in March 2017.

On 27 July 1968 a site licence was granted under s.3 of the 1960 Act. The licence recited that the applicant was entitled to the benefit of the express grants of planning permission in 1952 and 1966 (refs. BER/352/12 and BER/964/39). Condition 2 imposed a limit of 60 caravans at any one time. Condition 4 required the standings to be located within areas shown on the attached plan as A to H. Condition 7 imposed separation distances between caravans and also from any carriageway. Condition 8 required each caravan to be located on a hardstanding extending over the whole area occupied by the caravan. Condition 9 required the provision of firepoints. Condition 10 specified the provision and design of water supplies. Conditions 11 to 17 specified requirements for sanitation, laundry facilities, septic tanks and drainage, and provision for waste water refuse, storage and parking. In short, the licence contained detailed controls within the site for the living conditions, health and safety of the occupiers of the authorised caravans.

In March 2017 the appellant unlawfully felled 121 trees in breach of the tree preservation order. It was prosecuted by the Council for those breaches resulting in a conviction and fine.

On 14 September 2017 the Council issued a stop notice under the TCPA 1990 requiring the appellant to cease carrying out works in the central green within the site in breach of condition 9 of the 1966 planning permission. In December 2017 the County Court granted the Council an injunction prohibiting the siting of caravans and the carrying out of other works in that area.

On 3 August 2018 the appellant applied to the Council for a new site licence under the 1960 Act. On 21 December 2018 the Council refused the application on the basis that inter alia the site did not benefit from an appropriate planning permission, as required by s.3(3) of that Act. The appellant appealed to the FTT.

Before that appeal was determined, on 15 March 2019 the Council issued the two enforcement notices already referred to and on 18 March 2019 the appellant applied to the Council under s.192(1)(a) of the TCPA 1990 for a certificate of the lawfulness of a proposed use or development of the site (a “CLOPUD”).

The appellant sought a CLOPUD that, for the purposes of the TCPA 1990, the site could lawfully be used for the proposed siting of 30 static caravans for permanent residential accommodation and 30 static caravans for 12 months holiday occupation. The Council refused to grant the certificate and the appellant appealed against that decision under s.195 of the TCPA 1990 to the Secretary of State.

The breach of planning control alleged by the first enforcement notice was the carrying out of development without planning permission, namely a material change in the use of the site to the stationing of caravans that were static caravans, not trailer caravans designed and built to be towed by a car. In effect, the notice complained about the use of the site for mobile homes and alleged that this was outside the scope of the 1952 and 1966 planning permissions. The notice required removal of all static caravans from the site.

The breach of planning control alleged by the second enforcement notice was the carrying out of operational development without planning permission, including:

The appellant appealed against both enforcement notices to the Secretary of State.

On 25 July 2019, the FTT allowed the appellant’s appeal under s.7 of the 1960 Act by ordering the Council to issue a site licence under s.3. The FTT said that there was a planning permission for the use of the site as a caravan site, the 1952 permission. The FTT recognised that there was a planning dispute between the parties as to the meaning of the permission which was being litigated in a different forum and was not for the Tribunal to resolve. I also note that the FTT agreed with Mr. Harwood when he said that the Council was not obliged to grant a site licence under the 1960 Act allowing it to be used in a way which would breach the current planning consents; it could impose conditions on the licence regarding both type of caravan and layout. Consequently, it could grant a site licence on the same terms as the 1968 licence ([103]-[104]).

The Council appealed against that decision of the FTT to the UT. On 16 March 2020 UT Judge Elizabeth Cooke allowed the appeal (Amber Valley Borough Council v Haytop Country Park Limited [2020] UKUT 68 (LC)). In summary she concluded that:

The tree replacement notice was served on 27 January 2021 under s.207 of the TCPA 1990, against which the appellant appealed unsuccessfully ([11] above).

The planning inquiry into the CLOPUD and enforcement notice appeals took place in January and February 2021. The Inspector’s decision letter was issued on 20 August 2021.

The Inspector granted the CLOPUD sought by the appellant based on her interpretation of the 1952 and 1966 planning permissions. She decided that the site could be used for the stationing of 30 static caravans for permanent residential use and 30 static caravans for 12-month holiday occupation. At DL 67 she concluded that the 1966 permission did not contain any restriction on the type of caravan that could be stationed. However, the Inspector stated at DL 72 that the CLOPUD would not certify the location of the caravan standings or the layout of the site. She left open the issue whether 60 static caravans could physically be accommodated on the site, whilst still complying with other conditions of the 1966 permission, in particular condition 2 concerning layout, and also with the tree replacement order (DL 71).

In relation to the first enforcement notice dealing with an alleged material change of use, the factual position was that 9 twin-unit mobile homes were stationed on the land at the time the notice was issued. The Inspector decided that on her interpretation of the 1952 and 1966 planning permissions, no material change in the use of the land had occurred and quashed the enforcement notice on that basis (DL 89-90). The Inspector added that it fell outside the remit of that appeal to determine whether the stationing of the caravans involved a breach of any of the conditions of the 1966 planning permission, such as condition 2 (DL 85).

The Inspector then upheld the second enforcement notice relating to the operational development.

The appellant had argued that the works carried out were lawful, relying upon the Class B right. It contended that the works had been required by conditions 7, 8 and 17 of the 1968 site licence, which stipulated the provision of hardstandings subject to separation distances and car parking. But the Inspector decided that the permitted development right would only apply to development which was required in order to satisfy the conditions of a site licence read as a whole. Class B did not apply to development required by one condition of a site licence if it was contrary to another condition of that licence. Accordingly, the appellant’s argument depended on whether the operational development accorded with the layout required by condition 4 of the 1968 site licence, which was to the same effect as condition 2 of the 1966 planning permission, requiring caravan hardstandings to be sited within the areas shown as groups A-H on the plan attached to the licence (DL 100-101). She concluded that the development carried out was inconsistent with that layout (DL 105-108).

The Inspector then went on to refuse the deemed application for planning permission for the operational development. In summary, she reached that decision because:

The Council did not challenge in the High Court the Inspector’s decisions to grant the CLOPUD and to quash the “change of use” enforcement notice. However, the appellant appealed under s.289 of the TCPA against the Inspector’s decision to dismiss its appeal against the operational development enforcement notice. The appellant challenged her conclusions that those operations had constituted a breach of planning control and that planning permission should not be granted.

In relation to the breach of planning control issue, the appellant submitted that the Inspector had erred in law in deciding that the Class B right only authorises development required by the conditions of the site licence read as a whole and which was not in conflict with any condition of the licence. The judge, Mr. Mould, rejected that argument at [70]-[81] of his judgment ([2022] EWHC 1848 (Admin)). He held that:

The judge went on to reject the appellant’s legal challenge to the Inspector’s dismissal of its deemed application for planning permission. Under ground 3 the appellant argued that the Inspector failed to consider a “fallback position” constructed on the basis of what would be the requirements of a modern site licence. The judge said that this argument could only have been based on the 1952 and 1966 planning permissions. There were no other permissions for use as a caravan site [93]. A modern site licence would be expected to require hardstandings to be located within the areas of the site authorised by condition 2 of the 1966 permission ([95]-[96]). Indeed, the judge regarded that as being the only realistic fallback, not the reinstatement of the unlawful operational development carried out by the appellant since 2016 [102].