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

I note that the Class B permitted development right in the GPDO 2015 was introduced from the inception of the 1960 Act. That statute came into force on 29 August 1960 (see s.50(4)). On the same day the Town and Country Planning General Development (Amendment No.2) Order 1960 (SI 1960 No. 1476) also came into force, adding Class XXIV as a new permitted development right, which corresponds to the current right in the GPDO 2015 upon which the appellant relies. Thus, the interrelationship between the 1960 Act, planning control and the Class B right has always been a potential issue for over 60 years.

The present system of planning control dates back to the Town and Country Planning Act 1947, which came into force on 1 July 1948. Planning control is exercised by reference to the statutory development plan and “any other material considerations” (see e.g. s.70(2)) of TCPA 1990). A “material consideration” must be relevant to the development in question and serve a planning purpose, that is one which relates to the character of the use of land (Lord Sales JSC in R (Wright) v Forest of Dean District Council [2019] UKSC 53; [2019] 1 WLR 6562 at [36]). The concept is broad.

The controls over the use of caravan sites introduced by Part I of the 1960 Act replaced s.269 of the Public Health Act 1936. Section 269 allowed local authorities to grant licences to persons to allow land occupied by them to be used as sites for “moveable dwellings” and to station and use such dwellings, subject to conditions regarding the number and type of dwellings, space between dwellings, water supply and sanitary conditions.

In July 1959 Sir Arton Wilson produced a report for the Government ,“Caravans as Homes” (Cmnd.872), which addressed a number of problems with caravan sites and the controls available. The report identified a number of mischiefs at which the 1960 Act was subsequently aimed, including:

It is a pre-requisite for the grant of a site licence that the applicant is entitled to rely upon an express grant of planning permission for the use of the land as a caravan site (s.3(3) of the 1960 Act). Here, the appellant was only able to point to the 1952 and 1966 planning permissions as the basis for obtaining a site licence. But Mr. Harwood suggested that the planning permissions were only relevant in so far as they authorised the use of the site and that the appellant has not relied upon them as authorising the hardstandings. But, as a matter of general principle, each of the permissions granted in 1952 and 1966 has to be read as a whole; the conditions to which each was subject form an integral part of the relevant permission, regulating the grant itself and indispensable to it (Barton Park Estates Limited v Secretary of State for Housing, Communities and Local Government [2022] EWCA Civ 833; [2022] PTSR 1699 at [21]-[31]). Section 29(4) of the 1960 Act is to the same effect. Any reference in that statute to a permission granted for the use of land as a caravan site is taken to refer to such permission, whether or not subject to a condition. So the 1966 permission gave consent for the number and type of caravans specified subject to the conditions, including the restrictions on the areas of the site which may be used for the stationing of caravans.

This point was considered by the Divisional Court in R v Kent Justices ex parte Crittenden [1964] 1 QB 144. Planning permission was granted for the use of land as a caravan site, subject to a condition limiting the number of caravans to 13. The local authority granted a site licence subject to a condition to the same effect. The site owner sought to challenge the imposition of that limit on the number of caravans on site.

Lord Parker CJ held that a site licence could only be granted within the restrictions imposed by the planning permission, including its conditions, and not outside the boundaries of that permission. He considered that this was implicit in s.29(4). It is the planning permission with its conditions which are the necessary prerequisite for the grant of a site licence (pp. 154-6). Winn J gave a judgment to the same effect. Parliament intended that the planning authority should determine what pieces of land may be used as caravan sites and the extent to which such land may be so used and that the licensing authority should have power under the 1960 Act to control by conditions the manner in which the land is used as a caravan site, but only within the limits of the extent of user approved by the planning permission (pp.162-3).

Although Ashworth J did not agree with Lord Parker’s construction of s.29(4) by implication, he arrived at the same outcome. He said that s.3(3) was a plain indication that the scheme of control under the 1960 Act should be linked with the system of planning control (p.157), such that the two systems are to be operated in harmony and not in conflict. The object of the legislation would be frustrated if the number fixed in the site licence exceeded the number restricted by the planning permission. It would not be “unduly burdensome” to repeat that restriction in the site licence (p.159).

It does not appear that these principles in Crittenden have been disapproved in any subsequent decision.

However, in Esdell Caravan Parks Limited v Hemel HempsteadRural District Council [1966] 1 QB 895 Lord Denning MR stated that a planning authority should only consider matters in outline directed to the question whether the land ought to be used as a caravan site at all, and not go into the number of caravans to be authorised or impose a condition restricting that number. Once planning permission is given, the licensing authority should deal with the details, including the number and type of caravans authorised (p.923). This dictum was unnecessary for the decision and the other members of the constitution did not agree to it. Indeed, Winn LJ endorsed Crittenden (p.937). It does not appear that Lord Denning’s obiter dictum has been approved or followed in any subsequent decision.

The 1960 Act applies in Scotland, where there is a planning regime similar to the TCPA 1990. The local planning authority in Cartledge v Scottish Ministers (No.1) (2011) S.C. 587 [2011] CSIH 23 had granted planning permission for a caravan park in accordance with plans, one of which showed 64 plots. The Secretary of State refused to grant to the site owner a lawful development certificate which would have legitimised an unlimited number of caravans. In the Inner House the site owner argued that the number of caravans permitted on a site should be determined by a site licence, not the planning permission, relying on Lord Denning’s dictum. He also relied upon the Scots equivalent of what is now the Class B permitted development right [19].

The Inner House disagreed with Lord Denning’s dictum [21]. Lord Gill, the Lord Justice Clerk, held that questions such as the density of development and use of the site and type of caravans to be permitted raise planning considerations. The licence conditions serve a different purpose and raise different considerations, such as public health and hygiene, although there is some overlap. For licensing reasons, the site licence may allow fewer caravans to be on site than the number allowed in the planning permission, but it is not open to the licensing authority to enlarge the planning permission by licensing the site for any greater number [22]. That permission had imposed a limit on the number of caravans and their location on the site.

In my judgment, given the degree of similarity between the planning legislation in the two jurisdictions, this court should follow the decision of the Inner House unless satisfied that there are compelling reasons to the contrary (R (Jwanczuk) v Secretary of State for Work and Pensions [2023] EWCA Civ 1156; [2024] KB 275 [39]-[44]). No such reasons have been identified. Both highly experienced leading counsel said that in practice Lord Denning’s dictum is not followed. Neither contended that Cartledge was incorrect.

For my part, I agree with the reasoning in Cartledge. According to Lord Denning’s dictum, no matter how sensitive the area in which a caravan site is proposed and the degree of harm that would be caused, the planning authority can approve the location in principle by granting a planning permission but cannot restrict the number and/or location of the caravans. Esdell went on to decide that site licensing could not impose such restrictions on purely planning-related grounds. The upshot would be that although planning harm, for example to the wider landscape or the environment, could be taken into account in deciding whether to grant or refuse planning permission, it could not be reflected in a condition on that permission restricting the number and/or location of caravans so as to avoid or mitigate such harm. With great respect, that would be unreasonable and cannot have been the intention of Parliament when enacting the 1947 Act and subsequent planning legislation.

The decision in Cartledge accords with the principle laid down in Crittenden, with which I also agree, that the site licence has to be in harmony, and not in conflict, with the terms of the planning permission relied upon to satisfy the precondition in s.3(3) of the 1960 Act. Those terms include the conditions of the permission (see [87] above). The conditions may include requirements and standards for the development, including the use of, and operational development on, the caravan site. Although a site licence can impose tighter obligations or restrictions than those conditions, on grounds relevant to the site licensing regime, it cannot have the effect of enlarging the planning permission or relaxing the requirements of its conditions. The 1960 Act simply imposes an additional layer of control.

To this extent a site licensing authority setting the conditions of the site licence does take into account something which may be based solely on planning considerations, namely the terms and effect of the planning permission which is the pre-requisite for the grant of that licence. But that is unobjectionable. It is simply what the statutory scheme requires.

Once this position is reached, there can be no criticism of the Council and the UT for having taken into account in site licensing what was referred to as “the planning baseline” in this case, i.e. the determination in the enforcement notice appeal that all the operational development enforced against constituted an unlawful breach of planning control for which planning permission has been refused and which must be removed or remedied. It is nothing to the point that these matters involve purely planning considerations. They are relevant because the consistency principle indicated by s.3(3) of the 1960 Act, Crittenden and Cartledge requires the operation of the 1960 Act to be in harmony with the planning regime, not in conflict. It would be contrary to the purposes of the legislation for a site licence to approve or require works to be carried out which are in breach of planning control and for which planning permission has been refused. The appellant’s criticism of the UT’s decision is antithetical to the statutory scheme. I return to this subject below.