[2024] UKUT 237 (LC)

Section 1 of the Caravan Sites and Control of Development Act 1960 (the 1960 Act) prohibits the operation of a caravan site without a site licence. Section 3(1) of the 1960 Act permits the occupier of land to apply to the appropriate local authority for a site licence in respect of that land, but by section 3(3) the local authority may only issue a site licence in respect of the land if the applicant is entitled to the benefit of a permission for the use of the land as a caravan site issued under Part 3 of the Town and Country Planning Act 1947 otherwise than by a development order. A valid planning permission is therefore a prerequisite for the issuance of a site licence.

Section 5(1) of the 1960 Act empowers a local authority to attach such conditions to a site licence as it may think necessary or desirable in the interests of persons dwelling in caravans on that land, or of any other class of persons, or of the public at large. By section 5(1)(c) and (d) these may include conditions regulating the position of caravans on the land and for securing that steps are taken for preserving or enhancing the amenity of the land, including the planting and replanting of trees.

Section 7, 1960 Act provides a right of appeal to the FTT for any person aggrieved by a condition included in a new site licence. If the FTT is satisfied (having regard amongst other things to any standards which may have been specified by the Minister) that the condition is “unduly burdensome”, it may vary or cancel the condition. It may then also attach a new condition to the licence.

Part III of the Town and Country Planning Act 1990 is concerned with the control of development. By section 55(1), “development” includes the carrying out of building, engineering, mining or other operations on land, or the making of any material change in the use of land. Carrying out development without planning permission constitutes a breach of planning control (section 171A(1)).

Section 172(1), 1990 Act empowers a local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to do so, having regard to the development plan and other material considerations. There is a right of appeal to the Secretary of State under section 174. If planning permission is granted retrospectively an enforcement notice ceases to have effect so far as it is inconsistent with that permission (section 180(1)).

Planning permission may take the form of an express grant of permission following an application under section 62, 1990 Act or it may be granted by a development order which describes classes of development for which permission is granted by the order itself without separate consideration (section 58(1)(a)). The current Order is the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO).

Where a site licence is granted under section 3, 1960 Act development required by the conditions of the licence is permitted development within Class B of Part 5 of Schedule 2 to the GPDO.

This appeal concerns the relationship and potential overlap between the 1990 Act and the 1960 Act. In Babbage v North Norfolk District Council (1989) 59 P&CR 248 the Court of Appeal confirmed that section 5 of the 1960 Act does not justify the inclusion in a site licence of conditions imposed “for purely planning reasons”. The local planning authority was responsible for planning matters and while conditions limiting the number of caravans on a site could be imposed under section 5 they could only be based on considerations such as public health, traffic management or the amenity of the site and not on planning considerations alone. Thus it had not been lawful for a licensing authority to impose a condition requiring caravans to be removed from the site for part of the year which had been included solely for the benefit of the visual amenities of the land viewed from other land. As Fox LJ explained, at page 256:

“Nobody suggests that, as a matter of planning law (apart from the licence) it is unlawful for the applicant to keep unoccupied caravans on this site during the winter period. It is difficult to see why the licence should simply expunge that right without compensation.”

Finally, it is relevant to refer to the prohibition on challenging an enforcement notice in any proceedings on any ground on which an appeal might be made to the Secretary of State. This is to be found in section 285(1), 1990 Act, which provides:

“The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”

The prohibition on any challenge to the “validity” of an enforcement notice, other than by an appeal under the 1990 Act, is given a wide meaning and extends to any challenge to the enforceability of the notice on grounds which could have been raised on an appeal i.e. to the merits rather than to the validity (in the strict sense) of the notice. That was explained by Keene LJ in Staffordshire County Council v Challinor [2007] EWCA Civ 864, at [37], where he pointed out that the issues which could be raised on an appeal included, in effect, the planning merits of the development enforced against and any existing use rights which are relevant, so the same issues could not be raised in any other forum. Keene LJ also explained, at [52], that an enforcement notice could not take away legally permitted development rights and will be interpreted as not interfering with rights enjoyed under a General Development Order.