[2024] UKUT 237 (LC)

The Council was granted permission to appeal on grounds that the FTT had erred in reaching its decision. The various ways in which the grounds of appeal were formulated made essentially the same point, namely, that the FTT had permitted the respondent to site caravans in locations which conflict with the current planning permissions and the enforcement notice. It had, in effect, granted permitted development rights for the road, the terraces and the concrete bases without regard to the relevant planning considerations. That approach involved dealing with the regulatory requirements backwards and rendered the decisions of the Secretary of State and the High Court a pointless waste of time.

In support of these points Mr Kimblin KC submitted that the enforcement notice provided what he called the “planning baseline” from which any consideration of the conditions of a site licence should be undertaken. It was irrational for the FTT to disregard its requirements and, while purporting to respect it, to bring about a result which contradicted it. He referred to a decision of the Court of Appeal in a case which he said was analogous, R v Warwickshire County Council ex.p. Powergen plc (1997) 75 P&CR 89. In that case an application for planning permission was refused by a District Council on highways grounds (on the advice of the highway authority) but its decision was reversed on appeal to the Secretary of State. When the developer called on the highway authority to enter into an agreement under section 278, Highways Act 1980 to carry out the necessary works, it refused on the grounds of its original objections. On a judicial review the highway authority’s decision was quashed and its subsequent appeal to the Court of Appeal failed. Simon Brown LJ asked whether it was reasonable for a highway authority, whose road safety objections had been fully heard and rejected on appeal, then, quite inconsistently with the Inspector's independent factual judgment on the issue, nevertheless to maintain its own original view? In the absence of any new facts or changed circumstances he concluded that the only possible answer to that question was a categoric "no".

Mr Harwood KC submitted that whether a licence condition was unduly burdensome must be judged against the achievement of legitimate site licensing objectives, not any contribution the condition might make to planning, environmental or other objectives. That was the approach taken by the FTT and it involved no error of law. Additionally, the FTT had been rightly concerned to avoid a duplication of regulatory controls. He disputed the suggestion that there was a conflict between the condition in the site licence and the enforcement notice, suggesting that the enforcement notice was concerned only with the removal of development which had taken place in the past, while the permitted development rights conferred by the licence were prospective. It would be irrational for the Council to enforce against hardstandings and services which could immediately be put back under permitted development rights. That is no doubt correct, as is the proposition which impressed the FTT that the enforcement notice is concerned with past defaults while the permitted development rights are forward looking. But these points serve only to highlight the paradox which has been created in this case by the respondent’s failure to comply with the enforcement notice before its application for a site licence was determined. The paradox, which the respondent seeks to exploit, is that pure planning considerations are said to be irrelevant to the terms on which a licence can be granted, yet the grant of the licence will carry with it permitted development rights without the planning consequences of those rights being assessed as part of the licensing process.

Mr Harwood KC suggested that the solution to this paradox had been in the Council’s hands. It had at one stage (in April 2022) made a direction under article 4 of the GPDO removing permitted development rights but it had withdrawn the direction before it was confirmed. Be that as it may, there is no doubt in my mind that the difficulty in this case is of the respondent’s making. It could have applied for planning permission for the operations necessary to create its preferred layout of the Park or for any other layout which it considered would be consistent with planning constraints. It could have applied for consent to do work to the protected woodland trees. It did neither but proceeded unlawfully without permission. It now seeks a substantial advantage for itself as a consequence of its own illegal actions by securing the existing layout without further scrutiny on planning grounds, and by arguing that it would be pointless to remove what has already been provided when something similar will be required in any event by the conditions of any modern licence. In principle the respondent should not be allowed that advantage.

The effect of the FTT’s decision is certainly contrary to the position arrived at by the Secretary of State and the High Court. There is force in Mr Kimblin KC’s submission that this amounts to an impermissible challenge to the “validity” of the enforcement notice prohibited by section 285, 1990 Act. It is true that the FTT did not purport to examine the planning merits of the layout which its condition required the respondent to adopt, and that it directed itself correctly that it had no jurisdiction to rule on the way in which the enforcement issue should be resolved, but the effect of its decision was that the respondent acquired permitted development rights to the extent necessary to enable the new conditions to be complied with. Those conditions included the installation of hardstandings, a road and services to create and link the 18 pitches on the new licence plan. Yet those are the very features which the enforcement notice requires should be removed.

The FTT also reversed the order in which matters ought to have been considered, which logically requires that all major planning issues be resolved before a licence is issued. That logical sequence is reflected in section 3(3) of the 1960 Act which provides that a local authority may only issue a site licence in respect of land if the applicant is entitled to the benefit of a planning permission. Of course, the respondent does have the benefit of the 1952 and 1966 planning permissions and is entitled to use the Park for up to 60 caravans, but the caravans of the 1960s were very different from modern park homes. The re-profiling of the landscape to accommodate the road, terraces, gabion retaining walls and large concrete plinths was dictated by the respondent’s preferred style of trading, and it is those engineering works which have caused harm to the setting of the World Heritage Site, its Conservation Area and the Special Landscape Area.

This Tribunal’s decision on the first appeal also proceeded on the basis that the planning dispute must first be resolved before the terms of a licence could sensibly be formulated. The planning dispute has been resolved but, once again, the resulting baseline is irreconcilable with the conditions now attached to the licence by the FTT and the permitted development rights consequential on those conditions.

The FTT consciously avoided facing up to the inconsistency between the enforcement notice and the permitted development rights which would follow from the conditions it imposed. It acknowledged that there would be considerable “tensions” between the two, which were likely to result in further litigation, but it seems either to have ignored or not to have appreciated that the Council would be unable to insist on full compliance with the notice once permitted development rights had been acquired. That was an error of law.

In my judgment the FTT’s approach in washing its hands of any consideration of planning matters, and then imposing conditions which undermined the enforcement of planning control by the responsible authority, was irrational. Contrary to its assessment, it was not “unduly burdensome” for the Council to limit the number of caravans which can be positioned on the Park to the number which is consistent with compliance with the enforcement notice and the tree restoration order. The burden which the condition imposed was no greater than necessary to reverse the harm that the unauthorised works were found by the Inspector to have caused to the settings of the World Heritage Site.

The fact that those are planning considerations does not seem to me to matter in the context of this case, which is quite unlike Babbage. In that case Fox LJ emphasised that there was nothing unlawful in the way in which the site owner wished to manage the site, and which the condition imposed by the licensing authority would have prevented. In that context it was not open to the licensing authority to rely on purely planning considerations to justify licence conditions. But in this case the relevant planning issues have all been considered exhaustively and a definitive understanding of the restrictions on the Park and the obligations of the respondent has been arrived at. It was not legitimate for the FTT to disregard that settled position and make a decision which undermined it. It rightly recognised that it had no jurisdiction to consider purely planning objections; the consequence of that limitation ought to have been a further recognition that nothing which it decided should disturb the settled planning constraints on the operation of the Park.

Nor should the FTT have been influenced by the need to avoid delay, if by that it meant that it was necessary to settle the number of pitches which could be created once and for all. It said in paragraph [143] that the 1960 Act did not “permit a delay in determining the number of pitches to be permitted, following an application for a licence, just because there are other works that the operator is required to carry out.” Any condition which the FTT imposed could be reconsidered on a future application for a variation, after the enforcement notice had been complied with or agreement had been reached on a layout consistent with the planning constraints imposed by the Park’s setting. It was not the Council’s case before the FTT that there was no number of caravans greater than three which could lawfully be accommodated on the Park. It recognised that in its written argument when it said that while it was necessary for the respondent to deal with the enforcement notice and the tree replacement notice, “once dealt with, the number and location of caravans, consistent with those constraints, will have to be addressed.”

The three pitches lying outside the area of enforcement (Nos. 22, 23A and 24A) are not subject to the same objection and no error has been demonstrated in relation to them. Once the FTT had considered the evidence, it was entitled to add those three pitches to the three already covered by the licence condition.