[2024] UKUT 237 (LC)

The Park has the benefit of two planning permissions. The first, granted in 1952, permits the use of 7.5 acres for the siting of up to 30 touring caravans, while the second, granted in 1966, doubled that number to 60 arranged in groups in accordance with a site plan which has subsequently been lost. In 2021 a Planning Inspector determined that the 60 permitted caravans could be of any variety, including permanent, twin-unit park homes, and were not limited to the towed vehicles mentioned in the 1952 permission. The permissions allow occupation of 30 caravans on a permanent residential basis, with the other 30 being occupied for seasonal holiday use. A condition in the 1966 permission requires that in the interests of visual amenity an area in the centre of the Park be kept free of caravans.

Site licences were issued to a previous owner of the Park, Mr W.H. George, in 1961 and in 1968. The 1968 licence authorised 60 caravans, including 30 for permanent occupation, which were to be sited in accordance with a layout plan (it has been assumed that this reflected the site plan referred to in the 1966 planning permission). It is said by the respondent that the required layout was not observed by its predecessors, but that the Council took no steps to enforce it.

The Park is on land rising up the side of the Derwent Valley and in part is heavily wooded. The woods form part of the parkland formerly associated with Alderwasley Hall, a listed building, and are included within the Alderwasley Conservation Area. A tree preservation order was made in 1978 designating part of the Park as woodland and prohibiting the felling of any trees in the designated area without the consent of the Council. Individual trees in other parts of the Park were also protected.

Photographs of the Park taken prior to its recent development show that it was mainly a woodland area with caravans set amongst trees. The Inspector described it as “nestled in woodland” and “relatively inconspicuous” and the FTT referred to the feeling of being in a wooded setting. The layout required by the 1968 licence had the effect of concealing the groupings of caravans from local roads, a railway line and many vantage points in the surrounding area. Whether the layout was precisely adhered to or not, pitches were less densely sited and haphazardly laid out with caravans simply parked on the grass, rather than standing on concrete bases. There was a mix of towing caravans, tents, and larger caravans. Generally, the pitches were considerably smaller than those constructed later by the respondent.

The respondent acquired the Park in 2016 and soon began to modernise it, including undertaking earth moving works to create a series of levelled terraces supported by gabion retaining walls, the laying of concrete bases, wooden decking, and a new internal roadway, the installation of services and CCTV. In all 27 concrete bases for new caravans have been laid, most carved out of the sloping hillside but with a few on level ground. Caravans have been installed on a number of these and one or two have been occupied from time to time. The result, as described by the Inspector, paid little regard to the importance of the Park’s location and the global importance of the World Heritage Site, and created “an incongruous and urbanised development at odds with the otherwise rural relict landscape.”

In preparation for its intended engineering works the respondent unlawfully felled 121 trees in the protected woodland zone in March 2017. In August the same year the roots of four protected trees were also damaged by the works. The respondent was subsequently prosecuted by the Council for these breaches of the tree preservation order which resulted in convictions and fines.

On 14 September the Council issued a temporary stop notice requiring the respondent to cease the works which it had commenced on the central green area (in breach of the condition in the 1966 planning consent) and in December 2017 it obtained an injunction in the County Court prohibiting the siting of caravans or preparatory work in this area.

The Council also took the view that the stationing of twin-unit static caravans on the Park was a material change of use, and that the scheme of works carried out by the respondent amounted to unlawful development. On 15 March 2019 it issued two enforcement notices. One asserted that there had been a change of use while the other objected to the operational development including, amongst other things, the engineering operations which had re-contoured the Park, the construction of the concrete bases, retaining walls and service connections, and the installation of raised decking and timber skirting around the caravans which had already been positioned on the Park. The new access road infringes on part of the central green. The operational development notice required that all of these works within an area shown on the notice plan be removed. The plan did not include the whole of the Park, with an area at the northern end and a further smaller area at the southern end lying outside its boundaries.

The respondent reacted by appealing against the enforcement notices and by seeking a lawful development certificate which the Council refused and which then became the subject of a further appeal. These appeals were considered together by an Inspector at a hearing lasting seven days in January and February 2021. The Inspector issued her decision on 20 August 2021.

The Inspector found in the respondent’s favour on the interpretation of the 1966 planning consent and allowed the appeals against the refusal of a certificate of lawful development and against the enforcement notice alleging a change of use of the Park. She dismissed the appeal against the operational development enforcement notice. The only permitted development rights which the respondent enjoyed under Class 5B were those necessary to accommodate the layout permitted by the 1966 planning permission. The operational development conflicted with policies in the development plan intended to protect the sensitive landscape and heritage assets and caused harm to the settings of the World Heritage Site and to Alderwasley Hall, its Conservation Area and the Special Landscape Area. Her decision was then the subject of an appeal to the High Court which was dismissed on 15 July 2022 (Haytop Country Park Ltd v Secretary of State for Housing, Communities and Local Government [2022] EWHC 1848 (Admin)).

Following the dismissal of the appeal the enforcement notice was due to be complied with by the respondent by 15 January 2023. It has not been complied with.

Meanwhile, on 27 January 2021 the Council had served a tree replacement notice on the respondent requiring it to plant 100 replacement trees of specified species and sizes and in positions shown on a plan. The period for compliance with the notice was 12 months, from 25 February 2021. A further appeal to a Planning Inspector followed and by a decision published on 4 March 2024 the Inspector largely upheld the notice while allowing the respondent’s appeal on certain points of detail concerning the work to be carried out.

Alongside the enforcement proceedings the parties have also been engaged in parallel licensing proceedings before the FTT and this Tribunal under the 1960 Act.

Initially, an application by the respondent for a transfer of the 1968 site licence was refused by the Council, and on 2 August 2018 it applied under section 3, 1960 Act for a new licence for 30 residential caravans. The application was again refused by the Council which interpreted the 1966 planning consent as limiting the caravans which could be brought on to the site to the smaller touring variety.

The respondent appealed the licence refusal to the FTT and on 25 July 2019 it directed that a site licence be issued. On 16 March 2020 this Tribunal (Judge Cooke) allowed the Council’s appeal against the FTT’s decision on the basis that it was irrational to require a licence to be issued when there was an ongoing dispute on the proper interpretation of the planning permission (Amber Valley Borough Council v Haytop Country Park Ltd [2020] UKUT 68 (LC)). Repeated applications for permission to appeal to the Court of Appeal was subsequently refused by the Tribunal and by a single Lord Justice.

After the Inspector’s decision had resolved the legality of the respondent’s intended use of the Park as a site for permanent residential pitches, the application for a site licence was reconsidered by the Council which issued a new licence on 26 April 2022.

The new site licence was issued subject to three conditions. The second condition required that the Park should not be occupied by more than three caravans (rather than the previously authorised 60) which were to be located on pitches identified on the licence plan. These locations were selected so as not to interfere with the replanting required by the tree replacement order but Mr Arkle, the Council’s officer who signed the licence, later acknowledged to the FTT that they were in positions originally subject to the requirements of the operational development enforcement notice.

The third condition in the licence required that the Park be maintained in accordance with standards which were attached to the licence and which dealt in greater detail with the amenity of the Park. Amongst the matters covered by the standards was a requirement that a suitable hardstanding be provided for every caravan, that water and electricity be supplied, and that caravan should be connected by roads and footpaths of specified dimensions.

It is common ground that in practice the licence conditions had the effect of relaxing the requirements of the enforcement notice to the extent that they conferred permitted development rights for any development which they required (including the roads, services and hardstandings for the three permitted caravans). Mr Arkle explained to the FTT that he was content for the concrete plinths to remain on each of the three pitches shown on the licence plan because their creation had not involved much or any of the re-profiling which seems to have been his biggest concern.

The respondent appealed against the conditions contained in the new site licence, including the limitation to three caravans.