[2024] UKUT 237 (LC)

By a decision issued on 16 May 2023 (subsequently twice corrected and finally reissued in amended form on 6 July 2023) the FTT allowed the appeal and the Council was directed to issue an amended site licence. The amendments permitted the siting of 18 caravans on identified plots and made some other relatively minor variations to the conditions. The 18 pitches were in locations which the FTT was satisfied would not conflict with the replanting required by the tree replacement notice (which was itself the subject of a separate appeal).

The respondent’s case before the FTT was that the condition restricting the Park to only three caravans could not be justified by reference to the enforcement notice or the tree preservation order. It was an impermissible planning condition, as well as being unduly burdensome duplication of regulatory controls, and, in any event, was misconceived, as it was said that the enforcement notice does not affect the future use of the Site.

The FTT considered that limiting the number of pitches to three, where there was planning permission for 60, was unduly burdensome. That conclusion would have been sufficient to justify cancelling the relevant condition but the FTT went on to consider whether it should attach a different condition.

In the FTT’s view the respondent should be allowed as many pitches as could properly be located on the Site, subject to the constraints of the enforcement notice, the tree replacement notice and the tree preservation order, up to a maximum of sixty.

The critical part of the FTT’s reasoning occupied paragraphs [140] to [147] of the decision, where it considered the relevance, or “impact” of the enforcement notice (which it referred to as the “ODN”, for “operational development notice”), as follows:

“140.

[W]e recognise that Mr Arkle is reluctant to determine where pitches might be located until the ODN is complied with. Our difficulty with this approach is that on an application for a site licence, the Council must consider how the Site will operate in the future. It is only when a licence is granted that the operator then has permission to carry out such development (if any is necessary) to operate the Site in accordance with the terms of the Licence. Thus, a licence is essentially a forward-looking document.

141.

In contrast, the ODN is dealing with restoration of the Site arising from past illegal operations.

142.

Our view is that Mr Arkle would or should have been able to understand how the Site would be configured following compliance with the ODN when assessing how many pitches could be accommodated, and where they should be located. After all, the ODN says clearly what works are required (…).

143.

The issue is undoubtedly complicated by the tension between compliance with the ODN and the exercise of [permitted development rights] that will arise on the grant of a site licence. We do not, however, see any provisions in the Act that 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.

144.

We are persuaded by the authorities quoted by Mr Harwood and set out at paragraphs 101 to 106 above that the ODN and the [permitted development rights] arising from any licence granted can co-exist, even if the co-existence creates tensions. The tensions will be considerable, because the ODN works require re-profiling of the Site and the removal of the road.

145.

Given the history of this case, there is a reasonable likelihood that these tensions will result in more litigation. We hope not. If the parties were willing to co-operate by negotiating an engineering solution to the tensions (so that the ODN requirements were fully met, but the Applicant was still able to provide the necessary infrastructure to the Site), that would be a much more pragmatic solution. That is not in our hands.

146.

Our role is to determine the appeal against the conditions in the Licence under section 7 of the Act. Enforcement of the ODN, and the exercise of [permitted development rights] arising from the grant of a caravan site licence are planning matters, not matters for this Tribunal. We have no role, and no jurisdiction, over the way in which the ODN is complied with. Our view expressed in the preceding paragraph should not be considered as authority for the Applicant to be released in any way from full compliance with the ODN.

147.

Our view is therefore that the number of pitches to be allowed in the Licence should not be limited by virtue of the constraints of the ODN.”

I should explain that the reference in paragraph [144] of the FTT’s decision to “authorities quoted by Mr Harwood” was to two cases (Gateshead MBC v Secretary of State for the Environment [1995] Env LR 37 and R (Morge) v Hampshire County Council [2011] UKSC 2) which support the proposition that the duplication of statutory controls by consents or licences under separate statutory regimes should be avoided.

In contrast to the approach it took to the operational development, the FTT considered that the location of trees was a matter to which it could legitimately have regard in framing licence conditions because it was within the scope of section 5(1) of the 1960 Act and related to the amenity of residents and the preservation and enhancement of the Park. On that basis it rejected the respondent’s submission that any matters concerning trees should be disregarded and left to the decision of a second Planning Inspector who was due to hear its appeal against the tree replacement notice.

The FTT noted that the pitches proposed by the respondent required substantial engineering works, which it was satisfied would not fit in the woodland setting of the Park without damage and disruption to the surrounding trees. The respondent’s arboriculturist had proposed a scheme which amended the planting required by the tree replacement notice and adjusted the positions of some of the hardstandings. It was said that this would enable 28 caravans to be accommodated, but the FTT considered that the protection of the woodland environment was “of pre-eminent importance” and described the tree protection order and the tree replacement order as “not negotiable”. It therefore rejected the suggestion that the tree protection conditions were unduly burdensome and disregarded the respondent’s various compromise solutions.

In his evidence, Mr Arkle had accepted that, in addition to the three pitches which he had identified as not being affected by the enforcement notice, a further 15 were not impacted by the tree replacement order. The FTT consider that those pitches should be included in the Licence and that the condition imposed by the Council should be amended to permit up to 18 caravans to be sited on the Park in those locations.