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District council loses appeal after inspector quashed enforcement notice over occupation of caravans

Braintree District Council has failed to get an enforcement notice reinstated by the High Court over the residual occupation of caravans.

An inspector appointed by the Secretary of State for Housing, Communities and Local Government allowed an appeal by Mark Nicholls against the enforcement notice and granted him planning permission, subject to conditions. The inspector also made a costs award in favour of Mr Nicholls.

In Braintree District Council v Secretary of State for Housing Communities and Local Government [2021] EWHC 651 (QB) Timothy Mould QC, sitting as a deputy judge of the High Court, said Braintree had challenged these decisions under section 289 of the Town and Country Planning Act 1990 on the grounds that the inspector misinterpreted local plan and core strategy policies and failed to give legally adequate reasons for concluding that Mr Nicholls’ development accorded with the development plan.

The council also challenged the costs award on the ground that contrary to section 250(5) of the Local Government Act 1972, the inspector failed to specify which part of Mr Nicholls’ costs the council was required to pay.

Mr Nicholls and his family are Gypsies and in 2016 bought land at Tumbler's Green with planning permission for a mobile home for use by agricultural workers.

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He though went beyond this and Braintree found three mobile homes, storage containers and non-agricultural vehicles on the site. The enforcement notice required all these to be moved and residential use to cease.

Mr Nicholls appealed and an inspector concluded that what had taken place accorded with the development plan.

Braintree argued that the site was within countryside and use as a residential caravan site and for storage purposes was not within the limited class of uses identified as appropriate in its plans.

Judge Mould said: “The inspector concluded that use of the appeal site for a residential caravan site for a single Gypsy family and for storage purposes raised no conflict with the development plan read as a whole.

“The basis upon which she did so is apparent from her reasoning…she found the use of the appeal site for those purposes to be in accordance with the criteria stated in policy CS3 of the Core Strategy for the evaluation of proposed Gypsy and traveller sites.

“She also found those uses not to have an adverse impact on the character and appearance of the surrounding countryside and so to be in accordance with policies CS8 and CS9 of the Core Strategy.”

The Deputy High Court judge said he could not accept Braintree’s argument that this interpretation was wrong, and found that the inspector’s decision “was not erroneous in law”.

On the costs issue he said it was good practice for partial awards in planning and enforcement appeals to specify which part of the receiving party's overall costs it related to.

Judge Mould added: “It does not, however, follow that the costs order is legally defective.”

He said it was clear the inspector awarded only that part of Mr Nicholls’ costs incurred as a result of Braintree’s failure “to carry out proper prior investigations as to [his] status as a Gypsy, his and his family's personal circumstances and the needs of children living at the appeal site”.

The inspector found Braintree acted unreasonably in placing the onus on Mr Nicholls to provide that information and he had had to engage a planning consultant in the preparation of his appeal.

“It is that part of [his] overall costs of the appeal which he incurred in addressing those matters that [Braintree], acting reasonably, ought itself to have investigated which is to be reimbursed.” the judge said.

Mark Smulian

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