Court of Appeal hands down ruling on relationship between planning control and licensing of caravan sites

Site operator Haytop Country Park brought the case against Amber Valley Borough Council.

Lord Justice Holgate said there was overlap between the two regimes and he was asked to decide what was meant by a decision that determination of an application for a site licence under the 1960 Act must disregard “purely planning considerations”. Haytop argued the licensing authority must disregard a final determination under the TCPA 1990 that engineering operations - in this case the construction of hardstandings for caravans - were a breach of planning control and must be removed and the land restored.

It said the council could grant a licence requiring those hardstandings to be provided for mobile homes and that the operator would then be able to rely on a general planning permission granted pursuant to a development order, the Town and Country Planning (General Permitted Development) (England) Order.

The judge said Class B of Part 5 of Schedule 2 to the GPDO 2015 granted a permitted development right for development required by the conditions of a site licence granted under the 1960 Act.

Haytop said the enforcement notice could not prevent future reliance on the Class B right in that way, and submitted it would be irrational for Amber Valley to require compliance with that notice as Haytop would be entitled to put essentially the same development back in place in reliance upon its Class B right.

An inspector had ruled the hardstandings constituted a breach of planning control, and required these works to be removed and the land restored.

The judge said Haytop’s case was that planning consent for the hardstandings would be obtained “simply by virtue of a site licensing decision under the 1960 Act, without any planning authority having decided that that permission be granted on the merits.

“We have to decide whether the two regimes interact in this way.”

He noted the site has two planning permissions, from 1952 and 1966, that permit up to 60 caravans, with limits on where hardstanding could be provided.

In March 2017 Haytop unlawfully felled 121 trees and laid 27 hardstandings.

Amber Valley issued two enforcement notices and the inspector dismissed Haytop’s appeal, as later did the High Court.

In January 2021 the council served a tree replacement notice requiring the planting of 100 trees and an inspector rejected the operator’s appeal.

Amber Valley granted a new site licence in 26 April 2022 after Haytop applied for 30 residential caravans but limited this to three in locations it said not to interfere with the requirements of the tree replanting notice or the remedial steps against the engineering operations.

Haytop appealed to the FTT Property Chamber (Residential Property) which ordered the council to licence 18 caravans.

Amber Valley then appealed successfully to the Upper Tribunal (Lands Chamber), which said the FTT should not have decided to disregard the outcome of the enforcement notice appeal or 'the planning baseline'.

Nor should it have imposed a condition inconsistent with the established planning position.

Holgate LJ said: “The upshot is that this court is asked to resolve the difference of law between the two tribunals: can a site licence be granted for the siting of caravans in locations which are inconsistent with the planning permissions upon which the licence application is based, or which is inconsistent with the determination of the planning rights in the statutory process for taking enforcement action against breaches of planning control?”

He found the determination of the site licence had to be consistent with the decision on the enforcement notice appeal relating to the operational development.

Haytop had failed to show that development was required by the 1968 site licence and so it was not permitted by the Class B right.

“The appellant did not claim that the operational development was authorised by the 1952 and 1966 planning permissions. It was therefore unlawful development without planning permission,” the Court of Appeal judge said.

“The site licence should not have approved any plots which were the subject of the enforcement notice, save that it was proper for the licence to authorise plots in respect of which no action under the enforcement notice needed to be taken. That approach was in harmony with the proper application of the planning regime and did not render any other part of the site licensing decision by the council (or by the UT) unlawful.”

He said the inspector decided that the operational development was inconsistent with a 1968 licence layout and was therefore unlikely to be consistent with the 1966 permission.

“Accordingly, the FTT erred in deciding that the operational development enforcement notice and the determination of the appeal against that notice were irrelevant to site licensing,” Holgate LJ said.

“I would uphold the decision of the [UT]”, he said, adding “The appellant's argument only serves to demonstrate why the principle of harmony between the 1960 Act and the planning regime is essential.”

He said Haytop’s argument that it would be irrational for Amber Valley to require compliance with the 2019 enforcement notice when it would become entitled to rely upon ‘future' Class B rights, “is itself irrational”.

Holgate LJ explained: “It would require a site licensing authority to ignore requirements (or restrictions) in relevant planning permissions and an extant enforcement notice, but would allow that authority to impose conditions resulting in Class B rights which may be used to justify non-compliance with those requirements, without any opportunity for the planning consequences to be considered. “Fortunately, the legislation enacted by Parliament does not operate in that way.”

He dismissed Haytop’s appeal and Nugee and Moylan LJs both agreed.

Mark Smulian