Barton Park Estates – May 2021

May 28, 2021

High Court judgment provides useful reminder and summary of the case law in respect of the interpretation of planning permissions and the scope and effect of conditions as limitations to the permission –  Barton Park Estates Limited v The Secretary of State for Housing, Communities and Local Government, (2) Dartmor National Park Authority [2021] EWHC 1200 (Admin) 12th May 2021

Whilst the outcome of this appeal may be considered by some as not surprising in itself, the judgement provides for a useful read and reference point as regards the law and cases concerning a number of important and common issues arising in planning decisions as follows:

  1. the interpretation of planning permissions (paragraph 10 of the judgment, where the cases of Barnett; ex p. Shepwey D.C, Trump International, Carter Commercial Developments and Northampton B.C. are considered);
  2. the relationship of conditions on a permission as limitations to the development allowed under the permission (considered between paragraphs 21-27 of the judgment by reference to the cases of I’m Your Man, Altunkaynak; Cotswold Grange and Winchester City Council);
  3. the test for assessing a material change of use (considered between paragraphs 52 – 55 of the judgment by reference to the Hertfordshire case).

The case also serves as a reminder as to the importance of ensuring that the description of development in a planning permission is accurately described and that any limitations on the use so described are achieved through appropriate conditions. However, in construing permissions which may not have been worded with such accuracy, both as to the description of development and/or appropriate conditions, it emphasises the need to construe the permission as a whole in ascertaining what is permitted by it.

A link to the judgment can be found here: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1200.html

The case concerned the interpretation of planning permission in respect of a caravan park in the Dartmoor National Park known as the Magpie Leisure Park.

In 1987, planning permission was granted for the development of the site for “proposed site enhancement scheme involving an amendment of existing provision at the site to allow for 9 residential vans, 16 holiday chalets, 18 static vans & 30 touring units”. The permission was subject to conditions as follows: i) the usual 5 year commencement provision for the development; ii) the provision of details for improved access; iii) a landscaping condition; iv) requirement for the sceptic tank and drainage to be provided before any of the residential vans a brought into use; v) a seasonal occupancy restriction between March & November each year in respect of the chalets, static holiday caravans & pitches for touring units; vi) no touring units to remain on site for more than 3 weeks a year.

Importantly, there were no conditions attached to the permission limiting the number of units to those as described in the description of development permitted. In the absence of such a condition, the owner of the site, (the claimant in the High Court), applied for a certificate of lawfulness for the stationing of up to 80 caravans for human habitation. The LPA, Dartmoor National Park Authority, refused the application and following an inquiry, the owner’s appeal under section 195 of the T&CPA 1990 was dismissed by the inspector by her decision dated the 29th of June 2020. In summary, the inspector decided that the proposed stationing of up to 80 caravans for human habitation was not provided by the 1987 permission but would be a material change of use from the development granted by that permission and would require planning permission.

The.claim was pursued on 3 grounds of appeal, all of which were dismissed:

  • That the Inspector misinterpreted the 1987 permission and should have decided that the lawful use of the site was for a caravan site as opposed to a site for both permanent residential accommodation and holiday accommodation;
  • That the permission allowed for no caravans on site to be used for holidays;
  • That the proposed use would not change the character of use of the site which would remain as a caravan site and there could have be no finding of a material change of use.

In considering the appeal, HHJ Jarman Q.C. (sitting as a judge of the High Court), identified the main issue as the proper interpretation of the 1987 permission.

At paragraph 10 of the judgement the relevant principles relating to this are helpfully summarised by reference to the principal cases concerning the matter. Having done so, HHJ Jarman Q.C. noted difficulties with the description of the development in the permission including that it did not encompass the full scope of development provided for, (eg there was no reference to the sceptic tank or drainage as required to be brought into use by the condition) and with regard to what was meant by “enhancement scheme”.

The judgment further considered the difficulties presented by the failure of the planning permission to provide a condition limiting the number of units to those set out in the description of development. The judgment considers the relevant principles in respect of this.

With regard to these matters, at paragraph 28 of the judgment, reference is made to paragraph 46 of the Inspector’s decision wherein it may have appeared that notwithstanding the absence of a condition limiting the number of units on the site, the permission itself did so. However, at paragraph 30 of the judgment it is noted that “the inspector had regard to the description in the 1987 permission, not as imposing a limit on the number or type of caravans which may be stationed on the site, but to interpret the permission as permitting permanent residential accommodation and holiday accommodation”. HHJ Jarman Q.C. noted that the permission referred to holiday chalets in the description of development but also with regard to the interpretation and application of the conditions with regard to the caravans being for holiday purposes.

Accordingly, the High Court decided that the inspector’s approach overall to the interpretation of the permission was correct and in respect of Ground 1 HHJ Jarman Q.C. provided his conclusion between paragraphs 37 – 39 as follows:

37.      I have come to the conclusion that that interpretation of the inspector is correct. Applying the principles of interpretation set out in paragraph 10 above, and the observation of Hickinbottom J in paragraph 15 of Cotswold Grange as approved by the Court of Appeal in Winchester, it is clear that there is no numerical limitation on the various types of unit set out in the description of the 1987 permission. Had the matter stopped there, then Mr Mackenzie’s submissions may have had some force.

  1. However, regard must be had to the whole of the 1987 permission. In particular, condition (e) provides that the chalets, static holiday caravans and pitches for touring units shall not be occupied in the winter months, and the reason given is to protect the character of this part of the Dartmoor National Park during those months. In my judgment, such a limitation is inconsistent with permanent residential occupation caravans on most of the site. Moreover, condition (f) provides that no touring unit shall remain on site for more than 3 weeks in each year, for the stated reason that part of the site remains available for use by touring caravans. These conditions, to use the words of Hickinbottom J, identify what cannot be done- what is forbidden.
  2. Accordingly in my judgment, the inspector was correct in paragraph 47 of the decision letter to interpret the 1987 permission as permitting a caravan site providing both permanent residential accommodation, and holiday accommodation, the latter in the sense that year round use is prevented by condition. Ground 1 fails”

Having decided that the inspector’s interpretation was correct, ground 2 also failed as HHJ Jarman Q,C considered that the inspector had properly considered the possibility that all the caravans could be used for residential purposes as one of the possible scenarios of the uses that could occur under the permission. However, even in this extreme scenario the inspector correctly identified that holiday accommodation in respect of the chalets and vans could continue other than in the winter months. Accordingly, it was found that the inspector’s reasoning was not flawed.

As for ground 3, HHJ Jarman Q.C considered that provided the Inspector had applied the correct test as to considering whether a material change of use would occur if the proposed use occurred, then whether there would be such a change was a matter for her judgment. It was common ground that the test for deciding whether a material change of use has occurred is whether there has been a change in the character of the use, or in the definable character of the use – Hertfordshire County Council v Secretary of State for Communities and Local Government & Anor [2012] EWCA Civ 1473. In that case Pill L.J. said:

“In assessing whether there is a change of character in the use, its impact of the use on other premises is a factor. It is necessary, on the particular facts, to consider both what is happening on the land and its impact off the land when deciding whether the character of the use has changed.”

The conclusion on ground 3 is provided at paragraph 55 as follows:

“55.       In my judgment, the inspector applied the correct test in this regard. Although she had regard to off-site effects, this was very much in the context of deciding whether the proposed use would bring about a change in the character, or definable character, of the use on site. The proposed use would not simply amount to a caravan site “on a larger scale” as in Hertfordshire or “simply an increase in the number of caravans” as in Cotswold Grange. The inspector was entitled to conclude, as she did for the reasons set out in paragraphs 57 to 63 of the decision letter, that the proposed use would bring about a material change in the definable character of the use on site. Ground 3 also fails.”

Therefore all 3 grounds of appeal were dismissed and the claim failed.

Trevor Ward

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Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes