When planning and site licensing collide

Elizabeth Dwomoh takes a look at an interesting decision concerning a Derbyshire caravan park. Key point In accordance with sections of the Caravan Sites and Control of Development Act 1960, it is logical for all planning matters to be determined before a site licence is issued Section 1 of the Caravan Sites and Control of Development Act 1960 mandates that the operation of a caravan site requires the grant of a valid site licence from the relevant local authority. A local authority can only grant the requisite licence if the proposed caravan site has planning permission which allows use of the land as a caravan site. Under the 1960 Act, a local authority has power to attach conditions to the grant of a licence. A licence holder who is aggrieved by a condition can appeal the same to the First-tier Tribunal. An “unduly burdensome” condition can be varied or dispensed with by the FTT. In considering such an appeal, the FTT has no jurisdiction to entertain purely planning objections. Yet, in circumstances where the effect of the FTT varying a condition of a site licence would lead indirectly to legitimising development that was subject to an enforcement notice, should the FTT have regard to the planning conditions which underpin the notice? This was the issue the Upper Tribunal (Lands Chamber) had to resolve in Amber Valley Council v Haytop Country Park Ltd [2024] UKUT 237 (LC); [2024] PLSCS 155. The planning web Haytop Country Park is a caravan site in the Derwent Valley, Derbyshire. It lies within a buffer zone of the Derwent Mills World Heritage Site and within a special landscape area, designated in the Amber Valley local plan. The park also adjoins a designated site of special scientific interest. Part of the park is heavily wooded and falls within a conservation area. In 1978, tree preservation orders were made which prohibited the felling of trees in parts of the park that had been designated woodland. Trees could not be felled without the prior permission of the local planning authority – Amber Valley Borough Council. In 2016, Haytop Country Park Ltd purchased the park. In 1952 and 1966, planning permission was granted for the siting of various caravans in the park. The 1966 grant permitted the siting of 30 caravans on a permanent residential basis and 30 caravans on a seasonal basis. When HCP acquired the park, it embarked on an extensive modernisation programme, which included the felling of some of the trees subject to the TPOs. In 2019, the council issued enforcement notices against HCP in respect of the modernisation works. HCP successfully appealed one notice, but the remaining notice required HCP to remove all works that did not fall within permitted development rights. HCP failed to comply with the notice. Subsequently, the council also served a tree replacement notice on HCP. The licensing face-off In parallel with the enforcement proceedings, HCP and the council were also involved in licensing proceedings before the FTT. Pursuant to section 3, HCP applied for a new licence for 30 residential caravans. The application was refused by the council. In so doing, it interpreted the 1966 planning consent as limiting the caravans that could be accommodated on the site to only smaller touring caravans. HCP appealed. The FTT directed that a site licence be issued. The FTT’s decision was overturned by the UT. It determined that the FTT’s decision was irrational as it required a licence to be issued when there was an ongoing dispute as to the proper interpretation of the planning permission. HCP’s application for permission to appeal to the Court of Appeal was refused. The current dispute In July 2023, the FTT allowed HCP’s appeal against its licence conditions. The council was directed to issue an amended site licence to include permission for 18 caravans to be placed at certain locations in the park instead of the three caravans proposed by the council. HCP had argued before the FTT that restricting the park to only three caravans could not be justified by reference to the enforcement notice or the TPOs. It was an impermissible planning condition and an unduly burdensome duplication of regulatory controls. The council appealed, arguing that the FTT had allowed HCP to site caravans in locations which ran contrary to the planning permission in place and the enforcement notice. In essence, the FTT had granted PDRs for the modernisation works. That approach dealt with the regulatory requirements backwards and rendered the decision of the secretary of state and the High Court nugatory. The UT agreed. The decision of the UT The UT found that HCP’s failure to comply with the enforcement notice before its application for a site licence had been determined had created a paradox, which it sought to exploit. Pure planning considerations were not pertinent factors in determining whether a licence could be granted. Yet, the grant of the licence would carry with it PDRs without the planning consequences of those rights being assessed as part of the licensing process. HCP sought a substantial advantage for itself as a consequence of its own illegality. In principle, the UT felt that it should not benefit from the same. The FTT, as found by the UT, had reversed the order in which it should have considered the issues. To accord with section 3(3), it was logical that all major planning issues were resolved before a licence was issued. The FTT’s approach had been irrational and its decision was set aside. Elizabeth Dwomoh is a barrister at Lamb Chambers Photo by Geoffrey Swaine/Shutterstock (14617050j)