Amber Valley Borough Council v Haytop Country Park Ltd

Park homes – Site licensing – Planning control – Respondent owning caravan site and breaching planning control and tree preservation order – Appellant local authority issuing enforcement notice – Respondent applying for new site licence – First-tier Tribunal increasing number of pitches allowed – Appellant appealing – Whether FTT wrongly overlooking effect of licensing conditions legitimising development subject to enforcement notice – Appeal allowed Haytop Country Park was a caravan site near Whatstandwell in Derbyshire. The whole park and the surrounding area lay within the buffer zone of a world heritage site and a special landscape area. It also adjoined a site of special scientific interest. The respondent acquired the park in 2016 for permanent residential occupation. It carried out substantial engineering work, including the felling of trees, extensive ground works and the installation of concrete plinths for twin-unit park homes. The respondent mistakenly believed that it was entitled to carry out the development without planning permission under permitted development rights. The appellant local planning authority served an enforcement notice requiring the removal of the works and obtained a tree replacement order. The court upheld the enforcement notice: Haytop Country Park Ltd v Secretary of State for Housing, Communities and Local Government [2022] EWHC 1848 (Admin). The appellant did not comply with the notice. The park had planning permissions for up to 60 caravans. However, on the respondent’s application for a new site licence under the Caravan Sites and Control of Development Act 1960, the appellant granted a licence limiting the number of permanent pitches to three. The FTT considered that the limit was unduly burdensome and substituted a limit of 18 permanent pitches. The appellant appealed arguing that the FTT erred in law, essentially because it overlooked the effect the licence conditions would have in indirectly legitimising development already the subject of an enforcement notice, without having regard to the planning considerations underpinning the notice. Held: The appeal was allowed. (1) In Babbage v North Norfolk District Council [1989] EGCS 117; (1989) 59 P&CR 248, the Court of Appeal confirmed that section 5 of the 1960 Act did not justify the inclusion in a site licence of conditions imposed “for purely planning reasons”. The local planning authority was responsible for planning matters and, while conditions limiting the number of caravans on a site could be imposed under section 5, they could only be based on considerations such as public health, traffic management or the amenity of the site and not on planning considerations alone. (2) The prohibition on challenging the validity of an enforcement notice in any proceedings on any ground on which an appeal might be made to the secretary of state under section 285(1) of the Town and Country Planning Act 1990, other than by an appeal under the 1990 Act, was given a wide meaning and extended to any challenge to the enforceability of the notice on grounds which could have been raised on an appeal, ie, to the merits rather than to the validity (in the strict sense) of the notice. The issues which could be raised on an appeal included, in effect, the planning merits of the development enforced against and any relevant existing use rights. The same issues could not be raised in any other forum: Staffordshire County Council v Challinor [2007] EWCA Civ 864; [2007] PLSCS 177. (3) The effect of the FTT’s decision was contrary to the position arrived at by the secretary of state and the High Court. Although the FTT did not purport to examine the planning merits of the layout which its condition required the respondent to adopt, and directed itself correctly that it had no jurisdiction to rule on the way in which the enforcement issue should be resolved, the effect of its decision was that the respondent acquired permitted development rights to the extent necessary to enable the new conditions to be complied with. Those conditions included the installation of hard-standings, a road and services to create and link the 18 pitches on the new licence plan. Yet those were the very features which the enforcement notice required should be removed. The FTT consciously avoided facing up to the inconsistency between the enforcement notice and the permitted development rights which would follow from the conditions it imposed. It acknowledged that there would be considerable “tensions” between the two, which were likely to result in further litigation, but it seemed either to have ignored or not appreciated that the appellant would be unable to insist on full compliance with the notice once permitted development rights had been acquired. That was an error of law. (4) The FTT’s approach in washing its hands of any consideration of planning matters, and then imposing conditions which undermined the enforcement of planning control by the responsible authority, was irrational. Contrary to its assessment, it was not “unduly burdensome” for the appellant to limit the number of caravans which could be positioned on the park to the number which was consistent with compliance with the enforcement notice and the tree restoration order. The burden which the condition imposed was no greater than necessary to reverse the harm that the unauthorised works were found by the inspector to have caused to the settings of the world heritage site. The relevant planning issues had all been considered exhaustively and a definitive understanding of the restrictions on the park and the obligations of the respondent had been arrived at. It was not legitimate for the FTT to disregard that settled position and make a decision which undermined it. It rightly recognised that it had no jurisdiction to consider purely planning objections; the consequence of that limitation ought to have been a further recognition that nothing which it decided should disturb the settled planning constraints on the operation of the park: Babbage considered. (5) Nor should the FTT have been influenced by the need to avoid delay, if by that it meant that it was necessary to settle the number of pitches which could be created once and for all.  Any condition which the FTT imposed could be reconsidered on a future application for a variation, after the enforcement notice had been complied with or agreement had been reached on a layout consistent with the planning constraints imposed by the park’s setting. The FTT was not entitled to impose conditions which had the effect of compromising the enforcement notice and which would perpetuate the harm to the landscape and heritage assets identified by the inspector. The FTT should have dismissed the respondent’s appeal and confirmed the conditions included in the site licence issued by the appellant. Richard Kimblin KC (instructed by Amber Valley Borough Council) appeared for the appellant; Richard Harwood KC (instructed by Apps Legal Ltd) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Amber Valley Borough Council v Haytop Country Park Ltd