Newland v Secretary of State for Communities and Local Government and another

Gypsies – Caravan site – Planning permission – Change of use – Claimant obtaining conditional planning permission for one caravan – Caravan substantially extended without permission – Whether inspector erring in law in finding material change of use – Applications and appeal dismissedThe claimant gypsy owned 1.28ha of land. In 1986, he obtained planning permission, for use by the claimant’s family only, for a change of use of the land to a caravan site for one residential caravan and for the retention of an existing access, hardcore surface, two concrete bases and a wooden building. The permission stipulated that the site was to be restored when the use ended and the second defendant local planning authority were to approve the siting of the caravan. The caravan was substantially extended between 1998 and 2000 without planning permission.In 2005, the claimant applied for planning permission to station seven mobile homes and seven touring caravans on the site, some of which had been moved on the land before the refusal of the application on 22 September 2005. On the same day, the second defendants served two enforcement notices requiring the cessation of use of the land for additional caravans and the removal of unauthorised structures. The first notice related to the change of use of the land from a garden/paddock and for the stationing of one caravan to use for additional caravans for habitual accommodation and related structures. The second notice referred to a level area with fencing and retaining structure and the erection of various buildings. An inspector appointed by the first defendant dismissed the claimant’s appeals.The claimant applied to quash those decisions under sections 288 and 289 of the Town and Country Planning Act 1990. He contended that the inspector had erred in finding that there had been a material change of use of the site, other than with regard to the dwelling house building, since the use for the remainder of the site continued as a caravan site pursuant to the 1986 permission. Alternatively, if the use had changed, it was on that part of the site outside the definition of “buildings” and, therefore, would not achieve lawful status after four years, but rather after 10 years: section 171B(2) and (3) of the 1990 Act. Since the change had taken place within the past 10 years, the claimant could avail himself of section 57(4) of the 1990 Act and revert to the previous lawful use as a caravan site. The claimant also argued that the inspector had failed to carry out any proper, discrete assessment of the development that was the subject of the second notice.Held: The applications and the appeal were dismissed.Reading the inspector’s decision as a whole, the court was satisfied that his approach to the issue of planning units was correct as a matter of law. He was entitled to reach the conclusion that he had on the evidence, namely that after 1999 and until the influx of caravans, which prompted the first notice, the site comprised a single planning unit for use as a dwellinghouse with ancillary garden and paddock: Johnston v Secretary of State for the Environment (1974) 28 P&CR 424, Church Commissioners for England v Secretary of State for the Environment [1995] 2 PLR 99 and R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) considered; Crawley Borough Council v Hickmet Ltd [1998] JPL 210 distinguished.Once that finding had been accepted, section 57(4) could not benefit the claimant. Even if the wider site was regarded as not being immune from action for 10 years, the inspector’s finding was that it was, after 1999, ancillary to the dwellinghouse and no enforcement action had been taken against its use before that use changed to the stationing of caravans. Section 57(4) permitted the resumption of the last use of the land only immediately prior to the use against which enforcement steps were being taken, provided that such use was lawful. If the wider site were to be treated as a separate planning unit, its previous use as a garden would not have been lawful and the claimant could not revert to that under section 57(4). Nor could he use section 57(4) to leapfrog back to use as a caravan site. The use as a garden had supplanted the use as a caravan site under the 1986 planning permission. That permission was spent: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 applied.The second ground of appeal was unsustainable in the light of any fair reading of the inspector’s decision. He had given a clear assessment of the development, and it could not be suggested that he had not considered the effects of the development in planning terms.Jonathan Clay (instructed by Richard Buxton, of Cambridge) appeared for the claimant; James Strachan (instructed by Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.Eileen O’Grady, barrister