Caravan site PD cannot trump enforcement notice

A borough council recently won an appeal against a First-tier Tribunal decision on conditions to be attached to a caravan site licence. Roderick Morton looks at the lessons from the ruling.

In Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC) a caravan site had permission for up to 60 caravans, nestled in woodland in the buffer zone of a world heritage site. New operators wanted twin-unit caravans, which are not so good at nestling. So they cleared most of the trees and recontoured the site, making it considerably more prominent. The council’s enforcement notice against a material change of use by intensification was dismissed and the inspector confirmed that the twin-unit caravans were within the permission. However, the inspector upheld an enforcement notice against the operational development. Consequently, the majority of the site had to be cleared and returned to its previous condition. A High Court appeal was dismissed. A tree replacement notice also required substantial planting across the site.

When the new owner applied for a transfer of the caravan site licence, the council limited the number of pitches by condition to 3. It said only this small number of twin unit caravans could be accommodated given the requirements of the enforcement notice and the TRN.

On appeal, the First Tier Tribunal (which handles site licence appeals) increased the number to 18. This was the number that could fit within the trees required by the TRN. But it ignored the requirements of the enforcement notice because the FTT said that compliance with that notice was not part of its remit.  The council appealed. 

The council argued that the effect of the increase was to legitimise development which was prohibited by the enforcement notice. It was also effectively a new challenge to the enforcement notice, something which is prohibited by s285 TCPA 1990.

The site owner argued that such planning matters were outside the scope of what the site licence decision maker could take into account in deciding the caravan site licence. 

As a reminder, a caravan site licence can only be issued where a site has planning permission, either express or from the GPDO. Once a site licence is granted, work required under the licence is PD. As a rule, conditions cannot be imposed on a site licence for purely planning purposes; the legislative regimes are different with site licences focusing on public health, traffic and amenity – this is from the Babbage case [1]. There is also case law warning against duplication of regulatory controls. But it is also relevant that a permission granted after an enforcement notice (including one under the GPDO) overrides the notice (s180 TCPA 1990).

The court noted that the effect of the FTT’s decision was that the permission granted by the GPDO would override the enforcement notice. This did not appear to have been considered by the FTT and that was an error of law. 

The court also accepted that there was force in the council’s view that the appeal was effectively a challenge to the enforcement notice, something which is prohibited by s285 TCPA 1990.

Fundamentally, the court said, the site needed planning permission before the site licence could be granted. The permission issues needed to be resolved (by compliance with the enforcement notice and a reassessment to see what could then be accommodated with, if necessary, a new permission) and a “planning baseline” established before the site licence could be issued. 

The court noted that the site owner was the author of its own misfortune. It could have sought planning permission for the operational development and tree felling but it did not. It had now gained a substantial advantage by proceeding without permission and that should not, said the court, be allowed in principle. 

This case is helpful, as far as it goes, when dealing with caravan sites on which there is an existing enforcement notice. Sadly, those are relatively few. It can be difficult for councils to establish that changes to caravan sites are truly material changes of use, as this council found. For that reason, where site owners exceed their permission, councils will typically ask for applications rather than taking immediate enforcement action.  The process then drags and Babbage continues to apply in the meantime, enabling extensions of site licences. This case will do nothing for situations where something on the site is merely in breach of planning control and not yet enforced against. But where there is an enforcement notice, this case makes clear that the site licencing process cannot be used to invoke PD to defeat that notice.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.

[1] Babbage v North Norfolk District Council (1989) 59 P&CR 248