The interaction between planning legislation and adjacent regulatory regimes

In an important judgment, the Upper Tribunal (Lands Chamber) has allowed an appeal against the First-tier Tribunal’s decision in respect of a set of conditions attached to a caravan site licence issued by Amber Valley Borough Council to Haytop Country Park Ltd. Daniel Henderson looks at the lessons from the ruling.

The case of Amber Valley Borough Council v Haytop Country Park Ltd [2024] UKUT 237 (LC) has a long and complex history.

Planning history

In 2016, Haytop acquired Haytop Country Park, a caravan site in the Derwent Valley. The site lies within the Buffer Zone of the Derwent Mills World Heritage Site, within a Special Landscape Area designated in the local plan, and within a Conservation Area attached to a listed building. Part of the site has been covered by a Tree Preservation Order since 1978.

The site benefits from two planning permissions, dating back to 1952 and 1966. Both were for the siting of caravans, but took different forms. Pursuant to licences granted by the Council, the Park was initially operated by a Mr George, and was used predominantly by a mixture of towing caravans and larger caravans parked on small pitches on the grass, and some tents.

After acquiring the Park in 2016, Haytop set about a significant scheme of modernisation works, including the creation of levelled terraces supported by gabion retaining walls across the site, the laying of 27 concrete bases to mark pitches, wooden decking, and a new internal roadway. As part of this, Haytop unlawfully felled some 121 trees covered by the Tree Preservation Order, and damaged the roots of four others. The result was described by a Planning Inspector as “an incongruous and urbanised development at odds with the otherwise rural relict landscape”.

In 2019, the Council issued two enforcement notices. The first alleged a material change of use, in that the two permissions had permitted only the siting of small touring caravans. The second covered the unlawful development comprised in the modernisation works. Haytop appealed.

On appeal, the Inspector agreed that the cumulative effect of the two permissions was to permit the siting of 60 permanent, twin-park residential caravans, and allowed the first appeal. However, the Inspector dismissed the second appeal, principally on the basis that the works were not covered by permitted development rights, and conflicted with several policies in the development plan. Haytop unsuccessfully challenged that latter conclusion before the High Court. The enforcement notice was due to be complied with by 15th January 2023, but remains outstanding. It now stands alongside a Tree Replacement Notice.

Licensing history

In parallel, Haytop and the Council were engaged in a separate strand of litigation before the First-tier and Upper Tribunals, concerning an application by Haytop under section 3 of the Caravan Sites and Control of Development Act 1960 to operate 30 residential caravans on the Park. That application was submitted on 2nd August 2018.

The Council initially refused the application, citing the basis upon which they issued the first enforcement notice, namely that the two permissions only permitted smaller touring caravans. On appeal, prior to the determination of the appeal against that notice, the First-tier Tribunal directed that a licence be issued. On further appeal, the Upper Tribunal reversed that conclusion, holding that it was irrational to direct a licence to be issued while the proper interpretation of the planning permissions was before the Secretary of State on appeal. Dingemans LJ refused Haytop permission to appeal to the Court of Appeal.

Present proceedings

Against that extensive background, and with both sets of proceedings resolved, on 26th April 2022, the Council did eventually issue a conditional licence. Materially, the second condition limited the number of caravans to be occupied to just three, at specified locations selected so as not to interfere with the Tree Replacement Order or the extant enforcement notice.

First-tier Tribunal (FTT)

On 6th July 2023, the FTT allowed Haytop’s appeal against the conditions imposed, most significantly so as to permit the siting of 18 caravans, including on plots within the site covered by the unresolved enforcement notice. The practical effect of that order was that Haytop essentially acquired permitted development rights to install hardstanding pitches, a road, and services to link those 18 pitches, in direct conflict with the extant enforcement notice, which required the removal of all of those features of the modernisation works.

The FTT concluded that enforcement of the notice, and the exercise of those permitted development rights, were “planning matters, not matters for this Tribunal”. Accordingly, it concluded that “the number of pitches to be allowed in the Licence should not be limited by virtue of the constraints of the enforcement notice”. The FTT did, however, take the view that it could legitimately have regard to the Tree Replacement Notice within the terms of the 1960 Act, hence the limitation in the ultimate order to just 18 pitches, short of the 30 sought by Haytop.

Upper Tribunal (UT) (Martin Rodger KC, the Deputy Chamber President)

The Council appealed to the UT. The issue at the heart of the appeal was pithily summarised by the UT at [48] as a “paradox”, namely that “pure planning considerations are said to be irrelevant to the terms on which a licence can be granted, yet the grant of the licence will carry with it permitted development rights without the planning consequences of those rights being assessed as part of the licensing process”.

Allowing the appeal, the UT identified a series of errors in the FTT’s approach to that paradox. Principally, the UT concluded that, as a matter of principle, Haytop should not be allowed “a substantial advantage for itself as a consequence of its own illegal actions” [49]. The UT noted that the FTT’s approach was “certainly contrary” to the position as arrived at by the Inspector and the High Court on the enforcement notice appeal [50], and could not stand.

The UT concluded that the FTT had erred in law in that it had “reversed the order” in which matters ought to have been considered under the 1960 Act, namely that all major planning issues should be resolved prior to the issuing of a licence [51]. The UT concluded that the FTT had “consciously avoided” facing up to the inconsistency between the enforcement notice and the licence as amended [53]. That approach, the UT concluded, amounted to the FTT “washing its hands of any consideration of planning matters” [54] and imposing conditions directly contrary to the proper enforcement of planning control. That was irrational.

The UT also “saw force” in the criticism advanced by the Council that the effect of the FTT’s order was to mount a collateral challenge to the validity of the enforcement notice, a course rendered impermissible by section 285 of the Town and Country Planning Act 1990 [50], although it did not need go on to resolve the point.

Consequently, the UT allowed the appeal, and amended the condition so as to permit 6 pitches, comprising the 3 originally permitted, and 3 further pitches lying outside the area of the notice.

Comment

This is another in a long line of cases in which courts and tribunals have been required to grapple with the interaction between planning legislation and adjacent regulatory regimes. As is so often the case in such instances, the factual background is labyrinthine, and might be thought to be unlikely to be repeated. However, there are a number of important points of principle to be derived from this significant UT judgment, which are of much wider relevance.

First and foremost, the effect of the UT’s judgment is to draw an important distinction between a refusal to consider the planning merits at play in the context of an adjacent licencing regime (which, in the case of the 1960 Act, is entirely correct in law) and outright ignorance of the settled baseline planning position underpinning it (which was, on the facts of this case, irrational). This is an often underappreciated but important distinction – numerous regulatory regimes prohibit consideration of the planning merits of a particular case, but that is not to say that the planning baseline can be simply ignored, or actively contradicted.

Second, the UT’s judgment represents an important restatement of a fundamental principle under the 1960 Act (and in other analogous regimes), namely that prior to issuing a licence, it is necessary first to resolve any planning control issues. The significance of this judgment, however, is that the UT recognised that those ‘planning control issues’ are not limited simply to outstanding, unresolved disputes. As was made clear in [55], the underlying logic behind that chronological approach means that it is also necessary to have regard to the outcome of those disputes where they have already been resolved (in this instance, on appeal and before the High Court), and therefore to the baseline planning position as it pertains on the licence application. What is impermissible, the UT concluded, is to de facto reverse the resolution of those disputes.

Third, and perhaps most importantly, the UT’s judgment can, on one view, be read simply as an application of common sense to one of the increasingly diffuse ways in which planning legislation interacts with adjacent regimes. It is noteworthy that the element of Haytop’s case which caused the UT most concern was its attempt to rely on “its own illegal actions”, in combination with the otherwise strict delineation between planning legislation and licensing regimes, to achieve “a substantial advantage for itself”. As the UT put it, “in principle the respondent should not be allowed that advantage”.

The judgment raises some important issues of principle, and (as it remains to be seen whether permission to appeal will be sought) may not be the last word on them.

Daniel Henderson is a barrister at No5 Chambers. Richard Kimblin KC of No5 appeared for the appellant Borough Council.