Act: E G Mackenzie; M Sinclair, Solicitor, Scottish Government Legal Directorate (for the Scottish Ministers)

Alt: MacIver; Lindsays WS (For Alan Cartledge)

18 March 2011

Introduction

[1] This is a reclaiming motion by the Scottish Ministers against an interlocutor of Lady Dorrian dated 1 April 2010 by which she allowed an appeal against a decision of Mr Alan M G Walker, an Inquiry Reporter acting under delegated powers (the Reporter), to refuse to grant a certificate of lawful use under section 150 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act). It relates to a caravan park at Glenfinart, Ardentinny, Argyll (the site), of which the respondent is the proprietor.

The legislation

Certificate of lawfulness of existing use or development

Town and Country Planning (Scotland) Act 1997 (the 1997 Act)

[2] Section 150 of the 1997 Act provides inter alia that

"(1) If any person wishes to ascertain whether-

(a) any existing use of buildings or other land is lawful,

(b) any operations which have been carried out in, on, over or under land are lawful, or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the planning authority specifying the land and describing the use, operations or other matter ...

(4) If, on an application under this section, the planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application."

Caravan site licences

Caravan Sites and Control of Development Act 1960 (the 1960 Act)

[3] The 1960 Act provides that it is unlawful to use land as a caravan site without a site licence (s 1). Section 3 provides that a local authority may, on an application under that section, issue a site licence in respect of the land if, and only if, the applicant is, at the time when the site licence is issued, entitled to the benefit of a permission granted under Part III of the Town and Country Planning (Scotland) Act 1947 otherwise than by a development order (s 3(3)). Section 150 of the 1997 Act provides inter alia that for the purposes of this provision a certificate of lawful use shall have effect as if it were a grant of planning permission (1997 Act, s 150(7)(a)). A site licence may be issued subject inter alia to conditions for restricting the total number of caravans that are stationed on the site at any one time (1960 Act, s 5(1)(a)).

The planning permissions and the site licences
The 1972 planning permission
[4] On 4 October 1972 Argyll County Council granted planning permission for the following development:

"formation of caravan park and conversion of building into office, laundry and toilet accommodation at Glenfinnart, Ardentinny in accordance with the plan(s) submitted to the Council and docqueted as relative hereto, also the information given in the application form, and my letter of 4th October, 1972. This permission is granted subject to (a) the development being commenced before the expiration of a period of five years from the date hereof and (b) due compliance with the Building Regulations and general statutory provisions in force."

The docqueted plan is described by the developers as a "proposed site layout." It divides the site into four areas. Areas 1, 2 and 3 are on fairly level ground. In these areas the plan shows the locations of stances for 64 caravans. Area 4 lies at a lower level at the east end of the site. On its west side it is separated from area 3 by a steep embankment. At its east side it is bounded by a track that runs along the bank of the Finart. No stances are shown in area 4, which bears the legend "mixed trees and undergrowth." The plan shows the internal access road as running from the site entrance at the A880 at the west end of the site through areas 1, 2 and 3 and stopping at the edge of the embankment. There is then a flight of steps down into area 4. The plan has the following legend: "Development of Site - 1 &2 - 1972-3; 3 - 1973-4; 4 - 1974." I shall call this the 1972 plan.

The 1972 site licence

[5] On the same date, the Council granted a licence for the site under the Caravan Sites and Control of Development Act 1960 (the 1960 Act). The licence authorised the use of the site as a caravan site, subject to conditions relating to the distance between caravans, the provision of services and so on. Condition 2 was as follows:

"Not more than 30 static holiday caravans and 30 touring caravans shall be stationed on the site at any one time, and the caravans shall be used only during the period 1st March to 31st October in any year, for the purpose of human habitation."

[6] Licences were granted in the same terms to subsequent owners of the site. However, on 18 May 2000 the respondent obtained a licence in different terms. It remains in force. It provides that the maximum number of caravans permitted on the site is now 64, all of them static.

The 1988 planning permission
[7] On 16 March 1988 Argyll and Bute District Council granted planning permission for inter alia the siting of a residential caravan on the site for the occupancy of families employed in the management and maintenance of the caravan park.

Subsequent history
[8] On 7 December 2003 an agent for the respondent submitted to the planning authority a sketch layout for the site showing an additional 22 caravans and with the existing 64 caravans in amended locations. The agent enquired what the planning fee would be for the proposed development. The planning officer expressed the view that the original planning permission had expired in 1982 and that the respondent should submit either an application for a certificate of lawfulness of existing use for those caravans that had been in situ for at least ten years or a full planning application. The view that the 1972 planning permission had expired in 1982 was plainly erroneous, as the reclaimers and the present planning authority accept.

[9] In December 2006 on a site inspection by public health officials of Argyll and Bute Council it was found that there were 74 caravans on the site.

[10] By letter to the planning authority dated 21 November 2007 the respondent's architect expressed the view that the 1972 planning permission included area 4 and that no further planning permission was necessary for his new proposal, which showed 75 "existing units" and 30 additional static caravans, 21 of which were to be located in area 4. Thereafter there was sundry correspondence that culminated in the respondent's application for a certificate of lawfulness of existing use.

[11] On 2 October 2008 in light of that application officials of the planning authority inspected the site. It was found that there were by then 85 static caravans on the site.

[12] It is accepted by counsel for the respondent that the respondent has placed on the site 21 caravans more than his 2000 licence permits.

The application for the certificate of lawfulness of existing use

[13] In 2008 the respondent applied to the Loch Lomond and The Trossachs National Park Authority (the NPA), the present planning authority, for a certificate of lawfulness of existing use of the whole of the site as a caravan park and, by implication, of the lawfulness of siting an unlimited number of caravans on the site, including area 4.

[14] The planning officer recommended that a restricted certificate should be granted in which the scope of the lawful use would be defined by the planning permissions of 1972 and 1988.

[15] On 19 November 2008 the planning authority adopted the planning officer's recommendation and issued a certificate the First Schedule to which defined the lawful use as follows:

"Use of the land as a holiday caravan park with site access, internal access road, converted laundry and toilet accommodation and limited to the siting of 64 caravan units in the position of the pitches, all shown on the proposed layout plan approved by Argyll County Council on 4 October 1972. Also the siting of a residential caravan, the occupancy of which is restricted to families employed in the management and maintenance of the caravan park in accordance with the planning permission approved by Argyll and Bute District Council on 16 March 1988."

The respondent appealed against the certificate to the appellants. He sought the deletion from the First Schedule of the words "and limited to the siting of 64 caravan units in the position of the pitches, all shown on the proposed layout plan" and the substitution of the words " in accordance with the plan."

The Reporter's decision
[16] By Decision Notice dated 18 May 2009 the Reporter dismissed the appeal. He made the following findings:

"(i) while it is not defined in the legislation, a common sense interpretation of the term 'caravan park' would include not just the specific areas where the caravan pitches are provided, but all directly related land, facilities and services, including formal and informal recreation areas;

(ii) the planning permission dated 4 October 1972 specifically states that it is granted in accordance with the plan(s) submitted to the council and docqueted as relative hereto;

(iii) the said plan shows a detailed layout for sites 1, 2 and 3, which includes the position of access roads, the location of individual caravan stances, the location of office toilet and laundry facilities, individual parking spaces for some caravans, and some footpaths;

(iv) site 4 is simply annotated on the said plan as mixed trees and undergrowth with no reference to caravans being sited there;

(v) the legend on the said plan refers to development of site 4, but it gives no indication whatsoever of what form that development is to take, or indeed whether it was to be operational development as defined in Section 26 of the Act;

(vi) the complete absence of detail for site 4 is in complete contrast with the clear information shown on the plan for the development of sites 1 to 3;

(vii) the fact that planning permission for the formation of a caravan park was granted in October 1972 does not mean that development beyond that shown on the docqueted drawing is exempt from the need to secure planning permission;

(viii) there is no evidence before me of planning permission having been granted for any other layout of pitches in the caravan park than that approved in October 1972, for any permitted increase in caravan numbers beyond 64, for the siting of caravans on site 4, or for the formation of access roads, the provision of services, the formation of hard standings or any other related facilities on site 4;

(ix) the stub extension of the access road from site 3 into the northwest corner of site 4 as shown on the said drawing is no more than indicative, it offers no indication of engineering works necessary to transcend the steep bank or the route which it might possibly take within site 4 itself; and

(x) the said drawing offers no indication whatsoever of the purpose of the indicative road extension, or for that matter the pedestrian steps indicated midway along the steep bank, and there is no evidence whatsoever that they were to be used in connection with locating caravans on site 4."

This was the Reporter's conclusion:

"Based on my findings I conclude that the evidence presented in support of the requested variations to the certificate is most certainly not precise and unambiguous and I am unable to accept on the balance of probabilities that the planning permission granted on 4 October 1972 allows the siting of caravans or for any form of operational development on site 4. In my opinion, the first schedule of the certificate issued by the NPA accurately sets out what is the lawful use of Glenfinart Caravan Park and the reasons given for its decision are entirely appropriate and correct."

The Lord Ordinary's decision
[17] The Lord Ordinary allowed the respondent's appeal against that decision and quashed the decision notice. At the outset she defined the issue, correctly in my opinion, as being whether the number of caravans that can be stationed on the site is controlled by the planning permission or by the site licence (para [1]). These were her conclusions:

"[14] It is essentially my opinion that the precise number of vans on the site is in this case to be governed by the site licence and not by the planning permission. The planning permit relates to the whole site as shown on the plan. It is permission for the formation of a caravan park and what appears on the plan as a 'proposed layout' is no more than that; it should not be read as being prescriptive of the formation of the caravan park. In particular, it is not, as the reporter found it to be, the only and 'approved' layout. The plan clearly shows that it was anticipated that development of the site would be in three phases and would eventually include area four as well as areas one to three. I do not find that I can read the planning permit, with the plan, as indicating that the consent is for a number of vans restricted only to the number and location as shown in the proposed layout. Nor can I read them in such a way as to conclude that this is an express condition of the grant. Even if it could be read as a condition that would very much be by implication. Any restriction on development to be contained within a planning permission should be clearly stated and precise. It should not be left effectively to implication."

The Lord Ordinary considered that the fact that the original site licence was for only 60 caravans, and not 64 as in the 1972 planning permission, was a strong indication that the number of caravans was to be determined by the licence (para [15]). It was of fundamental importance that this was a fairly old planning permission. There was no argument that one would expect today to see a planning permission granted in clearer and more precise terms, but it was important not to transpose modern day practices onto a permission granted nearly 40 years earlier (para [16]). She considered that the following words of Lord Denning MR in Esdell Caravan Parks Ltd v Hemel Hempstead RDC ([1966] 1 QB 895, at p 923) had considerable relevance to the appropriate construction to be adopted in this case:

"Thus the planning authority should ask themselves this broad question: ought this field to be used as a caravan site at all? If 'yes', they should grant planning permission for it, without going into details as to the number of caravans and the like, or imposing any conditions in that regard. Once planning permission is given, or deemed to be given, the site authority should deal with the details. They should say how many caravans should be permitted; whether they should be residential caravans or holiday caravans; or the like. They must have regard to the model standards but are not bound by them."

Submissions for the reclaimers

[18] Counsel for the reclaimers submitted that the lawfulness of the current use of the site depended on the correct interpretation of the 1972 planning permission. Its construction was a question of law (Braintree DC v Secretary of State for the Environment and Ors (1996) 71 P&CR 323). Where a planning permission expressly incorporated a plan, the plan became part of it and it was necessary to have regard to the plan when construing the permission (Slough BC v Secretary of State for the Environment and Oury (1995) 70 P&CR 560). The 1972 plan had been incorporated into the planning permission. It determined the number and location of caravans permitted on the site. The words used in the permission were unambiguous. The Reporter's interpretation gave them their ordinary and natural meaning. The Lord Ordinary's approach ignored both the words of the permission and the plan. The age of the planning permission was of little or no importance. Whatever guidance could be derived from Esdell Caravan Parks Ltd (supra), what mattered in this case was the wording of the permission.

Submissions for the respondent
[19] Counsel for the respondent submitted that the number of caravans permitted on the site was determined by the licence and not the planning permission. The plan was not taxative. It was demonstrative only of a proposed layout. The planning permission allowed the whole site to be used as a caravan park. It had to be seen in the context of its time as a broad, general permission. The number and location of the caravans was a matter to be dealt with separately by the licence, the 1960 Act containing model conditions that provided for such matters as the prevention of over-crowding. If the number of caravans depended on the planning permission, logically the number allowed by the licence would have been the same. The dictum of Lord Denning MR in Esdell Caravan Parks Ltd (supra) was highly relevant. Whatever the licence required would be permitted development under the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (1992 SI No 223). The court would not imply conditions into a planning permission where none existed, and clear words were needed if the effect of the condition was forfeiture (Trustees of Walton on Thames Charities v Walton and Weybridge UDC (1970) 68 LGR 488).

Conclusions
[20] In my opinion, the certificate appealed against correctly defines the respondent's rights. It is a straightforward question of the interpretation of the 1972 planning permission. Although the permission is nearly 40 years old, that is immaterial if, as I think, the permission presents no difficult problem of construction. In my view, it is neither ambiguous nor uncertain. It was granted on an application that was plainly based on the accompanying plan. The plan was not submitted for illustrative purposes only. It set out a detailed proposal for which permission was sought. I fail to see how the respondent can suggest that the plan was not intended to define what the developers proposed. But no matter what the intentions of the developers were, the decisive fact is that in granting the permission the planning authority docqueted the plan as an integral part of it. In so doing the planning authority defined the permitted development as being that shown in the plan. That, in my view, is the beginning and the end of the matter.

[21] The Lord Ordinary found support for her decision in the dictum of Lord Denning MR (supra) to the effect that the planning authority should concern itself only with the question whether the site should be developed as a caravan site at all and, if satisfied that it should, should leave matters such as the permitted number of caravans and the permitted types to the site licensing authority. I do not agree with that view.

[22] In my opinion, questions such as the density of the development and use of the site, and the caravan type or types to be permitted are questions that may raise proper planning considerations. The licence conditions serve a different purpose and raise different considerations, such as public health and hygiene, although on some points planning and licensing considerations may overlap. The planning permission is a sine qua non of the grant of a site licence (1960 Act, s 3, supra) but planning and licensing are separate regimes. For licensing reasons, the site licence may allow there to be fewer caravans on the site than the number allowed by the planning authority; but it is not open to the licensing authority to enlarge the planning permission by licensing the site for any greater number.

[23] In any event, on my interpretation of the 1972 planning permission the planning authority did not leave the number and the locations of the caravans to the licensing authority. It imposed a limit on the number of caravans and specified the permitted locations. It was entitled to do that. It follows that at present the 1972 permission gives the respondent no right to develop any part of area 4. That is the proper conclusion, in my view, notwithstanding the reference on the plan to a timetable of development that specified 1974 for area 4. No development of area 4 was disclosed on the plan and none was countenanced in the planning permission. I agree with the Reporter on this point.

[24] The respondent's right to put 64 caravans on the site is not in dispute. He applied for the certificate in order to establish, as his counsel put the matter, that the 1972 permission gave him the right to place any number of caravans on any part of the site, that number being controlled only by the site licence. I am surprised that he should have applied for the certificate when he was in breach of the site licence on that very point.

Disposal

[25] I propose to your Ladyship and your Lordship that we should allow the reclaiming motion, recall the interlocutor of the Lord Ordinary and refuse the respondent's appeal.

Act: E G Mackenzie; M Sinclair, Solicitor, Scottish Government Legal Directorate (for the Scottish Ministers)

Alt: MacIver; Lindsays WS (For Alan Cartledge)

18 March 2011

[26] I agree with your Lordship in the chair and have nothing to add.

Act: E G Mackenzie; M Sinclair, Solicitor, Scottish Government Legal Directorate (for the Scottish Ministers)

Alt: MacIver; Lindsays WS (For Alan Cartledge)

18 March 2011

[27] I am in full agreement that, for the reasons given by your Lordship in the Chair, we should allow the reclaiming motion, recall the interlocutor of the Lord Ordinary and refuse the respondent's appeal.