Green v Secretary of State for Communities and Local Government & Ors

A planning condition controlling the number and type of caravans on a permitted gypsy site does not grant permission for a substantially different development unless the permitted intensification amounts to a material change in the character of the use. The terms “static caravan” and “touring caravan” may be sufficiently certain without exhaustive definition where their meaning is evident in the relevant planning context. A decision-maker is entitled to assess the environmental impact of the development authorised by the permission as a whole. Where the development plan policies are satisfied, marginal harm does not require a separate assessment of the applicant’s personal need or an identified personal countervailing benefit.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s decision granting planning permission for a three-pitch gypsy caravan site at Moate Farm and dismissing related enforcement appeals. The decision followed a planning inquiry and concerned both a section 78 appeal and section 174 enforcement appeals. The challenges concerned the lawfulness and certainty of a condition permitting specified numbers of static and touring caravans, whether the Inspector had assessed the full development authorised, the comparison with the existing unauthorised development, and whether the Inspector had to determine the Jones family’s personal need for the site.

1. Condition 5. The condition controlled and regulated the intensity of the permitted change of use. It did not authorise a substantially different development. The principle in Kent County Council v Secretary of State for the Environment, Wheatcroft (Bernard) v Secretary of State for the Environment and Breckland DC v Secretary of State for the Environment and Hill did not apply unless the condition authorised intensification amounting to a material change in the character of the use. No such intensification was shown.
2. Certainty. Applying the approach in Fawcett Properties Ltd v Buckingham County Council, a planning condition is not void merely because a term may have marginal or difficult cases. “Static” had a sufficiently clear meaning in the context of gypsy sites. It referred to caravans used for living and generally not moved, in contrast with touring caravans used for travel. The condition was therefore enforceable and consistent with the relevant policy.
3. Extent of assessment. The Inspector was entitled to be treated as having considered the whole development authorised by the permission, including the caravan numbers and shed permitted by condition 5. He was also entitled to conclude that the authorised development was environmentally preferable to the existing collection of unauthorised structures.
4. Personal need. The Inspector was not required to determine the Jones family’s personal need. He found that the development plan policies were satisfied. The marginal harm identified therefore did not require a separate balancing exercise based on personal need. In any event, the unmet local need for gypsy caravan sites was a countervailing benefit.
5. Disposition and costs. Both applications were dismissed. The claimants were ordered to pay the Secretary of State’s costs, summarily assessed at £4,668 and £4,912 respectively, subject to the stated deduction for late service of the skeleton argument. A limited second award was made for the publicly funded Jones defendants because their homes were at risk and they had a separate direct interest, capped at £2,000 and shared equally between the two claimant sides. Leave to appeal was refused.

The Inspector’s decision followed a planning inquiry into a section 78 appeal and related section 174 enforcement appeals. The High Court dismissed both section 288 challenges and refused permission to appeal.