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

Planning permission for a caravan site must be read with its conditions and in the statutory and policy context in which it operates. A condition is not void for uncertainty merely because it is ambiguous or may produce an absurd result. It is invalid only where no sensible or ascertainable meaning can be given. Conditions may regulate and confine the permitted use, including the number and type of caravans, and may prevent intensification beyond that authorised. Here, the conditions limited the site to three pitches and eight caravans, four static and four touring. Further development would breach planning control. The planning assessment was tenable and not irrational. A second set of costs requires a separate issue or interest requiring separate representation; the risk of remittal alone was insufficient.

The appellant and Canterbury City Council applied under section 288 of the Town & Planning Act 1990 to quash the Secretary of State’s decision of 24 June 2008 granting planning permission for a caravan site at Moate Farm, Canterbury. The Inspector allowed a section 78 appeal, dismissed enforcement appeals under section 174, upheld the enforcement notices and refused deemed planning applications under section 177(5).

The Administrative Court refused the applications: [2009] EWHC 754 (Admin). The appellant challenged the legal effect and clarity of the permission and conditions, the rationality of granting permission while rejecting the existing use, and the award of a second set of costs to two respondents. The central issues were whether the permission authorised development substantially different from that applied for, whether the Inspector’s reasoning was irrational, and whether the costs order was justified.

Pill LJ gave the judgment of the court. Arden and Smith LJJ agreed. The appeal was dismissed on issues (i) and (ii), but allowed on issue (iii).

1. Extent and clarity of the permission. A planning authority cannot grant permission for development substantially different from that applied for. The permission must be construed together with its conditions. In assessing its effect, the court may consider the statutory and planning-policy context governing caravan sites, including the concepts of intensification and ancillary use.
2. A condition is void for uncertainty only if it can be given no meaning, or no sensible or ascertainable meaning. Mere ambiguity, or a possible absurd result, does not make it void. Applying Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636, the court was required to construe the conditions so far as a reasonable and clear meaning could be found.
3. Conditions 4, 5 and 7 were to be read together. They confined residential use to three pitches, prohibited subdivision, and limited the site to eight caravans: four static caravans and four touring caravans. The vehicle-park area was not authorised for additional residential caravans. Positioning more than eight caravans, including more than four static caravans, would breach planning control. The conditions regulated and controlled the permission rather than expanding it, consistently with Dowling v Secretary of State [2007] EWHC 738 (Admin).
4. Rationality. The Inspector was entitled to distinguish between the existing unattractive use, which included structures outside the statutory definition of caravan and randomly scattered items, and the proposed use subject to detailed controls and landscaping. Although the reasons were brief, they were tenable. The court would not substitute its own planning assessment, and the grant of permission was not irrational.
5. Costs. The judge had a broad costs discretion, but there was no proper basis for awarding a second set of costs. The third and fifth respondents had shown neither a separate issue on which they were entitled to be heard nor an interest requiring separate representation, applying Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176. The possibility that remittal might place their homes at risk was insufficient.

• Court of Appeal (Civil Division): appeal dismissed on the permission and rationality issues and allowed on the costs issue: [2010] EWCA Civ 64.
• Administrative Court: applications under section 288 of the Town & Planning Act 1990 refused: [2009] EWHC 754 (Admin).
• Inspector appointed by the Secretary of State: section 78 appeal allowed and planning permission granted subject to conditions; enforcement appeals dismissed and enforcement notices upheld.