Winchester City Council v Secretary of State for Communities and Local Government & Ors

A planning permission must be construed by identifying the use which it grants. A restriction on the manner in which that use may be exercised must generally be imposed by condition. The principle in I’m Your Man Limited v Secretary of State for the Environment does not prevent the description of the permitted use from defining its extent. A travelling showpeople’s site may constitute a distinct and narrower use than a general residential caravan site. The permission, application, plans and conditions must be read together. On a statutory planning appeal, an Inspector may deal with an undetermined application as if it had been made to the Secretary of State in the first instance.

Six enforcement notices concerned land at Carousel Park, Micheldever, which had planning permission for a travelling showpeople’s site. The Inspector quashed the notices after deciding that the permission authorised use as a general residential caravan site because no condition restricted occupation to travelling showpeople. He took no further action on a related appeal against the Council’s failure to determine a planning application.

The Council brought a section 289 appeal against the quashing of the enforcement notices and a section 288 challenge to the Inspector’s treatment of the planning appeal. The central issues were whether the Inspector had correctly construed the 2003 permission and whether he had power to take no further action on the undetermined application.

1. Section 289 appeal allowed. The Inspector had treated I’m Your Man Limited v Secretary of State for the Environment (1999) 77 P&CR 251 as determinative without addressing the proper construction of the particular permission.

2. The principle in I’m Your Man Limited, as applied in R (Altunkaynak) v Northamptonshire Magistrates’ Court [2012] EWHC 174 (Admin) and considered in Smout v Welsh Ministers [2011] EWCA Civ 1750, concerns restrictions on the manner in which an authorised use is exercised. Such restrictions, including temporal restrictions or restrictions linking the use to other premises, must be imposed by condition. The principle does not prevent the grant itself from defining the extent and character of the permitted use.

3. The permission, application, plans and conditions had to be construed as a whole. The references to a travelling showpeople’s site had functional significance. The planning material also demonstrated a planning distinction between travelling showpeople and gypsies and travellers, and between a travelling showpeople’s site and a general residential caravan site. The only sensible construction was that the permission authorised a travelling showpeople’s site only.

4. The enforcement notice appeals therefore required determination afresh by another Inspector. The matters that the occupants were travelling showpeople and whether any change of use was material had not been determined.

5. The section 288 challenge was dismissed. Under sections 78(2) and 79(1) of the Town and Country Planning Act 1990, the Inspector was entitled to deal with the application as if it had been made to him in the first instance. He was therefore entitled to take no further action in circumstances where the local authority had itself accepted and processed the application but had allowed the decision period to expire. Relief would alternatively have been refused on discretionary grounds.

1. Planning Inspector: quashed six enforcement notices and took no further action on the planning appeal in a decision dated 9 December 2011.
2. High Court (Administrative Court): granted permission under section 289, allowed the appeals against the enforcement notices, and dismissed the section 288 challenge on the merits and alternatively in the exercise of discretion.