Ross Park Homes Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

Planning permission must be interpreted objectively by asking what a reasonable reader would understand from the words used, read in their context and with common sense. The description of development in the permission remains important even where particular restrictive conditions have ceased to operate. A permission for “touring caravans” may therefore permit temporary leisure accommodation without permitting use as a person’s sole or main residence. In assessing a proposed change of use, the comparison is between the present use and the proposed use, not a merely theoretical use that might be lawful. An inspector need not make a conclusive finding of material change where the applicant bears the burden of proof and a strong possibility of material change is sufficient to prevent satisfaction on the balance of probabilities.

The claimant sought permission to bring a statutory review challenge under section 288 of the Town and Country Planning Act 1990. The challenge concerned an inspector’s dismissal of an appeal against refusal of a certificate of lawfulness for year-round occupation of touring caravans, including as sole or main residences.

The claimant alleged errors in interpreting the planning permission, assessing the effect of an earlier certificate of lawfulness, determining material change of use, and giving reasons. Permission had previously been refused on the papers. The central issue was whether the proposed residential occupation fell within the existing lawful use.

Permission to apply for statutory review was refused. Grounds 1 to 5 were unarguable and had no realistic prospect of success.

1. Interpretation of the permission. Applying the reasonable-reader approach in Trump International Golf Club Limited v Scottish Ministers and London Borough of Lambeth v Secretary of State, the relevant words had to be read naturally, in the context of the permission as a whole, its purpose, other conditions and common sense. The term “touring caravan”, repeated in the successive permissions, was materially narrower than a general permission for caravans or a caravan site. It was capable of meaning caravans designed to be moved between sites and providing temporary leisure accommodation.
2. Effect of the 2022 certificate. The certificate removed restrictions on how long touring caravans could remain on the site, but did not certify year-round occupation as a sole or main residence. The description of development in the earlier permission could not simply be disregarded. An unoccupied caravan left over winter was materially different from a caravan lived in permanently.
3. Material change of use. The inspector was entitled to compare the present use with the proposed use, consistently with Secretary of State for Transport, Local Government and the Regions v Waltham Forest LBC. She was not required to compare the proposal with a notional use. A use may remain the same general type while materially changing the character of the use. Differences in traffic movements and the character and appearance of the site provided an intelligible and adequate basis for the conclusion.
4. Burden and reasons. The applicant had to satisfy the inspector on the balance of probabilities that the proposed use fell within the existing lawful use. A finding of a strong possibility of material change was sufficient to conclude that the burden had not been discharged. The reasons met the standard explained in South Bucks District Council & Anor v Porter (No. 2). A site visit was not required.

Permission to apply for statutory review had been refused on the papers by HHJ Jarman KC on 13 February 2024. The renewed application was refused by the High Court (Administrative Court).