|Appeal to the Court of Session on whether the number of vans allowed on the appellant's caravan park is controlled by the planning permission for the site or by the caravan licence for the site.|
|Court: Court Of Session (Outer House) (Scotland)|
By Biggart Planning on 13/04/2010 15:42 In this case Mr Cartledge challenged the decision of the Reporter in relation to a Certificate of Lawful Use granted under Section 150 of the Town & Country Planning (Scotland) Act 1997.
The background to this matter is that planning permission was granted in October 1972 for the formation of a caravan park and associated facilities. The plan relative to the planning permission divided the site into 4 areas. In relation to areas 1, 2 and 3 the plan showed “boxes” apparently representing caravan stances. 64 stances were shown. No boxes were shown in area 4.
At the same date as the planning permission was issued a licence under the Caravan Sites & Control of Development Act 1960 was granted. That licence has been renewed from time to time and the most up to date licence (dating from 2000) limited the use of the site to 64 caravans.
Mr Cartledge sought a licence from the Council in 2007 for an increased number of caravans on the site. The Council took the view that as there was no planning permission to cover any increase it was inappropriate to grant the licence for the increased number of caravans. A licence cannot be granted for a number of caravans in excess of the number permitted by the planning permission. Rather than apply for a new planning permission (presumably anticipating refusal) Mr Cartledge sought a Certificate of Lawful Use from the Council as planning authority.
A Certificate was issued in 2008 limiting the lawful use of the caravan park to 64 caravans. That Certificate was challenged on appeal. The Reporter in effect upheld the Certificate taking the view that there was no evidence to show that it was intended that caravans could be situated on area 4 of the site. The Certificate was challenged before the courts on the basis it was a decision which the Reporter could not reasonably have reached on the evidence before him.
Having considered the position the court upheld the challenge and reduced the Certificate of Lawful Use. In effect matters will not have to be reconsidered by Scottish Ministers (or a Reporter appointed by them) in light of the court’s decision.
Difficulties often arise where there are 2 different regimes operating in parallel – the planning regime and some form of the licensing regime. In this case there was no specific restriction on the number of caravans set out in the planning consent with the restriction appearing in the caravan licence. The significance of the planning regime is that a licence cannot be granted for a greater number of caravans than that provided for in the planning permission. In effect here Mr Cartledge wanted to argue there was no restriction in the planning permission so he could seek a licence without any restriction being “carried across” from the planning permission. While it was accepted that a licence could contain a restriction even if the planning permission did not, the fact that there is no restriction in the planning permission would clearly be relevant to the licensing issue.
The operative part of the judgement is fairly brief but in effect the court came to the view that the planning permission should not be read subject to any restriction implied from the licence granted on the same date. The judge (Lady Dorrian) expressly stated “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”.
Having reached that view she fairly easily concluded that there was in fact no such restriction. She did observe that the planning permission in this case was fairly old, granted well over 30 years ago. While she accepted that if a planning permission was granted now it would in all probability be in much clearer terms and more precise, it was not appropriate, in her view, to retrospectively seek to impose modern practice on a permission granted such a long time ago.
This case in effect shows that planning permissions granted some considerable time ago may be of practical significance now, though their interpretation may not be without difficulties. It is also illustrative of the issues which can arise with 2 separate regimes running in parallel.Click on this link to access the full judgement. External Link