Mr M Green Our Ref: APP/J1915/C/12/2179609 Unit D, Lunesdale Upton Magna … · 2013-09-06 · plots 32, 33, 34 and 35 esbies estate, station road, sawbridgeworth cm21 9je . east

Mr M Green Green Planning Solutions LLP Unit D, Lunesdale Upton Magna Business Park Upton Magna Shrewsbury SY4 4TT

Our Ref: APP/J1915/C/12/2179609 4 September 2013

Dear Mr Green TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 174 APPEAL BY MR HENRY SIMMONS PLOTS 32, 33, 34 AND 35 ESBIES ESTATE, STATION ROAD, SAWBRIDGEWORTH CM21 9JE EAST HERTFORDSHIRE DISTRICT COUNCIL REF: E/12/0154/A 1. I am directed by the Secretary of State to say that consideration has been given

to the report of the Inspector, Ms Diane Lewis BA (Hons) MCD MA LLM MRTPI, who held an inquiry that opened on 11 December 2012 into your client's appeal against the service of an enforcement notice by East Hertfordshire District Council (the Council) on 15 June 2012 alleging a breach of planning control relating to the use of land for the stationing of a residential mobile home/caravan without planning permission at plots 32,33,34 and 35 Esbies Estate, Station Road, Sawbridgeworth CM21 9JE.

2. The requirements of the notice are to:

a) Cease the use of the land for the stationing of a residential mobile home or caravan; and

b) Remove the mobile home/caravan and any ancillary development including any brick plinth/skirting and the underground sewerage system and tank from the site.

The period for compliance with the requirements is one month.

Department for Communities and Local Government Pamela Roberts, Decision Officer Planning Central Casework Division, 1/H1, Eland House

Tel: 0303 444 4359 Email: [email protected]

Bressenden Place London SW1E 5DU

3. On 23 August 2012 the appeal was recovered for the Secretary of State's

determination, in pursuance of section 79 of, and paragraph 3 to Schedule 6 to, the Town and Country Planning Act 1990 because he wished to determine the appeal at the same time as the other recovered appeals at the same site.

Inspector’s recommendation and summary of the decision 4. The Inspector recommended that the appeal be dismissed and the enforcement

notice, as varied, be upheld. For the reasons given below, the Secretary of State agrees with the Inspector’s conclusions, and agrees with her recommendations. A copy of the Inspector’s report (IR) is enclosed. All references to paragraph numbers, unless otherwise stated, are to that report.

Procedural matters

5. At the inquiry costs applications were made by the Appellant represented by

Green Planning Solutions LLP against the Council, and by the Council against the Appellant. Those applications are the subject of a separate decision issued today.

6. The Secretary of State’s decisions on 17 appeals by Mr L Moss (Deceased), Mr L

Richards, Mr A Gaskin, Mr W Penfold, Mrs O Taylor, Mr P Smith, Mrs S Penfold, Mrs N Smith, Mr J Hart, Mr H Johnson & the Estate of the late Fred Moss against enforcement notices issued by East Hertfordshire District Council (appeals references: APP/J1915/C/10/2133783; 2133788; 2133790; 2133791; 2133859; 2133863; 2133866; 2133868; 2133869; 2133871; 2133873; 2133875; 2133876; 2133877; 2133878; 2133883; 2133884); and planning appeal (reference: APP/J1915/A/12/2168537) relating to the Esbies Estate, and heard at a separate inquiry, are subject to a separate decision letter, also issued today.

7. The appeal was made on grounds (a), (f) and (g). Planning permission was

sought for a gypsy caravan site through the appeal on ground (a). The ground (f) appeal was based on a fallback position, which the Appellant claimed allowed the stationing of a caravan on the land ancillary to a leisure use of the plot. The ground (g) appeal was seeking a compliance period of two years due to the lack of an alternative traveller caravan site (IR3).

8. At the start of the inquiry, following discussion and submissions about the wording of the allegation of the notice, the Appellant withdrew the ground (a) appeal (having initially indicated pursuit of a temporary permission) and introduced a ground (c) appeal. The appeal on ground (f) was retained and the case amended in the appeal on ground (g). The inquiry proceeded on that basis. No evidence was considered in relation to the ground (a) appeal. The Inspector indicated no further action would be taken on the deemed application (IR4). The Secretary of State does not consider that any party has been prejudiced by these changes and has proceeded to determine the appeal on the basis of the amended grounds.

9. The Appellant requested that the Secretary of State consider new evidence and submissions in connection with the 2010 appeals (see paragraph 6) relating to

plots 32-35 in the context of his decision-making process overall. The Secretary of State has treated this as a separate appeal and given consideration to the evidence presented in this case in reaching his decision.

Policy considerations 10. In deciding the appeal, the Secretary of State has had regard to section 38(6) of

the Planning and Compulsory Purchase Act 2004 which requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise.

11. The development plan comprises the saved policies of the East Hertfordshire Local Plan Second Review 2007 (LP). The Secretary of State considers that the development plan policies most relevant to the appeal are those set out by the Inspector at IR11.

12. Other material considerations which the Secretary of State has taken into account include the National Planning Policy Framework (The Framework) and its technical guidance; and the Planning Policy for Traveller Sites (PPTS). The Secretary of State has had regard to the fact that on 28 August 2013 Government opened a new national planning practice guidance web-based resource. However, given that the guidance is currently in test mode and for public comment, he has attributed it limited weight.

The Secretary of State’s Consideration

13. The Secretary of State has carefully considered whether the allegation as currently worded in the enforcement notice adequately describes a use of land and therefore identifies a potential breach of planning control and also the issue in the appeal on ground (c), which is whether the matters described do not constitute a breach of planning control, either because planning permission is not required or because planning permission has been granted.

The Enforcement Notice

14. The Secretary of State accepts the Inspector’s reasoning and conclusions at IR78-83. The Secretary of State agrees that the nature of the site works and appearance of the caravan/mobile home led to the conclusion that the caravan/mobile home was for residential purposes. He agrees that the development constitutes a material change of use of the land which has been carried out without the required planning permission (IR80). The enforcement notice fairly told the recipient what he had done wrong and what he must do to remedy it (IR82). The Secretary of State agrees with the Inspector that the use of the land described in the notice was an accurate description of the position at the time the notice was issued. He therefore agrees with the Inspector’s conclusions that the notice should not be quashed for being invalid and no further action should be taken on the deemed application (IR83).

Appeal on ground (c)

Leisure use of the land 15. The Secretary of State agrees with the Inspector’s reasoning and conclusion at

IR88-91. He accepts the Inspector’s conclusion that because very little information has been produced about the past use of the appeal plots, the evidence is not sufficiently precise to make a positive conclusion about the historic use of the land (IR88). The Secretary of State accepts the Inspector’s overall conclusion that the Appellant has not demonstrated a lawful leisure use of plot 35 prior to 2001. He agrees too that by March 2003 the lawful use of plots 32 to 34 was residential (IR91).

The 2001 permission and the amalgamation of plots 16. The Secretary of State agrees with the Inspector’s reasoning and conclusions at

IR92-99 on the development permitted by the 2001 planning permission, namely the demolition of a summer chalet and its replacement with a caravan. The Secretary of State notes that the permission did not provide for the construction of hard standings (IR92).

17. The Secretary of State accepts the Inspector’s conclusion that the 2001 permission was not implemented and the merging of plots created a new planning unit. He agrees that the probability is that the land was used for residential purposes throughout the year in association with the residential use of the bungalow (IR96).

Planning history from 2008 18. The Secretary of State agrees with the Inspector’s assessment of the planning

history from 2009 (IR97-99). He finds that the residential use was lost by the demolition of the bungalow, with the land being left with a nil use. He notes that the land became vacant in 2011 following probable unauthorised use (IR98). He agrees that the right to revert to a past lawful use under section 57(4) does not apply in this case because there has been at the least one intervening unlawful use, namely the storage of caravans (IR99).

Conclusion on ground (c) 19. The Secretary of State agrees with the Inspector’s conclusion that the Appellant

has failed to demonstrate on the balance of probability that the stationing of a residential mobile home/caravan is ancillary to a lawful leisure use of the land. The stationing of the mobile home/caravan on the land is not authorised by the 2001 planning permission because the permission was not commenced within the necessary time period. He agrees with her conclusion that a breach of planning control has occurred and the appeal on ground (c) should not succeed (IR100).

Appeal on ground (f) 20. The Inspector notes (IR101) that the Appellant’s case relies upon the ground (c)

appeal being successful. The Secretary of State agrees with the Inspector’s conclusion that a variation has been agreed to step 2 of the enforcement notice, and subject to that variation, the steps required to be taken would do no more

than achieve the purpose of the notice. He agrees too that they are not excessive and accepts the Inspector’s conclusion that to that extent the appeal on ground (f) should fail (IR102).

Appeal on ground (g) 21. The Secretary of State accepts the Inspector’s reasoning and conclusions at

IR103-105. The Secretary of State accepts that the use being enforced against is not a residential use of the land, despite the mobile home being occupied subsequent to the service of the notice. Like the Inspector, the Secretary of State is not persuaded that the subsequent change in the position involving Ms Smith’s occupation of the mobile home should affect the length of the compliance period on this enforcement notice (IR104). In the circumstances of this case, the Secretary of State agrees with the Inspector that one month is a reasonable period of time to allow for the removal of the mobile home and ancillary development. He therefore accepts her conclusion that the appeal on ground (g) should fail. In coming to his decision on this ground the Secretary of State has given consideration to Article 8 of the ECHR, but considers that his decision is a proportionate response in this case.

Formal Decision 22. Accordingly, for the reasons given above, the Secretary of State agrees with the

Inspector’s recommendation. He hereby dismisses your client's appeal and upholds the enforcement notice, subject to the following variations:

• in paragraph 5 by the deletion of the wording in the second bullet point and the substitution of “Remove from the land the mobile home/caravan and ancillary development, comprising brick plinth/skirting and the sewage tank and works associated with its installation (the approximate position of which is indicated on Plan 2).”

• By the addition of the plan attached to the IR (Plan 2).

Right to challenge the decision 23. A separate note is attached setting out the circumstances in which the validity of

the Secretary of State’s decision may be challenged by making an application to the High Court within six weeks from the date of this letter.

24. A copy of this letter has been sent to East Hertfordshire District Council and Forebury Estates Ltd. A notification letter/email has been sent to other interested parties.

Yours sincerely Pamela Roberts Authorised by Secretary of State to sign in that behalf

Report to the Secretary of State for Communities and Local Government by Diane Lewis BA(Hons) MCD MA LLM MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government

Date: 31 January 2013

TOWN AND COUNTRY PLANNING ACT 1990

(as amended by the Planning and Compensation Act 1991)

ENFORCEMENT NOTICE ISSUED BY

EAST HERTFORDSHIRE DISTRICT COUNCIL

APPEAL BY MR HENRY SIMMONS

Inquiry opened on 11 December 2012 Plots 32, 33, 34 and 35 Esbies Estate, Station Road, Sawbridgeworth CM21 9JE File Ref: APP/J1915/C/12/2179609

Report APP/J1915/C/12/2179609

www.planningportal.gov.uk/planninginspectorate Page 1

File Ref: APP/J1915/C/12/2179609 Plots 32, 33, 34 and 35 Esbies Estate, Station Road, Sawbridgeworth CM21 9JE • The appeal is made under section 174 of the Town and Country Planning Act 1990 as

amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Henry Simmons against an enforcement notice issued by East

Hertfordshire District Council. • The Council's reference is E/12/0154/A. • The notice was issued on 15 June 2012. • The breach of planning control as alleged in the notice is without planning permission the

use of the land for the stationing of a residential mobile home/caravan. • The requirements of the notice are to:

• Cease the use of the land for the stationing of a residential mobile home or caravan and

• Remove the mobile home/caravan and any ancillary development including any brick plinth/skirting and the underground sewerage system and tank from the site.

• The period for compliance with the requirements is one month. • The appeal was made on the grounds set out in section 174(2)(a), (f) and (g) of the 1990

Act. Since the prescribed fees have been paid within the specified period, the deemed application for planning permission falls to be considered.

Summary of Recommendation: That the appeal be dismissed and the notice, as varied, be upheld.

Procedural Matters

1. The Secretary of State in exercise of his powers under section 79 and paragraph 3 of Schedule 6 of the Town and Country Planning Act 1990 directed that he shall determine the appeal. The reason for this direction is that the Secretary of State wishes to determine the appeal at the same time as the other recovered appeals at the same site (the 2010 appeals)1.

2. The inquiry sat for three days on 11, 13 and 14 December 2012 and the accompanied site visit took place on the third day. Forebury Estates Limited, having given due notification and served a statement of case, was entitled to appear at the inquiry. All oral evidence was given under affirmation. The applications for costs made by Mr Henry Simmons and by East Hertfordshire District Council are the subject of a separate Report.

3. The appeal was made on grounds (a), (f) and (g). Planning permission was sought for a Gypsy caravan site through the appeal on ground (a). The ground (f) appeal was based on a fallback position, which the Appellant claimed allowed the stationing of a caravan on the land ancillary to a leisure use of the plot. The ground (g) appeal was seeking a compliance period of two years due to the lack of an alternative traveller caravan site.

4. At the start of the inquiry, following discussion and submissions about the wording of the allegation of the notice, the Appellant withdrew the ground (a) appeal (having initially indicated pursuit of a temporary permission) and introduced a ground (c) appeal. The appeal on ground (f) was retained and the case amended in the appeal on ground (g). The inquiry proceeded on that basis.

1 The references are: APP/J1915/C/10/2133859 and 12 linked appeals, APP/J1915/C/10/2133788 and 5 linked appeals.

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No evidence was considered in relation to the ground (a) appeal. I indicated no further action would be taken on the deemed application but the fee would not be refunded. At the end of the inquiry the Appellant submitted that the enforcement notice was defective and should be quashed.

5. The Appellant requested that, because this appeal was linked to the 2010 appeals, the Secretary of State considers the new evidence and submissions relating to plots 32 to 35 in the context of his decision-making process overall.

6. An issue of dispute arose over photographic evidence submitted by Forebury Estates. Mrs Shipman (representing Forebury) explained that most of the aerial photographs were downloaded from Google maps. Where the photographs did not have a date, a period of time, such as March to August 2009, was established by reference to works on the Forebury Estate. The August 2002 aerial photograph was copied from the Council’s evidence prepared by consultants for the appeals on the 2006 enforcement notices. In view of the questions raised at the last inquiry, she had contacted the consultants to verify the date but the file had gone skeletal. She therefore had confirmed the date of the photograph by reference to construction work on the Forebury Estate at that time.

7. The Appellant wished to make clear that, although for the purposes of the ground (c) appeal the matter was not relevant, he challenged the interpretation of the aerial photographs presented as part of the case for Forebury Estates. The Appellant’s photographic evidence on this point, which I was informed was produced for the previous inquiry, was not submitted for this latest appeal.

The Site and Surroundings

8. The Esbies Estate is located in the Metropolitan Green Belt. A number of plots are occupied by caravans, mobile homes or chalets and associated structures, whilst some other plots are overgrown. The estate is bounded to the west by residential development within Sawbridgeworth and to the east by the River Stort. On the far side of the river is the commercial and residential development within Lower Sheering. Open land lies to the north and south of the estate.

9. The appeal site is located in the south west corner of the estate2. The changing appearance of the land over the years between 1990 and 2010 is indicated by a series of photographs. In the early 1990’s the land appeared to be divided into two plots, with a small chalet and green amenity space on each plot. In 2006 the land was occupied by a single bungalow sited behind a hard surfaced area and a brick boundary wall and gates. In July and October 2008 several caravans were sited on the land in front of the bungalow. By July 2010 the bungalow had been demolished and the land appeared rather neglected3.

10. On 15 June 2012 (the date of the notice) a mobile home was positioned roughly in the centre of the site with small piles of bricks nearby. To the front was an expanse of hard standing4. By the time of the inquiry in December 2012 the land was in use as a residential caravan site. A mobile home, a sewage tank, a small shed and garden planting was in place. A hard surfaced area covered in gravel

2 Document 6 AY1 3 Document 6 AY5, AY7, AY8, AY9 4 Document 6 AY14

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provided parking and circulation space and two areas of concrete were near the northern boundary. Close boarded fencing marked the side and rear boundaries and a brick wall defined the frontage.

Planning Policy

11. In the East Herts Local Plan Second Review April 2007 policy GBC1 controls developments in the Green Belt, policy HSG10 applies to proposals for the use of land for gypsy and traveller accommodation and policy ENV19 resists development in areas liable to flood. The reasons for issuing the notice state the alleged development is contrary to these policies and conflicts with guidance in the National Planning Policy Framework on the Green Belt and flood risk.

Planning History

12. In May 1970 planning permission was granted for the erection of a summer chalet on plot 34 (ref 3/587-70). Condition 2 stated that the “permission shall be valid only for the period in any year commencing 1 April and ending 30 September”. The reason was “to conform with the established use of the Esbies Estate and to ensure the building was not used for permanent living accommodation”. On the planning application form the proposed development was described as a holiday chalet. The existing purpose for which the land and/or buildings was used was described as ‘Holidays and weekends during summer’.5

13. In July 1992 an enforcement notice relating to plots 32 and 33 was issued alleging a change of use of the land for the stationing of a caravan but was later withdrawn.

14. In relation to plot 35, on 9 July 2001 planning permission was granted for the demolition of existing summer chalet and replacement with a caravan (ref 3/00/2132). Condition 2 stated that “the use of the land for residential purposes shall be limited only for the period in any year commencing 1 April and ending 30 September and shall not be used for such purposes beyond these dates”. The reason was to ensure the land was not used for permanent living accommodation and to protect the Green Belt.6 The statement of common ground notes that it appeared from the planning history that the 2001 planning permission was not implemented7. During the inquiry, the evidence and case of Mr Simmons was that the permission was implemented.

15. On 19 February 2003 an application was made for a certificate of lawfulness for the use of the bungalow within plot 34, which was granted planning permission under ref. 3/587-70, as a single dwelling house. Statutory declarations from Mr Simmons and a former owner of the land, Mr Miller, were submitted in support of the application. Mr Miller declared that he had bought the property (the bungalow and the land comprising plots 32, 33 and 34) on 25 October 1990 and that he had been in continuous occupation of the property since the date of acquisition. A certificate was granted on 6 May 2003, where the lawful use of the

5 Document 19 6 Document 14 7 Document 2 paragraph 3.6

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bungalow was described “as a permanent residential dwelling (ie. for twelve months of the year)”.8 (The document is referred to as the CLEUD in this report).

16. Since 2006 plots 32-35 have been subject to enforcement action. On 2 August 2006 an enforcement notice was issued alleging the unauthorised siting of caravans and lighting columns but was later withdrawn. Two enforcement notices were issued on 9 July 2010 alleging the unauthorised stationing of mobile homes on the land (subsequently corrected to unauthorised storage) and unauthorised lighting columns. The appeals against the notices were among the 2010 appeals.9

17. On 24 May 2012 a temporary stop notice was served. It required the cessation of works to install a mobile home, the removal of the mobile home currently on the site and precluded further mobile homes or caravans being brought onto the site. A stop notice served on 15 June 2012 had similar requirements.10 On the same date the Council issued an enforcement notice against a material change of use, which is the subject of the current appeal.

18. In relation to the wider Estate, an appeal decision letter dated 18 January 1993 was concerned with enforcement notices against the material change of use of various plots to the use as a caravan sites for holiday occupation. Its relevance to this appeal centres on the Inspector’s assessment on the development of Estate. He attached considerable weight to the submission that a permitted ‘holiday chalet’, with no restriction on occupation, provided for permanent residential occupation. In November 2009 decisions were issued on appeals against refusals of lawful development certificates for residential caravan sites. The history of the Estate and the separate consideration of each plot under appeal are of particular note.11


The alleged breach of planning control

19. The notice alleges without planning permission the use of the land for the stationing of a residential mobile home/caravan. The evidence indicated that the mobile home was not occupied at the time the notice was issued. The Appellant in his ground (a) appeal was seeking permission for a gypsy residential caravan site. Therefore before the inquiry I raised with the parties through a written note whether the wording of the allegation should be corrected and put forward two options for consideration. The matter was addressed at the start of the inquiry.

20. The Council confirmed that it considered the mobile home on the site was adapted for residential purposes, although no residential occupation was taking place at the time the notice was served. It did not accept that the stationing of a residential caravan was ancillary to a leisure use of the site. The Council was content with the way the notice was worded but if it was felt necessary it did not object to the wording set out in option 1 in the pre-inquiry note.12 Forebury

8 Document 15 9 Document 6 AY4 and AY10. 10 Document 6 AY12 and AY16 11 Document 4 B16 and B17 12 The wording was “Without planning permission the material change of use of the land to use for the stationing of a caravan for residential purposes”.

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Estates, having referred to sections 172 and 173 of the 1990 Act, confirmed there was no residential occupation when the notice was issued and therefore the development did not encompass a residential user. The Appellant took the view that the allegation as worded did not encompass a residential use but pointed out that if the inquiry proceeded on that basis it would be unfair if the wording of the allegation was amended later. The Appellant decided not to pursue a ground (b) appeal.

21. Having heard the submissions and in response to the Appellant, I stated I would not be recommending a correction to the wording of the allegation. The inquiry was adjourned to enable the parties and more particularly the Appellant to review their position in light of the wording of the allegation. The issue was addressed further in the opening submissions.

22. The Appellant acknowledged that the case he had addressed was a change of use of the land to residential occupation for a single pitch gypsy site. He understood that was what the Council intended and anticipated an amendment to the wording of the allegation. The Appellant also submitted that the Council had been given an option to amend the notice (in a similar vein to option 1) in order that the true nature of the occupation could be explored but the Council chose not to do so. That placed the Appellant in a position that he could not explore it as a matter of law, because the deemed application flowed from the wording of the alleged breach of planning control. The case that would have been run, relying on showing very special circumstances exist, could not be run. In the event the Secretary of State decided to correct the wording of the allegation the inquiry would have to be reopened to enable the evidence, which was no longer being produced, to be heard.

23. The Council reiterated that at the time the notice was issued the site was not occupied, a fact that was not in dispute. The allegation was worded correctly because it related to the use of land for the stationing of a residential mobile home or caravan. The caravan was adapted for residential purposes and therefore there was no objection to the wording being corrected accordingly. The Council observed that in the light of there being no occupation the Appellant had agreed section 177(1)(a) of the 1990 Act precluded the Secretary of State from granting planning permission for occupation. There was nothing new because the position was explained in the Committee report13. The caravan was stationed on the site in face of the ongoing enforcement action. The further breach of planning control on plots 32 to 35 triggered the enforcement notice.

24. Forebury Estates was of the opinion that there was no evidential basis for alleging that the breach of planning control was incorrect and should be amended to include reference to use by gypsy/travellers. The Secretary of State could not use his power to correct the notice to allege a breach that had not occurred as a matter of fact. The ground (a) appeal was confined simply to whether planning permission should be granted for the breach of planning control described in the notice.

25. The Appellant gave advance notification of a costs application. In his opinion the enforcement notice issued in June 2012 was materially the same as the 2010 notice under appeal and before the Secretary of State. Therefore it was not

13 Document 6 AY16

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expedient to issue the notice. The Council did not accept that argument because the subject of the earlier notice, which was corrected to the storage of caravans, was materially different to the alleged breach of control stated in the June 2012 notice.

26. The inquiry proceeded on the basis of the allegation stated in the notice. I will return to the wording of the alleged breach of planning control after summarising the cases.

The requirements

27. On a separate matter to that raised by the Appellant, the second step requires the removal of the mobile home and any ancillary development including any brick plinth/skirting and the underground sewerage system and tank from the site. A variation was agreed at the inquiry in order to make the wording more precise and to make clear the requirement did not include removal of any pre-existing sewerage infrastructure. The Council produced an additional plan to indicate the approximate position of the sewage tank on the site.

The Case for Mr Henry Simmons14

The main points are:

The notice

28. The stationing of a caravan is not a use of land and is not by itself a breach of planning control. A use associated with the stationing must be alleged, a point that was affirmed in the judgements of Restormel and Wealden15. The insertion of the word ‘residential’ before caravan was not sufficient to show what the change of use or breach was, particularly so when the Council did not assert a residential or storage use. The evidence given by the Council at the inquiry did not disclose any use to which the caravan was being put. Consequently no change of use was demonstrated which would constitute a breach of planning control and the notice should be quashed.

29. The notice could not be corrected to a storage use without substantial prejudice to the Appellant because there was not the opportunity to run a ground (a) case, despite the fact a fee was paid. Such an allegation would also repeat the allegations in the 2006 and 2010 notices and is not a change of use.


The historic and continuing lawful use of the plots

30. Since the end of the Second World War the Esbies Estate was a plot land site for leisure use. A survey carried out in 1954 showed a number of caravans situated on individual plots. Since at least the 1960’s the local planning authority accepted that the use consisted of the year round stationing of caravans and chalets for residential use at least on a seasonal basis. The planning history of the estate was summarised in a previous appeal decision dated 18 January

14 Reference should be made to Document 23. 15 Documents 24 and 25

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199316. Mr Rawle (the Appellant’s planning consultant) was of the view that the siting of a caravan for seasonal use was equivalent to a leisure use.

31. Historically there was a mixed use for leisure and residential on plots 34. With regard to the leisure use, reliance is placed on Pitman17. Reliance is also placed on the 1970 planning permission for a summer chalet associated with holiday and weekend leisure use and the fact the Council allowed caravans and chalets to remain on the land throughout the year in any event. The position changed in 2003 as a result of the CLEUD. The bungalow then had a permanent residential use. This residential use was confined to the building, based on the four year rule in s171. The rest of the plot was in leisure use. The mixed use remained until the demolition of the chalet in about 2009, when the use of the land became wholly a leisure use.

32. In regard to plot 35, the position has changed since the last inquiry. At that time all parties were in error in thinking that the chalet referred to in the 2001 planning permission was the same chalet that was subject to the 2003 CLEUD. The conclusion was that the permission was never implemented because the chalet was not demolished. A telling comment was made by Mr Simmons in his evidence when he said Mr Rawle did not listen18. Mr Rawle, who saw the June 2003 photograph for the first time at the inquiry19, accepted that he made a mistake. He now relied on Mr Simmons’ evidence that he implemented the permission.

33. Prior to 2001, the 1993 appeal decision and the 1990 and 1992 photographs showed that plot 35 was in leisure use and the chalet was ancillary to that leisure use. The 2001 planning permission related to plot 35 only, which at that time was a separate planning unit. Mr Simmons, referring to the photograph taken in June 2003, stated that straight after receiving permission (within three weeks) the previous structure was knocked down. Land was dug out, a hard core base and a concrete slab laid and some gravel was put on top. Two slabs were laid, one near the back and one towards the road, which are shown on the April 2003 photograph and a site layout plan20. A caravan was on site, on different plots, for use by his cousin Bradley, who moved on and off all the time. The log cabin was all they managed to get round to before the property was sold. He thought the log cabin was covered by the permission for a mobile home/caravan and his other cousin John Barry slept there.

34. Mr Simmons’ evidence showed the permission was implemented and was extant prior to the CLEUD. Residential occupation took place in the log cabin and sometimes also in caravans. Relying on section 55(1)(a) that building operations

16 Document 18 and Document 4 B16 paragraph 13 17 Document 26 Mr Pitman v The Secretary of State for the Environment [1989]. The Appellant also included provided a copy of appeal decisions for Roydon Lodge Chalet Estate (Document 4 B14). The Inspector considered the interpretation and application of Pitman and the meaning of the terms leisure plot and permanent residential use. 18 Mr Masters emphasised this point, which arose when Mr Simmons was asked in cross examination by Ms Sheikh why he did not tell Mr Rawle he had implemented the 2001 permission. 19 Photo 1 20 Document 8 MES 36 and MES 6

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include demolition and the provision of section 56(1)(a) or (c), the demolition of the chalet was sufficient to initiate the 2001 planning permission.

35. The early 1990 and 1992 photographs showed two chalets on plots 34 and 35. Mr Simmons’ evidence of his residential occupation of the chalet on plot 34 was included with the CLEUD application and he gave evidence of the occupation of plot 35 by others. Mr Simmons confirmed that the CLEUD had nothing to do with plot 35. The CLEUD related only to plots 32-34 and relying on s191(6) the lawfulness of the matters specified in the certificate are conclusively presumed. If the sites had merged by 2003 the CLEUD could not have been granted. Therefore for some two years after the 2001 planning permission had been granted and implemented the planning units remained separate, although it is accepted that at some time after the CLEUD was granted the fence between the planning units was removed.

Effect of the merging of the two sites

36. When the two planning units came into one ownership, the mixed uses were in effect both the same. There was no incompatibility between the continuation of the uses on each site at that time and no material change of use took place. The removal of the fence is not evidence of the merging of the two planning units into one or the loss of the then existing lawful use rights. The Council’s case has always been that the loss of the lawful use of the chalet only occurred when the chalet was demolished years later.

37. As a matter of law once the 2001 planning permission was implemented its use remained and remains today. The wording of the permission appears to allow for any form of residential occupation during the autumn and summer months. The residential occupation is not limited to a caravan because no such limitation appears as a condition. There is plenty of evidence of residential use in the form of a chalet, timber hut and so on. Even if the planning permission is limited to a caravan, it is at least permission for its residential use during the summer months. The practice of the Council was to allow the caravans/chalets to remain all year round.

38. Therefore the allegation of the siting of a caravan is consistent with the lawful use of both plots and ground (c) is made out. A caravan does not always have to be stationed on the land and in that sense the permission can be dormant, as was the case from time to time when the site was empty.

Intervening unlawful use

39. If a change of use or a change in character occurred, it was much later and was associated with the unlawful storage use alleged in the 2006, 2010 (and 2012) notices. If such matters are held to be unlawful by the Secretary of State, reliance is placed on section 57(4). In relation to plot 35 there is an extant planning permission for the stationing of a caravan and on the authority of Young can be reverted to under section 57(4), as the immediately preceding lawful use.21

21 Document 13 Young v Secretary of State for the Environment [1983] 2 A.C. 662

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Appeal on grounds (f) and (g)

40. The lawful leisure use would allow for a mobile home/caravan as an ancillary element to that use, provided the caravan was not lived in permanently. Furthermore, a caravan sited on plot 35 would benefit from the 2001 permission. The requirements of the notice to remove the mobile home/caravan and ancillary development are excessive.

41. Time should be allowed for an application to be made for planning permission for a single gypsy pitch and, if refused, an appeal. This justified an extension to the compliance period because there is no alternative accommodation for Ms Smith who lives in the caravan on the appeal site.

The Case for East Hertfordshire District Council22


42. The planning permission granted in 1970 was for a seasonal residential use of the whole of plot 34. By the early 1990s plot 34 had been amalgamated with plots 32 and 33 to form a single planning unit in residential use. Plot 35 was a separate planning unit. On each plot was a bungalow chalet.

43. The Appellant contends that the stationing of the residential mobile home does not require planning permission because it is either ancillary to a leisure use that can be reverted to on plots 32-34 or that it can be stationed on plot 35 pursuant to the 2001 permission.

The 2001 permission and the CLEUD

44. The Council always understood that the 2001 planning permission for plot 35 was not implemented. This was the Appellant’s position until the first day of the inquiry when Mr Simmons gave his evidence23. However, Mr Simmons was vague about a number of dates and matters. No evidence was produced to demonstrate he either demolished the chalet or sited a caravan on the land – Mrs Young had no recollection of ever seeing a caravan at the top end of the plot. Mr Simmons’ evidence was inconsistent with the long running appeals before the Secretary of State and with Mr Rawle’s understanding of the position from the instructions given by Mr Simmons. The June 2003 photograph produced by Mr Simmons does not demonstrate that the 2001 permission was implemented. It shows that plot 35 had been incorporated into the residential planning unit associated with plots 32-34 to form a new planning unit. Mr Simmons agreed in cross examination that he had amalgamated the plots together about that time.

45. There is no evidence to support the newly made contention that the demolition, if indeed undertaken by Mr Simmons, was related to the 2001 permission. On the balance of probabilities the two plots were combined into a single planning unit in 2003 and the chalet on plot 35 was demolished about that time to enable the creation of a garden area and shed within the curtilage of the amalgamated plot. Therefore, the demolition did not implement the 2001 permission because it was not a step comprised in the authorised development (section 56(2)). It is noteworthy that the Appellant has not submitted any site licence for plot 35.

22 See Document 21 23 See Document 2 paragraph 3.6 and Document 3 paragraph 18.

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Even if the 2001 permission was implemented, it was no longer extant by June 2003 because a material change of use had occurred with the formation of a single planning unit. The land of plots 32-35 was being used for residential purposes. The bungalow was the residential accommodation and the associated land was incidental to the residential use.

46. The residential use of the land forming plot 34 had been granted by virtue of the 1970 permission. The residential use extended to a wider planning unit when plots 32 and 33 were amalgamated with plot 34. A seasonal residential use does not render it a leisure use or a mixed residential/leisure use. The CLEUD issued in May 2003 related to the occupation rights of the bungalow on plot 34 and enabled permanent residential use rather than seasonal use.

Leisure use

47. There is no evidence that plot 32-34 or plot 35 ever had a leisure use, whether by a planning permission or established use rights. The 1993 appeal decision makes no mention of the plots and does not support a leisure use. Mr Rawle had no personal knowledge or evidence to support the proposition. The photographs dating to 1990 show two bungalow chalets as separate planning units seemingly in residential use, the 1970 permission on plot 34 was seasonal and the chalet on plot 35 did not seem to have any permission.

48. The single primary use of the land forming plots 32-34 was residential, not a mixed residential and leisure use. Once incorporated with plot 35, the amalgamated site had a residential use. The patio and chairs seen on the 2003 photograph are of an incidental use not a mixed leisure/residential use .24 The site is very much residential in character with a traditional garden round a residential property. On amalgamation the planning unit of plot 35 ceased to exist and a new planning chapter began. The very small shed, where Mr Simmons said his cousin John Barry stayed on occasion, was akin to ancillary accommodation to the main dwelling.

49. The 2004 aerial photograph25 does not assist the Appellant. The mobile home could not be pursuant to the 2001 permission because it was not sited on plot 35 but across the amalgamated site.

50. At some point in 2006 the residential use on plots 32-35 was abandoned and the site was used for the storage of caravans. With the demolition of the chalet in 2008 went any residential use rights on plots 32-35. Iddenden is authority that the use cannot survive the demolition of the building, a matter agreed by Mr Rawle. Even if any leisure use had established use rights, these rights would have been lost as a result of the material change in the use of the land to a residential use on plots 32-34 and then on plots 32-3526.

51. Following the loss of residential use rights plots 32-35 were used for the unlawful placing of caravans, a use which is the subject of the outstanding appeal decision. At that time the site had a totally different character with stored

24 Photo 1 and Document 8 MES 36 photo dated April 2003 25 Document 8 MES 35 aerial photograph 4 September 2004 26 The Council relied on Panton & Farmer v Secretary of State for the Environment, Transport and the Regions & Vale of White Horse District Council [1999] 78 P&CR 186

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caravans all at different angles. The stored caravans remained on site until 2011 when they were burnt and removed. The site then became vacant. Any remaining established use rights would have been lost through the passage of time. When the unlawful storage use ceased the land had a nil use.

52. The site remained empty until the residential mobile home was brought onto the land in May 2012. The caravan was intended to be and was clearly to be used for residential purposes. The nature and character of the use was different to the storage use. There was no planning permission or any lawful basis to station a residential caravan on the land. The caravan was then removed to another plot and brought back in September 2012 and occupied by Ms Smith in October 2012.

53. The Appellant cannot rely on section 57(4) because there is no lawful development to which the Appellant could revert to enable the stationing of the residential mobile home: there is no leisure use; the 2001 permission, even if implemented, was lost when plot 35 became part of the planning unit of plots 32-35; the residential use rights were lost when the chalet bungalow was demolished. The matter is put beyond doubt in light of the House of Lords judgement in Young. The immediately preceding use was the unlawful storage of caravans and it is not possible to look beyond that use. The residential caravan requires planning permission and the ground (c) appeal must fail.

Appeal on grounds (f) and (g)

54. The ground (f) appeal has no merit because there is no right to station a residential caravan on the land.

55. On ground (g), no evidence has been adduced as to why a longer time period is necessary to meet the requirements of the notice. No explanation was given as to why the steps cannot be taken in the time period specified. An application is able to be made for planning permission at any time and does not require an extension to the compliance period. The period is adequate.

Additional submissions

56. The Council rejected the Appellant’s claim that the wording of the allegation did not disclose a breach of planning control and the notice was defective. The purpose for which the caravan would be used was made clear and therefore the notice did not fall foul of Restormel and Wealden.

The case for Forebury Estates Limited


Development at Esbies

57. The Esbies Estate began to change in the early 1990’s when a number of plots were bought up and some intensification took place. Even so in 1999 Esbies formed a green wedge along the River Stort and was used only during late spring and summer27. The dramatic visual change occurred in 2002 with the laying of a tarmac road, removal of trees, laying of hard surfaces and erection of fences28.

27 Document 8 MES 35 Aerial photograph 18 July 1999 28 Document 8 MES 3

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58. There were separate chalets on plots 34 and 35 in 1992. Plots 32 to 34 were in occupation by Mr Miller and plot 35 was in separate occupation by Mr Hedges. In 1999 the lands were green and well treed and the two chalets remained on the separate plots29. This was the position in 2000 when Mr Simmons acquired the land.

59. In August 2002 there were two chalets (1 on plot 34 and 1 on plot 35) and some ground works had been undertaken. By April 2003 the chalet on plot 35 had been demolished and replaced with a shed. The four plots were combined into a single plot. In September 2004 two mobile homes were on the combined plot, one of which straddled the boundary between plots 34 and 35. Plots 32-35 were sold to Mr Penfold Senior in March 2005. The bases on which the caravans were sited were visible in August 2005 and August 200630. The concrete hardstandings were broken up by September 2007. In November 2007 plots 32-35 were sold to Rosemary Dighton and in May 2008 plots 32-34 were registered to the name of Sophia Penfold. The bungalow on plot 34 was removed at some point between October 2008 and March 2009. The site was unused other than for the storage of caravans over a period from September 2007 until the remaining caravans were broken up and burnt on 11 May 2011.

60. The land remained vacant until February 2012 when a derelict caravan was on site. This caravan was broken up on 23 March 2012 which coincided with purchase of the land by Mr Simmons. By 3 April work had started on clearing the site. On 21 May a sectional mobile home was delivered and installed, followed by the delivery of a sewage tank and bricks on 23 May. The mobile home was dismantled and moved to plots 26-28 on 19 June but was returned to the site on 28 September. On 3 to 5 October re-surfacing took place and occupation of the mobile home commenced.

Submissions31

61. Prior to 2000 there were two planning units – plots 32, 33 and 34 in occupation by Mr Miller and plot 35 in separate occupation owned by Mr Hedges. The Appellant’s case relies on a number of assertions.

An established use of plots 32, 33 and 34

62. The position has to be examined on a plot by plot basis and the generalised observations from the appeal decision in 1993 are of no assistance. On the evidence of ownership, 1991 was the first time that plots 32, 33 and 34 formed a single unit of occupation. In the absence of a planning permission, to demonstrate a lawful leisure use the Appellant has to show that the plots were used for leisure purposes for a ten year period after 1991.

63. The evidence of Mr Miller submitted in support of the CLEUD application leads to the conclusion that he occupied plots 32, 33 and 34 (the chalet and garden ground) for residential purposes between 1990 and 200032. At some time around

29 Document 8 MES 35 Aerial photograph 18 July 1999 and MES 36 photographs dated 2.11.90, 1992 and 20.3.92. 30 Document 8 MES 35 aerial photographs dated August 2002, 04 September 2004, 31 August 2005 and 15 August 2006; MES36 photograph dated April 2003. 31 See Document 20 for detailed commentary. 32 Document 15 Exhibit 2 paragraph 2 and Exhibit 3 paragraphs 3 and 5.

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2003 plot 35 was added to the unit of occupation, which means subsequent to 2000 there could be no 10 year period of leisure use of plots 32-34 as a separate planning unit. In 2008 the use of plots 32 to 35 commenced for the storage of caravans. The only reasonable conclusion is that there never has been a use of plots 32, 33 and 34 as a single planning unit for leisure use and the ground (c) appeal fails at the first hurdle.

The Grant of the CLEUD

64. The use identified as lawful in the 2003 CLEUD must attach to a planning unit. At the date of the grant of the CLEUD plots 32, 33 and 34 were all part of the same planning unit as the bungalow. It reasonably follows that the CLEUD applies to the planning unit of plots 32 to 34. The CLEUD identifies as lawful the use of that whole planning unit for residential purposes connected with the use of the bungalow. Any other conclusion is inconsistent with the approach in Newland33 and would be wrong in law. The Appellant’s submission that there was a mixed leisure/residential use, for which there was no evidence, must be rejected.

Implementation of the July 2001 permission

65. The requirement to begin development within 5 years is imposed by section 91. Accordingly, in this instance development is taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out (s56(2)).

66. It is plain from the evidence of Mr Simmons that the chalet on plot 35 was demolished to make way for the creation of a hard standing area and the erection of the log cabin, neither of which formed part of the development permitted by the 2001 planning permission. It follows that the demolition was a part of works that were not comprised in the authorised development.

67. Furthermore, the Appellant has to prove the demolition occurred at a point in time when the occupation of plot 35 was separate from plots 32 to 34. Mr Simmons’ evidence that he demolished the chalet in 2001 is contradicted by the August 2002 aerial photograph and should not be accepted. Mr Simmons could not recall when plots 32 to 35 were first occupied as a single unit but accepted that by June 2003 the plots were already amalgamated. The April 2003 photograph showed this had occurred by that time. Mr Simmons gave no evidence to the effect that amalgamation had occurred subsequent to the demolition of the chalet on plot 35. The Appellant has not demonstrated that the 2001 planning permission was implemented when plot 35 was a separate planning unit.

68. As a result of these considerations, the Appellant has not established that the 2001 permission was lawfully implemented.

Creation of a single planning unit and material change of use

69. In view of the matters set out above it may reasonably be concluded that the merger of the two planning units led to an enlarged residential user of the land. A material change of use took place because the character of the use of land

33 Document 16 Newland v Secretary of State for Communities and Local Government and Waverley Borough Council [2008] EWHC 3132 (Admin)

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within plot 35 changed to a full time residential use ancillary to that of the bungalow on plot 34. This would be the case even if the 2001 planning permission was implemented because its conditions limited the use of the land to use for residential purposes between April and September. Once plot 35 became part and parcel of the same planning unit as plot 32-34 the probability is that it was used for residential purposes year round ancillary to the use of the bungalow. This was a material change of use.

Demolition of the bungalow and its consequences for use of plots 32-34

70. The Appellant has not established a leisure use for plots 32 to 34. A change from a mixed leisure/residential use to a leisure use would be a material change of use requiring planning permission. For these reasons the demolition of the bungalow on plot 34 would not cause the use of the land to revert to a leisure use.

71. The CLEUD conclusively established that the lawful use of plots 32-34 was for residential purposes associated with the use of the bungalow. The lawful use was lost when plot 35 was added to the unit of occupation and when the bungalow was demolished in 2008/9 (since the use was tied by the CLEUD to the use of the bungalow). There is no ability to revert to (i) any use of the land based upon the use that was lawful under the CLEUD or (ii) a use that preceded the use identified as lawful by the CLEUD.

Caravans on plots 32-35 from 2008 to 2011

72. By 2008 the lawful use of the land had been lost and plots 32-35 had a nil use. Mr Rawle accepted that the introduction of the caravans onto the site between 2008 and 2011 was a material change of use that did not have planning permission. A comparison between the photograph taken in April 2003 and those taken between 2008 and 201134 show the character of the land was fundamentally different. There was plainly a further material change of use.

Use being enforced against and right to revert to a leisure use

73. The judgement in Young established that an earlier use can only be resumed under section 57(4) if (a) it was the use that immediately preceded the use in respect of which the enforcement notice was served and (b) the immediately preceding use was not itself unlawful. In May 2012 works commenced and a new mobile home was brought onto the land. The use was entirely different to the use for the storage of caravans between 2008 and 2011. It was a further material change of use of the four plots in breach of planning control. The use immediately preceding the breach of planning control was unlawful. There is no right to revert under section 57(4).

74. Even if the alleged breach of control described in the 2012 notice was the same breach as occurred with the storage of caravans there is no right to revert to a leisure use because the Appellant has not and cannot establish that the immediately preceding use of plots 32 to 35 was for a leisure use.

34 Document 8 MES36

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Conclusions

75. Plots 32 to 35 have a nil use. The appeal under ground (c) is hopeless. The ground (f) case, which is dependent on establishing a right to revert to a use that permits the stationing of a caravan, should also be dismissed.

Appeal on ground (g)

76. A planning application for the use of the land as a gypsy residential pitch could have been made at any time. The determination of any such application would not be prejudiced by the removal of the caravan. The Appellant has not identified any need for the caravan to remain pending the determination of a planning application, should one be made. Even if time is given, there is no power to require the Appellant to make an application. This ground of appeal should be dismissed.

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Conclusions

(The numbers in square brackets [] refer to earlier paragraphs in the report)

77. A preliminary consideration is whether the allegation as currently worded in the enforcement notice adequately describes a use of land and therefore identifies a potential breach of planning control. At issue in the appeal on ground (c) is whether the matters described do not constitute a breach of planning control, either because planning permission is not required or because planning permission has been granted. The matters of law involved are for the Secretary of State to decide. Nonetheless I offer my conclusions for consideration.


78. The land identified by the notice, comprising plots 32, 33, 34 and 35, is the relevant planning unit. In the Council’s opinion the land had a nil use at the beginning of 2012. [36, 45, 50, 51, 59, 69]

79. At the time the notice was issued the land was being cleared, works were taking place to install a sewerage system, a sectional mobile home had been sited on the land, piles of bricks had been delivered. With reference to section 172(1)(a) of the 1990 Act as amended, there was evidence of a breach on which the authority could act. [10, 17, 60]

80. The Council looked beyond the stationing of the caravan and asked itself for what purpose was the caravan stationed on the land. The Council concluded because of the nature of the site works and the appearance of the caravan/mobile home that it was for residential purposes. In May/June 2012 the Council concluded the character, the activities taking place and the use of the land were significantly different to the use between 2008 and 2011 when caravans were being stored on the land. It appeared to the Council that development constituting a material change of use of the land had been carried out without the required planning permission. [20, 23, 51, 52]

81. Apart from a change of use of a building to a single dwelling house, the time for taking enforcement action against a material change of use is ten years, beginning with the date of the breach (section 171B(3)). Development shall be taken to be initiated, if the development consists of a change in use, at the time when the new use is instituted (section 56(1)(b)). Prior to and at the time the enforcement notice was issued works to facilitate the commencement of the residential use were in progress. No residential occupation had taken place. [17, 20, 23]

82. The notice was directed at a material change of use. The matters which appeared to constitute the breach of planning control were described as the unauthorised use of the land for the stationing of a residential mobile home/caravan. The requirements were directly linked to the allegation and did not include a requirement for use of the land for residential purposes to cease. Therefore the enforcement notice stated the alleged facts and identified the nature of the breach by reference to section 171(A)(1). The notice fairly told the recipient what he had done wrong and what he must do to remedy it. [17, 19]

83. The Council appears to have followed the approach established in Restormel and confirmed by the Court of Appeal in Wealden. The use of the land described in

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the notice, the use of the land for the stationing of a residential mobile home/caravan, was an accurate description of the position at the time the notice was issued. The notice should not be quashed for being invalid. No further action should be taken on the deemed application. [20, 22, 23, 24, 28, 56, 60, 73]

84. In the event the Secretary of State disagrees, the following options were raised through the inquiry. The first is to quash the notice as being invalid because the allegation as currently worded does not adequately describe a use of land and therefore it does not identify a breach of planning control. If quashed, the stop notice would cease to have effect. [28, 56]

85. An alternative is to correct the wording of the notice. If it is concluded that a residential use had commenced by the time the notice was served, the corrected wording should refer to the use of the land as a residential caravan site. Consideration would need to be given as to whether, in the interests of fairness and natural justice, the inquiry should be re-opened in order to allow the Appellant to pursue his ground (a) appeal. [20, 22]

86. Thirdly, the view may be taken that the use of the land in June 2012 was for the storage of a caravan. This breach of planning control may be covered by the 2010 enforcement notice, dependent on the conclusions reached on the 2010 appeal(s) currently before the Secretary of State. In that scenario, a new breach of planning control would not have occurred. The 2012 enforcement notice would serve no purpose and should be quashed. [25, 29, 39, 51, 52, 72, 73]


87. The onus is on the Appellant to demonstrate on the balance of probability that the matters stated in the notice do not constitute a breach of planning control. The main considerations are whether the mobile home is ancillary to a lawful leisure use of the land or whether the mobile home is authorised by the 2001 planning permission.

Leisure use of the land

88. Pitman is authority that a leisure plot is a use of land. In that judgement a leisure plot was described as a piece of land where leisure activities are carried on by an owner in their free time with some degree of frequency for the primary purpose of leisure or enjoyment. A leisure use, as described in Pitman, is distinct from a primary residential use associated either with living accommodation in the form a building (including a chalet) or a residential caravan site. Each plot on the Esbies Estate has its own history and the lawful use of plots has to be examined on an individual basis. To rely on descriptions about the Esbies Estate in general, as the Appellant has done, is inadequate. Very little information has been produced about the past use of the appeal plots and therefore evidence is not sufficiently precise to make a positive conclusion about the historic use of the land. [18, 30, 31, 33, 47, 62, 63]

89. There was no planning permission granted in respect of plot 35 before 2001. The 1970 planning permission for plot 34 was for the erection of a summer chalet, not for a change of use of land. Condition 2 is not worded well and has to be read together with the reason for the condition. A reasonable interpretation is that the building was authorised for residential use as a dwellinghouse, with

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occupancy restricted to six months of the year. The chalet would be unlikely to be used in isolation from the land around it in the same ownership and occupation. The Appellant produced no evidence to enable his interpretation of the position as a mixed residential leisure use to be preferred on the balance of probability. The photographs of the appeal plots in 1990 and 1992 are insufficient, especially when considered in the light of the evidence of use submitted in support of the CLEUD. [12, 15, 18, 31, 33, 42, 47, 63]

90. The probability is that plots 32 and 33 were amalgamated with plot 34 about 1990 to form a single planning unit. The summer chalet erected pursuant to the 1970 planning permission was the bungalow that was the subject of the 2003 CLEUD. The use of the bungalow as a dwelling house throughout the year was certified as lawful. The documents indicate that the application was made solely in respect of the bungalow. The land to which the certificate applied was identified as the bungalow. However, the Appellant has produced no sufficiently precise and unambiguous evidence to demonstrate that the open land adjacent, forming the remainder of plots 32, 33 and 34, was in leisure use. More probable is that the dwelling was used in conjunction with the garden land adjacent as a single planning unit in the same ownership and occupation. On the authority of Newland, once the use of a building as a dwelling house becomes lawful, so does the use of the land within the same planning unit. [15, 31, 33, 35, 36, 42, 46, 47, 62, 64]

91. In summary, the Appellant has not demonstrated a lawful leisure use of plot 35 prior to 2001. By March 2003 the lawful use of plots 32 to 34 was residential.

The 2001 permission and the amalgamation of plots

92. The development permitted by the 2001 planning permission was the demolition of a summer chalet and its replacement with a caravan. On its face the 2001 planning permission did not provide for the construction of hard standings. The subject land was restricted to plot 35 only. Development would be begun on the earliest date on which any material operation comprised in the development was carried out. [14, 34, 65]

93. The development carried out by Mr Simmons comprised the demolition of the chalet, the laying of two hard standings and the erection of a log cabin. The Appellant produced no evidence to demonstrate that the log cabin was a caravan as opposed to a building. The demolition of the chalet was not carried out as part of the development granted permission. On that sequence of events alone the 2001 planning permission was not begun. [32, 33, 34, 44, 66]

94. The evidence of Mr Simmons, that he demolished the chalet and carried out works on plot 35 within three weeks or so of permission being granted, is contradicted by the aerial photograph that was dated to August 2002 and which shows the chalet in situ. There was no documentary evidence before this inquiry to support Mr Simmons’ recollection. [6, 7, 33, 44, 59, 67]

95. The April 2003 photograph submitted by Mrs Shipman and the June 2003 photograph submitted by Mr Simmons indicate that plot 35 had been amalgamated with plots 32 to 34. Mr Simmons in his oral evidence accepted that the plots were amalgamated about that time. The Council put forward a plausible explanation that the chalet was demolished to enable the creation of a garden area with a shed within the curtilage of the amalgamated plots. The

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CLEUD, which certified the residential use was lawful on 19 February 2003, is not conclusive evidence against the amalgamation of plots between mid February and April 2003. [33, 35, 44, 45, 59, 67]

96. The nature of the development carried out and the probable timing of the demolition of the chalet and of the amalgamation of the plots lead to a conclusion that the 2001 planning permission was not implemented. The merging of the plots created a new planning unit. The probability is that the land was used for residential purposes throughout the year in association with the residential use of the bungalow. [34, 36, 45, 48, 68, 69]

Planning history from 2008

97. The bungalow was demolished at some time between October 2008 and March 2009. Referring to Iddenden, a use cannot survive the destruction of buildings and installations necessary for the use to carry on. Therefore the residential use was lost. The land was left with a nil use. [31, 50, 53, 59, 71]

98. The character of the use of the land changed around 2008 when several caravans were placed on the land. The probability is that there was an unauthorised material change of use to a mixed residential/storage use and on demolition of the bungalow a further change of use to the use of the land for the storage of caravans. [39, 50, 51, 72]

99. The land became vacant in 2011. After the acquisition of the land by Mr Simmons in April 2012, clearance work began, leading to the issue of the enforcement notice against a new breach of planning control. Based on the authority of Young the right to revert to a past lawful use under section 57(4) does not apply because there has been at the least one intervening unlawful use, namely the storage of caravans. [39, 53, 73, 74].

Conclusion on ground (c)

100. The Appellant has failed to demonstrate of the balance of probability that the stationing of a residential mobile home/caravan is ancillary to a lawful leisure use of the land. The stationing of the mobile home/caravan on the land is not authorised by the 2001 planning permission because the permission was not commenced within the necessary time period. A breach of planning control has occurred and the appeal on ground (c) should not succeed.

Appeal on ground (f)

101. The Appellant’s case relied on the ground (c) appeal being successful. [40]

102. The purpose of the enforcement notice is to remedy the breach of planning control. A variation has been agreed to step 2. Subject to that variation, the steps required to be taken would do no more than achieve the purpose of the notice. They are not excessive and to that extent the appeal on ground (f) should fail. [27, 54, 75]

Appeal on ground (g)

103. In view of the provision of s174(2)(g) a compliance period should be of a sufficient length to reasonably allow the recipient to carry out the required remedial steps.

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104. In June 2012 the mobile home had not been fully installed, hard and soft landscaping had not been carried out and no-one was living in the mobile home. The use being enforced against is not a residential use of the land. No case was presented to explain why the steps could not be carried out in the time period specified. As a matter of fact the mobile home was removed from the site very shortly after the notice was served in June 2012 only to be moved back on to the land in September. The subsequent change in the position involving Ms Smith’s occupation of the mobile home should not affect the length of the compliance period on this enforcement notice. It would be open to the local planning authority to exercise its power under s173A(1)(b) to extend the period in the light of an unresolved planning application for a residential caravan site, should such an application be made. [41, 52, 55, 60, 76]

105. In the circumstances one month is a reasonable period of time to allow for the removal of the mobile home and ancillary development. The appeal on ground (g) should fail.

Recommendations

106. I recommend that:

a) No further action be taken on the deemed application.

b) The enforcement notice be varied:

• in paragraph 5 by the deletion of the wording in the second bullet point and the substitution of “Remove from the land the mobile home/caravan and ancillary development, comprising brick plinth/skirting and the sewage tank and works associated with its installation (the approximate position of which is indicated on Plan 2).”

• By the addition of the plan attached to this report (Plan 2).

c) Subject to these variations, the enforcement notice be upheld.

Diane Lewis

Inspector

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APPEARANCES FOR THE APPELLANT:

Alan Masters of Counsel Instructed by Philip Rawle He called Henry Simmons The Appellant Philip Rawle BA(Hons) MA MRTPI

Senior Planning and Development Manager of Green Planning Solutions LLP

FOR THE LOCAL PLANNING AUTHORITY:

Saira Kabir Sheikh of Counsel Instructed by the Solicitor to the Council She called Alison Young BA(Hons) Development Control Manager

FOR FOREBURY ESTATES LIMITED:

Reuben Taylor of Counsel Instructed by Mills and Reeve He called Mary Shipman Director of Forebury Estates Limited

DOCUMENTS 1 Letter of notification of the inquiry and list of people notified 2 Statement of common ground 3 Proof of evidence of Philip Rawle 4 Appendices to proof of evidence of Mr Rawle (A1-A22 and B1-B17) 5 Proof of evidence of Alison Young 6 Appendices to proof of evidence of Mrs Young (AY1-AY22) 7 Proof of evidence of Mary Shipman 8 Appendices to proof of evidence of Mrs Shipman 9 Plans of the extent of the Green Belt in the District and around

Sawbridgeworth 10 Preparing Regional Spatial Strategy reviews on Gypsies and

Travellers by regional planning bodies 2007 submitted by the Council

11 Clara Penfold fund details submitted by the Appellant 12 Opening submissions on behalf of Forebury Estates 13 Bundle of authorities submitted by Forebury Estates 14 35 Esbies Estate planning permission dated 9 July 2001 15 Certificate of lawful use or development dated 6 May 2003 and

exhibits 16 Newland v Secretary of State for Communities and Local

Government and Waverley Borough Council [2008] EWHC 3132 (Admin) and s56 of 1990 Act submitted by Forebury Estates

17 Esbies Estate 1954 survey submitted by the Council 18 Esbies Estate 1954 survey submitted by the Appellant 19 34 Esbies Estate planning permission dated 11 May 1970 and

planning application form submitted by the Council. 20 Closing submissions on behalf of Forebury Estates 21 Closing submissions on behalf of the Council

Report APP/J1915/C/12/2179609


22 Iddenden and others v Secretary of State for the Environment and Another [1972] 1 WLR 1433

23 Notes to closing submissions on behalf of the Appellant 24 Borough of Restormel v Secretary of State for the Environment

and Rabey [1982] JPL 785 25 Wealden District Council v Secretary of State for the Environment

and Another [1988] 08 EG 112 26 Mr P Pitman v Secretary of State for the Environment and Another

[1989] WL 649917 PLANS A Plan attached to the enforcement notice B Additional plan regarding the requirements of the enforcement notice

(Plan 2) PHOTOGRAPHS 1 Plot 35 dated June 2003 submitted by the Appellant 2 Plot 35 submitted by the Appellant (taken from Mrs Shipman’s

Appendices)

Report APP/J1915/C/12/2179609

Plan 2

Land at: Plots 32, 33, 34 and 35 Esbies Estate, Station Road, Sawbridgeworth

Reference: APP/J1915/C/12/2179609


RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT

These notes are provided for guidance only and apply only to challenges under the legislation specified. If you require further advice on making any High Court challenge, or making an application for Judicial review, you should consult a solicitor or other advisor or contact the Crown Office at the Royal Courts of Justice, Queens Bench Division, Strand, London, WC2 2LL (0207 947 6000). The attached decision is final unless it is successfully challenged in the Courts. The Secretary of State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow that the original decision will be reversed. SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS; The decision may be challenged by making an application to the High Court under Section 288 of the Town and Country Planning Act 1990 (the TCP Act). Challenges under Section 288 of the TCP Act Decisions on called-in applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may be challenged under this section. Any person aggrieved by the decision may question the validity of the decision on the grounds that it is not within the powers of the Act or that any of the relevant requirements have not been complied with in relation to the decision. An application under this section must be made within six weeks from the date of the decision. SECTION 2: AWARDS OF COSTS There is no statutory provision for challenging the decision on an application for an award of costs. The procedure is to make an application for Judicial Review. SECTION 3: INSPECTION OF DOCUMENTS Where an inquiry or hearing has been held any person who is entitled to be notified of the decision has a statutory right to view the documents, photographs and plans listed in the appendix to the report of the Inspector’s report of the inquiry or hearing within 6 weeks of the date of the decision. If you are such a person and you wish to view the documents you should get in touch with the office at the address from which the decision was issued, as shown on the letterhead on the decision letter, quoting the reference number and stating the day and time you wish to visit. At least 3 days notice should be given, if possible.

https://www.gov.uk/government/organisations/department-for-communities-and-local-government