Background
Canterbury City Council issued five enforcement notices concerning caravan use at Moate Farm in December 2024, after an earlier 2021 notice covering the site had been quashed. The new notices dealt separately with three areas of the farm. Tom Delaney appealed notices relating to Area B; Peter Delaney appealed notices relating to Area C.
An inspector quashed the notices alleging breaches of conditions in Areas B and C, finding that the relevant 2015 and 2017 planning permissions had not been implemented and had lapsed. But the inspector dismissed notices alleging unauthorised material changes of use in Areas B and C, as well as a notice concerning Area A. The Delaneys sought High Court permission to appeal only the decisions on Areas A and B.
The Court’s Holding
The High Court granted permission to appeal on two grounds concerning the Area B material-change-of-use notice (Appeal C). It held that it was arguable that the inspector failed to take account of evidence suggesting that the 2015 Area B permission was partly retrospective and that hardstanding, a bund and two caravans were already present, and possibly occupied, when permission was granted. That evidence could bear on whether the pre-commencement landscaping condition prevented implementation of the permission.
Permission was also granted on the arguable issue whether the Council could rely on the TCPA 1990 “second bite” provision. The 2021 notice had targeted 37 additional caravans, while the later Area B notice targeted the use of the whole area for residential caravans. It was arguable that these were not the same breach of planning control. It was also arguable that the inspector overlooked evidence when finding no direct evidence of caravan use between December 2014 and September 2016.
The court refused permission on all other grounds. The inspector had acted fairly in declining to admit Peter Delaney’s unannounced oral evidence at the hearing after no witness statement had been supplied, and the later adjournment gave the applicants an opportunity to submit evidence in writing. The court also rejected challenges arising from the inspector’s unaccompanied site visit and refused permission regarding Area A.
Key Takeaways
- The ruling is a permission decision, not a final determination of the substantive planning appeal.
- Whether a retrospective or partly retrospective permission has been implemented may require careful consideration of the evidence known to the planning authority when permission was granted.
- The statutory “second bite” enforcement power may be contested where a later notice is materially broader than an earlier notice.
Why It Matters
The decision highlights the importance of precisely identifying the breach addressed by successive enforcement notices. A local authority cannot necessarily rely on earlier enforcement action merely because the later notice concerns the same site or broadly similar caravan activity.
It also confirms that procedural fairness does not require an inspector to admit late, unnotified oral evidence where doing so would prejudice other parties, particularly when the appellant has failed to provide witness evidence in advance.