Ocean One Hundred Ltd, R (on the application of) v New Forest National Park Authority [2026] EWCA Civ 493

[2026] EWCA Civ 493Case No CA-2025-001291
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 953 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
MR JUSTICE JAY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/04/2026
Before
LADY JUSTICE KINGLORD JUSTICE STUART-SMITHLORD JUSTICE HOLGATE
Between
THE KING (ON THE APPLICATION OF OCEAN ONE HUNDRED LIMITED)AppellantNEW FOREST NATIONAL PARK AUTHORITYRespondent
Richard Harwood KC (instructed by Jones Day) for AppellantJames Findlay KC and Clare Parry (instructed by Sharpe Pritchard) for RespondentHearing Hearing dates: 10 to 11 March 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 23 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is a most unusual case the circumstances of which, it is to be hoped, are unlikely to be repeated.[2]It begins with an application by Mr Jonathan Cox dated 4 July 2007 for a certificate of the lawfulness of an existing use or development (a “CLEUD”) under s.191 of the Town and Country Planning Act 1990 (“the TCPA 1990”) on land near North Ripley, Bransgore in the New Forest National Park. On one view, Mr Cox only applied for a certificate for the use of a small part of a 2.57 ha site for the storage of caravans (of which there were about 20) adjacent to the bungalow, Vernon Dene, in which he lived. That land use did not benefit from any planning permission, but he said that it had become lawful under the TCPA 1990 by virtue of at least 10 years’ continuous use.[3]If that view of the application is correct, on 1 August 2008 the respondent local planning authority (“LPA”), the New Forest National Park Authority (“the NPA”), granted a CLEUD in much broader terms. The certificate stated that the whole of the 2.57 ha site had a lawful use as a “caravan site” apart from the area near the bungalow shown cross-hatched blue on the accompanying plan which had a lawful use for the storage of touring caravans. Although the CLEUD related to the whole of the site, bizarrely it did not mention the residential use of the bungalow.[4]Where a term or phrase is defined in a statutory enactment, it bears the same meaning when it is used in a proposal or authorisation under that legislation in the absence of a sufficient indication to the contrary. Section 336(1) of the TCPA 1990 defines a caravan site by reference to s.1(4) of the Carvan Sites and Control Development Act 1960. A CLEUD granted for use as a caravan site is treated as a planning permission for the purposes of satisfying the precondition in.3(3) of the 1960 Act for the grant of caravan site licence under that statute (see s.191(7)(a)of the TCPA 1990). Accordingly, it was common ground in this appeal that “caravan site” in the CLEUD referred to land on which a caravan (or caravans) is stationed for the purposes of human habitation and land used in conjunction therewith (Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 557), as contrasted with the mere storage of caravans. The CLEUD granted by the NPA allowed caravans on the site, but outside the storage area shown on the accompanying plan, to be used as homes.[5]In the High Court judgment under appeal, R v New Forest Park National Authority ex p Ocean One Hundred Ltd [2025] EWHC 953 (Admin)Jay J said at [159] that it is a “mystery” why the CLEUD had been issued in those broad terms. I would add that, given public concerns about the activities on the site and the consultation which had taken place, it is another mystery why nobody appears to have applied for judicial review of that decision, or even to have questioned it at the time.[6]In December 2018 Park One Developments Limited became the owner of the land and, during the Easter bank holiday weekend the following year, began extensive works towards a redevelopment of the site as a mobile homes park for 83 permanent homes. The concerns of local residents prompted the NPA to investigate. As a result, the developers ceased works pending the resolution of certain environmental law issues. Subsequently the NPA commenced enforcement action against the works, an appeal against which is in abeyance pending the outcome of the present proceedings.[7]On 30 November 2020 Lord Manners, a local resident and the then Official Verderer of the New Forest, put forward a case to the NPA for it to revoke the CLEUD under s.193(7) of the TCPA 1990. That power may only be exercised if the LPA is satisfied that, “on the application for the certificate”:(a) a statement was made which was false in a material particular; or(b) any material information was withheld. Section 193(7) may not be used by an authority to revoke a CLEUD on the grounds that the LPA considers that it made a mistake in issuing the certificate, whether a mistake as to fact or law, or because it has second thoughts.[8]Parties affected by the revocation of a certificate under s.193(7) have no right to appeal against that decision. The only remedy available is an application for judicial review of the decision on the ground that it was vitiated by a public law error.[9]After investigating the matter, and giving an opportunity for representations to be made, the Respondent’s Executive Director (Strategy and Planning), Mr Steven Avery, prepared a report which recommended to a meeting of the NPA’s Board that they resolve to revoke the CLEUD. On 18 October 2023 the members passed a resolution to that effect. The minutes record that they did so “on the basis of all the reasons as outlined in the … report”. No other reasons were given.[10]The NPA revoked the CLEUD on 7 November 2023 and on the same day a notice to that effect was sent to Ocean One Hundred Limited, which had become the owner of the site on 23 December 2021.[11]Another unusual feature of the case is that the NPA had lost or destroyed a number of documents in its files relating to the application for the CLEUD. In particular, file notes of a site inspection and communications between Mr Cox and the CLEUD team at the NPA about information regarding his application have not been retained. There are records of information gathered by a different team at the NPA responsible for taking enforcement action, but there is an issue about the extent to which that was shared with the CLEUD team.[12]The appellant applied for judicial review to quash the respondent’s decision to revoke the CLEUD and thus the revocation itself. The substantive hearing was before Jay J. In a detailed and careful judgment he rejected all those grounds of challenge which were still pursued by the appellant. He analysed the mass of documentation to which the court had been subjected by setting out a clear narrative of the events leading up to the CLEUD and the revocation decision ([8]-[90]).[13]One of the more unusual features of the claim was ground 7 in the High Court, which alleged apparent bias on the part of Mr Avery and also Professor Parker (a member of the NPA and its chair between October 2020 and October 2023). The appellant alleged that they had colluded with members of the local community, including Lord Manners, who were lobbying the NPA to revoke the CLEUD.[14]The judge decided firmly that the allegation against Professor Parker had no merit [122]. On the basis of his reasoning, it is surprising that the appellant ever raised the matter. Wisely, the appellant did not seek to pursue it on appeal. Mr Harwood KC also confirmed on behalf of the appellant that it is not alleged that there was actual or apparent bias on the part of any member of the NPA’s Board.[15]In this court the appellant has limited ground of appeal 5 to apparent bias on the part of Mr Avery. The judge was concerned about the officer’s approach to the sensitive, unusual and complex process for deciding whether to revoke the CLEUD, a document which conclusively presumed the lawfulness of the use rights certified. He made some striking criticisms of several aspects of Mr Avery’s behaviour, summarised at [123]. Then, after allowing for factors which pointed against an appearance of bias on his part ([123]-[126]), the judge concluded that if the officer had been “the ultimate decision-maker” in this case, he would have found apparent bias [127]. However, the judge concluded that because he was not the decision-maker, the apparent bias ground was not made out [128]-[129], but without giving any further legal analysis.[16]The Respondent has not challenged the judge’s finding that Mr Avery’s conduct would have involved an appearance of bias if he had been acting as a decision-maker. In my judgment, this court needs to consider the impact of the judge’s findings on the officer’s report of 12 October 2023 submitted by Mr Avery to the Board with its advice and conclusions, and ultimately the lawfulness of the decision of the Board itself.[17]The judge appeared to accept the potential relevance of apparent bias on Mr Avery’s part to the issue of whether his report was fair and balanced [125], but he chose instead to deal with that aspect under grounds of challenge 1 to 3 taken together (now grounds of appeal 1 to 3). Ultimately, he concluded that the report was fair and balanced ([162]-[172]), taking into account his analysis of the material which was before NPA officers in 2007 to 2008 when they were considering Mr Cox’s application for a CLEUD ([144]-[161]).[18]This judgment is set out under the following headings: - The grounds of appeal - The statutory framework and legal principles - The application for the CLEUD - The process leading to the CLEUD - Issues raised by the judgment in the High Court - Materials before the Board at its meeting on 18 October 2023 - Ground 5 - Grounds 2 and 4 - Ground 1 - Ground 3

The grounds of appeal

[19]The appellant has raised the following grounds of appeal: 1. The judge erred in failing to find that, given the information known to be missing (and the possibility of further missing information), there was no evidence upon which the NPA could make positive findings that materially false statements were made or material information withheld by Mr Cox, alternatively it was unfair to do so (High Court ground 1); 2. The judge erred in failing to find that the NPA had acted unfairly and prevented relevant evidence from being addressed, by withholding relevant information from the Appellant and from the NPA’s members (High Court ground 2); 3. The judge erred in failing to find that the legal errors which he had identified in the NPA report and reasons were sufficient to render the revocation unlawful. He erred in finding that the caravan site use covered a smaller area than put forward and contained in the certificate. He erred in failing to find further errors in the report and reasons (High Court ground 3); 4. The judge erred in failing to find that the NPA’s handling of the revocation process was unfair and unlawful (High Court ground 5); 5. The judge erred in failing to find that the appearance of bias by Mr Avery rendered the decision unlawful (High Court ground 7). The statutory framework and legal principles Legislation

The statutory framework and legal principles

[20]In general, planning permission is required for the carrying out of development (s.57(1) of the TCPA 1990). “Development” refers to building, engineering, mining or other operations in, over or under land (“operational development”) or the making of a material change in the use of any buildings or land (s.55(1)). The storage of caravans and the stationing of caravans for human habitation are both uses of land.[21]Part VII of the TCPA 1990 deals with the enforcement of planning control. Section 171A defines a breach of planning control as including “(a) carrying out development without the required planning permission”.[22]By s.172(1) where a LPA considers that a breach of planning control has occurred and that it is expedient to do so, they may issue an enforcement notice. So, for example, the authority may require an unlawful use to cease and remedial steps to be taken to restore the land to its condition before the breach took place.[23]Section 171B sets time limits for the taking of enforcement action, including the issuing of an enforcement notice (see s.171A(2)). At the material time, s.171B provided as follows:
“171B. — Time limits. (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach. (4) …”
[24]By s.191(2) once a breach of planning control, such as a material change of use, becomes immune from enforcement action upon the expiration of the relevant time period in s.171B, it is treated as lawful (unless it breaches an extant enforcement notice). For a change of use, the relevant time period is 10 years (s.171B(3)). It is well-established that the use must have continued during that period (see the case law summarised in R (Ocado Retail Limited) v Islington London Borough Council [2021] EWHC 1509 (Admin); [2021] PTSR 1833 at [51]-[53](“Ocado”)).[25]By s.191(1) where a person wishes to ascertain whether a use of land is lawful they may apply to the LPA “specifying the land and describing the use”. By s.191(4) if, on an application under s.191, the LPA is provided with information satisfying them of the lawfulness of the use “described in the application”, or that description as modified by the LPA, or a description substituted by them, they shall issue a CLEUD to that effect. Otherwise, they shall refuse the application. By s.191(6) the lawfulness of a use for which a CLEUD is in force “shall be conclusively presumed”.[26]At the material date, s.191 provided as follows: “191. — Certificate of lawfulness of existing use or development.(1) If any person wishes to ascertain whether— (a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.(2) For the purposes of this Act uses and operations are lawful at any time if— (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.(3) …(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.(5) A certificate under this section shall— (a) specify the land to which it relates; (b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use, operations or other matter to be lawful; and (d) specify the date of the application for the certificate.(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.(7) …” (a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter. (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (a) specify the land to which it relates; (b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use, operations or other matter to be lawful; and (d) specify the date of the application for the certificate.[27]Section 192 is a parallel provision enabling a person to apply to a LPA for a certificate that a proposed use or operations would be lawful.[28]Section 193 provides: “193. — Certificates under sections 191 and 192: supplementary provisions.(1) An application for a certificate under section 191 or 192 shall be made in such manner as may be prescribed by a development order and shall include such particulars, and be verified by such evidence, as may be required by such an order or by any directions given under such an order or by the local planning authority.(2) Provision may be made by a development order for regulating the manner in which applications for certificates under those sections are to be dealt with by local planning authorities.(3) …(4) A certificate under either of those sections may be issued— (a) for the whole or part of the land specified in the application; and (b) where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them; and shall be in such form as may be prescribed by a development order.(5) …(6) …(7) A local planning authority may revoke a certificate under either of those sections if, on the application for the certificate— (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld.(8) Provision may be made by a development order for regulating the manner in which certificates may be revoked and the notice to be given of such revocation.” (a) for the whole or part of the land specified in the application; and (b) where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them; and shall be in such form as may be prescribed by a development order. (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld.[29]Section 194 makes it a criminal offence for a person knowingly or recklessly to make a false or misleading statement or, with intent to deceive, to withhold material information for the purpose of obtaining a particular decision on an application for a CLEUD. Certain of the ingredients of the offence reflect the grounds upon which a certificate may be revoked under s.193(7). The offence is punishable with up to 2 years’ imprisonment and a fine. Thus, the grounds upon which a certificate can be revoked may also result in a serious criminal sanction.[30]Section 194 provides:
“194. — Offences. (1) If any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for the issue of a certificate under section 191 or 192— (a) knowingly or recklessly makes a statement which is false or misleading in a material particular; (b) with intent to deceive, uses any document which is false or misleading in a material particular; or (c) with intent to deceive, withholds any material information, he shall be guilty of an offence. (2) A person guilty of an offence under subsection (1) shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both. (3) Notwithstanding section 127 of the Magistrates' Courts Act 1980, a magistrates' court may try an information in respect of an offence under subsection (1) whenever laid.”
Section 194(3) is important because it removes the normal 6 months’ time limit for prosecutions in the magistrates’ court. There is no time limit. (a) knowingly or recklessly makes a statement which is false or misleading in a material particular; (b) with intent to deceive, uses any document which is false or misleading in a material particular; or (c) with intent to deceive, withholds any material information, he shall be guilty of an offence. (a) on summary conviction, to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.[31]Section 195 gives a right of appeal to the Secretary of State against a refusal of (or a failure to determine) an application for a certificate.[32]Article 24 of the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995 No. 419) (“the 1995 Order”) set out requirements for the making and handling of an application for a CLEUD in 2007:
“24. — Certificate of lawful use or development (1) An application for a certificate under section 191(1) or 192(1) of the Act (certificates of lawfulness of existing or proposed use or development) shall be in writing and shall, in addition to specifying the land and describing the use, operations or other matter in question in accordance with those sections, include the following information- (a) the paragraph of section 191(1) …. under which the application is made; (b) in the case of an application under section 191(1), the date on which the use, operations or other matter began … ; (c) … ; (d) … ; (e) … ; (f) the applicant's reasons, if any, for regarding the use, operations or other matter described in the application as lawful; and (g) such other information as the applicant considers to be relevant to the application. (2) An application to which paragraph (1) applies shall be accompanied by- (a) a plan identifying the land to which the application relates; (b) such evidence verifying the information included in the application as the applicant can provide; and (c) a statement setting out the applicant's interest in the land, the name and address of any other person known to the applicant to have an interest in the land and whether any such other person has been notified of the application. (2A) … (3) Where such an application specifies two or more uses, operations or other matters, the plan which accompanies the application shall indicate to which part of the land each such use, operation or matter relates. (4) …. (5) …. (6) Where, after sending an acknowledgement as required by paragraph (5), the local planning authority consider that the application is invalid by reason of the failure to comply with the preceding paragraphs of this article or any other statutory requirement, they shall, as soon as practicable, notify the applicant that his application is invalid. (7) The local planning authority may by notice in writing require the applicant to provide such further information as may be specified to enable them to deal with the application. …”
Thus, the 1995 Order gave a LPA ample powers to reject an application which failed to provide sufficient information to verify the claim made in the application, or to require the applicant to provide additional information. (a) the paragraph of section 191(1) …. under which the application is made; (b) in the case of an application under section 191(1), the date on which the use, operations or other matter began … ; (c) … ; (d) … ; (e) … ; (f) the applicant's reasons, if any, for regarding the use, operations or other matter described in the application as lawful; and (g) such other information as the applicant considers to be relevant to the application. (a) a plan identifying the land to which the application relates; (b) such evidence verifying the information included in the application as the applicant can provide; and (c) a statement setting out the applicant's interest in the land, the name and address of any other person known to the applicant to have an interest in the land and whether any such other person has been notified of the application. …”[33]By s.193(6) of the TCPA 1990 an application for a certificate under s.191 (or s.192) is treated as an application for planning permission for the purposes of the planning register kept by each LPA under s.69. A copy of each application and the decision on that application must be kept on the register along with the information required by reg.25(6) of the 1995 Order, notably the description of the use included in the application. The register is one means by which the public can find out about the making of such an application. In addition, the present case shows that where a CLEUD is granted, it is good practice for the LPA to create, and thereafter to retain, contemporaneous records of the reasons why that decision was made and the evidence which was taken into account, whether for or against the grant of the certificate.[34]Article 39(15) to (17) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595) (“the 2015 Order) lays down certain procedural requirements in relation to revocation under s.193(7) of the TCPA 1990. “(15) Where a local planning authority propose to revoke a certificate issued under section 191 or 192 of the 1990 Act in accordance with section 193(7) of the 1990 Act (certificates under sections 191 and 192: supplementary provisions), they must, before they revoke the certificate, give notice of that proposal to—(a) the owner of the land affected;(b) the occupier of the land affected;(c) any other person who will in their opinion be affected by the revocation; and(d) in the case of a certificate issued by the Secretary of State under section 195 of the 1990 Act, the Secretary of State. (16) A notice issued under paragraph (15) must invite the person on whom the notice is served to make representations on the proposal to the authority within 14 days of service of the notice and the authority must not revoke the certificate until all such periods allowed for making representations have expired. (17) An authority must give written notice of any revocation under section 193(7) of the 1990 Act to every person on whom notice of the proposed revocation was served under paragraph (15).” It is necessary to keep in mind, however, that general procedural rules of this nature are not exhaustive of the requirements of procedural fairness or other public law requirements which may arise on the facts of a particular case (see e.g. Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700, 777 at [35]; Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145 at [62]). (a) the owner of the land affected; (b) the occupier of the land affected; (c) any other person who will in their opinion be affected by the revocation; and (d) in the case of a certificate issued by the Secretary of State under section 195 of the 1990 Act, the Secretary of State.[35]During the hearing the parties agreed that the legal analysis in Ocado of the statutory regime relating to applications for CLEUDs and revocation is correct in so far as it is relevant to this appeal.[36]The procedure for obtaining a CLEUD was dealt with in Ocado at [61]-[73]. The onus lies on the appellant to demonstrate to the civil standard that a change of use without planning permission has become lawful ([61]). If the LPA is not satisfied with the adequacy of the information provided by the applicant, then it may refuse the application [64]. Care needs to be taken in the drafting of an application because of the risk of revocation and/or criminal prosecution at any time thereafter [67]. In making an application an applicant assumes a risk of revocation on the grounds set out in s.197(3), which risk passes to or affects successors in title. That risk is likely to increase where an applicant takes a minimalist approach to the provision of information to support his application [71].[37]The power of revocation in s.193(7) was discussed in Ocado at [81]-[108]. In summary:(1) The power to revoke may only be used on one or both of the grounds set out in s.193(7). It may not be used because the LPA wishes to revisit the merits of the application or has changed its mind about the findings of fact it made or the inferences it drew [81], nor may it be used to correct an error of law in the determination of the application under s.191 [103];(2) The power may be exercised by a LPA at any time. It is not subject to confirmation by the Secretary of State or a right of appeal, and does not give rise to a right to compensation [82].(3) The first ground for revocation (s.193(7)(a)) lays down an objective test, that the statement in question was false, in the sense of incorrect. It does not also require that the maker of the statement knew it to be false or was reckless in that regard [84];(4) The withholding of material information under s.193(7)(b) also involves an objective test. A withholding may be accidental, mistaken, careless or reckless. It does not have to be deliberate. Ground (b) in s.193(7) does not depend upon the subjective intention of the applicant ([85]-[92]);(5) The terms “in a material particular” and “material” (which appear in s.193(7) and in s.194(1)) refer not only to the relevance of information withheld or falsely stated but also its significance, in terms of whether, if the false statement had not been made or the information withheld, the LPA could (not would) have refused to grant any CLEUD or could have granted the certificate in different terms ([93]-[99]);(6) The LPA must direct itself correctly on the relevant legal principles. Where a LPA’s identification of a false statement or withheld information does not involve an error of law, its evaluative judgment on “materiality” can only be challenged if irrational or on some other public law ground ([101]-[102]).[38]I would add one point to [37(3) to (5)] above which arises in relation to the issues in this case. Section 193(7) requires the LPA to be satisfied that a statement was made or a document used which was materially false, or that material information was withheld, “on the application for the certificate”. It is therefore necessary for the LPA to consider whether the false or withheld information is material in relation to the application, including the application form as signed by the applicant for the CLEUD. Accordingly, if there is an issue as to what a s.191 or s.192 application was for, the LPA will need to resolve that question (unless perhaps the case is one where the grounds in s.193(7) are satisfied however that issue might be resolved).[39]It is common ground in the present case, as it was in Ocado [108], that a decision to revoke a certificate granted under s.191 or s.192 attracts a common law duty to give reasons for that decision. The obligation to give adequate reasons requires that the LPA deal with the main issues in dispute (R (CPRE Kent) v Dover District Council [2017] UKSC 79; [2018] 1 WLR 108 at [35]-[42]).

Apparent bias

[40]The key test was stated in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 at [103]:
“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
[41]The common law recognises that the test should be applied in the statutory context in which the decision-maker was operating. The court should take into account the constitutional position of the decision-maker, for example that of a LPA or a minister, as well as the nature of the decision taken (R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324 at [103]-[104]). The nature of the interests affected may also be relevant.[42]The NPA discharges the functions of a LPA in the public interest. It is an administrative, not a judicial, body. Its functions include the formulation of local planning policy through development plan documents and the application of policy through planning control decisions.[43]Accordingly, it is recognised that a LPA may have a policy or political predisposition regarding a planning application for a development proposal, or enforcement action against a particular development, without being disqualified from decision-making on the grounds of apparent bias. It may approve a scheme to be carried out on its own land by its development partner (see e.g. R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746; [2009] 1 WLR 83 e.g. at [62]-[71] and [93]-[99]). The key question in Lewis was whether the members of the LPA (or rather the members of the majority political party in the authority) had predetermined the matter or had a closed mind, or whether it appeared that that was the case. In addition, it is accepted in the case law that there is no appearance of bias simply because officers or members of a LPA are lobbied, whether by the proponents of a development or by its opponents, or because a LPA co-operates with one party in the preparation of a case for or against a proposal. Nothing that I say about the legal approach to bias in the present case should be taken as detracting from these general principles.[44]Sometimes the relevant statutory framework contains express provisions which affect the application of the Porter v Magill test. For example, Mr. Findlay KC for the NPA cited R (Legard) v Kensington and Chelsea Royal London Borough Council [2018] EWHC 32 (Admin); [2018] PTSR 1415 for the court’s rejection of the claimant’s submission that there was apparent bias on the part of the LPA in favour of a neighbourhood forum which was promoting a neighbourhood plan. The LPA had allowed the forum to make substantial comments on the independent examiner’s report on his examination of the draft plan and on an officer’s report to a cabinet member on the key decision whether the plan should proceed to the final public referendum stage [141]. But in that case an important factor was the LPA’s statutory obligation to provide advice and assistance to the neighbourhood forum for facilitating the making of the plan [144]. Consequently, I do not draw any real assistance from Legard when considering the circumstances of the present case.[45]On the other hand a statutory scheme may impose explicit, stricter safeguards against apparent bias, as in London Historic Parks and Garden Trust v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2580 (Admin); [2021] JPL 580. There, reg.64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) imposed an obligation on public authorities and ministers promoting a scheme which is subject to EIA to make appropriate arrangements to ensure that for the purposes of the Regulations there is a functional separation between those bringing forward the development proposal and those responsible for determining it.[46]How then should the appearance of bias be treated in the determination of an application for a CLEUD, or the revocation of a CLEUD, in the context of the statutory framework?[47]When a CLEUD is sought for a use which is said to have continued for the requisite period, the LPA’s decision-making is essentially an objective application of the relevant legal tests to its assessment of the factual evidence available. There is no planning policy component as such. The LPA’s determination is whether the applicant has shown that he has a use right for the purposes of the TCPA 1990.[48]A decision on whether or not to revoke a CLEUD involves the application of the objective tests in s.193(7). The materiality issue involves a judgment as to whether a false statement or withholding of information could have altered the original application of the objective tests in s.171B and s.191(2) and therefore the determination of the CLEUD application. There is no planning policy component in the LPA’s decision on whether the power to revoke is available.[49]If it is decided that those tests are met so that the power to revoke a CLEUD under s.193(7) is engaged, the authority then has a discretion as to whether to exercise that power. At that stage the LPA may choose to take into account planning merits, including policy considerations, and the effect of revocation on interested parties (see Ocado at [105]-[107]).[50]Nevertheless, that discretionary stage, in which planning merits may play a part, should never be reached unless the prior objective tests, in which planning merits do not play a part, are satisfied. Furthermore, revocation is about the removal of the certification of a person’s rights which up until then had been treated as lawful, a decision from which there is no appeal.[51]For these reasons, revocation under s.193(7) is not analogous to the determination of a planning application as in Lewis. In this situation the need to avoid the appearance of bias is not modified by the LPA’s function of applying planning policy to development proposals as a democratically elected body.[52]Nevertheless, in many cases a LPA will not be in a good position to know what activities have taken place on a site over time. It will be the owners of the site and/or predecessors in title, along with people living and working in the local area, who will normally be in a much better position to assist on such matters. Therefore, when a LPA is considering revocation it is reasonable to expect it to approach local residents and employees for information, and not just current and previous owners of the site. Neither that conduct nor assistance by the LPA in the preparation of witness statements by local people should in itself be treated as apparent bias on the part of the LPA or its officers acting on its behalf.[53]However, given the unchallenged findings made by the judge in relation to apparent bias in this case, we did not receive full legal argument on what a LPA may and may not do. It would therefore be inappropriate to go into this subject in any detail.[54]I would only say that it may be necessary for the authority to consider carefully the procedure it should follow, particularly where a LPA has thought it appropriate to promote a case for revocation and to gather evidence for that purpose. They might have regard to such matters as:(1) Transparency in the way evidence is collected (e.g. record-keeping such as notes of meetings);(2) In any event, the timing and extent of disclosure of information obtained to parties who would be adversely affected by revocation;(3) Who within the LPA is to take the decision on revocation;(4) Who is to prepare a report for the decision-maker;(5) Whether there needs to be a separation of functions between those promoting revocation and those reporting on, or deciding on, that issue;(6) Recording and giving reasons for a decision to revoke a certificate.[55]In a complex case the authority might wish to consider whether to hold a local inquiry under its incidental powers. These suggestions reflect the absence of any right of appeal or requirement for independent confirmation which would protect the interests of affected parties, in contrast to, for example, the provisions for enforcement notices and discontinuance orders. There may also be other matters to consider.

Reports by Officers

[56]The Order for the establishment of the NPA provides for the Board to comprise 10 members appointed by the Secretary of State (of whom 4 must be parish councillors) and 12 local authority members appointed by 5 local authorities (who must be councillors of the relevant local authority). Because of this democratic component of the Board, the following statement by Baroness Hale in Morge v Hampshire County Council [2011] UKSC 2; [2011] PTSR 337 at [36] is relevant:
“… in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 69, “In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them.”
Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court’s, to weigh the competing public and private interests involved.”[57]In R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500 Sullivan J (as he then was) stated at p.509 that the purpose of an officer’s report is to inform the members of the committee or LPA of the considerations relevant to a planning application, where they will have substantial local and background knowledge, and it is necessary to avoid burdening a busy committee “with excessive and unnecessary detail”. In addition members may well receive training to give them a working knowledge of the planning system.[58]The general approach is that the court will generally only interfere in relation to an officer’s report to a committee or the LPA if its effect is significantly to mislead members on a material issue, reading the document in context and with an appropriate degree of benevolence (R (Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1452 at [42(2)] and R (Whitley Parish Council) v North Yorkshire County Council [2023] EWCA Civ 92; [2023] JPL 1081).[59]These and other similar well-trodden citations from the case law have typically been concerned with decision-making in relation to planning applications and the taking of enforcement action, applying well-known national and local planning policies, of which members have a great deal of experience. Even so, what is clear from the authorities is that under the general scheme for exercising development control at a local level, members of a LPA depend to a substantial extent upon the reports prepared for them by officers to inform them of the issues to be decided and the matters about which they need to know in order to be able to discharge their functions properly.[60]That dependency is greater where members of a LPA are deciding whether to revoke a certificate under s.191 or s.192. They will have to apply the objective statutory tests in s.193(7) to determine whether the power to revoke is engaged. That will involve applying the principles set out above and in Ocado. They will need to consider the pros and cons relating to, and resolve, the main issues raised by the parties. The officer’s report needs to set out those matters in a fair and balanced way, bearing in mind that they are not influenced by policy considerations. The court was told that before Ocado little use was made by LPAs of the power in s.193(7) and that the decision under challenge in this case was the first time the NPA had revoked a s.191 or s.192 certificate.[61]The members of a LPA are obliged to give reasons for resolving to revoke a CLEUD, meeting the general standards set out in South Bucks District Council v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953. Unless the members give their own reasons for their decision, they would normally be taken to have endorsed the reasoning in the officer’s report (see CPRE Kent at [48]). In that situation the report would need to meet the South Bucks tests.[62]One consequence of this analysis is that if an officer’s report on revocation under s.193(7) contains an error of law, such as a failure to identify a main issue which the members needed to determine, that would generally vitiate their decision. If so, it is unlikely to be necessary for the court to ask the additional question whether the report was “significantly misleading”.[63]In the unusual circumstances of the present case, the High Court has determined that there has been the appearance of bias on the part of the officer responsible for the report to the Board. It is no answer for the NPA to say that he did not take the decision to revoke the CLEUD. He wrote the report which recommended that action and supplied the reasoning in support. In taking its decision the Board relied on both. The question is whether the report was fair and balanced and dealt with all the main issues, so that the Board was legally able to take an independent decision uncontaminated by the appearance of bias on the officer’s part.

The application for the CLEUD

[64]Like the judge [(144)], I consider the question what was the use which Mr Cox applied to the NPA to certify as lawful partly in order to assess whether the officer’s report was fair and balanced. I do not analyse the material before the court on the scope of the application in order to reach any factual findings on that issue.[65]The scope of the application by Mr Cox needs to be considered by the court because it had the potential to affect the application of the two tests (a) and (b) in s.193(7) (see [28] above). The officer’s report proceeded on the basis that the application was for a CLEUD relating to the whole of the 2.57 ha site, comprising storage of caravans on the cross-hatched area and a “caravan site” on the remainder. In other words, that report treated the application as seeking a CLEUD in the terms of the certificate granted on 1 August 2008. But the application could be read in other ways. A second reading is that it applied for the certification of something less, namely just the storage of caravans on the hatched area. A third possibility was that the application sought certification of the caravan storage use and also a caravan site use for up to 5 caravans certified by an “exempted organisation”, for example a recognised caravan club (see below).[66]If the CLEUD application was for the second or third alternatives, then it could be said that the authority made a mistake in granting the CLEUD. Undoubtedly, the report did not consider these matters and it did not explain the implications for the availability of the power to revoke. The question for the court is whether in the circumstances of this case the officer’s report ought to have identified these matters as issues for the Board to consider and resolve, along with their effect on the application of s.193(7).[67]Officers from the NPA’s enforcement team visited Mr Cox’s site on 7 March 2007 following complaints about activities there. Car repairs were being carried out, over 20 caravans were stored and there were more caravans on an adjacent field. NPA’s enforcement officer wrote to the owner of Vernon Dene on the following day referring to the car repair use, multiple occupancy of the bungalow and the storage (but not the occupation) of caravans. The Authority enclosed the application forms for an application for planning permission to be submitted so that it could consider whether the uses could be regularised. The letter explained that the NPA would also consider whether to take enforcement action.[68]On 5 April 2007 enforcement officers from the NPA met Mr Cox at the authority’s offices to discuss the letter. There is a helpful note of the meeting. Mr Cox explained that multiple occupancy had ceased and car repairs would come to an end in June that year. He also told officers that a mobile mini-crusher was simply kept on site for use elsewhere for the crushing of concrete and rubble. No waste was brought to the site. An area was being turned back into a paddock for Mr Cox’s horses. He also identified over 20 caravans as being stored on the land. Officers responded that the use of a residential curtilage for that purpose was a material change of use requiring planning permission. That was the only breach of planning control referred to by the officers. Mr Cox responded that the caravan storage use had subsisted for over 10 years and that he wished to apply for a CLEUD for that purpose.[69]In addition, the officer’s note recorded Mr Cox as saying that the field adjacent to his property “is used as a camping and caravan site which he claims is certified by the camping and caravan club”. During the hearing before us this was taken to be a reference to s.2 and para.5 of the First Schedule to the 1960 Act which exempts from the requirement to obtain a caravan site licence under that Act from the local authority, land the subject of a certificate issued by an “exempted organisation” (see para.12 of the First Schedule). This refers to land approved for the stationing of up to 5 caravans for the purposes of human habitation for recreational use by members of that organisation.[70]In addition, part 5 class A of schedule 2 to The Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596) grants a permitted development right for a caravan site which falls inter alia within para.5 of the First Schedule to the 1960 Act. That permitted development right can be traced back to the date upon which caravan site licensing under the 1960 Act came into force (see e.g. The Town and Country Planning General Development (Amendment No. 2) Order 1960 – SI 1960 No. 1476).[71]The effect of Mr Cox’s statement to the enforcement officers was that he had planning permission for a certified caravan club use on one field for up to 5 caravans. From the documents before the NPA it does not appear that the authority ever disputed or questioned what Mr Cox said about this. Unless there was evidence of Mr Cox changing his position, the view might be taken that he did not assert that he had been using nearly the whole of the 2.57 ha site as a caravan site and had been doing so for 10 years.[72]Consistent with this analysis, on 16 April 2007 the NPA enforcement team sent Mr Cox a form so that he could apply for a CLEUD in relation to the caravan storage use on part of the site, if he could substantiate 10 years’ use for that purpose. The NPA did not raise any issues with regard to the other activities on the site such as any stationing of caravans for human habitation.[73]In file notes dated 20 April 2007 the NPA’s enforcement team expressed the view that there was no breach of planning control in relation to the storage of the mobile mini-crusher and the occupation of the bungalow.[74]Mr Cox submitted an application form for a CLEUD dated 4 July 2007. It seems to have been received by the NPA about a month later. At that stage SI 1995 No. 550 allowed such an application to be made on a form provided by a LPA. Subsequently the Order required applicants to use a form published by the Secretary of State. But some of the questions in the form provided by the NPA to Mr Cox were not very clear.[75]Question 3 asked the applicant to give the address or exact location of the land to which the application related and to indicate the boundary of that land by a red line on a plan. Mr Cox answered Vernon Dene. His plan showed an arrow pointing to a bungalow marked Vernon Dene. It also showed the area for the storage caravans (when read with the answer to question 13). The plan also referred to a total area of 2.57 ha, but the plan with its site boundaries edged in red was too small to show the full extent of those boundaries.[76]Question 5 asked whether the application was for an existing use, an existing operation, or an existing use, operation or activity in breach of a condition in a planning permission. Mr Cox ticked box 5(a) for “existing use”. Question 6 was linked directly to question 5. It asked:
“If the application is for an existing use and you have ticked box 5(a) describe fully the exact nature of the use (this should not be a general description such as ‘industrial’).”
To that precise question, Mr Cox answered:
“Storage of touring caravans.”
Questions 7 and 8 were directed at those who had ticked one of the other alternative boxes in question 5 to do with operational development or a breach of condition. Thus, questions 3 to 8 (including question 4 relating to ownership) read as a self-contained set of questions.[77]Question 9 was then a potential source of confusion:
“If there is more than one existing use of, or operation or activity on, the land at the date of this application, describe fully each of them and, where appropriate, show to which part of the land each use, operation or activity relates.”
Perhaps the draftsman had in mind art.24(3) of the 1995 Order (see [32] above). Unfortunately, question 9 did not refer explicitly to questions 5 to 8 or to the answers which had already been given to those questions. It might be said that question 9 did not indicate that the answer given at that point might be treated as defining the scope of the application and so might be taken to modify any answer already given to question 5. At this point Mr Cox answered “touring caravan site and touring caravan store” without any further explanation. On one view he might have been referring to the certified caravan club usage which he had described in April 2007 to the enforcement team, but he might not have been asking for that to be included in the CLEUD, given that the enforcement team does not appear to have been concerned about any such use.[78]Questions 10 and 11 then asked when the use or activity began, or the operation was substantially completed, and the grounds upon which a certificate of lawfulness was sought, without tying the question to either the answers to questions 5 to 8 or the answer to question 9. Not surprisingly perhaps, Mr Cox said that the use began before 1991 and had subsisted for more than 10 years without saying whether he was referring to the use in answer to question 6 or the uses in answer to question 9.[79]Mr Cox provided no supporting information, but under question 12 said that he could provide further confirmation “if required”.[80]On 23 July 1997 the enforcement team sent a chasing letter about the submission of an application for a CLEUD in relation to the storage of caravans said to have occurred for more than 10 years. The letter stated that if Mr Cox did not respond within 14 days the NPA’s Solicitor would be requested to proceed with the service of an enforcement notice requiring those caravans to be removed.

The process leading to the CLEUD

[81]There is a computer record of a planning officer, Ms Liz Young, visiting the site on 28 August 2007 in connection with a CLEUD application “for use of land for storage of touring caravans”. There is no note of the visit or any discussion which may have taken place on site.[82]On the same day as the site visit Ms Young, “the case officer”, sent a “consultation briefing” seeking the views of Sopley Parish Council. Once again the application was said to be for a CLEUD for the “use of land for storage of touring caravans”. It was said that the proposal seeks to regularise what is said to be an “established use”. The briefing stated that the officer’s comments represented the “initial issues” she had identified following a site visit. We do not have a copy of any response from the Parish Council.[83]Ms Young sent a memorandum dated 10 September 2007 to Ms Julia Mutlow, a Senior Solicitor at the NPA who was handling the application. The document is not available but it appears to have set out Ms Young’s views on why the application for a CLEUD should be approved. Ms Mutlow disagreed, because she considered that no evidence had been submitted in support of the claim made by Mr Cox, a view which is not at all surprising. She suggested that the NPA had two options: either(1) to request Mr Cox to supply evidence to support his application and address the “contrary issues” on the file which related to “other activities” being carried out on the site, or(2) to refuse the application. We do not know which file Ms Mutlow was referring to (including whether it was the enforcement file) or the source of the reference to “other activities”. It could have been a letter from Mrs Higgins, a local resident, who had made comments on the application for a CLEUD. It could have been the site visit by Ms Young on 28 August 2007.[84]On 12 November 2007 Ms Young and Ms Mutlow agreed to follow option (1). Accordingly, on 14 November 2007 Ms Mutlow wrote to Mr Cox informing him that she was to determine his application. She described the application as being a certificate for the use of “the land in question” for “storage of touring caravans and as a touring caravan site”. It does not appear that Mr Cox had submitted any further information at that stage and so that description simply referred solely to one part of the application form, the answer to question 9. Ms Mutlow did not query the extent of the application land, the relationship between the answers to questions 5, 6 and 9 and in particular the extent of any claimed use rights as a “caravan site”. This may well have been because she clearly stated that she was not satisfied that Mr Cox had discharged the onus on him to demonstrate that any claimed use rights had subsisted for at least 10 years and, that if he did not do so within 21 days, she would determine the application, presumably by refusing it.[85]There is no evidence as to whether Mr Cox replied at that stage. On 3 April 2008 Mrs Higgins rang the enforcement team asking them to keep an eye on the site. On 11 April 2008 an officer in that team wrote to a local resident, Mrs Treleaven, to say that the NPA would look into possible breaches of planning control which according to the heading related to use of the site for the storage of caravans and cars. Some photographs of the site were taken on 22 April 2008 by an enforcement officer. It appeared that the site had been exposed to view from the highway by clearance work carried out by an electricity company. The concerns raised related to “unauthorised storage and an untidy site”.[86]But it would appear that the visit on 22 April 2008 prompted Mr Cox to ring Ms Young on 29 April. A letter from Ms Mutlow on 9 May 2008 then records that Mr Cox was “planning to provide further information” in response to her request dated 14 November 2007.[87]On 12 June 2008 Ms Mutlow sent a memorandum to Ms Young enclosing the information supplied by Mr Cox and saying that it “did not provide a great deal more clarity”. The NPA has not retained that information. Ms Mutlow said that she was inclined to refuse the application, which was consistent with her earlier stance.[88]We have an attendance note of a discussion between Ms Mutlow and Ms Young on 24 June 2008. Ms Mutlow stated as follows:
“JPM discussing the application with Liz Young. Mr Cox had provided further limited evidence which coupled with the conversation that I had with him and explained that they had stored their caravan for well over 10 years. It appeared that the storages had been going on for some 10 years plus. I said that I would have liked detailed evidence. However I had no evidence to the contrary and therefore, on the balance of probabilities, It appeared that this use had been going on for the period claimed and therefore I had little evidence on which to refuse it. Furthermore, there was a letter from Mr and Mrs Higgins who lived close to the cottages and indicated that since Mr Cox purchased the property, caravans and boats had been stored on the land.”
This indicates that Ms Mutlow had a conversation with Mr Cox and that he was only claiming a lawful use which had accrued through 10 years’ use for the storage of caravans. There is nothing in the note to suggest that he had made any such claim in relation to a caravan site. The note contrasts with the letter Ms Mutlow had sent to Mr Cox on 14 November 2007 [84].[89]The note is surprising because, although the last paragraph indicates that the NPA’s Solicitor was moving towards issuing a CLEUD, on one view at least, she did not give a proper reason for reaching that decision. Ms Mutlow had previously said that Mr Cox submitted no or insufficient evidence in support of his claim. The following year she said that he had provided “limited evidence” in relation to the storage use. But Ms Mutlow considered that, in the absence of any evidence to the contrary, that she was unable to refuse the application, whereas the true question remained whether Mr Cox had produced sufficient evidence to discharge the burden of proof which lay on him. On the face of the documents we have, the answer would appear to have been “no”. In any event, event, even if Ms Mutlow thought that Mr Cox’s application gained some support from the letter sent by Mr and Mrs Higgins, that referred to use of land for caravan storage but not as a caravan site.[90]On 1 August 2008 the CLEUD was issued and signed by Ms Mutlow. The CLEUD applied to the whole of the land edged in red on the certificate plan, the 2.57 ha site. It declared that the use of the cross-hatched area was lawful for the storage of caravans and the remainder “as a caravan site”.[91]It appears from two notes on the enforcement file in early August 2008 that that file was to be kept open until the application for the CLEUD had been determined. The notes record that “the site has been known as a campsite” referring to correspondence with New Forest District Council in 1996 and that a CLEUD had been granted for a use “for storage of touring caravans” with no mention of use as a caravan site. Because the NPA concluded that there was no breach of planning control, the file was closed and local residents were informed accordingly.

Issues raised by the judgment in the High Court

[92]I refer to parts of the judgment dealing with the scope of the application for a CLEUD and the contact between the NPA’s enforcement team and CLEUD team during the application process. These are relevant to the issue of what the officer’s report to the Board should have covered (see Jay J at [144]).[93]The judge pointed out that the CLEUD certified as lawful the use of part of the 2.57 ha site for caravan storage and the remainder as a caravan site, “when strictly speaking Mr Cox had not made an application in those wide terms” [41].[94]In summary, the judge said at [146]-[148]:(1) Mr Cox did not claim on 5 April 2007 that he had a permission (which I take to refer to lawful use rights) for a touring caravan site over the whole of the site;(2) On that date the NPA’s enforcement officers advised him to apply for a CLEUD for the caravan storage use. It was not suggested that a CLEUD could be sought for the touring caravan site. That use had not covered anything like the whole site;(3) Mr Cox told enforcement officers that it was a “certified camping and caravan area” and a “[1979] document bears him out on that”, referring to a decision letter of a planning inspector dated 8 March 1979. The camp site occupied an area of 0.1 ha, not the greater part of 2.57 ha (see [9] and the chronology agreed between the parties). The judge regarded the limited scope of that certified site as important;(4) According to the form, the application related only to the storage of caravans in the hatched area, reflecting the advice Mr Cox had previously been given by the NPA. In response to the requirement under question 9 of the form to describe other uses fully, Mr Cox mentioned the certified touring caravan site, but the accompanying plan appeared to indicate a wider area. The enforcement officers had known that the caravan site use previously claimed had not related to the remainder of the whole site. In my judgment, those points represent a tenable view of the documents which the officer’s report ought to have drawn to the attention of the Board for its members to consider and determine.[95]At [154] the judge made a number of observations which for present purposes I need not go into, save only this:
“… it is highly unlikely in my judgment that Mr Cox told Ms Young and/or Ms Mutlow that the touring caravan site covered the whole of the Site, and later documentation supports that view.”
[96]At [157] the judge referred to Ms Mutlow’s letter of 14 November 2007 as treating the CLEUD application as relating to both of the uses identified under question 9 on the application form. The judge then said this:
“In my view, that was unduly generous to Mr Cox although it has no impact on the misstatement point. There could be a misstatement under section 9 of the application form regardless of the formal scope of the application.”
I respectfully disagree with this passage. As I have said, there is nothing to indicate that Ms Mutlow’s letter was based on any evidence. It simply represented her reading of the application form (and a departure from the way the form had previously been read). For the reasons I have already given, the scope of the application for a CLEUD was a material consideration which the NPA had to take into account when deciding whether the power in s.193(7) could and should be used. Whether Mr Cox made a material misstatement or withheld material information in response to question 9 needed to be considered having regard to the CLEUD for which Mr Cox was applying.[97]Section 191(4) of the TCPA 1990 enables a LPA to grant a CLEUD for the use described in the application or that description as modified or substituted by the LPA. But s.193(4) provides that a certificate may be issued for the whole or part of “the land specified in the application” or one or more of any uses specified in the application. The legislation does not suggest that a LPA can unilaterally enlarge the area of land for which a CLEUD application is made. Bearing in mind the onus placed on an applicant to demonstrate lawfulness, together with the risk of revocation of a certificate and criminal sanctions, it is for the applicant to decide whether the area of the application should be enlarged. An applicant may, or may not, ask the LPA to amend his application in that way. Such an amendment may then have implications for whether any further consultation needs to be carried out by the authority.[98]In any event, the judge’s observation at [157] about the letter of 14 November 2007 does not sit comfortably with his earlier statement at [148] that Mr Cox’s application was simply for storage of caravans on the hatched area of land and the answer to question 9 merely referred to the certified camping and caravan area. On this revised reading of the application, the application was being extended to embrace a caravan site use across the whole of the remainder of the 2.57 ha site. The court has been shown no evidence that any such enlargement of the caravan site use was raised by Mr Cox or discussed with him, or was the subject of a formal amendment or further consultation, for example with the Parish Council and local residents. However, given that the view expressed at [157] might have been tenable, this was a further issue which ought to have been explained in the officer’s report to the Board, for the members to resolve.

The judge then made the following observations at [158]-[161]:

“158. The written information which Mr Cox eventually produced did not in my view add to the evidential mix. I note Ms Mutlow’s characterisation of it. There was a telephone conversation between Ms Mutlow and Mr Cox, probably in June 2008, in which he gave her further information about the caravan storage use. The 24 June memorandum is likely to have been the only evidence that ever existed about that conversation. That memorandum is entirely silent about the separate touring caravan site. 159. It remains a (further) mystery why a CLEUD was issued in the broad terms it was. I can quite understand why, taking a benevolent approach, Ms Mutlow may have believed Mr Cox’s assertions about caravan storage, and there was some supporting evidence from the Higgins (not available) about that. However, there is nothing to suggest that Mr Cox provided satisfactory evidence relating to the touring caravan site use, and it is a very strong inference – even taking into account absent documents whose contents, logically, are unknowable – that he did not. I draw that inference both from what Ms Mutlow’s memorandum says and from the implausibility of Mr Cox telling so blatant a lie. 160. Mr Harwood’s submissions were predicated on the assumption that the NPA did not err in fact or in law in granting the CLEUD in August 2008. This led him to submit either that Mr Cox gave relevant information about the extent of touring caravan site use which persuaded Ms Mutlow or that the latter already knew from what Ms Young informed her that the inference to be drawn from the grey stippling on the plan was wrong. 161. I do not dismiss the second of these submissions in particular as weak or untenable; they do have some force. However, I have explained why each of these alternative inferences is unlikely, the first more so than the second. I have to say that the more probable inference is that the CLEUD team erred and that this certificate should not have been issued in the form in which it was.”
[100]In summary, the judge stated in those paragraphs that:(1) Even as late as June 2008, not long before the CLEUD was issued, Mr Cox was still only referring to the caravan storage use (and, I would add, Ms Mutlow’ assessment prior to the CLEUD related solely to that use);(2) Even allowing for any difficulty in drawing inferences about the contents of missing documents, there is a “very strong inference” that Mr Cox did not produce any or any satisfactory evidence to support the lawfulness of a caravan site use across the bulk of the 2.57 ha site. That is based upon Ms Mutlow’s memorandum of 24 June 2008 and “the implausibility of Mr Cox telling so blatant a lie”;(3) Mr Harwood’s case was predicated on the assumption that the decision to issue the CLEUD did not involve any error of fact or law. He submitted that Mr Cox or Ms Young must have given relevant information to persuade Ms Mutlow that there was a lawful caravan site use across the bulk of the whole site;(4) The judge considered that explanation unlikely, particularly the suggestion that Mr Cox had provided that information (see (2) above);(5) The more probable inference is that the CLEUD team erred in issuing the certificate with a caravan site use over the bulk of the site.[101]In my judgment, these points were obviously material considerations which should have been addressed in the officer’s report, a fortiori one which could be described as fair and balanced. This was necessary so that the members of the Board could reach their own independent views on these matters.[102]The judge’s comment about the implausibility of Mr Cox telling such a blatant lie strikes me as telling. Mr Cox would have known what he had told enforcement officers, namely that there had been a certified caravan club use on one field adjacent to his bungalow (see [164]) for up to 5 caravans. He would have appreciated that those handling the CLEUD application could easily contact the enforcement team, who were operating in parallel, to see what information they had. Mr Cox was told explicitly that the burden was on him to show the lawfulness of any use he relied upon based on 10 years’ use. He is likely to have been aware of the certificate he gave on page 4 of the application form that he had not supplied any false or misleading information or documents or withheld material information. He is also likely to have been aware of the warnings on the form about the risk of revocation and/or criminal sanctions if his certificate was incorrect. Again these were matters which, in my judgment, the members of the Board should have been asked to assess.[103]I turn to the second matter of interest, namely how the judge treated contact between the enforcement and CLEUD teams. The NPA submitted that there is no evidence that the latter would have been aware of the information obtained by the former. Accordingly, the NPA submitted that on the issue of whether Mr Cox withheld from the authority “material information” on his application for a CLEUD, it had been correct to treat the CLEUD team as having had no knowledge of what he had said to the enforcement team (see Ocado at [194]).[104]In summary, the judge concluded as follows:(1) It would be “reasonable to infer that some sort of discussion may have taken place between those responsible for the CLEUD application and the enforcement team. That would have facilitated the former’s work” [31];(2) Ms Young made a site visit on 28 August 2007 and it is a reasonable inference that at least some of what the enforcement officers knew was shared with the CLEUD team (i.e. by Mr Cox himself even if not by an enforcement officer) [130] and [133];(3) The issue of whether the knowledge of the enforcement team was shared with the CLEUD team was “important” [141];(4) Paragraph 4.9 of Mr Avery’s report to the Board opined that information known to the enforcement officers did not appear to have been shared with the CLEUD team. On this point the judge simply accepted Mr Avery’s statement that this would not have been standard practice and therefore his report to the Board was not inaccurate [170].[105]I disagree with the judge’s view summarised in [104(4)] above for the purposes of assessing whether Mr Avery’s report to the Board was fair and balanced and, in particular, whether it enabled the members to reach an independent conclusion uncontaminated by their officer’s appearance of bias. As the judge himself rightly said, “it would have made sense for the CLEUD team to have asked for the enforcement file or to have sent an email seeking a summary”.[106]All that the relevant part of Mr Avery’s first witness statement said (para.7) was that when a regularising application was received by the NPA, such as the CLEUD application in this case, it was standard practice for enforcement officers to “hold any further investigation and/or actions in abeyance pending the outcome of the regularising application”. An enforcement officer “will often stand back from an enforcement case… and leave it to the planning officer to determine the regularising application”. No doubt, but that did not amount to a statement by the witness that there was a standard practice that the information on an enforcement file would not be shared with the CLEUD team. Any such practice would not have accorded with the common sense position that the judge had previously taken (see [104(1)] above).[107]Given the appearance of bias, this is an example of an issue on which the members of the Board should have received independent advice. The judge’s resolution of the point turned on Mr Avery’s witness statement, which elsewhere in the judgment had been described as self-serving [26].[108]Paragraph 4.9 of the officer’s report to the Board merely said this:
“Thirdly, it is evident from notes (February 2007) and photographs (22 April 2008) taken by the Authority’s enforcement officer that the Authority was aware of other uses taking place on the site at the time of determining the CLU application. This information does not appear to have been shared with those officers determining the CLU application. Similarly, the Authority would have had access to aerial photographs at the time of considering the CLU application. That said, the onus is very much on the applicant to provide the correct information in support of any application for a CLU. Nor is the local authority obliged to exercise its powers to require more information to be provided in order to try and remedy deficiencies in the material submitted by an applicant.”
(emphasis added)[109]The words I have emphasised in that passage invited the Board to draw that conclusion as if to imply that it was based on some positive evidence, albeit unidentified. Plainly it was not. It was not even based on a standard practice. Indeed, if it had been, the members might well have raised concerns about it. Unfortunately, that critical sentence reinforces the appearance of bias and illustrates how it affected the decision-making of the Board. The sentence also stands in marked contrast to the following passage in Mr Avery’s letter to the appellant’s planning consultant dated 26 May 2024:
“It is not known how much of the earlier enforcement investigation was known to the Authority’s Solicitor at the time.”
[110]The report should instead have said that no evidence had been found as to whether the information had in fact been shared with the CLEUD team, but invited the members to consider inter alia the common sense point to which the judge referred (see [104(1)] above). This criticism is all the more troubling, because it is linked to the failure of the officer’s report to deal at all with the visit by Ms Young to the site on 28 August 2007 and the information she could have obtained on that occasion about activities on the site (see below).

Materials before the Board at its meeting on 18 October 2023

[111]After the hearing counsel produced a helpful note on the materials which were before the Board when it decided to revoke the CLEUD.[112]On 13 January 2023 Mr Avery sent a letter on behalf of the NPA to the appellant under article 39(15) of the 2015 Order giving it an opportunity to make representations on a proposal to revoke the CLEUD and the accompanying pack of material, which included a statement by Mr Avery dated “January 2023”. That statement was also placed before the Board at its meeting on 18 October 2023 without any changes.[113]Mr Avery’s statement did not address Mr Cox’s answers to question 6 of the application form in detail, in particular relating it to question 5(a) (“the application is for…”). Instead, the answer to question 9 was treated as “very significant” (see 5.6 to 5.8). The statement did not identify for the Board the different readings of the application form which might be adopted or advise the members that they needed to resolve this issue and its implications for the application of the tests in s.193(7).[114]Instead, the members were advised that the application stated that the whole of the 2.57 ha site, apart from the storage area, had been used for a touring caravan site (5.21). This then formed the basis for the 5 grounds upon which the statement said that revocation was justified:(1) False statement by Mr Cox that the whole of the 2.57 ha site apart from the storage area had been used as a caravan site;(2) Mr Cox’s false statement that no other use had been made of the site (such as the storage of a range of items including trailers, horse boxes, boats, cars, containers, plant and machinery and tools);(3) Mr Cox’s withholding of information that parts of the whole site had been used for grazing or pasture;(4) Mr Cox’s withholding of information that part of the site was not used as a touring caravan site;(5) Mr Cox’s withholding of information about the number of caravans on the caravan site. It will be noted that a number of these grounds overlapped. Essentially they were making much the same point.[115]Paragraph 4.11 of Mr Avery’s statement referred to the file note dated 24 June 2008 which had addressed evidence on the caravan storage use. But Mr Avery did not invite the members to consider the absence of any record of Mr Cox having said during meetings, with the enforcement team or the CLEUD team, that the bulk of the site was used as a caravan site. Paragraph 4.3 referred to the 1979 planning appeal decision in which it was clear that at that time the site was only operated as a certified club caravan site for up to 5 caravans. However, the statement did not reveal to the Board that Mr Cox had told the enforcement team that that had continued to be the case.[116]Viewed overall, Mr Avery’s statement presented a case for revoking the CLEUD without pointing the members to material flaws or weaknesses in that case which they ought to have considered.[117]The NPA’s letter to the appellant of 13 January 2023 also enclosed five statements by local residents (with their names redacted at that stage) dealing with the previous use of the 2.57 ha, including the extent to which it had been used for grazing and pasture.[118]On 10 February 2023 Laister, planning consultants, submitted representations on behalf of the appellant. At paras.21-23 the consultants said that the application sought a CLEUD for the storage of touring caravans and referred to the answer to question 9 as a “note” on existing uses (without suggesting that that defined the scope of uses to be certified as lawful). However, the CLEUD differed from the application by including a caravan site for the remainder of the 2.57 ha site in addition to the caravan storage area.[119]Laister’s letter did not suggest any explanation as to how the application could have been altered in that way. There was no indication that the change was sought by Mr Cox. I gain the impression that the appellant wished to avoid any implication that the CLEUD had been granted unlawfully.[120]The letter from Laister implicitly raised the issues(1) what was the use which Mr Cox applied to the NPA to certify as lawful and, depending upon the answer to that question, a potential corollary(2) whether the decision to grant the CLEUD had been based on a misunderstanding by the NPA about the scope of the application, as opposed to a material statement or withholding by the applicant falling with s.193(7).[121]The letter from Mr Avery in reply dated 26 May 2023 did not address the points made by Laister nor the issues summarised in [119]-[120] above.[122]On 8 September 2023 the appellant’s solicitors, Jones Day made submissions which had been prepared by Mr Harwood. Paragraphs 31 to 32 raised essentially the same issues as those arising from Laister’s representation.[123]In a letter dated 3 October 2023 Mr Avery responded to the representations made by Jones Day. This letter too did not deal with those issues.[124]However, page 2 of the letter did refer once again to the planning appeal decision letter in February 1979 and in particular to this passage from the planning inspector’s decision:
“The appeal holding comprises some 2.6ha, in the south-west corner of which is the bungalow, dating from around 1930, occupied by the appellant. The greater part of the holding is used as grazing land. Near to the northern boundary of the site is a building constructed in concrete blocks, and the area immediately adjacent to this building has been used for a number of years as a certified location for up to five touring caravans.” before going on to add this comment: “Certified Location sites (for up to five touring caravans) do not require planning permission and there is therefore no evidence of a caravan use (requiring planning permission) dating from this time.”
[125]On page 3 of the letter, Mr Avery referred to the enforcement officer’s note of his visit on 5 April 2007 during which Mr Cox described his caravan storage use. But Mr Avery did not go on to mention Mr Cox’s statement that he used a field as a camping and caravan site certified by a club, although on one view this was the same land use as the 1979 use referred to in the planning inspector’s decision letter. This raised the issue for the Board whether Mr Cox had answered question 9 on the application form by referring to the same certified caravan club use as he had described to the enforcement officers in April 2007 a few months earlier, and not to a material change in the use of the overall site. Regrettably, this strikes me as showing a distinct lack of objectivity on the part of the officer.[126]This approach was carried through to the officer’s report to the Board’s meeting on 18 October 2023. The report is of great importance, because the members passed a resolution to revoke the CLEUD in accordance with the officer’s recommendation for the reasons he had set out in that document.[127]The Board was not supplied with all of the documents which had been annexed to Mr Avery’s statement. For example, they were not given a copy of the whole of the application form dated 4 July 2007. Mr Avery made a presentation to the members which included question 9 and its answer extracted from the application form, but not questions 5 and 6, which were at least as important. The members did not have the officer’s notes in 2007 and 2008 to which I have referred nor an adequate summary of their content.[128]Paragraph 2.12 contained a partial summary of the notes of the enforcement officer visits, with a reference to “other uses” taking place on the site, but not the club caravan site use pointed out by Mr Cox. The report did not advise the Board of the possible significance of that statement, namely that Mr Cox had not applied to the NPA to certify a caravan site use across the bulk of the site. The report did not advise members that that was a matter which they should determine for themselves and potentially its implications for the application of s.193(7) in this case.[129]Paragraph 3.9 of the report quoted the summary section of the letter for the appellant from Laister dated 10 February 2023 and treated those as the main points being raised. The members were not provided with copies of the letter itself. The report did not refer to the points made in paragraphs 21 to 22 of the letter and the issues they raised (see [118]-[120] above) and did not provide an analysis and response. The members were provided with the letter from Jones Day dated 8 September 2023 which made similar points (see [122] above). But here too the report did not advise the members on the implications and what they needed to consider and determine or provide any analysis. The members were given a copy of the NPA’s response dated 3 October 2023 but that did not address the issues (see [123]-[125] above). Paragraphs 3.13 to 3.15 do not overcome these deficiencies in the report.[130]The nearest the report came to addressing such matters was in paragraph 4.8:
“Secondly, the answers to the questions on the application form are inconsistent in so far that in one section of the form the existing use is described as ‘storage of touring caravans’ and in another it is stated as ‘touring caravan site and touring caravan store’. It appears that officers chose to accept the latter description as this is what was shown on the accompanying site plan which annotated the whole site as a ‘campsite’ with a smaller area shown as a storage area.”
[131]It was unacceptable for this important issue to be dealt with so peremptorily. It was asserted that there were inconsistent answers in the application form, without the members being shown the relevant part of the form dealing with questions 4 to 6 (and also 7 to 8). Those members who went through Mr Avery’s statement would have found slightly more information in para.5.6, but even then that summary did not include the wording of questions 5 and 6 or draw specific attention to question 5(a). The report and its accompanying materials should have enabled the members to consider those matters for themselves with objective guidance on competing readings of the document. On at least one view there was no inconsistency.[132]Paragraph 4.8 of the officer’s report simply stated, without any supporting evidence identified, that the CLEUD officers selected the description in response to question 9 on the application form because it tied in with the accompanying site plan which annotated the whole site apart from the storage area as a “campsite”. The problem with that approach is that a caravan site is a term of art (see [4] above) and cannot be equated to a camp site. For example, the permitted development right in Part 4 Class BC in schedule 2 to the GPDO 2015 (“temporary recreational campsites”) excludes the siting of caravans.[133]Furthermore, para.4.8 of the report ignores the evidence from the 1979 appeal decision and from the enforcement officers regarding Mr Cox’s description of the caravan club use. These were matters which the report ought to have assessed so that the members could consider and determine for themselves the issues to which para.4.8 was only a partial response.[134]Jones Day sent a letter dated 17 October 2023 to each member of the Board, criticising paras.4.8 and 4.9 of the officer’s report and the failure to provide the members with the documents from 2007 to 2008.[135]It is common ground that the officer’s report and the other material placed before the members for their meeting on 18 October 2023 did not address Ms Young’s site visit on 28 August 2007.[136]In paras. 89 to 90 of the Amended Statement of Facts and Grounds, the appellant pleaded that the use applied for in the CLEUD application was only for the storage of caravans on part of the land, and not a caravan site. At para.91, however, the appellant alleged that the application was amended at the instigation of the NPA’s Solicitor to address the planning use of the wider site. Presumably, this suggestion was made so as to align with the terms in which the CLEUD was granted on 1 August 2008. The problem is that no evidence has been produced to show that any such amendment was in the mind of the NPA’s Solicitor or Mr Cox, or that it was actually made, with the procedural consequences which would have ensued.[137]As I have said (see [93]-[94] above), the judge reached the same conclusion as in the appellant’s Amended Statement of Facts and Grounds, namely, that the application was simply for a CLEUD in relation to the storage of caravans. He did not accept the appellant’s invitation in its pleading to treat the application as having been amended. However, para. 21 of the appellant’s skeleton in support of the application for permission to appeal and para. 37 of its skeleton on the appeal continue to maintain that the application for the CLEUD fell to be considered on “the narrow basis of the application for caravan storage”, but without any suggestion that that application was subsequently widened by amendment.[138]The appellant now appears to say that the judge ought not to have considered the scope of the application because it was not covered in the briefing material put before the members. But here the appellant misses the point. First, as I have said, the issue was raised and needed to be addressed. Second, the judge explained at [144] that he was not usurping the fact-finding role of the NPA. Instead, he was assessing whether the officer’s report had been fair and balanced, so as to avoid the members’ decision being contaminated by the officer’s appearance of bias. In carrying out that exercise the court was bound to consider whether the report failed to deal with considerations which needed to be addressed.[139]In its pleadings and skeletons the NPA did not respond to the points raised above, just as the officer failed to address those matters in the briefing provided to the Board.

Ground 5

[140]The judge made a number of findings showing apparent bias on the part of Mr Avery ([123]-[124]) which, given that they are not criticised by the NPA in this appeal, I can summarise briefly:(1) The officer had attended a private meeting at an objector’s home without setting out in advance what could and could not be discussed and noting afterwards what had occurred;(2) The officer had sent updates on what was happening to the pro-revocation side and not the appellant, including matters considered by the NPA confidentially in part of a meeting (referred to as “Part 2” on the agenda) from which the public was excluded (in accordance with s.100A and s.100I of the Local Government Act 1972);(3) The officer had sent his draft report for the Board to the pro-revocation side and not the other and had altered the draft in accordance with their suggestions;(4) The officer had provided material to the pro-revocation side on a confidential basis;(5) The officer deleted one important email chain inappropriately;(6) In a sensitive case where Mr Avery considered that the NPA’s decision would be challenged by judicial review by whichever side “lost”, he was obliged to maintain a position which was above the fray and failed to do so.[141]After allowing for points which pointed against an appearance of bias in Mr Avery’s case ([125]-[126]), the judge concluded that if Mr Avery had been the “ultimate decision-maker” in this case, he would have found apparent bias [127].[142]As I have said, it is necessary for the court to determine whether the Board’s decision was untainted by the appearance of bias on Mr Avery’s part. This is bound up with the issue whether he produced a report which was fair and balanced and legally adequate to enable the members to take independent decisions on all the main issues needing to be addressed (see [40]) to [63] above).[143]I have already identified those main issues. In summary, they fall under the following headings:(1) The scope of the application for the CLEUD and the implications of the determination of that issue on the application of s.193(7) in this case ([64]-[66]);(2) What were the NPA’s enforcement officers concerned about, what did Mr Cox tell them and what bearing did these matters have on Mr Cox’s decision to apply for a CLEUD? ([67]-[73], [80], [85] and [91]);(3) What did Mr Cox apply for in his application form? ([74]-[79]);(4) During the CLEUD process what use did the officers think the application asked to be certified? ([81]-[82], [84], [88] and [90]);(5) During the CLEUD process what approach did NPA’s officers take to the adequacy of the information provided by Mr Cox to support his application? ([83]-[84] and [86]-[89]);(6) While the application for a CLEUD was awaiting determination, how did Mr Cox describe the use of his land for the purposes of the 10 year rule for the accrual of lawful use rights? [88];(7) Issues identified in the judgment of Jay J ([92]-[96] and [99]-[102]);(8) Was there any application to amend the scope of the CLEUD application or other procedural step to alter the application so as to seek a CLEUD for the uses in fact certified? ([97]-[98]);(9) To what extent would members of the CLEUD team have been likely to become aware of information obtained by the enforcement team? ([103]-[110])(10) What documents or information was missing from the NPA’s files and what bearing could that have had on the application of s.193(7)? There is some overlap between heading (7) and other headings.[144]From my review of the materials before the Board at its meeting on 18 October 2023 ([111 to [135]), I conclude that the members did not receive a report which was fair and balanced so as to avoid their decision to revoke the CLEUD being tainted by the apparent bias of Mr Avery. Those materials did not identify the issues arising under the headings summarised in [143] above as matters which the members needed to assess, nor did they provide guidance, in particular objective guidance, on how those issues should be considered, or their implications for the exercise of the power under s.193(7) in this case. I therefore disagree with the judge at [125] when he said that the “report did no more than identify the issues that they should be addressing.”[145]In addition, the materials before the Board did not address the visit to the site by Ms Young on 28 August 2007. The judge rejected Mr Avery’s evidence that this was simply a visit to fix a site notice for the purposes of public consultation on the application. Even if that was one of the purposes of the visit, it was also an obvious opportunity for Ms Young to observe how the land was being used. The visit took place only 4 to 5 months after the site meeting between Mr Cox and the enforcement team. The judge considered that it was a reasonable inference that at least some of what the enforcement officers had previously been told by Mr Cox would have come to the attention of Ms Young. Furthermore, the judge concluded that it was implausible that Mr Cox would have told the CLEUD team a blatant lie to the effect that all of the site, apart from the caravan storage area, had been used as a caravan site. The officer’s report ought to have told the members that they needed to consider the site visit by Ms Young in August 2007 in the context of the other events in the chronology. Specifically they should have been told to consider the extent to which it was likely that Ms Young obtained information on that visit undermining or supporting the arguments that the tests in s.193(7) were satisfied.[146]In my judgment, the failure of the officer’s report to identify and address these issues means that it was not fair and balanced. It did not enable the members of the Board, who were reliant on the briefing they received from Mr Avery, to reach independent views on issues which they needed to consider and resolve, and which were untainted by the apparent bias of Mr Avery. The process was therefore unfair and substantially prejudiced the appellant in its opposition to the revocation of the CLEUD.[147]I would also approach this part of the appeal on the basis that the issues I have identified were obviously material considerations that the NPA was legally obliged to consider and resolve (R (Friends of the Earth Limited) v Heathrow Airport Limited [2020] UKSC 52; [2021] PTSR 190 [116]-[120]). Because these issues were not addressed in the briefing materials, the NPA wrongly failed to take them into account. Alternatively, it is plain that the NPA did not discharge its duty to give reasons in relation to those main issues.[148]The judge considered the fairness and balance (and completeness) of Mr Avery’s report at [162]-[172]. He concluded at [163]-[164] that grounds (2) to (5) of the NPA’s reasons for revoking the CLEUD (see [114] above) were, for one reason or another, bad. As a result the appellant submits that the decision to revoke cannot stand. However, the judge said that the first of the five grounds was a sufficient legal foundation on which to make the decision to revoke. Moreover, the NPA has filed a respondent’s notice in which it seeks to uphold the judge’s order on the basis that the NPA’s grounds (2) to (5) were legally unimpeachable.[149]I have difficulty in accepting the judge’s view that the NPA’s ground(1) was a freestanding basis for its decision to revoke and so the errors he found in grounds(2) to (5) were immaterial. The officer’s report to the Board did not treat ground (1) in that way. Furthermore, it is apparent from Mr Avery’s statement in January 2023 as well as his report that the grounds were overlapping. Certain factual matters were relevant to more than one ground. On the other hand, I also have difficulty in accepting the judge’s view that all of grounds (2) to (5) were legally flawed.[150]However, I see no need to delve into these additional matters. The problem facing the NPA is that each of the five grounds upon which it sought to revoke the CLEUD is vitiated by the failure of the briefing to the Board to identify main issues which in this case the members were required to assess in order to be able to consider lawfully the availability and use of the power in s.193(7).[151]The judge’s reasoning at [166]-[170] considered paras. 4.6 to 4.10 of Mr Avery’s report which briefly covered four “shortcomings” in the NPA’s case. But in my judgment that section of the report did not deal with main issues which the judge had identified earlier on in his analysis and which I have endorsed and supplemented. In addition, I respectfully disagree with his views on certain matters (such as [169]-[170] on paras 4.8 to 4.9 of the report) for reasons set out above. I note that the judge referred at [171] to Mr Avery’s statement in January 2023, but that also failed to grapple with the main issues I have identified.[152]For all these reasons I would uphold ground 5 of the appeal.

Grounds 2 and 4

[153]It is convenient to deal with grounds 2 and 4 next as these were raised as additional complaints of procedural fairness.[154]In so far as ground 2 complains that certain documents were not put before the NPA’s Board when it decided to revoke the CLEUD, I have already addressed that subject under ground 5. In so far as ground 2 complains that materials were not provided to the appellant before that decision was taken it overlaps with ground 4 and adds nothing of substance. The residual criticisms have been answered by the NPA in its skeleton at para. 56.

The judge dealt with ground 4 at [111]-[113], describing it as forming part of “the chaff”.

[156]In summary, the appellant complains that there was a considerable delay in the NPA providing unredacted versions of the witness statements; material from the enforcement files in 2007-8 was withheld, representations by Lord Manners and others to the NPA were withheld; the NPA and its planning committee considered the revocation issues on three occasions in confidential sessions in Part 2 of the relevant agenda; and information about those confidential sessions was disclosed to Lord Manners but not to the appellant.[157]It is well-established that there is no breach of the duty to act fairly unless the error of the decision-maker has caused substantial prejudice to the claimant (Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1595; George v Secretary of State for the Environment (1979) 77 LGR 689; Hopkins Developments at [49] and [62]). So in Malloch Lord Wilberforce stated that “[a] breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure”. Similarly in George Lord Denning MR stated“there is no such thing as a ‘technical breach of natural justice’… One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as the result of the mistake or error that has been made ”.[158]Mr Findlay demonstrated that most of the material was provided to the appellant in sufficient time for it to be able to submit whatever representations it wished to make before the Board reached its decision on whether to revoke the CLEUD. It was not suggested that other material subsequently disclosed in response to the claim for judicial review, notably third party correspondence, revealed anything about which the appellant would have made further significant representations on whether the CLEUD should be revoked. There was nothing untoward about the reasons for the NPA’s decisions to discuss certain matters in confidential parts of its meetings. That is a common practice authorised by the Local Government Act 1972 where, for example, an authority wishes to receive privileged legal advice.[159]The appellant has failed to show that it has suffered any substantial prejudice by virtue of any of the matters raised under ground 4. However, I would not describe the complaints raised under ground 4 as “chaff”. While they do not support a freestanding ground of challenge that the defendant acted in breach of its duty to act fairly, they do contribute to the evidence upon which the judge rightly concluded under ground 5 that there was an appearance of bias on Mr Avery’s part.[160]For these reasons I would reject grounds 2 and 4 of the appeal.

Ground 1

[161]After having carried out a thorough review of the material which was before the Board (and also before officers) I am unable to accept the appellant’s submission that because some information was no longer available to the NPA, and its content was unknown, there was no evidence upon which the NPA could decide that the power under s.193(7) to revoke the CLEUD was available.[162]The NPA had information from local residents as to how they say the land had been used before the grant of the CLEUD. They also had statements which Mr Cox had made to officers and Ms Mutlow recorded that when asked Mr Cox had provided limited information. There was also the site visit by Ms Young on 28 August 2007 and other material from which inferences could be drawn. The NPA was entitled to assess all the relevant material, in the context of the statutory scheme (as explained in Ocado and above), provided that it properly addressed the scope of the application made by Mr Cox and the additional main issues referred to above. That exercise has not yet been carried out by the NPA.[163]For these reasons I would reject ground 1.

Ground 3

[164]I have dealt with the substance of this ground at [148]-[150] above. Accordingly, I would reject ground 3.

Conclusion

[165]I return to my observation at the beginning of this judgment that this is a most unusual case. It remains a mystery as to why the CLEUD was granted in terms which, on one view, were much broader than the scope of the application and why this was not queried or challenged at the time. There is uncertainty as to what information Mr Cox provided while his application was under consideration and what information was obtained by the NPA’s officers. Unfortunately, documents which could have thrown light on these and other questions have not been retained, assuming, of course, that they were created in the first place. When it came to the process for gathering information and representations on a proposal to revoke the CLEUD and for the taking of the decision itself, this unusual set of circumstances required careful handling. Although the officer directing the process was entitled to gather information from local residents as well as from the current landowners, he had to remain above the fray. Given that the issue was whether the landowner’s certificated planning rights should be removed, the officer had to avoid behaving in a way which appeared partisan. He had to remember that in due course he would need to present an objective report addressing all the matters which had to be considered by the Board. Regrettably that did not happen and there plainly was an appearance of bias on the officer’s part which tainted that report and the reliance upon it by the members of the Board.[166]For the reasons set out above I would allow the appeal under ground 5.[167]I agree. Anything I might add runs the risk of detracting from the full force of Holgate LJ’s analysis and conclusions, which I consider to be compelling. The only observation I would offer is in relation to [159], which I wish expressly to endorse. I would not have used the word “chaff” as did the Judge. To my mind, the withholding of representations by Lord Manners and others to the NPA and disclosing information from the confidential sessions to Lord Manners but not the appellant are consistent with and contribute to the accumulation of evidence on the basis of which the Judge rightly identified an appearance of bias on the part of Mr Avery. The use of the word “chaff” does not begin to reflect the seriousness of what happened. I echo the opening words of Holgate LJ’s judgment: it is to be hoped that the circumstances of this case will not be repeated.[168]I also agree with the judgments of Holgate LJ and Stuart-Smith LJ.[169]I agree fully with the analysis of Holgate LJ as to why the officer’s report was not ‘fair and balanced’ and as a consequence as set out at [146] above, did not enable the members of the Board, who were reliant on the briefing they received from Mr Avery, to reach independent views on issues which they needed to consider and resolve, and which were untainted by the apparent bias of Mr Avery.[170]I would however wish also to endorse the concern expressed by the judge at [123] of his judgment and summarised by Holgate LJ at [140] above. As Holgate LJ has noted, there is no appeal from the decision to revoke a CLEUD, a decision which is likely to have a deleterious and significant impact upon the land owner. A decision to revoke is not made by reference to planning policy but largely, in the application of s193(7), by reference to the circumstances which led to the granting of the original certificate. It is as Jay J said a ‘sensitive, unusual and complex decision making process’ and it is accordingly of the utmost importance that the investigations which proceed the compiling of the officer’s report are seen to be scrupulously fair. That was not as the judge found, the case here.

Cited in 1 later judgment