Avon Estates Ltd v The Welsh Ministers & Anor [2010] EWHC 1759 (Admin)

Case No CO/1646/2010[2010] EWHC 1759 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Cardiff Civil Justice Centre
2 Park Street
Venue CardiffDate Thursday, 17 th June 2010
CF10 1ET
Before
THE HONOURABLE MR JUSTICE BEATSON FBA
Between
AVON ESTATES LIMITEDApplicantTHE WELSH MINISTERS1 st RespondentCEREDIGION COUNTY COUNCIL2 nd Respondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Young (instructed by Clarke Wilmott LLP) appeared for Claimant.Mr Moffat (instructed by Treasury Solicitors) appeared for 1 st Respondents.Mr Stinchcombe (instructed by Ceredigion County Council) appeared for 2 nd Respondents.
Judgment
[1]This is an application pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"). Avon Estates Limited ("the applicant") asks the court to quash two decisions dated 2 December 2009 by Mr Fussey, an Inspector appointed by the Welsh Ministers concerning a site, Gilfach Holiday Village in Ceredigion, which it owns. The decisions were in respect of two appeals, Appeals A and B under section 195 of the 1990 Act against the deemed refusal of an application for a Certificate of Existing Lawful Development ("CLD") and a separate application for a Certificate of Proposed Lawful Use or Development ("CPLD").[2]The site was originally a caravan park. Between 31 July 1964 and 30 July 1973 the planning authority, Ceredigion County Council's predecessor, granted four planning permissions to build bungalows, describing the permissions as to build semi-detached chalets on the site. The bungalows were all erected by the mid-1970s. There are other planning permissions concerning the site, but they are not relevant to these proceedings. At present there are 24 blocks on the site: 18 consist of semi-detached bungalows and six are detached bungalows. There are thus 42 units of accommodation.[3]The planning permissions with which I am concerned describe the permissions given by reference to a period of time and are subject to a seasonal occupancy condition. As to the period of time, each of the planning permissions stated: "The permission hereby authorised shall expire and the site restored to its former use on or before ..." the specified date.[4]The specified date in three of the permissions 4242/4, 4242/4AM and 4242/4REV was 31 July 1985. In the case of the fourth, 4242/8, permission for eight pairs of semi-detached bungalows, it was 31 July 1995.[5]As to the seasonal occupation condition, in two of the permissions occupation was restricted to the period between 1 March and 31 October each year. In one, 4242/4REV, occupation was restricted to the period between 2 February and 29 November each year. In the fourth, 4242/8, occupation was restricted to the period between 1 March and 31 December each year. The proper characterisation of the period of time and the status of the four planning permissions and the seasonal occupancy conditions after the specified dates is at the heart of the issues between the parties.[6]The applicant continued to use the buildings during the seasonal occupancy period specified in the planning permission after the specified dates in 1985 and 1995 and did not restore the site to its former use. It is common ground that has not used the buildings otherwise than in accordance with the seasonal occupancy conditions. The bungalows thus remain on the site and have been used during the period specified in the planning permission. There has been no enforcement by the planning authority and the use of the bungalows has become immune from enforcement action.[7]Before the Inspector it was assumed there was immunity from enforcement after four years, the relevant period under section 171B(1) and (2) of the 1990 Act for operational development without planning permission. In the case of the first three planning permissions this was the late 1980s, but if, as was submitted on behalf of the Welsh Ministers and the Council, the relevant breach was a breach of a planning condition so that section 171B(3) applied to them, they became immune from enforcement after ten years, in March 1995.[8]In the case of the fourth planning permission, immunity from enforcement action arose on the first hypothesis in the late 1990s and, if section 171B(3) applies, in March 2005. On either hypothesis, the period for enforcement ended some years ago.[9]In August 2008, the applicant submitted an application pursuant to section 191 of the 1990 Act to Ceredigion County Council for a certificate of lawful development to make the development lawful as 42 Class C3 dwelling houses. The applicant's purpose was to establish(a) that the bungalows were dwelling houses; and(b) that they could be used throughout the year. The application does, however, not state in terms that what was sought was a certificate unrestrained by occupancy conditions. The application was not determined by the Council. It was the subject of the first appeal to the Inspector (Appeal A).[10]In May 2009, the applicant submitted an application, pursuant to section 192 of the 1990 Act, for a Certificate of Proposed Lawful Use or Development as a permanent Class C3 dwelling in respect of Unit 37, one of the eight pairs of bungalows for which temporary planning permission had been granted on 30 July 1973. The suggested use and change of use would be to label the bungalows "dwelling houses" and "holiday homes" as opposed to self-catering holiday units. The purpose of this application was to establish a precedent that would apply to all the bungalows. It too was not determined by the Council. It was the subject of the second appeal to the Inspector, Appeal B.[11]Similar arguments and similar principles arose in the two appeals. Accordingly, to facilitate consideration of them together by the same Inspector, it was agreed that Appeal A would be the subject of a public enquiry and Appeal B would proceed by way of written representations.[12]On 14 September 2009, Mr Fussey inspected the unit which was the subject of Appeal B internally and externally. He also made an external inspection of the buildings which were the subject of Appeal A and of various facilities outside the application site. The hearing of Appeal A took place on 15 September 2009. His decision deals with both appeals.[13]The Inspector upheld the applicant's contention that each bungalow constituted a separate planning unit (see decision, paragraphs 8 and 9). He also held that the bungalows are dwelling houses, primarily because they provide for self-contained living (see decision, paragraphs 13 to 19). Accordingly, in respect of Appeal A he allowed the appeal against the Council's deemed refusal to grant a Certificate of Existing Lawful Development. However he stated that the seasonal occupancy conditions on the development remained. The material part of his decision refers to Bloomfield v Secretary of State for the Environment, Transport and Regions [1999] EWHC 225 (Admin) 12 March 1999. It states:
"The Effect of Conditions. 21 Bloomfield found that ‘a building does not cease to be a dwelling house because a condition was imposed limiting the terms to which it may be used as such.’ There is no dispute that each permission was validly implemented and so the various conditions began to operate. The temporary conditions all became spent over 14 years ago, and the Council took no action to enforce their requirements. This breach of control, consisting of the failure to cease the use at the end of the particular periods, has now become lawful. It is common ground that the other conditions have not been breached; in these circumstances they remain extant. 22. The Council submitted that the ‘temporary use’ conditions imposed by its predecessor on no less than four separate occasions were ultra vires. However they are no longer enforceable and, as I have found that the other conditions are still extant, I do not need to address this submission. I have also noted the argument that the failure to return the site to its former use is a breach of planning control. In any event my decision has been reached on another basis and these submissions have not impinged on my reasoning."
[14]As a result, he decided that Appeal A should succeed. The Certificate of Lawful Use he issued was in the following terms (I set out only the material parts):
"It is hereby certified that on 5 August 2008 the use described in the first schedule hereto in respect of the land specified in the second schedule hereto and edged in red on the plan attached to this certificate, would have been lawful within the meaning of section 191 of the Town and Country Planning Act 1990 (as amended), for the following reason: Each building comprises a dwelling house in that it contains the facilities required for day-to-day private domestic existence. The existence of each one is lawful in that it is immune from enforcement action."
[15]The first Schedule identifies the buildings by reference to the plan annexed to the certificate. The numbers of the planning permissions referred to are not correct and I do not set that part of the schedule out. But the schedule states that the use of the buildings “insofar as [the planning permissions] relate to each particular building, and subject to the conditions imposed in those permissions, with the exception of those conditions requiring each permission to expire and the site to be restored to its former use on or before its specified date".[16]The second schedule describes the land, ie land at Gilfach Holiday Village. The outcome of Appeal B is contained in paragraph 23 of the Inspector's decision. This states:
"... success on appeal B would result in an LDC relating to “use as a dwelling house”, with no reference to the fact that, as the other conditions are still extant, that use would be restricted. Unlike section 191, section 192 does not confer powers to alter the description of the use as set out in the application. In these circumstances, the only option is to dismiss this appeal. However, my decision on Appeal A still relates to Unit 37."
[17]The application gives rise to four issues, although in the event only one was contentious. The four issues are: First, is there power to impose conditions or to define the extent of the lawful use when granting a certificate of lawful use under the 1990 Act? In the event this was not contentious. Mr Young, on behalf of the applicant, accepted that it followed from the provisions of section 191(4) of the 1990 Act in relation to the planning authority’s power to modify the description of the use put forward by an applicant, that the Inspector also had power to do so. Secondly, is there power to impose planning conditions on the use of the bungalows as dwelling houses in the circumstances of this case? Those are that the previous temporary planning permissions are given until a specified date which has passed. This is, as I have observed, at the heart of the dispute. It involves considering the status of the permissions after the specified dates. That raises two sub-issues:-(a) Did the permissions lapse in their entirety with the consequence that no occupancy conditions remained attached to them? Or did they survive the time-limiting conditions, which have been breached but can no longer be enforced, so that they are still subject to the seasonal occupancy conditions, which have not been breached?(b) Is an applicant in a case such as this entitled to a Certificate of Lawful Use which goes beyond the use which has actually taken place in accordance with the seasonal occupancy conditions?[18]As to sub-issue (a), on behalf of the applicant, Mr Young submitted that after the specified dates the planning permissions expired. He accepted my suggestion during the hearing that, on his approach, the paragraph in the planning permission referring to the period of time could be characterised as a “sunset” condition. As to the seasonal occupancy conditions, he submitted that because after the specified date there were no planning permissions to which the conditions could attach, they ceased to exist.[19]On behalf of the Welsh Ministers, Mr Moffat submitted that the planning permission did not cease to exist at the specified dates. He characterised the relevant paragraph of the permission as having imposed "restoration conditions" because the contents of the paragraph linked the end of the specified period with the concept of restoration. He submitted that what he described as the restoration conditions and the seasonal occupation conditions continued to apply after the specified period, although enforcement is subject to the appropriate limitation periods contained in the 1990 Act.[20]Mr Stinchcombe, on behalf of the Council, adopted Mr Moffat's submission that the planning permission did not expire after the specified period, adding that what expired was the time within which the use was to cease and restoration should have occurred. The Council's acknowledgment of service referred to the condition as a "time-limiting condition" and, without any inference as to the legal consequences of this, in my judgment that is the most accurate summary of what it is.[21]The second sub-issue, (b), is whether an applicant in a case such as this is entitled to a Certificate of Lawful Use which goes beyond the use which has actually taken place in accordance with the seasonal occupancy conditions? There is another matter canvassed in this context, but it does not fall for decision by me because the Inspector did not rule on it. This is the Council's submission that the conditions in the planning permissions requiring the removal of the buildings at the expiry of the time limiting conditions were not lawful because they did not "fairly and reasonably" relate to the permitted development, but were severable so that the conditional occupation conditions continued to apply after the specified period.[22]The third issue is whether the Inspector could lawfully refuse a Certificate of Proposed Lawful Use for Unit 37 on the ground that the seasonal occupancy conditions would suffice. It was common ground that the answer to this issue is parasitic to the answer to the second issue. This is because it is accepted that, if the applicant succeeds in establishing there was no power to require the seasonal occupancy conditions in relation to the existing use, it would follow that the Inspector had no power to refuse a Certificate of Proposed Lawful Use throughout the year by reference to the conditions. If, however, there was power to require the seasonal occupancy conditions in relation to the existing use, given that there is no power under section 192 to alter the description of the use as set out, for understandable reasons, he was empowered to dismiss the appeal against the deemed refusal of the Certificate of Proposed Use.[23]The fourth issue is that the Certificate of Lawful Use issued contains incorrect planning permission numbers. It is common ground that the numbers are incorrect and that a new certificate can be issued by the Welsh Ministers to rectify this. The issue, however, that remains is whether a new certificate should not, as the present certificate does, refer to extraneous documents. The applicant maintains that it should not because it is not clear.[24]Before turning to the issues, I deal briefly with a matter which does not fall for decision, but which Mr Moffat submitted was of some relevance in showing how the 1990 Act operates in circumstances such as those before me. This is the nature of the breach of planning control in this case. The applicant maintains that it is "carrying out" operational development without the required planning permission -- that is within the meaning of "development in section 55(1) and section 171A(1) of the 1990 Act. The Welsh Ministers and the Council maintain that the applicant has failed to comply and is failing to comply with a condition to restore the site to its former use: ie the breach is within the second limb of section 55(1) and within section 171A(1)(b).[25]I have referred to the practical consequences of this question, which concern the period for which there can be enforcement. In the case of operational development it is four years. In the case of breach of condition it is ten years. The assumption at the appeal and in the Inspector's decision was that the relevant period was four years. If the breach was breach of condition, that was wrong, but, as I have said, the period in which there can be enforcement has clearly elapsed and it is thus not necessary to decide the issue.[26]I am inclined to accept Mr Moffat's submission, adopted by Mr Stinchcombe, that the breach here is breach of a condition because "operational development" envisages activity: ie something being done, something which can be described as "operations". In this case, after the specified date all that happened was a failure to cease the use and to restore the site to its former use. It is difficult to see that as constituting the "carrying out" of building, engineering, mining or other "operations" on the land.[27]Mr Young submitted that, in the context of planning permissions expressed in the terms that these were, it was necessary to look at matters holistically from the "carrying out" that undoubtedly occurred between 1964 and 1973 when the last bungalow was built until the present day. He submitted that "carrying out" included the fact that the applicant should have removed the bungalows after the specified dates, but that is to include in the phrase "carrying out" the failure to carry out. Had the statute wished to include that, it would have been easy for it to say so.[28]I turn to the issues. First, the status of the permissions after the specified dates. Did they lapse in their entirety and with them the seasonal occupation conditions? Mr Young relied on the wording of these particular planning permissions. They stated that the permissions "shall expire" on the specified dates. This was, he accepted, an unusual formulation, but he submitted it meant that the status of the planning permissions after the specified dates differed from planning permissions where the control exercised is exercised by a pure condition on use limited to time. He submitted that the Inspector erred in relying on Bloomfield's case because in that case the building was authorised by a permanent planning permission, not one which was time limited. He relied on the fact that a planning permission in the form of those granted in this case is described in section 72(2) of the 1990 Act as "a planning permission granted for a limited period". He submitted that, giving this phrase its ordinary meaning, it followed that at the end of the limited period the permission expired and no permission for the development (here the bungalows) existed.[29]He placed significant weight on the decision of the Court of Appeal in Adur District Council v Secretary of State for the Environment, Transport and the Regions[2000] 1 PLR 1. In summary, in that case a planning permission for a time-limited period was granted and the grant triggered permitted development rights under schedule 2 of Part 17 of the GPDO 1995, but the planning permission contained a condition restricting the permission to the storage of cars. That restriction prevented reliance on the GPDO during its currency. The Court of Appeal held that the permitted development rights under the GPDO which had accrued survived the expiry of the authorised use in the planning permission. Pill LJ stated: "It is right that the second condition restricts the temporary permission to the storage of cars thereby preventing reliance on the GPDO during the period of the currency of the permission, but, in my judgment, only for the currency of the temporary permission actually granted." ^ (page 7)[30]Mr Young relied on this decision for two propositions. The first is that, where conditions are attached to a temporary planning permission those conditions do not survive the cessation of the permission. The second (see paragraph 70 and 72 of his written submissions) is that, in determining this issue, it is important to focus on the terms of the particular provision. He cited another passage from the judgment of Pill LJ:
"The issue turns on the construction of the planning permission."
[31]Mr Young contrasted the language in these planning permissions with the language in other planning permissions. He handed up a permission, albeit concerning the use of minerals workings, providing a time limit for an authority to extract and an obligation for restoration aftercare thereafter, which limited the use by reference to time but not the planning permission itself. He submitted that in that case the permission survives and governs the obligations to restore and provide aftercare, but that is fundamentally different from the terms of this permission. He also relied on the reference in paragraph 113 of Circular 11/95, “The Use of Conditions in Planning Permissions”, to the "expiry" of the planning permission. This was in the context of the Ministers' guidance about the restoration of sites.[32]While recognising the importance of the terms of the particular planning permission before me, I shall deal with the statutory context and background before turning to the terms. I do so because although interpretation involves the application of common sense principles, it also involves ascertaining the meaning a document would convey to a reasonable person having all the background knowledge that would reasonably have been available, including knowledge of the relevant statutory context and background.[33]As far as the Adur DC case is concerned, in that case what was involved was the resumption of the unqualified permitted development rights under the GDP0 which had been triggered by the grant of the planning permission, but which had been qualified during the currency of the planning permission by a condition. In this case the issue is whether a use authorised by a time-limited condition which is subject to other constraints imposed by conditions, which use has continued beyond the time-limited condition for a period that precludes enforcement, can continue uninhibited by the other conditions. In this case there was never an unqualified right to year-long occupancy of the bungalows. Before the planning permissions there was no right at all to bungalows. Moreover, the permission for a caravan site was subject to seasonal occupancy conditions. The planning permissions authorised the bungalows for occupation only in the specified periods.[34]I turn to the statute itself, the 1990 Act. The starting point is to consider the effect of planning permission. That is dealt with in section 75. Section 75(1) provides: "Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.”[35]The circumstances in which a planning permission could be extinguished were considered in Pioneer Aggregates UK v Secretary of State for the Environment [1985] 1 AC 132. In his speech, Lord Scarman held that the "clear implication" of the statutory provision equivalent to section 75(1) then in force was that "only the statute or the terms of the planning permission itself can stop the permission enuring for the benefit of the land and of all persons for the time being interested therein (see 141 H)."[36]Section 72 of the 1990 Act dealt with conditional grant of planning permission. Section 72(1) empowers a planning authority to impose conditions on the grant of planning permission. Section 72(1)(b) empowers conditions: "... for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period.”[37]Section 72(2) provides: "A planning permission granted subject to such a condition as is mentioned in subsection (1)(b) is in this Act referred to as ‘planning permission granted for a limited period’.”[38]What is the impact of the reference in section 72(2) to "planning permission granted for a limited period"? The provision provides a statutory description of a category of permission which is defined in section 72(1)(b). Section 72(1)(b) does not only relate to planning permission, the terms of which state they "expire". Indeed, as Mr Moffat observed, the word "expire" is not used in the 1990 Act, and Mr Young in reply could not point to its use, but only referred me to its use in Circular 11/95 to which I have referred.[39]Section 72(1)(b) concerns a planning permission requiring, inter alia, the discontinuation of any use "at the end of a specified period". To give section 72(2) the effect for which Mr Young contends would be to contemplate all planning permissions within section 72(1)(b) having no effect whatsoever, no juridical existence for any purpose at the expiry of the period. Section 72 does not in itself provide that any particular consequences flow from a planning permission falling within section 72(1)(b) and thus described in the Act as "for a limited period".[40]Mr Young has not been able to point me to anything in the 1990 Act which positively supports (whether, to which I have referred, by the use of the word “expire” or in another way) the position for which he contends. The reference to planning permission for a limited period in sections 73A(2)(b) and 73A(3)(b), 91(4)(c) and 102(2) do not support the submission that at the end of the period the planning permission is to be treated as of absolutely no effect whatsoever. There is no exception in section 75 in respect of a planning permission for a limited period, and the common law exceptions to the principle stated in Pioneer Aggregates, that is mutually inconsistent planning permissions where one but not the other has been implemented and the effect on a planning permission after a material change of use has been implemented, do not suggest that there is a broader common law exception.[41]Moreover, as Mr Moffat observed in paragraph 42 of his written submissions:
"It was envisaged by the Court of Appeal in Adur District Council v Secretary of State for the Environment, Transport and the Regions [2000] 1 PLR 1 that a "planning permission granted for a limited period" could continue to have effect after the relevant period: if it could not, there would have been no point in the court considering the terms and effect of the particular planning permission in that case (see also 6G-H per Pill LJ, where he appears to have accepted a concession to similar effect made by the Secretary of State)."
[42]I accept the submission contained in the proposition set out in paragraph 43 of Mr Moffat's written submissions, which are substantially similar to those of Mr Stinchcombe in paragraph 19 of his skeleton argument:
"43. The consequences of there being no provision in the TCPA to the effect that a “planning permission granted for a limited period” should automatically "expire" at the end of the relevant period are straightforward and do not lead to any absurdity: (1) if a condition of the type referred to in section 72(1)(b) is not complied with, there is a breach of planning control consisting of the failure to comply with a condition... (2) it will be open to the local planning authority to take enforcement action in respect of that breach of planning control during the period of ten years following the relevant date. If it does not, then that breach, and that breach only, will acquire immunity from enforcement; (3) other conditions in the planning permission will continue to apply to the land; (4) accordingly, the local planning authority may take enforcement action against any breach of those other conditions (provided, of course, that such breaches have not themselves acquired immunity from enforcement)."
As Mr Stinchcombe submitted, the planning permission does not cease to exist. What has expired is the time within which the use should have ceased and the restoration should have occurred.[43]I turn from the statutory scheme to the terms of this particular planning permission, upon which, in Pill LJ's words which I have already quoted, the issue will turn. Mr Moffat described Mr Young's submissions as having a "superficial attraction", but the attraction is more than superficial. The starting point must be that Mr Young's position appears to gain strong support from the use of the word "expire" in the relevant paragraph of the permissions. However, the entirety of the relevant paragraph and the other paragraphs must be read. Read literally, the permissions expire on an unspecified date "on or before" the specified dates. Mr Moffat submitted the paragraphs are unacceptably vague, and that to interpret them as providing that the planning permissions expire on the relevant specified dates involves ignoring the words "or before". He submitted that on their true construction the planning permissions expire when the site is in fact restored to its former use. He accepted that this construction involved ignoring or giving very limited effect to the word "and" in those paragraphs. But he relied on the differences in the wording of the different paragraphs of each of the planning permissions and the reference to the "great landscape value" of the site as the justification for the conditions. So the condition as to the maintenance of the bungalows is expressed to apply "throughout this period", which he submitted was the period mentioned in the first paragraph dealing with the time, condition and restoration.[44]The occupancy conditions do not refer to the period, and thus, Mr Young, he submitted, they were intended to apply after the end of the period referred to in the first paragraph. He submitted that, sensibly construed, for restoration to be complete by the specified dates demolition would inevitably have to start before then. Taking this into account, There was nothing unacceptable with the paragraphs. If restoration which started before the date was complete before the date, the planning permissions would expire on completion. If restoration was not complete by the specified date, it would expire on the specified date. The issue is not free from difficulty. But against the statutory background, the absence of any distinction in the Act between a planning permission granted for a limited period because a condition provides that a use is to cease at the end of the period and a planning permission where the word "expire" is used, and the contrast between the paragraphs in these permissions concerning maintenance and those concerning occupancy, I accept Mr Moffat and Mr Stinchcombe's submissions. The consequence of this is that this application fails.[45]As to Issue 2(b), is an applicant in a case such as this entitled to a Certificate of Lawful Use which goes beyond the use which has actually taken place in accordance with the seasonal occupancy conditions I make the following brief observations. If an applicant is entitled to a Certificate of Lawful Use which goes beyond the use which has actually taken place, the applicant would be able to do something which he never had permission to do and has never in fact done. Mr Young correctly observed that the issue for me is the effect, in the light of the statutory regime, of the planning authority's choice of language in the planning permissions and the failure over many years, for reasons which do not emerge from the material before me, of the authority to enforce. The issue for me, he observed, is not any view as to the justice of the applicant ending up in the position that I have described.[46]It would, however, be a striking or at least (in Mr Moffat's words) a curious outcome, particularly when it was not expressly apparent on the face of the application for a Certificate of Lawful Use that the applicant was seeking freedom from the seasonal occupancy condition. What the Inspector did in this case was to exercise his power, indeed his duty, under sections 195 and 191 of the 1990 Act to modify and substitute the description of the matters described by the application to reflect the ongoing and existing use of the bungalows, now lawful because of the immunity from enforcement.[47]Support for this conclusion is also provided by paragraph 8.17 of Annex 8 to Circular 10/97. Annex 8 is headed "Lawfulness and the Lawful Development Certificate". Paragraph 8.17 states: " In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously. This is particularly important for uses which do not fall within any ‘use class’ (that is, a ‘sui generis’ use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the use then took place.”[48]All that remains is Issue 4. It is common ground that the certificates need to be corrected. As to whether the new certificate should not refer to extraneous document, I accept Mr Moffat's submission that there is no legal prohibition on such reference provided the documents referred to in the certificate are readily available in a comprehensible format. They must be accessible. In this case I was informed that the documents are now only available in microfiche. In the case of three of the four planning permissions in the bundle, parts of the document are not legible. Even if legible, documents only available from a planning authority in microfiche format may not be easily available.[49]Mr Moffat submitted, surprisingly in the circumstances of this case, that referring to the relevant planning permissions by setting out their numbers avoids errors of transcription. It is surprising because this case shows that such errors may arise where this is done. Given the difficulties that have arisen in this case, there would be advantages in the new certificate annexing clear copies of the relevant planning permissions to it in the way that the Inspector has annexed a copy of the plan referred to in his decision. I note that paragraph 8.17, to which I have referred, states that an LDC shall "include" "where the use is seasonal the calendar dates on which the use then took place". There is no suggestion in that paragraph that what the certificate might do is simply refer to some other document which identifies the seasonal use.[50]It was agreed at the close of the hearing yesterday that counsel need not attend and that submissions as to the costs implication of this decision and any other application should be made within 14 days of the parties receiving an authorised transcript of this judgment. I facilitated that arrangement in order to spare counsel and therefore the parties the expense of returning to court. I am grateful that there is attendance by representatives here today. I reiterate what I said yesterday, which is that in order to progress this expeditiously, although a transcript in a decision of a 288 application may automatically be sought, it would be appropriate for the parties, having had the benefit of not having to provide counsel for the judgment, to request expedition so that the remaining parts of this process can be dealt with as soon as possible.[51]At the hearing somebody told Mr Moffat that this is about getting the transcripts. I do hope that they can come quickly. Without some pressure, they can take time. We have been having difficulty in some cases.[52]I will draw up an order which I will send out to counsel. I will consider whether I should give liberty to apply, so that we finalise the order when the reasons are seen. I am not sure that will be necessary. I think that the order will simply have to be that the application is dismissed and that consideration of costs and any other applications are deferred for the period that I have just specified. I think I will do that and that will get that bit done. Good. Thank you very much.

Order

Application dismissed

Cited in 1 later judgment