USK Valley Conservation Group & Ors, R (on the application of) v Brecon Beacons National Park & Ors [2010] EWHC 71 (Admin)

[2010] EWHC 71 (Admin)

Case No CO/1106/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT SITTING IN WALES

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 January 2010

Before

MR JUSTICE OUSELEY

Between

THE QUEENClaimants

-v-Claimant

USK VALLEY CONSERVATION GROUPClaimant

PAUL RICHARD NEEDHAMClaimant

LIEUTENANT COLONEL MICHAEL HUGH LEDSTON LEWISClaimant

ASTRID BERYL ELIZABETH INGLISClaimant

Mr S Davies QC and Mr R Fentem (instructed by M&A LLP) for Claimants

Ms M Ellis QC and Mr R Green (instructed by Solicitor to BNPA) for Defendants

Mr Porten QC and Mr I Albutt (instructed by Robert Davies Partnership LLP) for Interested Parties

Hearing Hearing dates: 20 th, 21 st and 22 nd October 2009

Judgment

Mr Justice Ouseley :

[1]This case concerns the validity of a planning permission, granted in June 2005 by the Brecon Beacons National Park Authority, the defendant, for the “Relocation of existing camping facility out of flood zone” on farm land owned by Mr and Mrs Thomas at Gilestone Farm, near Talybont – on – Usk. The meaning and effect of the application and permission are at the heart of the case. The claimants are a group of local residents, and their association, who object to the grant of the permission and to the impact which its implementation, and more, by Mr and Mrs Thomas has had on the natural beauty of the area. The claimants contend that the permission is invalid or, if valid, that the NPA decided unlawfully that the use it permitted should not be discontinued. The NPA, for a variety of reasons, does not now seek to uphold the validity of the permission which it granted. The Thomases, as interested parties, say that it is a valid permission for a camping and caravan site at Gilestone Farm, and, if not, that this very late challenge to its validity should fail because of the hardship and prejudice which quashing it would cause them.

[2]It was not until 5 February 2009 that the claim form was issued. It also took issue with two more recent decisions of the NPA, in November and December 2008 concerning discontinuance and enforcement proceedings in respect of the caravan and camp site developed at Gilestone Farm. On 15 June 2009, Wyn Williams J, after hearing argument from all parties, extended time and granted permission to enable the claimants to bring this challenge to the planning permission granted in 2005.

[3]The challenge to the validity of the permission attacks almost every aspect of it: the application was misleading as to the true identity of the applicant, in a way which made any grant invalid; the description of the development applied for was uncertain and misleading; insufficient enquiries were made by the NPA as to what it was for; the local residents were not properly notified of or consulted if the development applied for was what was granted; alternatively the permission granted was not for the development applied for; the decision was taken with no screening opinion being obtained to the effect that it was not likely to have significant environmental effects; the decision to grant it was taken by a group within the NPA which had no power to take the decision. The claim contained allegations of dishonesty against Mr Thomas, and a Mr Bevan, said to be his agent, which at the last were not pursued. Hotly contested issues arose over the extent to which Mr and Mrs Thomas would be prejudiced or suffer hardship by the quashing of the permission. Mr Thomas pointed to the years during which the claimants had known of many of these grounds, and had done nothing to challenge the permission in court.

[4]The challenge to the validity of the NPA decisions of 7 November and 16 December 2008 raises issues over whether the NPA could consider the financial consequences for it of ordering the discontinuance of the caravan and camping use, and, if so, whether the anticipated compensation levels which it considered were themselves legally misconceived. Two member participants in those meetings were said to have been apparently biased, and their presence therefore to vitiate the decisions.

The application and permission: the facts

[5]The application for permission was dated 7 March 2005 and stamped as validated by the NPA the next day. There had been prior discussions between Mr Bevan, who was named as the applicant's agent, and Mr Eacock, a planning officer at the NPA. The named applicant for permission was “Mr Ian Ashton – Acorn Camping” for whom an address was given. There was no tick in any of the adjoining boxes covering the applicant’s legal interest in the site whether as prospective owner, tenant, or “Other-please specify”. The agent was “AB Planning- (Andrew Bevan)”. The site was merely described as “Land at Gilestone Farm, Talybont-on-Usk Brecon”. (In fact the area edged red as the site on the site plan was part only of the land at Gilestone Farm, not the whole farm.) The area of the site edged red on the site plan was given as “2 ha tented Camping (6 total)”. The answer to the question “Does the applicant own any adjoining land?” was ticked “No”, but then, in seeming contradiction, under the words “If Yes, please edge BLUE on application plan” was written “(All adjoining land marked on plan)”. (This land edged blue on the plan was in fact owned by Mr and Mrs Thomas, and perhaps one other farmer.) The existing or previous last known use of the development site, ie the red edged land, was stated to be “Farm and Campsite”.

[6]The brief particulars of the development for which permission was sought are important:

“Relocation of existing camping facility out of flood zone”

. The adjoining printed column requires that if caravans are proposed, the number proposed by type, (residential, static holiday or touring), should be given. The boxes were left blank. The development was stated to be a change of use; no engineering or building operations were noted.

[7]The plans and documents submitted as formal parts of the application were a supporting statement, entitled “Contextual and Supporting Statement”, location/layout plans, and a landscape/topographical survey. Other printed requests for information on design or which the applicant wished to draw to the attention of the NPA were answered by a general reference to that statement.

[8]There then followed the Declaration signed by Mr Bevan on behalf of Ian Ashton of Acorn Camping that to the best of his knowledge and belief, all the information given in the form and drawings was accurate and complete. The fee enclosed of £240 was in fact paid by a cheque drawn by Mr Thomas. Mr Bevan as agent signed the certificate that the applicant, not being the owner of the application site, had given the required notice to the owners on 7 March 2005; these were the Thomases and another farmer whose involvement is immaterial.

[9]None of the plans, whether or not stamped “Validated”, showed any caravans in any shape or form, or made reference to them. Three important plans were all marked “Validated.” The site plan showed two linked areas of land edged red, the rough shape of which was aptly described in the hearing as the "bow tie", with a loose end marking the access track. This "bow tie” was shown at the southern edge of the blue land of Gilestone Farm owned by the Thomases. The proposed layout plan showed these two areas laid out solely with three “horseshoe shaped tent arrangements", staff tents and a rope/wire structure. This layout occupied only a small part of each of the two areas, but nothing was marked or noted which represented caravans. The landscape photographs which were part of the application make no reference to caravans but do relate to the layout plan. A plan showed, to the north, within the blue edged area but outside the red edged area, the area of the existing facility as a hatched area notated as "existing camping".

[10]The front page of the Contextual and Supporting Statement contained these words, on which Mr Porten QC for the Thomases put some weight:

"Relocation and Improvement of Existing Caravan and Camping facility Out of Flood Zone and Access and Environmental Improvements"

. The background section said that the application was submitted as part of a "modest and refined, general improvement strategy for the farm holding" where there had been for many years "a comfortable mix of caravan, camping and farming operations." The professional team included Mr Bevan as planning consultant and Mr Ian Ashton "Campsite Management (Camping site specialist)." Following pre-application discussion, the "proposed camping areas" had been amended for visual amenity. The site description included this:

"There is an existing and long established camping and caravan site run by the owners of Gilestone Farm with no specific controls on the number of caravans or tents permitted. The area proposed to provide the new camping area is a modest re-organisation of the existing arrangement. The proposal therefore does not amount to an expansion of the existing facility merely an amendment and alteration."

The existing facility could also operate all year round, which was not proposed with the new campsite. The identified camping areas would provide for 54 tents in 3 groups, and tents for communal washing and eating facilities. The two new campsites would "replace the existing tented camping facility" currently in the 1:100 year flood zone, and would operate "similarly to that of the historic activity," with an additional staff presence. Later it referred to the "historic lawful use of the access for camping". The well screened site would prevent any significant visibility of the "additional tented area." I note the contrast between caravans and camping which the Statement draws, which is particularly seen in the contrast between what exists and what is proposed.

[11]The section describing the proposed development noted that "the existing use of the site is to be modified and enhanced to provide an improved facility....for the erection of approximately 50 tents...as a tented holiday facility for school and scout type groups...with family groups... in addition to individual visitors." After further detail about how this would operate, it continued:

"There will be a removal of all caravan and tented camping from the designated 1:100 year flood zone and there will be a significant reduction in the number of caravan space within the site, resulting in a significant reduction in the number of people exposed to the risks of flooding. Additionally the grant of permission as promoted would allow the control of the camping operation in terms of operable period and tent/caravan numbers resulting in levels of control unavailable currently with the established camping operation on the wider area, including within the 1:100 year Flood Zone."

[12]The section in the statement on highway improvements referred to the removal of the existing tented camping but was silent about the presence, removal or relocation of caravans. Environmental improvements referred to the existing camp site and the proposed tented areas. Caravans were not mentioned. When it came to appraising the proposal against planning policy, it was described as “a modest additional alternative tented area to an existing caravan and camping site….” There was no other reference to caravans but the proposal was referred to as “tented camping areas”, the relocation of an “existing camping facility”. The flooding issues section uses the same terminology. One of the policies discussed deals compendiously with sites for touring caravans, camper vans and tents, but there was no discussion about which parts applied to the proposal.

[13]The planning history says that the site “is an established camping and caravan site” ; but as with other passages “site” is used with no clear distinction between the site edged red and the site of the established facility, although it is clear that the two locations are intended to be different. The history does not refer explicitly to a lawfully established use, that is one which has become immune from enforcement action, and certainly does not state what numbers of caravans and tents or site capacity the established use represented. Nor does any other part of the statement do so. The economic section claims that the proposal “allow the current owners to build upon their considerable success developing … this facility.” The owners can only be the Thomases. That section concludes:

“As a rural caravan and campsite with ancillary facilities... the proposal offers a breadth of opportunities….”

The suggested conditions are silent as to the presence of caravans and as to any limit on the number of either tents or caravans: the development is an “alternative camping facility”. The landscape report makes no reference to caravans and describes the screening and visibility of a layout comprising tents as shown on the layout plan.

[14]There is considerable controversy as to how the decision to grant permission came to be made and by whom. The NPA and the Thomases say that it was made by a planning officer, under delegated powers; the claimants say that it was made by a panel of members who had no power at all to make the decision. I shall examine the facts about that later. However, there was no report by an officer to a decision-making body. A "Delegated Decision Report" dated 17 June 2005, and perhaps the record of the reasons for the grant or just a file note, contains a recommendation to no one in particular to grant permission, subject to conditions. It is not signed by Mr Eacock but by a colleague.

[15]On 21 June 2005, planning permission was formally issued by the NPA in accordance with that recommendation. It permitted the “Proposed relocation of existing camping facility out of flood zone” expressly in accordance with the application forms and plans validated on 8 March 2005, subject to conditions. The grant did not therefore refer in terms to the Contextual Statement or Landscape Report which the terms of the application made part of the application, although plans from both were among those validated.

[16]The first two conditions required that the development be carried out in complete accordance with the approved plans dated 8 March 2005, and in full compliance with the conditions. The approved plans made no reference to the presence of caravans on the new site edged red. The very next condition, number 3 said:

“No more than 50 tents and 50 caravans shall be erected or sited within the camping/caravanning areas hereby approved, and indicated on the approved plans, at any time.”

Storage of caravans was prohibited. Touring caravans alone were permitted on the site; the “camping/caravanning facility” was only to be used between March and November. By condition 7, none of the “areas of land the subject of this application outside the site area edged red on the application plans for the camping/caravanning” should be used for any tent or caravan purpose other than for agricultural workers. (This phraseology, which ignores the distinction between the red edged application site and the blue edged land which made up the rest of Gilestone Farm and includes the existing campsite, created many problems for the NPA.) There could be no waste storage, car parking, hard surfacing, recreation building or structure without prior approval of details. The details of the changes to the outbuildings to provide shower and toilet facilities required approval by the NPA.

[17]It is sufficient to note at this stage that what appears to be a persistent and significant disregard by the Thomases of the restrictions on numbers of caravans, their duration of use and their storage, has inflamed what for the claimants was an already unhappy situation created by that grant of permission.

The decision-making process

[18]The structure of decision-making in the NPA in 2005 had recently been altered to make it quicker and to reduce the backlog of decisions; greater decision-making powers were granted to officers. But there had been concerns that this would lead to officers making decisions which should be made by the Planning Committee. The Scheme of Delegation newly introduced in 2004 permitted the Planning Officer to approve applications which accorded with the Development Plan, which no member or the Head of Planning wanted the Committee to decide, and to which there were no significant objections from statutory consultees.However, to ensure that delegated decisions were being made only in appropriate cases as intended by the new Scheme and to ensure that the Committee retained control over controversial applications, the Planning Committee set up a Delegated Panel consisting of its Chairman and Vice Chairman. This Panel process was not recorded formally as being part of any system of delegation under s101 Local Government Act 1972. Mr Morgan, who was Deputy Chairman of the Planning Committee in 2005, explained how this process worked: the two members of the Panel would meet with the planning officers and would receive a verbal report from the case officer responsible for dealing with any particular application; the Panel would decide whether the application should be dealt with under powers delegated to officers or referred to Committee or whether further consultation was required; the Panel would be told how the officer intended to decide the case but would take no part in that decision if the case were not to be referred to the Committee. The file was then stamped "Delegated" or "Committee" according to the decision of the Panel as to who was to make the decision on the merits of the application. Ms Taylor, who was Chair/Deputy Chair of the Planning Committee in 2005 described the system in much the same way.

[19]Mr Eacock, although not formally giving evidence on behalf of the NPA, gave evidence to the same effect, adding (paragraph 12) that only cases in which there had been an objection or, as he put it, a "recommendation” to refuse under delegated powers were taken before the Panel. Members could also ask the Head of Department to report the application to Committee. The Panel only had a list of applications by way of agenda; no written reports were presented in advance, but one would usually be read out at the Panel meeting. Given what happened, Mr Eacock cannot be right about what applications went to the Panel.

[20]Mr Eacock described the process of decision-making in this particular case. There were pre-application discussions between Mr Eacock, Mr Bevan and his client, whom Mr Eacock took to be from Acorn Leisure, at which the question of established use for the existing caravan and camping site was raised; Mr Bevan had a letter from Powys County Council confirming that this was one of the longest established caravan sites in the area. That says nothing about scale. Mr Bevan explained that the site was to be extended to include an "outward bound" type facility. Mr Eacock responded that the new area would have to be like for like to the existing area, and Mr Bevan would have to prove the scale and nature of the existing use. But Mr Eacock accepted that there had been caravans in the area. Hardstanding was also proposed for certain tented areas. His initial comments were favourable, on the understanding that there was an equivalent established use. He spoke to Mr Roberts, his superior, who confirmed that there had always been caravans on the land, "all over". Mr Roberts advised that no formal application for a Certificate of Lawful Existing Use was necessary.

[21]Mr Eacock, in his witness statement, explained his view that if the existing use were uncontained and without boundaries, the application that followed these discussions offered the opportunity to gain control over its extent and operation. He saw the application as one for the relocation of the existing operation and an extension to provide for an "outward bound" type facility for children. He discussed the scale of the existing use “throughout the application process” with both Mr Roberts and Mr Bevan; Mr Roberts told him that there had been rallies with hundreds of caravans. Mr Eacock rejected Mr Bevan’s suggestion of 100 caravans as the existing level of usage, regarded the application as being for 50 tents on one of the two areas within the "bow tie", and concluded that the roughly equivalent space in the other area meant that 50 caravans, which took up about the same space as 50 tents, should be permitted as well. Mr Eacock took the view that caravans had been part of the application from the start, although the discussions had then focussed on the additional tents. He was content, in the light of what Mr Roberts had told him, that there was an established use and that the proposal accorded with planning policy. He had also examined, at Mr Roberts’ direction, Caravan Club site licences to try to establish the area of existing use. During the course of the hearing, the claimants produced a witness statement from Mr Roberts denying what he called Mr Eacock's " fabrications" about all these conversations, save that there had been discussion about caravan rallies; Mr Roberts denied offering any views about the existence of an established caravan site at the farm.

[22]Once the application was validated on 8 March 2005, the various notices and consultation processes were undertaken. When the development was described in the public consultation and notification notices, it was as in the short description on the application form:

“Proposed relocation of existing camping facility out of flood zone”

. The plan with the notices showed the area of proposed relocation edged red on the site plan, ie the loosened bow tie. Mr Eacock concluded initially that the objections he received during this consultation process were not significant enough to warrant the case going to Planning Committee. The Talybont-on-Usk Community Council supported the proposal. But two weeks later, its Clerk, Mr Seaman, who was also a member of the NPA, wanted to put in revised comments as it had changed its mind, thought that no one had seen the site notices, and the neighbours had not been directly consulted. He wanted the consultation process to be started all over again with more site notices and wider consultation. Mr Eacock invited him to send in his revised comments but did not think any revised consultation process was necessary; and the decision- making process was well on the way to conclusion.

[23]On 13 May 2005, the application went before the Delegated Panel at a meeting at which Ms Taylor, Mr Morgan and planning officers were also present. Mr Eacock's evidence was that the application was thoroughly explained and discussed; he explained the Community Council objection and the existence of an established use for caravanning and camping. He said that he would have referred to his report, but there is no evidence that one actually then existed. Ms Taylor raised the Community Council's point about the consultation process, and although Mr Eacock assured her that it had been carried out correctly, it was agreed that another planning officer at the meeting, Ms Lewis, would double-check.

[24]Mr Morgan said of that meeting that he was told by Mr Eacock that there was an unconstrained established caravan and tenting use at Gilestone Farm, which Mr Eacock had confirmed with Mr Roberts, and which this application, which he understood to be for caravans and tents, would bring within control and limits. The applicant was a children's holiday company; there were no objections of note; and it was decided that the application was to be determined by officers. Mr Morgan's recollection was that the change of position of the Community Council did not come to light until a later meeting of the Delegated Panel.

[25]Ms Taylor had the more detailed recollection of this meeting and of her approach: Mr Eacock said that it was a simple application for the relocation of an existing wholly uncontrolled campsite from the flood plain, which would enable the NPA to control its scale and operation. The Community Council had raised no objection, only asking for more time in which to comment, which Mr Eacock thought unnecessary. She was content that the matter be dealt with by officers under delegated powers but said that they should impose certain conditions on the permission. Mr Eacock's evidence was that the Delegated Panel and the officers all eventually agreed that the matter should be left with the officers to permit, and the file was stamped "Delegated" accordingly. Ms Taylor’s recollection is that Mr Eacock told her that the limit on unit numbers would be 50 tents and 15 caravans, a figure which she said she specifically checked to make sure that she had heard correctly and that it was not 50 caravans. Like Mr Morgan, her evidence was that it was not until some 10 days after that meeting that the changed position of the Community Council was first raised: she was asked by someone whom she believed to be the new Chairman of the Community Council whether she knew that planning permission had been granted for 50 tents and 50 caravans on site for many months of the year. (Permission had not in fact been granted at this stage).

[26]At all events, the matter came back before at least one other meeting of the Panel, at which Ms Lewis assured everyone that the consultation process had been undertaken correctly. Mr Morgan thought that the problem had been that site notices were pulled down very shortly after they had been put up. Although Ms Taylor wanted the application to go to Committee, Mr Morgan, according to Mr Eacock, thought that this would set an inappropriate precedent for other applications. Mr Morgan agreed that Ms Taylor had raised these concerns but added that the officers had assured them that the proper processes had been followed and that the matter remained suitable for officer decision, and it was the officer who made the decision. Ms Taylor gave evidence that at this second meeting she checked that in fact permission had not been granted and would not be granted in law until the permission document itself was issued. When she said that she wanted the application to go to Committee, she was told that this would imply that members had been lobbied to bring back something which had already been decided, and Mr Morgan said that such a step would be completely wrong. It is clear from all the evidence that at each meeting the officer view favoured permitting the application, although Mr Morgan says that it was open to the officer to permit or refuse. Ms Taylor's evidence is that although she knew what the decision by the officers would probably be, the only decision which she and Mr Morgan took was that the application should be dealt with by officers and not by the Committee. Ms Taylor remained unhappy at the 50 caravan limit, but Mr Eacock rather downplayed the position of the Community Council.

[27]Mr Seaman gave evidence about how the Community Council had seen these events. The NPA was under a statutory duty to notify it of applications and to take its representations into account; it had 14 days in which to make those representations; para 2(4) of Schedule 1A to the Town and Country Planning Act 1990 and Article 13 (2) of the General Development Order 1995. Notification can be given by sending a copy of the application to the Community Council or by indicating to it the nature of the development and identifying the land to which it relates. It is the latter which was done here. The description of the development in the notification given to the Council was the same as in the public, press and site notices. The initial reaction of this Council, communicated to the NPA by email on 19 April 2005, was that it was sensible to relocate the existing site out of the flood plain; many of the nine Community Councillors were familiar with the extent to which the site was then used, which was for no more than 5 caravans and a few tents. He confirmed however that they considered it on the basis that it did involve the relocation of caravans. By 9 May 2005, some Councillors were expressing concern about the scale of development because of the involvement of Acorn, and so he wrote to the NPA saying that people were unaware of the scale of development; site notices had disappeared; the application should be re-advertised and the Council would submit further representations after it met on 16 May 2005.

[28]On 16 May 2005, Mr Seaman was emailed by a planning officer, in response to his request for information as to the existing use, to the effect that planning permission had been granted for 15 tents or 15 caravans at any one time. (This appears to have come from another site, and is clearly wrong). The Gilestone Farm application, he was told, had gone before the Chair and Deputy Chair of the Planning Committee. Nonetheless the Community Council submitted further representations on 17 May 2005, saying that it was very concerned to hear that the decision had been delegated to an officer for approval. It wanted this decision reversed because, not realising that the 15/15 permission referred to did not relate to Gilestone Farm at all, it thought this supposed existing permission was for something completely different from that now applied for, at least in the way in which the NPA was interpreting the application. The application, it said, was therefore very misleading. A proper environmental assessment was required, it said, and the publicnotice was inadequate; late letters from local residents should be takeninto account.The nature of the development for which permission was to be granted was never made clear to the Council or the public, in Mr Seaman's view, and the Council was not aware of it until May 2006.

[29]By the end of May 2005, at least two local residents had written to the NPA expressing the same disquiet about the misleading short description of the application if it could lead to the permission they now expected to be granted. Mr Seaman thought other residents lacked awareness of what was happening.

[30]The report produced by Ms Lewis dated 17 June 2005 records that the Community Council had supported the development in principle, but that it had written a subsequent letter seeking full reconsultation because the description of the development was misleading. The representations from other bodies were subject to caveats which the parties did not rely on. The body of the report referred to the proposal as the "relocation of an existing, long established, camping/ caravan site" from inside to outside the flood plain, which also sought to improve facilities and to locate the majority of the tents in a less intrusive area. "The proposed camping area" was adjacent to the canal. The application included "a smaller area of land for use as a touring caravan site" and an overflow camping area, the greater visual prominence of which would be read with the farm buildings and landscaped. Various concerns were noted which could be adequately met by conditions. The report did not refer to the scale of any established use nor to the evidence showing that it had become established lawfully. The Community Council's point that the description of the proposal for the purposes of public notification was misleading appears not to have been put clearly to the Delegated Panel.

[31]The report, including a mysterious draft, and the witness statements say nothing about any consideration of whether an Environmental Impact Assessment was necessary or even a screening opinion.

[32]The permission was then issued on 21 June 2005.

The validity of the permission

[33]Most of the issues concerning the validity of the permission depend on the contrast between what was applied for and what was granted. The parties were not agreed as to what the application was for: the Thomases said that it was for the change of use of the red edged land for caravans and camping subject to the numbers limit in the conditions; the claimants said that it was to move the existing tented campsite and not caravans; and the NPA said that it was ambiguous, but was to change the use of the application site to accommodate the existing use. The parties were agreed that the permission should be interpreted as being for the change of use of the land edged red for caravans and camping limited to 50 caravans and 50 tents. On the Thomases’ approach, the application and permission fit together. But I do not think that their approach is correct.

(i) Caravans

[34]The first issue is whether caravans were part of the application at all. Caravans are not an explicit part of the brief description of proposed development. Caravans were not mentioned on the application form under the relevant heading. A blank space shows the application is not for caravans rather than an application for an unspecified number of them. Caravans did not feature on the application plans. They might or might not have been part of the existing facility, but to anyone who did not know what the debateable existing position was, caravans were not part of the proposed relocation, judged by the brief description of the proposed development, the application form and the validated plans. The description in the Contextual and Supporting Statement of what the relocated facility is to comprise makes no explicit reference to caravans; its focus is on tents. There are three references, in addition to those which refer to the relocation of an existing facility, which could refer to the proposed presence of caravans: the suggestion of a significant reduction in "caravan space" (sic); control over "tent/caravan" numbers, and the reference to a rural caravan and campsite in the proposal. I have referred already to the way caravans and camping are distinguished in the supporting material which is part of the application, and to the contrast between the description of what exists and what is proposed.

[35]It is really quite striking how caravans do not feature in the application documents by comparison with the frequent and detailed references to tents. The references to caravans in the Contextual Statement, which is the only place any are to be found, are stray references at best of very uncertain import, aside from the general references to them as part of the existing facility. That is no basis for interpreting the application as including caravans. Taking this Statement as part of the application, but reading the application documents as a whole, and particularly bearing in mind the absence of any indication on the application form that caravans are proposed, I conclude that the application did not and should not have been interpreted as involving caravans at all. In so far as caravans were part of the existing facility they were being abandoned in favour of a controlled tented facility.

[36]The consequence is that a permission for 50 caravans, as the parties agree it should be interpreted, could not lawfully be granted on this application. The permission was for a different development from the one applied for or was for more than was applied for. Either way the permission is invalid. I appreciate that the Members of the Delegated Panel, the officers and indeed the Community Council saw "relocation of existing camping facility" as involving the relocation of caravans since they were part of the existing operation. But their subjective understanding of the proposal cannot override the proper objective interpretation of the application read as a whole. The permission is invalid on that ground. (ii) What did “existing facility” mean?

[37]What scale of development was applied for under the rubric “relocation of existing facility”, whether or not it included caravans? Was it for a change of use of the red edged land for caravans and tents, limited by the capacity of either that land or the existing site, or was it for the actual level of use on the existing site rather than its potential capacity or was it for whatever level was the lawfully established use of the existing site? Mr Eacock appears to have taken the view that the entire existing site had a lawful use for the siting of caravans and tents regardless of the numbers which had actually used it.

[38]In my view, whether or not the application included caravans, it was not simply an application for the change of use of the red edged land for a caravan and camp site, unlimited by reference to existing numbers. It was not expressed in any way which would have alerted the public and Members to such a potential scale of development. It was quite deliberately framed as the relocation of an existing facility. The “existing facility”, which was not defined in the brief description of the development or in the Contextual Statement, if not too vague to be capable of leading to a lawful grant of permission at all, is the campsite as it actually exists, and not the campsite which could potentially exist there, but in fact does not. The words point any reader to the readily observable scale of the existing facility, that which had actually been routinely experienced, rather than to the potential capacity of whatever land the landowner had chosen to delineate as the area of the existing facility. Nobody, in my judgment, looking at that brief description of the development and at the Contextual Statement would have thought that the application was for a development on a scale larger than had existed routinely in the past. The wording was quite inapt to convey that the application site was to be subject to a limiting condition specifying a number of units greater than had previously routinely existed. I see nothing to warrant interpreting the application as if the use of the red edged land for caravans and camping was unrestricted save by the capacity of the site or by what limits the NPA might impose but as to which the application and the suggested conditions were silent. I say “routinely” so as to distinguish the permitted development rights for a few days of rallies.

[39]I see nothing to warrant “existing facility” being interpreted as the level of the lawfully established use, in so far as that was different from either of the other two possibilities. The extent of a lawfully established use of this sort can be very controversial and difficult to ascertain in fact and law. An application in terms to relocate an existing lawfully established use would raise all sorts of issues as to what was involved, the most obvious of which is what scale of use is being applied for. Where the application eschews language fraught with those difficulties, I see no reason to import it as a matter of interpretation when a more obvious interpretation is to hand.

[40]The existence of a plan, as part of the application, showing the area of the existing facility does not lead an objective reader to a different conclusion. That plan would have been interpreted in the light of the other plans and nothing on the other accompanying plans suggested the contrary; the plans showed an arrangement of tents which occupied a small proportion of the site. The Contextual and Supporting Statement, which was part of the application, showed that some 50 tents were proposed, but is entirely silent as to the scale of the existing facility by reference to numbers of tents or caravans or duration of stay, actually experienced. It merely states that the existing use is uncontrolled, but this is a point about potential not actual use. Control was being offered by the application, not expansion and control thereafter, as the Contextual Statement makes clear.

[41]Accordingly, the application for the relocation of the existing facility meant the number of units routinely present on the existing site. It was however only on the basis which I have rejected that Mr Porten was able to submit that the permission did not grant more than had been applied for. He did not suggest that if the "relocation of existing camping facility" was confined to the existing scale of use, as I conclude it should be, permission for 50 caravans let alone 50 tents as well was what was applied for. As I shall come to when dealing with the investigation by the NPA of the existing level of actual use, there is no evidence at all to support a view that 50 caravans or 50 tents let alone both represented the existing routine level of use as opposed to an occasional event. The permission is invalid on that account as well. (iii) Effect of ambiguity

[42]Third, if "existing facility" was also capable of meaning the potential capacity of the area of land encompassing the existing use, the area of the field or fields on which tents or caravans, however few, had been sited, the application was too uncertain for any valid permission to be granted in accordance with its terms. Similarly if “existing facility” could also mean whatever was the extent of the lawfully established caravan and camp use of the existing site, there was ambiguity at the heart of the application which prevented any permission validly being granted in accordance with its terms. Where an ambiguity in the application goes to the heart of what was proposed, a permission which reflected that ambiguity would in turn be legally uncertain in a way which could not be remedied by examination of the application, with the plans and documents which were part of it. A permission which did not contain that ambiguity would not be for the development applied for. The grant is not the place or time to resolve such an ambiguity in the application; it is not for conditions to define the scale of the application in a way which goes to the very heart or nature of the application, as opposed to controlling the permitted development. As the NPA’s May 2007 “Enforcement Review” was to say, the application was ambiguous, misleading and turned into something far greater than the NPA and public had anticipated.

[43]Mr Eacock's assumption may have been that the application was for the relocation of an existing facility which, whatever the actual scale of usage, was uncontrolled and so the actual level of past usage did not much matter. An uncontrolled facility was to be relocated with the opportunity for controls to be imposed. He may also not have applied his mind to the difference between actual and potential use. He should, however, have read the application documents as a whole as constituting an application for the relocation of the actual level of use. If private discussions between Mr Eacock and Mr Bevan showed that the application was intended to be for a potential capacity-based level of usage which was as uncontrolled as he said the existing facility was, Mr Eacock should have required the application to be formally amended and re-advertised. That in my view is where much went wrong: private discussions between the planning officer and the applicant's agent led the officer to take a view of what the application was for, and what its merits were, which was completely different from anything warranted by reading the application itself. The public was excluded from this understanding; Members were confused or unintentionally misled rather than helped. So they approached the application on one basis and the public on another, although Mr Seaman realised something was amiss. Similarly, if there was a significant ambiguity at the heart of the application, its clarification could not have been left just for private discussion and resolution. (iv) Investigations

[44]Fourth, whether the "existing facility" meant the existing actual level of usage, as in my view it did, or its potential uncontrolled capacity, or its lawfully established level, the scale of the existing lawful camping facility was crucial to the grant of permission. This is where the next legal error came in. Mr Eacock did in fact approach the question of scale by trying to find out what the actual lawful usage was, as well as by considering the extent to which that actual usage could be lawfully expanded without planning control. I am prepared to accept that a view could be formed properly on the question of the scale of lawful usage without requiring a formal application for a Certificate of Lawful Existing Use under s191of the 1990 Act, however wise such a step would have been, with the opportunity more formally to draw on local knowledge.

[45]I accept that Mr Eacock made some enquiries of Mr Roberts about the scale of existing use; Mr Roberts' contradicting witness statement came in far too late for weight to be given to it. Although the passage of time may have dimmed the detail of what he could remember being told, Mr Eacock gives very little evidence about the scale of annual usage from March to November; Mr Roberts only told him that there had always been caravans all over the site and hundreds of caravans during rallies i.e. not normally. Mr Eacock examined Caravan Club certificates, which dictate the scale of caravan use which can be undertaken outside the 28 day period for a single caravan without specific permission and there was no specific permission; see para 4 of Class A to Part 5 Schedule 2 to the General Permitted Development Order 1995. Those which I have seen show that no more than 5 caravans could lawfully be sited in the existing area.

[46]He does not say what the applicant or landowner, if different, contended was the actual position; it appears that neither was asked. Neither gives evidence that they were asked or volunteered information on the actual level of use. Neither does Mr Bevan. There is no evidence that the actual scale was mentioned in pre-application discussions with Mr Bevan; that remained to be proved. Mr Eacock’s reference to the existing scale constantly being discussed with Mr Bevan is silent as to the substance of what was said. Mr Bevan says nothing about any actual level of use or about what he told Mr Eacock; he only says he saw caravans on his few visits. He was clearly suggesting that the new site should have large numbers but that was based on the absence of control, rather than on any actual figures. I do not accept that any material information was provided about actual use; discussions were about absence of control and potential on the new site. Mr Thomas does not suggest he was asked by Mr Bevan or by Mr Eacock.

[47]One aspect is entirely clear: Mr Eacock neither asked the Community Council nor any local residents, and nothing in the consultation or notification notices would have alerted them to the need to focus on the actual level of past usage as a factual issue, for its relevance to the merits or for its legal implications. The information which he had about the level of existing use was quite skimpy.

[48]Mr Davies QC for the claimants contended that Mr Eacock on behalf of the NPA failed to make the enquiries necessary to acquaint himself with the full facts about the existing level of use. Evidence available then and now from local residents strongly pointed to there having had been no more than 5 caravans on the site and usually fewer, for almost all of each of many past years. Even if Mr Eacock was receiving contrary information from others, that would at least have highlighted the existence of a factual issue of great significance for the application. And it would be extraordinary for a view to be formed about the existing level of usage without clear information from the landowners for the past ten years, whether directly or via the agent or applicant.

[49]The principle, in my judgement, upon which Mr Davies' submission implicitly draws is that a public authority has a duty to make reasonable enquiries to try to obtain the factual information necessary to provide a rational basis for a decision on the application before it, especially where it depends on a factual issue: Secretary of State for Education v Tameside Metropolitan Borough Council

[1977] AC 1014

. In the case of a planning application, the local authority has power to issue a direction under Regulation 4 of the Town and Country Planning Applications Regulations 1988 requiring an applicant to supply any further information necessary to enable the authority to reach a decision, and to provide evidence to verify particulars. Mr Eacock, using these various powers ought to have made detailed and focussed enquiries about the existing level of use, as if presented with an application for a Certificate of Lawful Existing Use, and ought to have obtained clear answers from Mr Bevan and the landowner, and from local residents and the Community Council which could be expected to have relevant knowledge. This would have exposed the factual issues and resolved them, incidentally exposing the issue about actual or potential or lawful use on the existing site. But it was an available means of procuring the relevant information, if that was what Mr Eacock thought the application was for.

[50]The level of enquiries in this case was in my judgment perfunctory, and in legal terms wholly failed to fulfil the duty of obtaining the information necessary for the decision. Except for discussions with Mr Bevan, on which the evidence of both is wholly unsatisfactory, Mr Eacock failed to ask anyone outside the authority, whether applicant, landowner, Community Council or neighbour, what their experience was. He issued no direction. He did not use s191, following Mr Roberts’ advice. The description of the development for the purposes of notification and consultation was inadequate and misleading, and so incapable of yielding useful information. The Contextual Statement was wholly inadequate for this purpose. The permission is invalid on this ground.

[51]It is also clear that before the grant of permission was issued, Ms Taylor and Mr Seaman were raising the question of whether a permission for 50 caravans was well beyond the current or established level of usage; their concern about the number of 50 caravans was founded on that being far greater than what they understood the existing level of use to be. So whatever Mr Eacock had thought the position to be initially, he knew before the grant of permission that the figures being discussed were not accepted by local residents and the Community Council. If he had not known before, he ought then to have resolved that issue before issuing the decision. He appears to have declined to do so on the basis that an unrestricted use had been established. But he had not investigated that issue properly.

(v) Notification and public consultation

[52]I turn next to the way in which the Community Council was notified and the public consulted. The public, press and site notices and the notification given to the Council contained only the brief description of the development as “relocation of existing camping facility out of flood plain”. For any further information the Community Council and public would have to go to the NPA offices, for whatever enlightenment, or rather obscuration, the full application documents would have afforded.

[53]The relevant statutory provisions for notification to a Community Council have already been set out in the description of the process. Articles 8 and 19 of the General Development Procedure Order prescribe the need for site, press advertisements and notification to neighbours, and that the representations they yield should be taken into account. Planning applications are public documents; their headline description of the development has to be clear and accurate, even though brief. The public notices which commonly draw exclusively on that brief description for the information immediately available to the public, must be clear and accurate as well. Otherwise public involvement may be substantially prevented. Members, consultees and the public may be excluded or misled. The true nature of the application may become a matter of private discussion and understanding solely between applicant or agent and officer, as clearly happened here.

[54]If the application was for the change of use of the red edged land to accommodate the existing level of tent and caravan usage taking place in the flood plain, as the evidence before me shows it to have been, the brief description would have sufficed. If the application was for the change of use of that land for unrestricted caravan and tent usage, or for some level of use greater than that which actually existed, that brief description used in the consultation was wholly inadequate to convey the true nature of the application. It was instead wholly misleading, whether deliberately or not, and was misleading in a way which would inevitably lead the Community Council and local consultees to take a relaxed view of the application rather than a hostile or at least anxious and enquiring one. The developer’s expectation of a condition limiting the numbers does not alter what the application was for.

[55]Mr Davies puts his case on this and other points on the basis that the nature of the application changed during the decision-making process, without the necessary formal amendment which was required, and that is one way of looking at it. I see no evidence of any even informal amendment; there were informal discussions between Mr Bevan, the agent, and Mr Eacock, the planning officer, as to the level of existing use and as to the limiting conditions. These clarified how the two saw the merits of granting a permission, but that is all. I prefer to analyse the legal consequences of these facts differently. Either the application was not for the permission which was granted, or if it was, as the Thomases contend, the statutory consultation and notification process was not carried out, and was not carried out in circumstances in which it is plain that the consultees would have had plenty to say that was directly in point against the granting of permission, and could easily have affected who made the decision and what that decision was.

[56]If the application could have been amended so as to lead to the grant of this permission, the amendment was so great that the procedural steps necessary for a fresh application were required. If the brief description of the development was ambiguous it was inadequate for public consultation. Clarification also required to be treated as a fresh application because of the large difference between the effects of the two possibilities, relocation of actual or relocation of potential use. These were not matters to be confined to private discussion.

[57]The statutory requirements for notifying the Community Council were therefore not complied with. This in substance deprived it of the opportunity to make directly relevant representations obviously capable of affecting who made the decision and what that decision was. There was no consultation process in reality with local residents on the application, as it was interpreted by the NPA. The NPA intended to carry out those processes properly but failed to do so. It failed also to take into account the obviously significant material considerations their properly informed representations would have brought to the NPA’s mind. Accordingly the permission is invalid on this fifth basis too. (vi) Screening opinion

[58]Mr Davies next submitted that the proposal, if it was a proposal which could lead to the permission which was granted, should have been screened for its potential to have a significant environmental impact, and that the absence of consideration given to this issue caused the permission to be invalid.

[59]The relevant statutory provisions are contained in the Town and Country Planning (Environmental Impact Assessment) Regulations SI No. 1999 /293. The effect of Regulation 3(2) is that, where the application is for “EIA development”, permission shall not be granted unless what is called “the environmental information” has been taken into account. The environmental information is the Environmental Statement, and the subsequent representations and information. There is no dispute but that this development met some of the criteria for “EIA development”: it was in a “sensitive area” as it was in a National Park, and the threshold size was met as the red edged application site exceeded the one hectare threshold for permanent camp and caravan sites by a further hectare. This was therefore Schedule 2 development but that was not the end of the matter. For it to be EIA development, it also had to be likely to have significant effects on the environment by virtue for example of its nature, size or location. However, once the planning authority has before it an application for a Schedule 2 development, and no Environmental Statement has been supplied, and no screening opinion as to the likelihood of significant impacts has been sought by the applicant, the planning authority must proceed to deal with the application as if it had received from the applicant a request for a screening opinion, which the authority must provide within three weeks of having enough information with which to do so. The screening opinion here would have been to the effect that the Schedule 2 development was or was not likely to have significant effects, and thus was or was not EIA development. This would have determined whether an Environmental Statement was required.

[60]This process was wholly ignored. There is no evidence that anyone, member or officer, considered the question of environmental assessment; the evidence of internal consideration shows that that point was ignored. Mr Eacock had to apply his mind to the issue and reach an explicit and recorded view, having obtained enough information to enable this preliminary task to be discharged; regulation 5(3). He failed to do that. It is no answer that, since he did not apply his mind to it, the conclusion he might have reached is uncertain.

[61]If the proposal was only for the same numbers of caravans and tents as had been routinely present for ten years or more on the site in the flood plain, the issue for their consideration and before this court might very well have been different. It might have been possible to argue that such relocated development, on the very small scale which the claimants contend was all that had previously existed, could not have been thought likely to have significant environmental effects. By contrast, a reasonable planning officer could obviously reach the conclusion that, if the application was for the development for which planning permission was eventually granted, it would be likely to have significant environmental effects, whether or not that had been the level of existing use. The normal consequence of a failure to comply with these Regulations, which could lead to the provision of an Environmental Statement, is that the permission is invalid; Berkeley v Secretary of State for the Environment

[2001] 2 AC 603

. Mr Porten’s principal point on this ground was that it was too late to challenge the permission, as these facts had been known or ought to have been known to the claimants some years ago. I deal with that problematic issue later.

[62]He also made the point that, in item 13 in Schedule 2 to the Regulations, which covers changes or extensions to a permanent caravan or camp site, the threshold for that change or extension itself to constitute Schedule 2 development is the same as the threshold for a wholly new site. However, this is a wholly new site to which the application purportedly seeks consent to move the existing site. It is not a change to the existing site in the sense in which that word is used in the Schedule, and still less is it an extension to it.

[63]I note in passing that, notwithstanding Mr Davies’ later submissions about the vagueness and unenforceability of the conditions in the context of the need for a discontinuance order and not enforcement proceedings, he did not add that to his arguments about the invalidity of the permission. Perhaps it would have exposed too obviously what arguments had been available to the claimants since June 2005.

[64]Accordingly there are a number of grounds upon which this permission is invalid. Before dealing with remedies, I deal with the two other grounds on which Mr Davies contended that the permission was invalid. (vii). Who made the decision?

[65]Mr Davies submitted that the Delegated Panel made the decision and not the officer, and that the decision therefore was made by a body which had no power to make it. This was the one issue over the validity of the permission on which the NPA resisted the claimants' challenge. I accept the proposition put forward by Mr Davies that if the decision were made by the Delegated Panel, that body had no power to make it, and the decision would be invalid. The issue is essentially one of fact. I have already summarised the evidence before me. I am satisfied that the decision to grant permission subject to the conditions imposed was taken by an officer, either Mr Eacock or Ms Lewis and it was not suggested that it mattered which one it was. It was not taken by the Delegated Panel.

[66]First, it was not the function of the Delegated Panel to take decisions on the merits of the grant or refusal of permission at all. It had a readily understandable role in overseeing the operation of the newly introduced system of delegated decision-making, and in deciding that certain decisions which might have been taken by officers should instead be taken by the Planning Committee, but not by the Panel itself. It follows that for the Panel to have taken the decision at all would have involved a significant misunderstanding of the system of decision-making on the part of both officers and Panel. Although it would be necessary for the functioning of the scheme that the officer intention to grant or refuse be known when they met the Delegated Panel, agreement by the Panel with the intended officer decision is not the taking of the decision by the Panel. The decision “delegate to permit” is not the Panel deciding on the merits but allowing the officer to do so in a way consistent with the scheme of delegation.

[67]Second, although there are some minor differences in detail and recollection on the part of the three witnesses who provided evidence on this point, and that is scarcely surprising over time, they are all clear that the decision was made by the officer and not them. That would be enough by itself, but it is not just a matter of a bare assertion to that effect. The nature of the discussions and the content of the meetings show that to be so. The questions asked by Ms Taylor about the application and the initial views of the Community Council are wholly consistent with her checking whether this was an application which the Committee should decide. Her concern about the Community Council's new position, which both Members say and I accept in the light of Mr Seaman's evidence happened after the 13 May 2005 meeting with Mr Eacock, is consistent with the matter having been stamped "Delegated" in the knowledge that the officer decision as discussed would be to grant permission. Once the Panel on 13 May 2005 had decided not to refer it to Committee, knowing of the intended decision, the Panel then treated the decision as having been made. That is wholly consistent with an officer decision in effect being made as soon as the file had been stamped. Ms Taylor, at the later meeting, wanted the matter referred to the Committee; she did not ask the Panel to change an earlier Panel decision on the merits of the case. Ms Taylor's suggestion that certain conditions should be imposed is not consistent with the Panel taking the decision.

[68]Third, there is no worthwhile contrary evidence. The claimants point to the conclusion of a report commissioned by the NPA in June 2007 from Ms James, a solicitor with Clarks Legal, into the way in which the permission was granted. It concluded that there was confusion in NPA about the role of the Delegated Panel with some of the view that the function of the Panel was to decide who should take the decision on a particular application, and others of the view that the Panel approved the decision to be taken by an officer. This is a distinction which does not matter in this case. Neither involve decisions by the Panel. All, she said, were clear that once the decision was taken at the Panel meeting it could not then be changed by the officer. She inferred that the decision was therefore taken at that meeting.

[69]There are a number of points which I need to make about this. The first is common to a number of reports which the NPA commissioned into the way in which its decisions were made in relation to Gilestone Farm, and finds a close cousin in some of the evidence provided by all sides to this case. I do not for one moment decry the value of these reports for a small authority dealing with the problems which the history of this case revealed to it, nor the assistance which in a political context local people may derive from them. But it is for me to decide the facts in this action. (Much of the evidence of the claimants and interested parties also contained irrelevant opinion, indeed highly opinionated, evidence as to the facts which I should find.) Second, Ms James' conclusion, if seen as the claimants see it, involves a false antithesis: the decision for the Panel is whether to refer the decision to the Committee, but its refusal to do so may, and probably will, also mean that it approves the decision which the officer intends to take. That does not start to show that the Panel makes the decision. Third, even if the decision on the merits of the application was taken at the meeting, that does not show that the decision was taken by the Panel rather than by officers, nor does the erroneous albeit general assumption that it could not thereafter be changed. So the fact that Ms Taylor was persuaded by Mr Morgan that the decision had been taken, and could not be referred to Committee without it looking as though Members had been lobbied, says nothing about who took the decision, merely that it was thought to have been taken in a way which would make a referral embarrassing. Mr Davies says that the NPA has "attempted to... re-characterise the relevant events" in the witness statements, but in my judgment he has not begun to make good a claim that the evidence before me in those statements is controverted by earlier material produced to Ms James.

[70]The "Delegated Decision Report" contains a recommendation, which would be an inaccurate but understandable way, of representing the role of the officer at the Panel meeting, foreshadowing the decision which he would take if it were left to him but in the language which would have normally been used for a decision to be taken by another body. It is also strange that that report is dated 17 June 2005, after all the Panel meetings. But I do not ascribe any real significance to this nor to the mysterious earlier and incomplete draft in the light of all the other evidence about how was the decision made.

[71]Accordingly, the claim that the decision was taken by a body which had no power to take it fails. This conclusion starts with a false premise however, but it is the premise upon which the point was argued. The premise was that the permission was otherwise valid. But the “delegate to permit” decision was taken and adhered to because the Panel did not appreciate initially or later give effect to the true nature of the application if it could lead to the permission which it did. It did not really appreciate the misleading nature of the short public description of the development nor the impact of the later planning objections which should all have affected the decision to delegate to permit, and which would all have permitted that decision to be changed before the issue of permission. Properly understood, it is difficult to see that this application could possibly have been left to officer decision under the NPA’s scheme of delegation, if it could lead to the permission it did. (viii) The validity of the application documents

[72]The last issue to which I turn concerns the validity of the application itself. Mr Davies contended primarily that the true identity of the applicant had been misrepresented and given inaccurately on the application form; the applicants were the Thomases in reality and not Acorn Camping. He also contended that the particulars of the application were inaccurate because they did not reflect what the named applicant wanted, or alternatively did not reflect the permission granted. These contentions occupied much of the documentation before the Court and a deal of time. I have already set out what appears on the face of the application documents.

[73]Mr Davies originally alleged that the information as to the identity of the applicant and the information submitted as part of the application was fraudulent, that is, was provided knowing that it was untrue or recklessly indifferent as to whether it was true or not. The allegations of fraud were made against Mr Bevan and Mr Thomas. They were made in the light of a letter dated 10 November 2008 from Mr Gardiner, managing director of Acorn Ventures Ltd to Mr Needham, one of the claimants, who had contacted him, and a subsequent telephone call on 4 June 2009 between Mr Gardiner and the claimants’ solicitor, Mr Evans. Mr Gardiner had denied that Acorn had any interest in the planning application; it had spent no money on it, and had no written records in relation to it.However, in the light of evidence from Mr Ashton, who was responsible for finding sites for its operations, from Mr Bevan and Mr and Mrs Thomas,Mr Davies accepted that Acorn had been more involved in the planning application than what the claimants had been told by Mr Gardiner had led them to believe, and that “elements of the Statements of Facts and Grounds must be restated or reconsidered.”

[74]There was no further amendment however, and Mr Davies was minded to persist in his application for permission to cross-examine Mr Bevan and Mr Thomas so as to put these allegations to them. In reality, the full documentary evidence was rather unhelpful to Mr Davies’ case of fraud and dishonesty, and it seemed to me that he was seeking to cross-examine so as to create a case of fraud and dishonesty which had now no clear basis. I took the view, and told the parties, that were he to persist in that application, which I had not yet decided to refuse, and were he to lose on these allegations, I had reached the provisional view that an order for indemnity costs against his clients in respect of that issue could well be appropriate. After taking instructions, he abandoned the allegations of fraud and dishonesty. The more the evidence was exposed, the wiser that course seemed to have been. The order that those two witnesses attend so that an order for their cross-examination, if made, would not delay the hearing, had also included Mr Ashton, but he could not be located for service of the order. Yet there were many issues on which his evidence, properly explored, might well have helped the Thomases.

[75]The legal framework for Mr Davies’ recast submissions starts with s62 of the 1990 Act, as then in force, which required an application to include such particulars and to be verified by such evidence as regulations or planning authority directions might require. The words “the application shall be made… shall include…”, created he submitted a mandatory obligation to comply with the Regulations and directions. The Town and Country Planning (Applications) Regulations SI No 1988/1812 required that the information necessary to describe the application be submitted to the planning authority; Reg. 3(1)(d). I have already referred to Regulation 4, by which an authority has a power to direct the provision of further information. None of those were exercised here, and there is no evidence that the planning officer contemplated their use.

[76]Article 5(2) of the Town and Country Planning (General Development Procedure) Order SI No. 1995/419, requires an application to be in the form directed by regulation 3 of the 1988 Regulations, above, before there is any obligation on the planning authority even to acknowledge receipt of an application. Article 20 (i) requires a “valid application under…regulation 3 of the 1988 Regulations” before the obligation to reach a decision on the application within eight weeks arises.

[77]Mr Davies submitted that a valid application, which included the required particulars, had to contain accurate particulars and the true identity of the applicant. The identity of the applicant, he accepted, will not normally be a relevant consideration for the reasons given by Sullivan J in R (Park Pharmacy Trust) v Plymouth City Council

[2008] EWHC 445

Admin;

[2008] 2 P& CR 200

, para.14. The applicant’s identity is relevant to the practical handling of the application rather than to its substantive merits unless a personal permission is sought, or, I would add, and as is more common, there is something for example about the attributes of the applicant upon which the planning authority is asked to rely as a consideration, but short of granting a personal permission. That is how, Mr Davies submitted, the NPA had seen the importance of the applicant here, and how the Contextual Statement had invited the NPA to consider it. The other particulars given or required to be given as part of the application also had to be accurate and true.

[78]Failures in these respects could lead to the application being invalid. Whether they would do so depended on the tests in R (Jeayanthan v Immigration Appeal Tribunal

[2000] 1 WLR 354

, per Lord Woolf MR, at p362: was substantial compliance with the procedural requirement sufficient, and if so had that happened in fact? Was the degree of non-compliance capable of being waived, and if so had it been waived in fact? If the answer to both questions is in the negative, the appropriate consequences have to be considered. This may depend on whether the non-compliance goes to jurisdiction, but not on the distinction between mandatory and directory provisions. What matters is the importance of the provision for the operation of the statutory scheme, the difficulties created by this act of non-compliance, and the extent to which other remedies exist for it.

[79]Mr Davies focused on two broad aspects: a failure accurately to identify the correct applicant, and the inaccurate details as to the proposal, which was in part a consequence of the applicant being wrongly identified and in part the consequence of a possible change in the applicant or his intentions during the decision-making process. A substantial failure to provide accurate particulars on matters likely to be significant in the decision-making process would, submitted Mr Davies, invalidate the application so that no permission could validly be granted on it.

[80]I now come to the evidence relevant to this issue. The NPA produced a witness statement dated 10 August 2009 from Mr Gardiner, of Acorn Venture Ltd, the address of which was the same as that given on the application form as the address of Acorn Camping. In 2005, he had visited Gilestone Farm with Mr Iain Ashton whose task for the company was to find a site in Wales near water for Acorn’s business which was running activity camp sites for children’s groups. There he met the Thomases, whom he described as keen to accommodate Acorn’s needs, to give them exclusive use of the land and who made no mention of caravans. During 2005, Acorn’s site near Hay on Wye was in operational and planning difficulties which added to the urgency with which an alternative site had to be found and progressed through the planning system.

[81]Mr Bevan was acting for Acorn in relation to planning matters on both the Gilestone Farm and Hay on Wye sites, and Acorn paid invoices he submitted, but Mr Gardiner never met him. Mr Ashton was Mr Bevan’s point of contact. Mr Gardiner criticised the language of a letter dated 4 March 2005, submitted by Mr Bevan to the NPA: contrary to the assertion that the application was submitted by the camping supervisor who would be responsible for the operation of the site, Mr Ashton did not have that role; contrary to the assertion that the application was urgent because Acorn had lost a site, Acorn had not lost the Hay on Wye site.

[82]Mr Gardiner said that he saw no planning application documents before they were submitted and indeed was unaware that any application had been made or any permission granted in the name of Acorn for a site at Gilestone Farm. Acorn would not normally make an application in its own name but it might well support and finance an application in respect of a site, once it had an agreement in place with the landowner, otherwise the landowner might be the only beneficiary of Acorn’s support activities. He thought that Acorn was financing some preparatory works for the Thomases’ application even though at this stage there was no agreement with them. Mr Ashton would have known that he had no authority to put Acorn’s name on the application. This was an important part of Mr Davies’ submission that the person named on the application form was not the true applicant since the application had been made without the knowledge or approval of Acorn.

[83]Mr Gardiner also thought that the substance of the application was at variance with the operational requirements of Acorn for three tented “villages”, and a total of 52 tents plus staff and facilities tents. What was shown on the application documents varied between three groups totaling 54 or elsewhere “approximately 50 tents”, which if it included the staff tents and tents for other facilities would have been short of the number required by nearly twenty tents. Acorn were proposing to use only part of the red edged land, Area 1, but required exclusive use of it to which the Thomases had agreed, whereas the Contextual and Supporting Statement referred to the possibility of joint use with family groups and individual visitors. He criticised the layout for showing three tented villages on Area 2 as well whereas Acorn only wanted the three on Area 1. Access to water for the children in the River Usk, which he discovered in 2009 to be a Site of Special Scientific Interest and a Special Area of Conservation, would also have created a problem which he was not advised about. Mr Davies regarded all this as supporting his point about the identity of the applicant, as well as showing that the wider information supplied in support of the application was inaccurate, at least in relation to the permission granted. No caravans were mentioned on the layout either.

[84]Mr Gardiner had been unaware of a letter of 3 August 2005 written by Mr Bevan to Mr Ashton after the grant of permission in which Mr Bevan told Mr Ashton of the debate about the imposition of the condition limiting numbers of caravans and tents. There had been extreme pressure on officers to reverse the decision process and refuse the application or for it to go to Committee, which meant that acceptance of the condition was the lesser risk. Mr Gardiner, by contrast, said that Acorn had no need of a permission before the start of 2006. Acorn’s interest in the Gilestone Farm site came to an end after December 2005, because the Thomases wanted too much money, and by April 2006, Acorn had agreed terms on another site and dropped all interest in Gilestone Farm.

[85]Mr Ashton, who was no longer employed by Acorn, made a witness statement dated 25 August 2009. This filled in rather more background and detail. When he first met the Thomases at the end of 2003, they had told him that they ran a small caravan operation of 5 or 6 caravans under a Caravan Club licence. They welcomed the idea of an Acorn site at Gilestone Farm. Various temporary solutions enabling Gilestone Farm to be used for the 2004 season were discussed but for 2005 and beyond, 3 tented villages would be required. The Thomases told him that they were looking to apply for permission for a barn conversion and did not want to make any application which would jeopardise it. He sought another site unsuccessfully and returned to the Thomases in late summer 2004, by which time, according to him, Acorn did have an urgent need for a site in Wales. He explained what Acorn needed for a long term site: 3 tented villages totalling 54 tents, plus tents for staff and other facilities which would make between 70 and 80 tents in all. This was conveyed to the Thomases and to their then planning agent, G Powys Jones, in writing. Gilestone Farm would have to provide certain infrastructure: hard standings for the amenity/facilities tents, and electricity and water supplies, but there was no Acorn requirement for proper roadways.

[86]Later that autumn, Mr Ashton met the Thomases again, but this time they had a new agent, Mr Bevan. Mr Ashton however understood that it would be Mr Bevan who would be taking Acorn’s proposals forward. He still thought throughout 2005 that the Thomases’ overriding concern was that nothing should impede their barn conversion application. In 2004/2005, he had instructed Mr Bevan to prepare the planning application for the Acorn camp site at Gilestone Farm; but he never instructed him actually to submit it or to use Acorn’s or his name on the form. Mr Bevan had suggested that it be made in Acorn’s name lest an application in the name of the Thomases receive unfavourable attention. He thought that this was no more than a possibility which had not been resolved. Although Mr Gardiner was aware that Acorn was supporting the preparatory work because of the invoices from Mr Bevan which were paid, no application was submitted, so far as he was aware, because of the delays in submitting the application for the barn conversion. Like Mr Gardiner, he said that Acorn would not commit itself to a site until it had planning permission, and it would not submit an application unless the land interest with the landowner had also been resolved. This was the first time that Acorn had provided financial support to the landowner for pre-application work and technical supporting documents; it needed to move forward with the site as quickly as possible, because efforts to find another site had failed. He also believed that Acorn was receiving proper professional advice from Mr Bevan.

[87]Although Mr Ashton was abroad for much of 2005, he never asked for or received regular updates from Mr Bevan about Gilestone Farm, nor was he the “client” to whom Mr Bevan was referring in emails to Mr Eacock and others as chasing him for the permission decision, nor did he have any conversations with Mr Bevan about the restrictions on numbers of tents and caravans contrary to what Mr Bevan said; Acorn had had no need of flexibility in that way. He said that he was never told during his dealings with Gilestone Farm, either by the Thomases or by Mr Bevan, that a planning application had been made or granted for a campsite there. He would not have kept looking for another site had he known. He first knew of the application and permission when, in 2009, detectives from the local financial crime team called on him.

[88]In September 2005, he met the Thomases again, and this was he thought the first time Mr Gardiner had met them. No mention was made of the permission. Mrs Thomas, who was the driving force in the negotiations, wanted £60000 a year rent from Acorn, which was far in excess of what Acorn had already made clear it was willing to pay. Even during November 2005, he was still in discussion with the Thomases’ solicitor, so that once the other terms were sorted out, a more realistic rent could be negotiated. He had been unaware of an application made in December 2005 for a utility building at Gilestone Farm, still less had there been any need to have one ready by March 2006, the absence of which prevented Acorn using Gilestone Farm that year. However, in about January 2006, he told the Thomases that Acorn would not proceed with them as it had found another site. He had asked Mr Gardiner to warn them about the amount of site work they were doing without any formal agreement with Acorn.

[89]He concluded that the Contextual Statement submitted with the application did not reflect what Acorn would have said about employment, alternative sites, public camping, the use of Area 1, its need for only 3 not 6 tented villages, transport, caravans, the sensitivity of the River Usk, and the facilities being located in a barn, among other topics. The permission granted was not suitable for Acorn’s needs either, because of the presence of caravans. His first name was misspelt on it and his company was never called Acorn Camping. Mr Davies put a great deal of weight on all these points as showing that the application had not been made on behalf of Acorn in reality, contrary to what the application form said. He took issue with much of what the Thomases and Mr Bevan said in their statements.

[90]Mr Bevan, in a statement dated 14 August 2009, presented matters rather differently: while he had been doing urgent temporary work for the Thomases in 2005, he had been asked by Mr Ashton to provide professional advice to Acorn Adventure and to submit a planning application for an “amended campsite” at Gilestone Farm. He thought that the proposal was being promoted in the interests of both the Thomases as landowner and Acorn, which in the early stages of his dealings with it was known to him as Acorn Camping. He saw it as a joint venture. He was also involved in preparing the planning application for another site for Acorn in the event that delays in planning decision-making in the NPA, which were then well known, precluded a permission at Gilestone Farm in time for the 2005 season. In both instances, Acorn paid for the preparatory work, and the landowners paid the application fees, except that the Thomases also paid for a survey which would be useful to them for the barn conversion application. Mr Bevan had pre-application meetings about both sites with the relevant planning authorities. He made it clear to Mr Eacock at the NPA in respect of the Gilestone Farm application that the application was being driven by Acorn’s interests, and that relocation out of the flood plain, the ropes activity area and the communal catering tents were specific to Acorn’s needs. Correspondence with Mr Eacock referring to urgency because of the loss of an alternative site could only have reflected the problems faced by Acorn and not the landowners. When he wrote in June 2005 to the NPA about the delay his client was experiencing in having to provide an alternative site, he was again referring to Acorn.

[91]Mr Bevan produced a number of documents which show the relationship between him and Acorn. These are crucial to the way in which the issue developed, and in my judgment, show the care needed over what Mr Gardiner and Mr Ashton remember and say. One such was the letter of instruction signed by Mr Ashton, Mr Thomas and Mr Bevan dated 21 January 2005 and addressed to Mr Ashton. It said that Mr Bevan was aware that it had been the intention to submit a planning application for camping/adventure activity breaks at Gilestone Farm since late 2004, that that had been delayed pending the outcome of the barn conversion application but that Mr Thomas and Acorn had concluded that the camping application could wait no longer. The letter refers to a joint venture. Mr Bevan was aware from a recent meeting with Mr Ashton of the urgency in obtaining permission “for the erection of approximately 50 tents and ancillary facilities for the season April-September 2005”. It was agreed that Mr Bevan, for Acorn, would prepare a planning application on completion of necessary investigations. He would also have to give notice of the making of the application to the owner of the access track who was not Mr Thomas. Mr Bevan hoped shortly to agree the application area and the type of submission in anticipation of the application being submitted by late January or early February. There is no evidence that this was ever agreed by Acorn.

[92]A handwritten note of 31 January 2005 records telephone conversations with Mr Ashton and Mr Thomas in which Mr Bevan discussed letters to be sent to Mr Eacock at the NPA. On 19 February, Mr Bevan’s note of a telephone call to Mr Ashton suggests that he was told that the last days of preparation before submission of the planning application were at hand. The notes and correspondence often relate to both Gilestone Farm and to the Hollybush Inn alternative or temporary additional site on which Mr Bevan was also advising Acorn; most of the emails relate to that site and not to Gilestone Farm.

[93]An invoice was sent by Mr Bevan to Mr Ashton in February 2005, “Re Proposed Camp Site Planning Evaluation and Submission of Planning Application”, for £2004. This was paid soon afterwards.A further £1959 was paid by Acorn Venture in March 2005 by a cheque signed by Mr Gardiner. £3775 was invoiced in April 2005 and paid in May 2005 for “Proposed Camp Site Planning Evaluation and Submission of Planning Application/s - Gilestone/ Hollybush“. The text of the invoice referred to the applications and supporting statements for both applications. £4487 was invoiced for by Mr Bevan in June and paid in July 2005 by Acorn; it too referred to both applications.

[94]In May 2005, Mr Bevan copied Mr Ashton in to an email about the planning application and its relation to the Special Area of Conservation at the River Usk. The importance of the email is that it makes it quite clear to Mr Ashton that a planning application has been submitted. It gives its reference number. Some of Mr Bevan’s correspondence with Mr Ashton drew a distinction between Acorn as the client and the Thomases as the landowners. Acorn was also Mr Bevan’s client for the Hollybush Inn site. Mr Bevan also perceived that Acorn needed a site quickly. Mr Bevan’s evidence was that at a date between the submission of the application and the grant of permission he met Mr Ashton and Mr Gardiner to explain why the planning process in respect of Gilestone Farm was taking so long, since so much had to be done for it.

[95]He said that he also discussed with Mr Thomas and Mr Ashton the sort of conditions which the NPA might impose at Gilestone Farm, but this did not include initially any numbers of tents or caravans. When Mr Eacock told him of the limits which the NPA intended to impose, Mr Bevan said that he told him that Acorn required 73 tents, thus pursuing, albeit unsuccessfully, Acorn’s interests. Mr Bevan does not give evidence however of any discussions with Acorn about the number limits which Mr Eacock had come up with.

[96]During late May and early June, Acorn and the Thomases were becoming concerned at the delay in the grant of permission, and it was agreed with Mr Ashton that Mr Bevan and Mr Thomas should meet the Chief Executive of the NPA to try to hasten the grant of permission.

[97]However it is also clear, in my view, from emails in June 2005 passing between Mr Bevan and the NPA that the grant of permission at Gilestone Farm was being chased on behalf of Mr Thomas, and that it was the problems which delay would pose for his farm diversion plans which were driving the concerns. I reject Mr Bevan’s evidence on this. Mr Thomas is clearly the “client” who has been chasing Mr Bevan, who raised the possibility of complaints against the NPA and who was “over the moon” at the grant of permission. The June emails bear no sign that they were copied to Acorn.

[98]On 3 August 2005, Mr Bevan wrote to Mr Ashton about the grant of the Gilestone Farm permission, and referring to the agreed series of meetings between him, Mr Thomas and officials at the NPA. There had then been local political intervention to prevent the grant of permission, but the grant had been obtained after a meeting between him, Mr Thomas and the Chief Executive of the NPA in which pressure had been brought to bear on the NPA. He dealt with the conditions, and explained why he had felt obliged to accept what the NPA imposed so as to avoid putting the grant itself at risk. He described what had to be done to comply with the conditions and hoped for further instructions to deal with those points. The Thomases were sent a copy of this letter. Mr Ashton said that he had been in France at the time, had never received this letter and would have been surprised at its contents. Mr Bevan does not explain why he took over a month to inform this pressing client of the grant of permission.

[99]In September 2005, however, Mr Ashton told Mr Bevan that it was not proceeding with the Gilestone Farm site and that was the end of any real involvement with the site by Mr Bevan, as not long afterwards, the Thomases reverted to their former planning adviser.

[100]Mr Thomas, in his witness statement, described the level of caravan and camping use before the grant of permission: they had a site licence for 5 caravans, and used the site all year round but it had poor facilities; they also held regular rallies with much higher but unspecified numbers under permitted development rights. An expansion of the site was not something which they had considered seriously. Mr Thomas does not suggest in his evidence that, although he had been at Gilestone Farm for 18 years, the caravans and tents there had ever reached the level of use for the length of time each year which was permitted in 2005.

[101]Mr Ashton turned up at Gilestone Farm in 2003, while looking for a site for Acorn, and the Thomases met him again in 2004, when he described the sort of site and facilities which Acorn was searching for. They understood Acorn to be looking for a long term site, and by August 2004, the Thomases were seriously interested in the opportunity which that offered their loss making farm business. It was informally agreed that Acorn would make and pay for the application, because the Thomases did not want to prejudice their application for permission to convert a barn, nor did they want to be responsible for the costs. It was also agreed that the Thomases would pay for the costs of developing the site, once permission had been granted. Mr Thomas suggested to Mr Ashton that Acorn use Mr Bevan to deal with the planning application because he knew the NPA, and was doing some work for them already on the barn conversion. The barn conversion application was put in abeyance in 2004.

[102]Mr Ashton agreed to instruct Mr Bevan, and they met in January 2005. Mr Thomas said that he did not sign the letter of instruction dated 21 January 2005as a client, but as a witness. He never instructed Mr Bevan to make the application. He did not get really involved in the application until shortly before it was to be granted, receiving only the occasional update from Mr Bevan as a matter of courtesy. But in March 2005, Mr Bevan asked him to pay for the planning application fee, £240, because the length of time it would take to get a cheque from Acorn would delay the application by four weeks, and as a matter of goodwill towards Acorn in view of the amount which the preparation of the application had already cost Acorn.

[103]The description of the level of usage on the existing site in para 25 of Mr Thomas’ witness statement makes for rather odd reading. It reads as though he was a complete stranger to the site and its use. He says that it “seems clear to” him that the planning officers had used their local knowledge of the site to form a view about the existence or otherwise of a caravan site on the land, and he comments on what he gleaned from the interviews which the officers gave to Ms James when she was investigating the grant of permission. (He declined to be interviewed for that report.) This is wholly without value as evidence as to what the level of use was, save for the instructive silence about whether he said anything to the officers or to Mr Bevan about the existing level of use. I infer he told them nothing of what he knew, content that if errors were being made he was not losing out in consequence. He does not suggest that they were right in the view they formed as to the actual level of past usage. He may have thought, relying on them, that all that counted was the greater scale of potential usage on the existing site which might then be “relocated”. With hindsight, Mr Thomas thought that planning permission had been granted for more than he had anticipated, both in area and in number of caravans. Mr Bevan told him that he had applied for both areas within the red edged land, not expecting to receive permission for both, and Mr Thomas expressed the view that permission had also been granted for an additional 6 acres, because of a stray reference on one plan stamped as approved, making 20 acres of approved caravan and camping site in total.

[104]Mr Thomas started putting pressure on Mr Bevan to contact the NPA in early June 2005 to find out why the permission was taking so long to come through after Mr Eacock had indicated that it would be granted as an officer decision. Mr Thomas said that Mr Ashton was contacting him regularly, even daily, as Mr Ashton himself was under pressure from his board. (This is not supported by the evidence of Mr Ashton or Mr Gardiner, nor does any such contact appear to have been made by Acorn to its planning agent, Mr Bevan, its obvious point of contact. I reject it.) Mr Thomas said that he himself wanted the permission as soon as possible so that he could start the infrastructure works. So he attended the meeting with Mr Gledhill to put pressure on the NPA to issue the permission which he thought it had already decided to grant. Shortly afterwards, on 21 June 2005, the permission was issued. Just as Mr Bevan is silent as to why it took him until 3 August 2005 to inform the applicant of the grant of the permission, so too Mr Thomas is silent as to whether or when he told Mr Ashton of the good news for which, he says, Mr Ashton had so long been pressing him, that permission had been granted.

[105]In August 2005, Mr Thomas set about implementing the permission. He applied for road signs which included the names “Acorn” and “Gilestone Farm” from Powys County Council, and paid a deposit. He paid some £2000 for the tourist signing in December. He and his wife had a meeting with the County Council about funding for the development of the site, which he saw proceeding with the Acorn part first and then the caravan part. He sought funding from the Welsh Tourist Board, the application for which is of interest because the existing use is described by him and his wife as being 5 touring pitches, and the proposed use I interpret as being either 100 tents or 50 tents and 50 touring caravans. The application form also referred to Acorn’s commitment to the site and to his expectation that Acorn would be on site in 2006. This funding application was to help cover the infrastructure costs which the Thomases had agreed with Acorn that they would pay. They anticipated an outlay of some £500000. The business plan was never finalised as events overtook them. No funding was received.

[106]In September 2005, there was a meeting at the Farm attended by the Thomases, Mr Gardiner and Mr Ashton. His wife made detailed notes which he exhibited. Mr Gardiner was silent about this meeting, but Mr Ashton confirmed that it took place, although he said that it was confined to discussion about lease terms. I find it impossible to believe that the existence of the planning permission was not mentioned even as part of the debate over the terms of the lease, or that the discussions were as confined as Mr Ashton said. His evidence was that knowledge of the existence of the permission would have avoided him needing to look for another site in Wales; he would have wanted to know if it had been granted. (His evidence also sits ill with his assertion that he did not want to put the application in yet and with the urgency in his instructions to Mr Bevan.) It is not plausible that he would have made no enquiries as to the prospects for the site or that he would have been told that permission had not been obtained when it had been. The tactic which Mr Ashton said Acorn was using was to agree all the terms of the lease and then to tell the Thomases that the £60000 rent, which the Thomases thought was agreed, was excessive, as Acorn had thought all along; a lower rent would then be proposed if the site was still required.

[107]I accept that Mrs Thomas’ suggestions for how they would fund the infrastructure were discussed, that Acorn did discuss how quickly Mr Bevan could obtain the various approvals to discharge various conditions as the permission required before the site could be used. I accept that the array of practical matters relevant to the development of the site and who would pay for what was discussed. Mr Thomas also obtained estimates in September 2005 for the cost of fitting out utility buildings and roadways, with a view to the site being ready for use in March 2006. He was not worried about the absence of a lease because he thought that a deal had been done for which the formalities would follow.

[108]In September 2005, Mr Bevan wanted £10000 for the planning work involved in obtaining NPA approval to the actions necessary to satisfy or discharge the conditions on the permission before the use could start. He discussed this with the Thomases, rather than with Acorn. He also wanted the Thomases to pay £5000 on account of fees which he said were outstanding from Acorn; the Thomases reluctantly agreed to pay £2500 to keep the project on track for March 2006. Mr Robert Davies, the Thomases’ solicitor, gave evidence that Mr Thomas told him that this sum was part of a bonus which Mr Bevan had asked for from him for obtaining the permission. Other evidence supports that claim by Mr Thomas, although he does not mention it himself. Not long afterwards Mr Bevan’s involvement was ended by the Thomases who could not afford the fees he wanted to obtain the discharge of the conditions. Mr Thomas himself undertook that work; this does not sit easily with him being a disinterested bystander to the application and permission any more than do his other acts.

[109]Although in September Mr Thomas was told by Mr Bevan that there was no permission for the utility buildings, Mr Eacock not long afterwards confirmed that the permission covered the erection of those buildings as well and no further permission for them was necessary. In November, Mr Thomas paid a deposit of £8500 for the £21500 sewage treatment plant which would be necessary for the operation of the utility building, paying the balance in February 2006. The design was agreed in November 2005, and he paid a deposit of nearly £3000 for the block. He obtained a quote of £190000 for fitting it out.

[110]Meanwhile, Mr Thomas’ solicitors discussed the lease terms with Mr Ashton at a meeting on 24 October 2005, and discussions continued through November and December, with a view, as Mr Thomas saw it, to all being ready for Acorn to start using the site in March 2006. He himself had a further meeting with Mr Ashton to discuss the provision of electricity and how the cost would be shared for the Acorn and Thomases’ sites.

[111]However, at a meeting with Mr Eacock on 20 December 2005, to finalise details of the block, Mr Eacock told him that specific planning permission was necessary for the block. This shock led Mr Thomas to make the application and pay the £1920 application fee there and then. On 3 January 2006, his solicitor emailed Mr Ashton referring to his clients’ willingness to negotiate any terms of the lease, to the fact that a specific application was needed for the utility building but was expected to be granted without difficulty, to the email which Acorn had sent before Christmas warning the Thomases against committing themselves to significant expenditure for the Acorn development in advance of an agreement, and commenting that he advised his clients to do as little as possible in relation to the implementation of “the current planning permission” until Acorn had reached its formal decision on whether it wished to proceed. In mid January 2006, Mr Ashton told him that Acorn no longer wished to proceed with this site, giving as his reason the delay over the utility building. This was confirmed in February 2006. The Thomases had spent £3500 on legal fees relating to the grant of the lease. There is no evidence of surprise by Mr Ashton at that reference to the planning permission.

[112]Mrs Thomas’ witness statement agreed with her husband‘s, but took issue with some of the inferences/submissions in the claimants’ solicitor’s witness statement of 5 June 2005 made for the purposes of the permission hearing. She had referred to “our” project when writing in August 2009 to the Welsh Tourist Board, because it was a joint project between the landowner and the site operator. Mrs Thomas had referred to “our” planning application for the campsite, and “our” agent, rather than Acorn’s, in correspondence with the NPA in early 2006. She said that she was speaking generally in relation to the application on their land, and that Mr Bevan was also their agent on the barn conversion. The Thomases had paid for a land survey because it would be useful to both the camp site and to the barn conversion applications.

[113]I reject the claimants’ contentions under this ground. It is perfectly clear once all the evidence, with the contemporaneous documents, was produced that allegations of dishonesty and fraud could not readily be made out. There was too much scope for muddle, incompetence, duality of role, amateurism, informality, confusion between actual and potential and existing lawful use, want of attention to detail and procedural correctness, for so serious an allegation ever to be the more probable explanation for the sequence of events. The allegation was too readily made with only partial evidence and then persisted in when the written material showed that a real re-examination of the claim was required rather than persistence in it. I would not say that the statements of Mr Gardiner, Mr Ashton, Mr Bevan and Mr Thomas are wholly satisfactory accounts of what happened: there is forgetfulness, at times surprising, a certain defensiveness and self-protection, indeed omissions abound, but those failings do not sufficiently support allegations of dishonesty and fraud against the latter pair. Cross-examination to prove what was not established as a prima facie case on the documents would not have been fair or a useful expenditure of time.

[114]I am satisfied that Mr Bevan was Acorn’s agent for the purpose of submitting a planning application. The application contained no inaccuracy in that precise respect. The letter of instruction puts that beyond doubt. The incorrectness of the shortened version of the name Acorn on the application is inconsequential. No one who was concerned and checked the address, which was correct, or enquired what Acorn did would have been misled. The misspelling of “Iain”, and the misdescription of his role are both understandable, trivial and legally irrelevant.

[115]Mr Ashton’s evidence that his instructions were limited to the preparation of the application and did not permit its actual submission may be tenable on a very close reading of part of the precise wording of the letter, but not with its general tenor including the joint need for urgency; nor does he say that this refined distinction was ever drawn expressly to Mr Bevan’s attention. I regard it as very improbable that a planner instructed to prepare an application would, in the absence of express instructions on that precise point, treat that as an instruction not to submit it rather than the contrary. I do not accept that the letter was effective to limit the power of the agent in that way, and regard the instructions, on any reasonable interpretation, as being instead to submit the prepared application. It was not a distinction which had any obvious purpose: Acorn had paid for the work which any applicant could use, without a lease being agreed, already contrary to its usual practice. Acorn, I accept, had also agreed unusually that the application should be made in its name and not in the Thomases’ name because of their concerns over the barn conversion.

[116]The invoices also made it clear that the application had been submitted, as did the letter of 3 August 2005 saying that it had been granted, and the Thomases’ solicitor’s email of 3 January 2006. There was no comeback from Acorn expressing surprise that permission had been granted, when it had not even authorised the making of the application. Acorn did actually want the grant of permission. There were discussions in the Autumn of 2005 which must have involved reference to the grant of permission in everyone’s interest, and I do not accept Mr Ashton’s evidence that they did not. This evidence also supports my conclusion that Mr Bevan had actual authority from Acorn to make an application. Quite how detailed the discussions were about the actual content of the submitted documents or about caravans is another issue.

[117]It is said by the claimants that the details of what was applied for did not fit with what Acorn wanted and so the making of this application could not have been approved by it. There are two aspects to this. The facilities required by Acorn could properly be taken from the letter of instruction: the letter refers to 50 tents and ancillary facilities. I do not think that the variations between what Acorn says it needed and what was discussed in the Contextual Statement for the 3 villages and tent numbers on Area 1 can show that the application was not made on behalf of Acorn. Acorn was genuinely interested over many months in pursuing an application for a campsite on Gilestone Farm, wanted actively to pursue it at the time of the application and afterwards, and paid for most of the application work. Neither Mr Bevan nor the Thomases were making this up. To that extent, Mr Bevan was authorised by Acorn to make this application.

[118]However, Mr Bevan had no authority to apply on Acorn’s behalf for a second tented village, nor for a village which could be used by other groups, families or individuals, nor for caravans, if the application did indeed include caravans. The letter of instruction makes no reference to those matters, nor does any other source of authority exist. I accept what Mr Gardiner and Mr Ashton say about that aspect. I do not think that this can just be regarded as a misunderstanding of Acorn’s requirements or as an inaccurate representation of the instruction to apply for 50 tents plus ancillary facilities, as a result of vague instructions as to the number of tents; (and I accept that the numbers required vary throughout the documents). Mr Bevan’s statement does not help the Thomases on this either. To the extent that Mr Bevan acted solely on behalf of Acorn and applied for a development no greater than it required and had authorised him to seek, of course the permission which was actually obtained went rather beyond what he applied for; and that brings its own problems for the Thomases.

[119]In reality, Mr Bevan was acting solely for the Thomases in relation to the non-Acorn part of the application. He would have known that the Thomases wanted as large a site as they could achieve. He saw no conflict of interest, and neither did Mr Thomas. The aim was to obtain as large a campsite permission as possible on the back of the existing use, and Acorn’s interest was the catalyst for the application being made when it was and with the advantage which a well-known operator can bring. I very much doubt that there was any analysis by either of them of how all this related to the specific requirements of Acorn; to their minds all that would be resolved once the permission had been granted, since it did not have to be fully utilised. Acorn would either not have been perceived as concerned about what happened on another part of the area edged red or, if so, its concerns would be addressed in the lease negotiations. Nothing was lost by making the application in that form. The Thomases were in Mr Bevan’s hands but he knew they wanted to diversify their income as much as possible; he was their planning adviser too at this stage; he knew that they had some existing site which could be used as a lever. He married the two interests together in the one application for their mutual assistance and support.

[120]I find it hard to believe that in the course of discussions and updates about how the application was progressing, which Mr Thomas agrees he had, that he did not know that caravans were being discussed with Mr Eacock before the numbers issue arose. He must have known that Acorn had no interest in caravans, (whether or not actively opposed to them on a nearby piece of land), or in a second village and so knew that part of the application was for his benefit alone. He cannot be right in saying that Mr Bevan was just Acorn’s agent and that he was in the dark as to what was applied for. He may not have expected to receive permission for all that was applied for, but he knew what Mr Bevan intended to apply for. He never suggested that discussion about caravans or permission for them came as a surprise, because he thought they had never been applied for; he was only surprised that permission was granted for so much. I believe that he would have been told how Mr Bevan saw the application no later than when he paid the fee. He would have had to be a very incurious man not to have asked to see a copy of the application documents when served, as obviously he was, with notice of the making of the application.

[121]InApril 2005, Mr Thomas applied for additional electricity connection units, one for what he calls the top site which is where Acorn were to be and one for the bottom site where, as he inaccurately put it, the caravan and camping park would be “if approved…as it had always been”. Mr Thomas therefore knew by April 2005 what the application was said by Mr Bevan to contain. He never suggests that this came as a surprise to him.

[122]So far as the Thomases’ role in the Acorn part is concerned, I very much doubt that Mr Bevan saw himself as doing anything other than making the best application he could for the landowner and the would -be operator in what could have been seen as their joint venture. The lack of distinction which he and the Thomases saw between the landowner and applicant can be seen in the way in which Mr Thomas pressed for the permission in his own interest, in the way Mr Bevan referred to Mr Thomas as his client when the permission appeared likely to be delayed, and in the discussions he had over numbers with Mr Thomas. Mrs Thomas was fairly accurate in her appreciation of the true relationship. As so often between local landowner and applicant/proposed operator, the development is seen as a joint venture from the off with different but temporarily aligned interests. Indeed, Acorn’s letter of instruction to Mr Bevan, which Mr Thomas also signed, refers to a joint conclusion that the application could not be delayed and to Acorn’s proposal as a joint venture. This close relationship between Mr Thomas and the application for permission can also be seen in the unexplained delay in Acorn being told that the permission had been granted whereas Mr Thomas knew straightaway. I do not accept Mr Ashton was pressing him daily in view of his and Mr Bevan’s failure to tell Mr Ashton of the grant for several weeks.

[123]The evidence from both Mr Bevan and the Thomases is quite inadequate to sustain a contrary position, and to explain how the application, if the permission reflected it, went outside and beyond what Acorn required. The Thomases were therefore not just the landowners, they were undisclosed principals and applicants, although I am not suggesting for one moment that that is how they would have described themselves. Neither Mr Bevan nor the Thomases suggest that he was without authority from anyone to enlarge the application beyond his instructions from Acorn; they are both simply silent as to how it happened. But in reality, Mr Bevan was acting for the Thomases alone in this respect. It was convenient tactically to put it all in Acorn’s name. The bonus payment is a strong pointer to the interest of the Thomases in both parts of the application; and the threats of complaints, the pressure on behalf of the Thomases, Mr Thomas’ personal involvement in pressing the need for a speedy decision in his commercial interest and Mr Bevan’s reaction to the grant of permission, all point to what was in reality a combined application for a mixed joint and solo venture. Mr Bevan was clearly acting for the Thomases throughout as well as Acorn. Mr Eacock must have been aware of that from Mr Thomas’ pressure well before the grant of permission. The rather informal nature of the joint application, for a venture with two halves, explains adequately why there was no more precise description of who was interested primarily in which part.

[124]Mr Davies points to Mr Bevan’s signature on the application form to the effect that the information on it was accurate. On my findings of fact, it was inaccurate in the sense that although Acorn was one of the applicants, the landowners were in reality joint applicants with Acorn, and the sole applicants to the extent that the application included caravans, which it must be the Thomases’ case that it did, and to the extent that it went beyond the single tented village. The Thomases should have named as applicants along with Acorn, at least if the application was for the permission granted.

[125]However, no one was misled by any of this in any material way. Acorn did want an application made for a 50 plus tent campsite at Gilestone Farm which it wanted to operate. Its interest was serious and current when the application was made and while it was being considered. It did instruct Mr Bevan to make an application on its behalf, and it did pay for most of the pre-application work. It did know, I conclude, that an application had been made both before and fairly shortly after the grant. This was not, as the claimants initially seemed to have supposed, a case in which Acorn had no more than a passing interest in the site.

[126]The Thomases however should have been named as applicants along with Acorn, at least if the application was for the permission granted.

[127]The landowner was aware of the application, which is an important point in this procedure, and was correctly identified. So if the involvement of the Thomases personally was a matter of local or NPA interest, it was disclosed for whatever anyone wanted to make of it. It is difficult to see how those disposed to be suspicious of the Thomases could have been calmed by their involvement as landowners rather than as joint applicants and landowners. In reality the identities of the three bodies involved in the application and their agent were disclosed: Acorn as an operator, the Thomases as landowners, Mr Bevan as agent. This is inconsistent with significant inaccuracy, and obviously contradicts the properly withdrawn allegation of fraud and dishonesty. The omission of the operator of the caravan site, if applied for, or the second area of campsite is legally irrelevant; and the role of the landowners as applicant is of no importance.

[128]The NPA never considered a grant of planning permission personal to the corporate applicant, and there is no evidence that the identity of the applicant was regarded as material to the grant of permission or to any conditions. The Officer‘s Report makes no reference to Acorn. There is no evidence that the identity of the operator made any difference to the decision that the decision should be left to officers. The importance of the references to Acorn by residents and members was only that it pointed to a scale of development proposed which was greater than what existed and hence to a contradiction between the application and the intended permission, because Acorn was a sizeable commercial venture, and the existing site was not. There is no basis for holding that any aspect of the process or decision would have been different if the Thomases as landowner had been identified as a joint applicant along with Acorn, which would have reflected the reality. If, alternatively and hugely improbably, Mr Bevan, on a frolic of his own, had said that he was an applicant along with Acorn, it would have made not the slightest difference either.

[129]The inaccuracy in the description of the applicant does not amount to more than an inconsequential procedural irregularity which did not invalidate the application or deprive the NPA of jurisdiction to deal with it.

[130]The other part of Mr Davies’ claim, under this head, was that the details of the use proposed were misleading because they did not reflect what Acorn wanted. I have already dealt with this under the heading of whether Acorn was the applicant which is the principal issue to which the alleged misleading details went. The details were appraised and decided upon on their perceived merits as details, uninfluenced by the identity of the applicant. The more serious case which Mr Davies makes, that the application was misleading if it could lead to the permission as it was granted, is a rather different point which is quite independent of whether the applicant was identified properly or had approved all the details in the application. A detail in the application is not inaccurate just because the planning permission exceeds what it says: it may be quite accurate as to what the permission applied for was. Its subsequent misinterpretation is not a basis for saying that it was initially inaccurate. I dealt with that point under the head where it belongs.

Prejudice

[131]For the reasons which I have given, I have come to the conclusion that the permission is invalid. The question which arises is whether any relief should be granted. Normally, it would be quashed. The only reason why that result might not follow is the significant lapse of time between the grant of permission in June 2005, and the commencement of these proceedings in February 2009, over three and a half years. An extension of time was granted by Wyn Williams J in June 2009, for all grounds. There has been undue delay within section 31(6)(b) of the Supreme Court Act 1981, but relief can now only be refused where it would be likely to cause substantial hardship, substantial prejudice to the defendant or to a third party, or detriment to good administration. The defendant NPA does not object to relief being granted. There is no detriment to good administration from the quashing of this decision, quite the reverse. The planning process should not have failed so badly in so many ways on an important application or permission in a National Park.

[132]So, the question is whether the claimants, and the public interest more generally, should suffer the consequences of the unlawful decision with the undoubted impact which its lawful exploitation has and would continue to have, or whether the Thomases should suffer the detriment and prejudice which its quashing would bring. Relevant factors include the length of delay, who was responsible for its length and in particular whether the NPA or the Thomases were responsible, the degree to which it is the quashing or the delay which causes the prejudice, and whether the court granting the extension was misled in any way by the claimants.

[133]I accept Mr Porten’s general point that a number of cases have stressed the need for challenges to planning permissions to be brought promptly, within the three month period. Three and a half years delay is a very long delay, in view of the claimants’ almost immediate knowledge of the grant of the permission they challenge and of the contentious nature of the process as it neared completion. Even were a very substantial allowance in time made for the claimants to find out what was happening on the ground as the permission was exploited in May 2006, there has been undue delay of the order of two and a half years. But much of the sting of Mr Porten’s point in principle seems to me to have been removed by the extension of time and grant of permission to bring this application for judicial review. It now has to be measured very much against the established invalidity of permission and the prejudice and detriment to the Thomases which quashing the permission would cause.

[134]Mr Porten submitted that the claimants had misled Wyn Williams J when the extension of time and permission were granted. This assertion was based on the real differences between what Mr Gardiner had written in November 2008, as clarified in June 2009 before the permission hearing, together with what the claimants had told Wyn Williams J about how the application came to be made, and what Mr Gardiner now said, which with other evidence had led to the partial retraction in Mr Davies’ Skeleton Argument for this hearing. The Court, I am sure, was not deliberately misled. I am equally sure that the Court would have anticipated that what Mr Evans recorded of his conversation with Mr Gardiner might at trial be shown to be wrong - as many of his primary facts and inferences have been. There is no evidence before me or written or approved judgment toshow that the extension of time was largely dependent on a belief that what Mr Evans said was bound to be accepted. Permission was not confined to the new grounds relating to the defects in the application. Sufficient may have appeared to have gone wrong, albeit some years ago, to warrant an examination of the legality of the permission and the prejudice which quashing it might cause. The newer allegations may just have been part of a whole chain of events and allegations which warranted the extension of time and the grant of permission to apply for judicial review. So I reject this point.

[135]Mr Porten’s more important contention against the claimants is that the grounds relating to the identity of the applicant and the role of Acorn which emerged in October and November 2008 werethe result of enquiries made by Mr Needham, which he could have made at any time. In any event they have been unsuccessful, and cannot now be used to justify the delay in starting proceedings. The claimants also largely fail in their attack on the November and December 2008 decisions, as I shall come to.

[136]Mr Porten submitted that the claimants, or at least some of them including the Community Council, had the means quite readily to discover the short facts necessary to establish the grounds upon which they have succeeded. All they needed was one of the following: the application and the grant, knowledge of the statutory consultation procedure, knowledge of the screening opinion procedure and the absence of consideration given to it, and the absence of enquiry about the level of existing usage - which should have been obvious. There was no need, submitted Mr Porten, for the claimants to wait for the decisions of the NPA in November and December 2008 before commencing these proceedings to challenge the validity of the permission.

[137]Mr Seaman’s evidence, he said, showed that they were concerned about the relationship between the application, the public notices and the proposed permission even before the actual permission was issued in June 2005. They were not therefore unaware of the grant of permission. By May 2006, they were aware of the impact of the scale of development. They took planning counsel’s advice in June 2006 on the possibility of a challenge but that was unfavourable in part because of the delay, but also because he thought the grounds insufficiently strong to overcome the delay. Doubts about the permission’s validity were relied on by the claimants’ planning consultants and a different planning counsel in September- December 2006 in the course of their opposition to the planning application for the utility building which went to a public inquiry. The possible invalidity was said to be a reason why permission should not yet be granted for the utility block. They had taken further advice in January 2008 but had still taken no proceedings.

[138]Mr Davies riposted that the claimants were local residents and a Community Council; litigation for them was a risky and expensive last resort. Mr Needham had seen the NPA planning file early in 2006. It had been entirely reasonable for them to take Counsel’s advice in June 2006 after the scale of development became apparent after May 2006. That had been generally adverse on the points which they had by then discovered. The Conservation Group had then been formed, outraged by what was happening, with 250 supporters. By the time the utility block appeal was withdrawn in December 2006, it looked as though the NPA was going to do something about the permission. They were told that the NPA was taking legal advice; it had received counsel’s advice on the permission in September 2006 but did not make it public. This advice had in fact warned of the legal difficulties which the permission faced; but the claimants did not know of this at the time, nor did many members of the NPA. This meant that the claimants did not know the real strength of the case which they could have had, and which the NPA might then also have supported rather than opposed.

[139]The claimants had the same impression in 2007 of impending action by the NPA. In May 2007, the NPA carried out an “Enforcement Review” which concluded that there was much wrong with the grant of permission, the application for which had been misleading and had turned into something far beyond what the NPA and local consultees had expected. This was not made public at the time; it too would have encouraged the claimants to take legal proceedings earlier. They also brought pressure to bear politically on the NPA because of the severe impact of the caravan-campsite use, much of which, the claimants said, was in breach of conditions. This pressure led the NPA to commission the James report in 2007 into how the permission came to be granted; she reported in January 2008. The NPA then had to decide what recommendations of the highly critical James report to implement; but these were only about future decisions and not about what to do over the 2005 permission. The claimants were very concerned about what the report said about documents missing from the NPA files, and the NPA was eventually persuaded that a police investigation, still ongoing, was called for.

[140]In January 2008 the claimants took advice from another planning counsel who advised that they had a strong case for saying that the permission was invalid but were on weak grounds because of delay. They were advised to bring pressure to bear on the NPA to take enforcement and discontinuance proceedings, and did so. The Welsh Assembly Government appointed Mr Hooker in May 2008 to advise the NPA on the steps it should take to deal with the planning position. The claimants then expected enforcement action and in 2008 discontinuance action was in the air, which Mr Davies submitted, they thought was the only genuine option available to the NPA. It was only after the November and December 2008 decisions to take enforcement proceedings which were known by the NPA to present difficulties, and would not deal with the permission itself at all, that they realised that they had to take action themselves. By that time they had discovered that there was an argument that the application itself was invalid and procured by fraud. They had written to Acorn in October 2008 to find out what they could, because they had seen no action from the NPA as a result of Mr Hooker’s involvement.

[141]In my judgment, the only delay to be considered is the delay since the claimants knew or ought to have known of the grounds upon which they have succeeded. They did not need the grounds upon which they failed to find evidence upon which to make out the grounds upon which they have succeeded. Mr Porten is right that the information necessary to succeed on the grounds upon they have succeeded was readily available from a comparison of the application and permission, their own knowledge of the public notification and consultation procedure, the readily ascertainable absence of a screening opinion, and the total failure to make enquiries of them about the level of existing use. It would have taken longer to discover how little Mr Bevan and Mr Thomas had told the NPA about that.

[142]I accept that it is important that they knew of the grant and were already in June 2005 querying how the expected grant related to the public notice and the application. I regard the impact visible in May 2006 as the next important trigger for them in deciding whether proceedings were worth taking. The legal advice they took was too pessimistic in the event but it was right for them to seek it and reasonable to rely on it. But that makes it the more difficult to show that the delay should not tell against them now. They next had an opportunity in December 2006 to pursue the claim, having asserted the doubtfulness of the validity of the permission, but did not do so. I accept that once that point had been reached however, it was reasonable for them to rely for a remedy on pressure on the NPA and its time-consuming consideration and investigations into what had happened and what should be done in consequence. That said, the advice from Counsel in January 2008 could have been acted on despite what it said about delay, given that that is the basis upon which they have succeeded in their arguments here. So a fourth trigger point was allowed to pass by.

[143]The Thomases were not responsible for the delay at all, nor do I think that the NPA can be regarded as responsible for it either. It was entirely due to the claimants and their preference after June 2006 for other routes. I reject the argument that residents can excuse a delay as long as this before starting proceedings on the basis that a planning authority, aware of weaknesses in its procedure and of advice that there are doubts about the validity of what it has done, should have taken the steps itself.

[144]It is the delay which causes much of the prejudice asserted from a quashing, rather than the simple fact of quashing because of the expenditure which the Thomases incurred after the grant. In my view, the claimants’ delay is a weighty factor in the balance against them.

[145]By contrast, submitted Mr Porten, the Thomases had been investing in the caravan and camp site since the grant of permission on the basis that it was valid and one that they could rely on. This substantial investment would not have been made had there been a prompt challenge to the grant. Mr Thomas’ evidence was that they had spent £2200 on tourist signs, £3500 on legal fees in early 2006 relating to the lease to Acorn after the grant of permission, £2819 as a deposit on the utility or toilet and shower block (but he does not say whether that payment was recovered or used again), £22000 in 2006 on the sewage treatment plant to go with the utility block, £1920 on the application for permission for this block, £14500 costs which he was ordered to pay to the Community Council and Conservation Group when at the last minute he withdrew the appeal in December 2006 and decided to rely on permitted development rights, £5000 on legal fees in threatened proceedings in March 2007 against the NPA for telling the Caravan Club, which told its affiliates, that the site could not lawfully be used for caravan rallies, £15000 on legal and planning fees in what proved to be abortive negotiations with the NPA in November 2007 for a fresh planning permission and s106 agreement to replace the permission at issue here. The largest items of expenditure were incurred in March 2006 when £35000 was spent on temporary shower and toilet facilities, and £22795 on tarmacing the access lane, and further sums on drainage, landscaping and fencing. Something over £60000 appears to have been spent in 2006 on electrical works. He had spent over £200,000 by June 2008 on the permanent utility block, and achieved a four star rating for the campsite from the Welsh Tourist Board. The site also obtained first a temporary and then a permanent licence for the sale of alcohol. Raising money to pay for all of this, with a failing farm business, meant that he had had first to sell a significant amount of his farm machinery, and then in Spring 2009 to sell 150 head of cattle and to put 150 acres on the market. Local hostility, which he attributed much to a dislike by some residents for the “good honest working class” campers, had led to an arson attack on his farm, malicious complaints, the harassment of his children at school, and a great deal of stress and anxiety for the whole family.

[146]Mr Thomas produced a schedule of the money he had spent on developing Gilestone Farm since June 2005, including revenue costs such as advertising, printing and repairs, as well as capital expenditure. I could not work out from it what was spent on the utility block. Mr Thomas gave no breakdown of this expenditure between what was necessary for the development permitted by the June 2005 permission, and what was necessary for the larger scale and year round use which photographs show clearly taking place and which he did not deny. He appears to have taken the view that he had existing lawful use rights generally available outside the red edged land, which condition 7 on the grant of permission did not remove, and that other permitted development rights enabled him to build the utility block and tarmac the lane. These are disputed points of view.

[147]I am prepared to assume that none of that expenditure would have been incurred had the 2005 permission not been granted, with the consequences which were thought to flow in terms of permitted development rights, and that it is all potentially wasted expenditure if the permission is quashed. This may be a generous assumption.

[148]Some of it, as Mr Davies submitted was the case, may have been to support an unlawful use, or to have been for an unlawful building and operational development even if the permission for the change of use had been lawful. Some was for development which the poorly drafted conditions intended to prevent. The £200000 plus spent on the utility block was the obvious example of both. The £1920 costs of the application for it and the £14500 costs of the withdrawn appeal cannot easily be regarded as wasted as a result of the quashing rather than because of the response of the Thomases to the changing stances of the NPA. The costs wasted in negotiating a lease with Acorn are just the hazard of development; negotiations failed in part at least because the parties in fact were a long way apart on the rent, whatever impression Acorn gave to the Thomases. It was also the Thomases’ decision, on advice, to incur costs negotiating an alternative permission.

[149]Mr Thomas was justifiably criticised by Mr Davies, well foreshadowed by a specific request from the claimants for financial detail which went unanswered, for the absence of information in the form of tax returns or accounts showing the income and revenue costs of running the caravan/campsite. It was also one reason why the claimants wished to cross-examine Mr Thomas to which he objected; I could see no reason why Mr Thomas should be able to improve his case in cross-examination and I did not need cross-examination to see the flaws in what he had to say. The only information which Mr Thomas provided as to the income he made from the site was that he had received an income from it of £10000 per week from March to June 2009 when he made his witness statement. Mr Thomas also revealed that he had been full on the May 2006 Bank Holiday weekend and subsequent weekends. He appears to have had an annual income of about £12000 from caravan/campsite activities before 2005.

[150]In my judgment, it is for Mr Thomas to demonstrate the hardship and prejudice which the quashing of the permission would cause him. That involves reasonably full and accurate financial disclosure to the Court. This has simply not occurred. There is no adequate evidence as to the income from the caravan/camp site, divided between what the permission permits, alleged consequential permitted development rights, and other activities which he says are not dependent on the permission, whether lawful or unlawful. The utility block probably serves permitted and unlawful uses indifferently, and to the extent Mr Thomas retains existing use rights, as he appears to believe, he will continue to receive income from their exploitation.

[151]But even if one took £10000 a week for just 26 weeks a year for three years there would have been an income of £780000. That may over estimate the previous years’ income but it excludes 2006 entirely, and under-estimated the duration of permitted occupation. If one took half the 2009 figure for the two previous years, the total income would have been of the order of £520000. Mr Thomas does not even say whether the figure he quoted was gross income or income net of revenue expenditure. If the former, there are no doubt some wages, management and running costs to be deducted, but no evidence has been provided as to what they might amount to on an annual basis. In either event there is no basis upon which I could conclude that he had not received an income which within three years has covered the expenditure he has incurred and provided him with an income on top.

[152]Mr Thomas does not condescend to provide information as to the number of caravans or tents which generate that income and it may include income from those who should not be there under the permission or at all, and from those whom Mr Thomas may believe can be there under lawful existing use or permitted development rights. It may or may not include unlawful caravan storage.

[153]The paucity of the evidence provided by Mr Thomas, which is his choice, makes it impossible to accept that the quashing of the permission now would cause substantial hardship by wasting the expenditure he has incurred in implementing the permission and more. I have no alternative on the limited material he provided but to conclude that he has recovered the costs he has incurred, and has obtained an additional income from his caravan/campsite. Not merely has Mr Thomas failed to show any case on financial prejudice and detriment from irrecoverable past expenditure arising from the quashing of the permission, he has also shown no potential loss from any committed future expenditure. So if the permission were quashed, he would be returned to the position which he had previously enjoyed, without loss caused by wasted expenditure. That is an important consideration. From there he can start again, without unrecovered expenditure. He would be no worse off than he would have been before the grant of permission.

[154]He has shown the prospect of future loss of income but without quantifying it at all, let alone explaining the amount attributable to the level of use permitted by the 2005 grant or its importance. I do not regard this possible future loss as weighty on the evidence Mr Thomas has provided. It does not suffice to show substantial hardship from quashing the permission.

[155]There are, importantly, no third party rights acquired in consequence of the grant of permission. The prejudice and hardship is confined to the landowners.

[156]I recognise that the Thomases have suffered some deplorable harassment but I do not think that I can give that any weight in this balancing exercise.

[157]I also point out that Mr Thomas was warned by the NPA that there were real doubts about the validity of the permission from an early stage. Mr Eacock in July 2006 told his then planning adviser, Mr Atherton, that the utility block application was not being progressed because there was an investigation into the lawfulness of the grant of the permission and there was no site licence requirement nor permitted development right to build the block in the light of Condition 7 on the permission. In August 2006, another planning officer, Ms Lewis, told him that the permission was unlawful, but having taken Counsel’s advice himself he decided to proceed with the building under permitted development rights as he saw them rather than pursuant to a specific permission. The discussions between Mr Thomas and the NPA in November 2007 arose from doubts about the validity of the 2005 permission, during which the NPA changed its position again about whether the utility building needed specific permission, saying that it did. It follows that, whoever is right or wrong about that issue, the £200000 spent on it was spent knowing that there was some uncertainty about the lawfulness of the proposed course of action.

[158]Mr Davies submitted that the Thomases were wholly or at least in part to blame for the errors which led to the grant of the permission in the first place, either because of their own acts or because of what their agent, Mr Bevan, was doing on their behalf. Mr Bevan was acting on their behalf and for Acorn in making of the application, and he was acting for them both during its progress through the NPA; indeed, he was acting principally for the Thomases by the end.

[159]The largest part of the blame for the many errors of procedure must be borne by the NPA, in my judgment, which has the statutory duty to deal with the application. But there was an uncertainty, at least, at the heart of the application for which Mr Bevan, as the Thomases’ agent, was to blame, and which led to many of the problems. Mr Bevan was not clear as to what the application meant by the relocation of an existing facility in terms of scale or potential or capacity. He never spelt out the actual level of past usage, nor did the Thomases tell him nor did he enquire and pass on the information, at least so far as the evidence goes. They were all content for the NPA to make a judgment on what they must have realised was a quite erroneous basis as to the routine level of usage, confusing that with the intermittent rallies which had a different status because of permitted development rights, and leaving unclear the scale of the uncontrolled lawful use which they said existed, if it was greater than the actual level of use. Mr Bevan, in my view, chose how to describe the application to make it seem inoffensive, as the description of it did, and then he and Mr Eacock interpreted it as covering more than those innocuous words actually conveyed. Mr Bevan did that as agent for the Thomases for which they, as the beneficiaries of the grant, must share responsibility. I am satisfied, as well, that they personally were content to proceed without correcting what they knew was an error of appreciation by the NPA. So, personally and the more so through their agent, they bear part of the responsibility for the legal problems which have led to the invalidity of the permission. That weighs also in favour of quashing it.

[160]To my mind it is relevant that the quashing of the decision would not necessarily preclude some form of caravan and camp site being permitted, but it would enable a decision to be reached applying proper procedures. It is also relevant that a grant of permission in the present form would be far from a foregone conclusion, so relief would serve a purpose without excluding the Thomases from obtaining some beneficial permission. The grant of permission for a sizeable caravan and campsite in a National Park is very likely to generate debate about its impact on the interest which the National Park was set up to protect. There is a strong public interest both in the protection of a National Park and in proper decision -making on issues which are very likely to affect it, including the role of non-agricultural activities in supporting agriculture. That strong public interest must weigh in the balancing process which I have to resolve. If Mr Thomas supposes seriously that he has extensive existing rights, regardless of the permission, they will no doubt be exploited and reduce the lost income which I have assumed.

[161]In the end, I have come to the conclusion that the permission should be quashed. Mr Thomas’ evidence on hardship and prejudice is weak; he, or his agent Mr Bevan, was to some extent responsible for the errors which led to the grant. The claimants’ justification for their extensive delay in bringing a challenge on the grounds upon which they have succeeded is equally weak. What is decisive to my mind therefore is that the permission is invalid and should in principle be quashed in the absence of strong contrary reasons. These do not exist. Mr Thomas can start again seeking planning permission without wasting his past expenditure; but the public interest could not be protected, unless the use were discontinued. There is no adequate justification for making the public pay compensation if there is a strong case for quashing an unlawful decision. There are so many serious and basic errors in the procedure whereby the application was considered and consulted upon, that it would be seriously detrimental to public confidence in the proper operation of the planning system to let it stand.

[162]Although I have reached that decision, I still need to deal with the challenge to the 2008 decisions because two issues may continue to be relevant hereafter: the relevance of financial considerations to any discontinuance decision in respect of a lawful or potentially lawful existing use, and the participation of two members of the NPA in future decisions on that issue. Also, the strong feeling and language, which this permission and the way it has been considered by the NPA has engendered locally, mean that the accusing and defending parties should know what conclusions I reached on those issues, which were fully argued.

The challenge to the decision not to order the use to be discontinued

[163]Although the NPA does not contend now in these proceedings that the permission is valid, it considered in 2008 what response it should make to the various criticisms and reports on the way in which its decision to grant permission had been reached. One option it considered was whether or not to make an order for the discontinuance of the use under section 102 of the Town and Country Planning Act 1990. This requires a landowner to cease using land in the way it is being used. Unlike section 97, which deals with the revocation of an unimplemented planning permission, section 102 deals with uses, existing not prospective, whether or not lawfully established or the subject of a planning permission. The landowner receives compensation in consequence of the order. Another option considered was enforcement action under section 172, but that could only strike at activities which were in breach of planning control, including the use of land outside the red edged area of the permission.

[164]It became apparent quite soon after the grant of permission that the activities went beyond the relocation of what had been seen by the claimants as a small scale and sporadic operation. These activities were all undertaken by the Thomases and not by Acorn at all. The scale of the development permitted became apparent and, it is reasonably clear, although not a matter for my decision, that there were, additionally, breaches of conditions on a significant scale; infrastructure in the form of buildings and roads was constructed, and camping and caravan use took place where it was not thought to be permitted. The cause of this and the responses of the NPA became fiercely contested. Complaints were made to the NPA. Local feelings against the Thomases ran high, and continue to do so. Breaches of planning control on a significant scale, going well beyond what the permission and its conditions if valid would permit, appear to continue.

[165]Although the NPA took Counsel’s advice, in September 2006, who warned it that there were several areas of doubt as to the validity of the permission and conditions, it appears not to have had wide circulation within the NPA. In May 2007, the NPA produced an “Enforcement Review”, disclosed in these proceedings, which concluded that the site had developed far beyond what was approved in the planning permission, that the site was being used in a substantially different way from that envisaged in the supporting material submitted with the application for permission, that from the start of the planning process, the information supplied to the NPA had been “ambiguous and misleading”, and that the use of the site “had escalated into something far greater than the National Park Authority, Community Council and Local Residents could have imagined”.

[166]In June 2007, the NPA commissioned a report from Ms James, of Clarks Legal, solicitors, into the procedures whereby permission had been granted. In January 2008, after carrying out interviews with 17 of the people involved, but not with the Thomases who refused to be interviewed, she reported to the NPA with 29 recommendations as to how the planning process at the NPA should be altered and improved. It is plain that she was critical of the procedures and actions which had led to the grant of this permission.

[167]Various steps were taken in 2008 by the NPA, one of which included a formal complaint to the Financial Crime Team of the Dyfed-Powys police, whose investigation continues. More importantly for this case, the NPA asked the District Valuer to report on the possible level of compensation payable by the NPA to the Thomases if a discontinuance order were made. And, following intervention by Welsh Assembly Ministers, Mr Hooker, a planning consultant, was appointed as a “critical friend” to the NPA in deciding what action to take. An Officer’s Report of March 2008, not publicly available at the time, had described the conditions as not easily enforceable and condition 7 as unintelligible and extremely problematic which, if true, meant that the whole of Gilestone Farm still benefited from such permitted development and lawful use rights as it had had before the grant of permission, notwithstanding the intent behind its grant.

[168]In May 2008, the District Valuer advised that the compensation payable for the cessation of the use of the red-edged land for 50 caravans and 50 tents would be £425000. But he went on to say that the compensation would be £600000 if the permission allowed 100 caravans and 50 tents on that land, and £3.75m if the whole 140 acres of the farm land owned by the Thomases at Gilestone Farm had a permission for caravans and tents. The reason for those last two valuations was that he understood that the nature of the permission was uncertain and that these alternatives might already be permitted, or be lawful existing uses, as Mr Thomas appeared to believe at times. He was instructed to provide valuations on those three bases by NPA. This report was qualified by the underlying planning uncertainties, and the absence of a site inspection or sight of accounts.

[169]Mr Hooker provided three reports, a preliminary report in August 2008, a report in September 2008 which was withdrawn, and a final report in October 2008. These reports were for PAROW, the Planning Access and Rights of Way Committee of the NPA.

[170]The preliminary report identified six failures, four of which have been reflected in the grounds of challenge in this case. 1: no proper check on the history of the site to see what evidence there was for an existing use anywhere near the scale permitted by the conditions; 2: misleading and erroneous description of the development for consultation purposes; 3: formulation and policing of conditions; 4: failure to consider Environmental Impact Assessment. It considered a variety of options including discontinuance but made no recommendation as to the specific course of action at that stage.

[171]The October report considered options which included “Do Nothing”, enforcement action, discontinuance, and discontinuance with a fresh but more limited and clearer permission. The options had also been spelt out in the September report. The report treated the payment of compensation for either of the latter two options as relevant to the decision which had to be made. Mr Hooker advised: “In the future, if Members consider, having reviewed the policy background and the other material considerations, that no form of campsite is appropriate at Gilestone, they might wish to consider its complete discontinuance. However, total discontinuance is an exceptional course of action and could only be justified where damage is likely to be done to the wider public interest. Moreover, before adopting discontinuance, our legal advice is unequivocal in that Members would have to consider the exposure to statutory compensation and related costs that would arise” from discontinuance.

[172]He recommended that enforcement action be taken over breaches of the conditions on the 2005 permission, and concluded:

“As stated above, by taking enforcement action Members will not, in the future, be precluded from considering any of the other options I have outlined. However, any consideration of subsequent action will of course be informed by accurate assessments of any compensation payable and the matter of affordability within the context of the NPAs budget and resources.”

[173]The PAROW meeting on 7 November 2008 also had a report from Mr Watkin, who was the officer appointed for the purposes of section 151 of the Local Government Act 1972, for the proper arrangement of their financial affairs. Section 114 of that Act placed on him a duty to report to the NPA, though not just to a Committee, when actual or proposed expenditure was likely to exceed the resources available to meet it. He also had to report where a committee was about to make an unlawful decision causing a loss to the NPA.

[174]Mr Watkin had taken the view, following discussion in September with Mr Hooker, NPA officers and legal advisers, that the financial consequences of paying compensation on discontinuance could be such it was necessary for them to be taken into account when decisions were made on the options set out by Mr Hooker. Mr Watkin’s report was at the time exempt from public disclosure. However, PAROW specifically resolved to take into account its contents when deciding what steps to take as a result of Mr Hooker’s report.

[175]What Mr Watkin’s report spelt out were the financial consequences for the NPA of adopting any of the options which would involve the payment of compensation upon discontinuance of the permitted use. It treated them as directly relevant to the decision on the steps to be taken. There had already been expenditure reductions of £215000 and use of reserves totalling £215000 in order to balance the 2008/9 budget, and for 2009/10 a shortfall of £161000 required further savings to be made, continuing for the next year as well. So Mr Watkin advised that there was limited capacity in the revenue budget to absorb any large amounts of compensation and legal costs. The NPA was funded through grants and had no revenue raising powers; the increase in expenditure from the payment of compensation would require a significant review and reduction in services.

[176]The level of general reserves at £281000 was just below the recommended minimum and to use those reserves to fund compensation would place the NPA “in an extremely vulnerable and imprudent financial position” as it would have only very limited or no capital available for contingencies for future years. It might be possible to obtain a Capitalisation Direction to manage exceptional financial difficulties, which would enable the NPA to sell or borrow against its assets, which were in total valued at £3.7m. Borrowing would depend on the impact which the uncertain amount to be borrowed, and the period of repayment and interest would have on the revenue budget. Mr Watkin urged that this all be borne in mind by Members considering Mr Hooker’s report. He also pointed out that the NPA had no firm estimates of compensation because of the qualification to the District Valuer’s valuation and advised that accurate estimates of compensation were required before any decisions were taken which could create a liability to pay it.

[177]The section 151 report had a significant effect on at least some members because compensation of £3.75m would cause most of the services offered by the NPA to cease. One member feared that it would bankrupt the NPA. They were informed at the meeting that if the decision went against legal advice, there was a risk of exposure to personal liability.

[178]The minutes of the meeting on 7 November 2008 give some indication of the strength of feeling over this site. The unanimous and sole explicit decision of the 21 Members was that enforcement action to secure compliance with the conditions on the permission be undertaken. This would have included the important condition 7.

[179]Ms Silk, who chaired the meeting, says in her witness statement that members, on the advice of Mr Watkin, did not feel that they could decide on discontinuance proceedings one way or the other as they had no accurate idea of what the compensation figures might be. This appears to relate to the various factual bases of compensation, and what extent of use was lawful. It is clear that the NPA was not envisaging paying compensation in respect of a use which enforcement action could remove.

[180]Mr Davies submitted that it was in substance a decision not to take discontinuance action. Ms Ellis for the NPA submitted that this decision was simply that enforcement action be taken, and that no decision either way was taken on discontinuance action. That could be considered again once the effect of enforcement action had been seen and the scale of what was permitted or established had been resolved.

[181]That is only half right. It was also in substance, a decision not to take discontinuance proceedings yet, and to leave a decision on discontinuance proceedings until after enforcement proceedings had concluded. It may have been hoped that they would resolve the extent of lawful use which could only be removed in whole or part by discontinuance proceedings. This would remove most important uncertainties about what the level of compensation would be for varying degrees of discontinuance.

[182]It is also clear that the potential liability to pay substantial compensation was a factor in the decision either not to take discontinuance proceedings or not to take them now, and to see instead how significant a problem was left after the conclusion of enforcement proceedings. This potential liability would certainly be regarded as relevant were any decision on discontinuance later to arise.

The relevance of compensation to a s102 decision

[183]Mr Davies’ main submission was that the fact that the NPA would be liable to pay compensation, and the amount for which it might be liable was legally irrelevant to the decision it took. Ms Ellis submitted that it was legally relevant. It is obvious that the liability and amount were taken into account by the NPA, and that is not in dispute. I have dealt with the nature of the decision, and I conclude that even if the discontinuance decision was no more than a decision to wait and see how enforcement action fared, the liability and amount were taken into account in that decision.

[184]I turn to the statutory provisions. S 102 provides: “(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity)- that any use of land should be discontinued, or that any conditions should be imposed on the continuance of a use of land; or that any buildings or works should be altered or removed, they may by order- require the discontinuance of that use, or impose such conditions as may be specified in the order on the continuance of it, or require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be.” that any buildings or works should be altered or removed, they may by order-

require the discontinuance of that use, or

[185]Such an Order in Wales is subject to confirmation by the Welsh Assembly Government.

[186]Other relevant provisions include subsection 2 whereby a discontinuance order may grant permission for any development of the land to which the order relates. By subsection 6, where the order displaces someone from where they live, the local planning authority is under a duty to secure accommodation on reasonable terms if there is no other accommodation reasonably available. A default power exists for the Welsh Assembly Government to make a discontinuance order. Compensation is payable by virtue of s115 in respect of the depreciation in the value of the land and disturbance in the enjoyment of it

[187]I need to refer to s97 of the 1990 Act, which deals with the revocation of a planning permission where the permitted development had not been carried out. Judicial decision on the scope of this quite similar provision is very relevant to the claimants’ arguments. Compensation is also payable in respect of a revocation decision. It provides: “97.-(1) If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such extent as they consider expedient. (2)In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations”.

[188]In Alnwick DC v Secretary of State for the Environment, Transport and the Regions

[1999] 79 P&CR 130

, Richards J held that the amount of compensation payable by the local planning authority was legally irrelevant to the Secretary of State’s decision to exercise his default powers and to make a revocation order in respect of the grant of planning permission for a supermarket. Alnwick DC had contended that it had few resources with which to meet the possible compensation, and doing so would prevent the development of a much needed leisure complex.

[189]Richards J accepted that at a level of generality, a decision maker would be entitled to take into account the financial consequences of his decision. But statute might limit the considerations relevant to any particular type of decision. The language of s97 was closely aligned to the language of s70(2) of the 1990 Act which governed the initial grant of permission: in dealing with an application for permission:

“the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”

[190]The considerations material to the grant of permission were the same as those material to its revocation or modification. That was not at issue between the parties to Alnwick; the debate before Richards J was whether financial consequences were material to the grant of permission. He took the view that at the level of generality required to bring them to bear in the case he was considering, they were not material, though it was obviously too simplistic to say that financial or economic considerations were never relevant to the grant of a permission.

[191]After dealing with a number of authorities of indirect relevance, he said:

“It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations. In my view that is fatal to the general proposition for which Mr Hoggett contends, that the cost to the local authority may be taken into account irrespective of land-use consequences. I see no warrant for treating cost as a permissible consideration even where it is not a “material consideration” within the meaning of the legislation. It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations. It cannot have been the legislative intention, in introducing provision for the payment of compensation, that the impact of such payment upon a local planning authority’s financial position should condition the exercise of the powers to revoke or modify planning permissions. Payment of compensation enters into the picture only after a decision to revoke or modify has been taken. Its purpose is simply to ensure that persons interested in the land are compensated for any loss they suffer by reason of the revocation or modification of the permission.”

[192]He rejected the argument that the word “expedient” in the section warranted a distinction being drawn between considerations material to the s70 decision to grant permission and s97 decision to revoke it; what was expedient had to be assessed in terms of the planning judgment which the statute contemplated.

[193]Ms Ellis invited me not to follow this decision. She first sought to distinguish the statutory language in s102 from that in s97. S102 (1)(b) contained a subsidiary discretion expressed in the word “may” which was not to be found in s97, and itself was “untrammelled” as she put it by the planning considerations which Richards J held limited s97. This seems to me a poor basis for so significant a distinction, and one which ignores the real basis of Richards J’s decision.

[194]Next, she contended that the decision in Jefferey v First Secretary of State

[2006] EWHC 2920

Admin, Sullivan J, upheld on grounds not relevant to this at

[2007] EWCA Civ 584

, showed that different considerations applied to meeting a discontinuance order to those applicable to the decision on a planning application. It is right that Sullivan J held that the considerations could be different but not on the basis that the material considerations were not normal planning considerations. It was on the basis that what were material planning considerations was necessarily affected by the very fact that the use had been implemented, and that the order could strike at a lawful use, for example a home or business established for many years. The impacts of the order would be planning considerations, as they would be for an enforcement notice. The difference arose only from the factual differences in the circumstances not from any conceptual difference between the statutory provisions governing the grant of permission and a discontinuance order. That decision does not of itself afford a basis for distinguishing Alnwick so as to allow in the financial consequences for the NPA which Ms Ellis says it is entitled to consider, though its logic is relevant.

[195]Her final but also her principal submission was that the decision in Alnwick is wrong, and should not be followed. Mr Davies adopts the reasoning of Richards J and applies it to this section. I recognise the force of the reasoning in Alnwick that the language of the considerations to which the authority shall have regard is the same as that used in s70 for the initial grant of permission. The financial benefit to a planning authority from the grant of permission, devoid of any land use consequence related to the decision, would be legally irrelevant. So too therefore should be the cost to the authority of a revocation or discontinuance order.

[196]I reject Mr Davies’ argument that uncertainty over whether compensation would be claimed and if so how much meant that the consideration was too indirect in any event to be material. There is very little that is speculative about whether a claim would be made, and there was some basis before PAROW about the level of compensation which the permitted use would generate. In any event, if right, it would only require a better estimate of compensation for it to be legally relevant.

[197]My conclusion is this. Section 102 involves a decision as to whether a discontinuance order is expedient in the interests of the proper planning of the area. In my view, the development plan and any other material considerations guide the decision on what the interests of the proper planning of the area are and the authority then has to decide whether it is expedient, in those interests, to take one or none of the decisions which the section provides for. The structure of the section is quite clear. The expedient decision may quite lawfully be a decision that no action should be taken, and the authority is not obliged by statute to take the decision that most perfectly achieves what it has determined are the interests of the proper planning of the area. It may be quite clear that the permission should not have been granted on the merits; or there may be a strong difference in political view to which an incoming administration wishes to give effect; or circumstances may have changed completely: each requires a decision on expediency.

[198]An expedient decision would, to my mind, necessarily require attention to be paid to the advantages and disadvantages of taking one or other or none of the available steps under s102. These advantages and disadvantages should not be confined to those which the subject of the notice would face; they should be measured against the advantages and disadvantages to the public interest at large, including the costs and effectiveness of the various possibilities. The question of whether the cost to the public is worth the gain to the public is, I would have thought, the obvious way of testing expediency. At least, it is difficult to see that expediency could be tested without consideration of that factor.

[199]Local authorities owe duties of prudence in respect of the public money they receive and spend. Parliament should be taken to legislate on the basis that that well-established duty is to be upheld and not ignored. Where public money is at stake, because the statute has made compensation part of the statutory scheme being invoked, I would have thought that it was obvious that its cost was a consideration relevant to expediency, in the absence of clear contrary words. The word “expediency” is entirely apt to require attention to be paid to that, and wholly inapt to exclude consideration of the consequential liability which would face the authority taking the discontinuance, or for that matter, revocation decision.

[200]It would be extraordinary for Parliament to require a decision, which could have very large adverse financial consequences, to be taken by a public body which at no stage could lawfully consider those consequences, however great or disproportionate the cost. This is even more so where those compensation consequences are an essential part of the statutory provisions pursuant to which the decision is being made. For Parliament to legislate that these direct statutory adverse financial consequences of a planning authority’s decision were legally irrelevant to its decision would require the clearest possible wording to that effect. No doubt Parliament could legislate for an obligation to take decisions requiring perhaps substantial public expenditure while forbidding the decision-maker to consider how much it would cost and how it could cope with the consequences of its decision, but this obligation to be imprudent would require express wording and not a nicety of textual analysis of certain similarities of wording in different contexts in the Planning Act.

[201]It is plain that s 102 does not require such a blinkered approach. S102, like s97 and s 172, deals with expediency decisions: what if anything should be done about a state of affairs which has arisen. They are processes which an authority can initiate to deal with that state of affairs, if it is expedient to do so. There is no obligation to take enforcement action in respect of every breach of planning control, nor to take revocation or discontinuance proceedings in respect of lawful or uses or permissions which the authority wishes had not been granted. The notion of “expediency” in the context of a decision as to what to do, if anything, about a state of affairs which has arisen, brings with it the issue of whether the gain is worth the cost, which I regard as an obvious part of any decision on expediency. The cost and time of taking enforcement proceedings balanced against the prospects of success and the gain from success would be obviously relevant to the decision on enforcement proceedings.

[202]Although Richards J in Alnwick may be right to say that what is expedient must be judged in a planning context, that context is provided by the statutory provision itself. The inclusion of the notion of “expediency” contrasts s102, s97 and s172, enforcement, with s 70, the grant of permission whether prospective or retrospective. This shows quite clearly that these provisions, two of which are expropriatory, must be approached quite differently from the grant of a s70 permission. They are not the same as a reconsideration of the original planning decision allowing only for the fact that it has been granted and may have been implemented; it is not the same as an application for a retrospective grant of permission. “Expediency” is not part of the s70 decision-making process which, by contrast, is initiated by the applicant and not the authority, and requires the authority to reach a decision one way or the other having regard to the development plan and other material considerations. A proper and substantial meaning has to be given to that contrast and to the notion of “expediency”. No interpretation of s102 which fails to draw a very clear distinction between decisions under s70 and decisions under s102, or s97 and s172 for that matter, can be correct.

[203]In my view this approach is supported by well -established and high authority that a local planning authority is entitled to take into account in reaching a planning decision that one course of action but not another will lead to the payment of compensation, and to choose the one which avoids that payment, and to do so on that ground. In Westminster Bank v Beverley BC

[1971] AC 508

, Lord Reid said at p529G-530C that in deciding to refuse permission for a development which would interfere with a proposed road widening, the planning authority was entitled to choose that option to protect the line rather than an alternative option which would lead to the payment of compensation. It is clear from this decision that avoiding the payment of compensation by choosing another option was a relevant consideration to the refusal of permission. Indeed Lord Reid said that the planning authority was entitled to refuse permission even if the sole reason for doing so was to avoid the payment of compensation. Two of the other four expressly agreed with his speech; the others did not disagree.

[204]This principle has been applied in other cases since: Hoveringham Gravels v Environment Secretary

[1975] 1 QB 754

CA, R v Exeter City Council ex p Thomas & Co

[1991] 1QB 471

in which Simon Brown J held that avoiding the need to pay compensation under a discontinuance order was a lawful substantial consideration in the grant of planning permission ; R v Bassetlaw DC ex p Oxby [1998] PLCR 283 in which the Court of Appeal held that it was lawful for an authority to decide not to make a revocation order because of the compensation which would be payable and to seek instead to quash the offending permission by judicial review; and indeed Hobhouse LJ held that it would have been wrong for the authority to take the course which would have led to compensation being paid if the permission were invalid; and the expediency decision in respect of revocation properly took into account the liability to pay compensation which would have ensued; R v Caradon DC ex p Knott (1999) 80 P&CR, and , after the decision in Alnwick, the Court of Appeal in R v North West Leicestershire DC ex p Moses [2000] Env LR 443, at 457, in which it appears to have been regarded as obvious that the risk of having to pay compensation would be relevant to a decision to use s102 to impose conditions on a development, when other powers enabled the same result to be achieved without compensation.

[205]These authorities, in my view, impel the conclusion that when a decision is being taken about whether discontinuance proceedings should or should not be taken, or not taken yet, as opposed to enforcement proceedings, the planning authority is obliged to take into account the fact that compensation would not be payable in respect of enforcement action. Indeed, it would not be consonant with the general duty of financial prudence owed by a public authority for that factor, if relevant, to be ignored.

[206]The statutory provision under which those factors are taken into account is s102 itself; there is no gateway provision through which the decision maker must pass before it is confronted by s102. This means that the wording of s102 has to be interpreted so that that factor is taken into account, unless all those authorities are wrong both in principle and specifically in relation to s102. The word which is crucial to those decisions and their logical consequences is “expedient”.

[207]Once it is accepted that it is relevant to a decision under s102 that compensation would be payable if a discontinuance order were made, it would be absurd to hold that it was only the fact that compensation would be payable that was relevant whereas the potential amount of that compensation was not. The two are too closely entwined and the principles, which make the fact that compensation is payable relevant, tell as strongly in favour of the relevance of the amount of compensation. No wording of s102 could enable such a distinction to be drawn.

[208]Likewise, if the wording of s102 makes compensation relevant to a decision whether or not to exercise the power in s102 or some other power which would achieve the same ends, that wording must also make a liability to pay compensation relevant to a decision whether to take discontinuance proceedings now or to postpone a decision until enforcement proceedings had been taken, thereby exposing what uses could only be removed by discontinuance action and clarifying the amount of compensation potentially payable. The November and December 2008 decisions cannot be unlawful to the extent that that is what they were deciding.

[209]“Expediency” is part of s102 in other ways which show that the liability to pay compensation and its amount must be relevant. The Order can impose conditions on permission, require steps to be taken and indeed an alternative permission can be granted. Unlike a s70 permission, a s102(2) permission granted by a discontinuance order is an “expedient” decision. The decision on those matters requires or at least permits consideration of the way in which action short of a total cessation or removal may deal adequately albeit imperfectly with the problems faced. It would be very odd in my view if a reduction in the compensation liability compared to the gain in those steps could not be taken into account and in the name of “expediency” of all concepts, cost to the public had to be ignored.

[210]The provision for compensation is an important part of the statutory provisions. This is not so for s70. As Sullivan J pointed out in Jefferey, the considerations on discontinuance may be different from those on the grant of prospective permission if only because the building or use exists already, and may have done so for many years as a home or workplace. But the statutory obligation to provide residential accommodation in certain circumstances would be relevant to the question of whether a discontinuance order which removed someone from his home should be made and could act as a counterweight to an argument that someone would be homeless. It could not simply be ignored so that a decision was taken on a false basis on the effect of the order on his homelessness. Likewise, where a discontinuance order would uproot a home or business, the existence of compensation, and its adequacy for example, to enable the business to be re-established, would also be relevant in judging the actual planning impact which the order would have, and would be a natural part of its planning merits. It would be distinctly odd if the correct interpretation of s102 meant that the fact that compensation would remove some of the adverse planning effects of the order was relevant to the decision, but not the cost to the authority of providing that compensation. I also think that a s102(2) permission can be based on “expediency” considerations which are not relevant to a s70 permission.

[211]There are textual differences between s102 and s97 to which Ms Ellis referred, and unlike s97, s102 can cover developments which are and developments which are not lawful, or about the lawfulness of which considerable uncertainty may exist. But I do not regard those as the real basis for not following Alnwick. I disagree with it and do not feel that, long-standing decision though it is, I can follow it. Where I cannot agree with it is that, with great respect to its careful analysis and the strength of the argument about the similarity of wording between s70 and s97, it gives far too little weight in my view to the different statutory contexts and effects of the decisions, to the impact which the word “expedient” was meant to have, to the problem created by an obligation to ignore the statutory financial consequences of the decision and to the logical effect of the earlier authorities. The way in which the argument was presented also appears to have been rather different.

[212]The decision of the NPA in November 2008 to take enforcement proceedings for the moment, rather than discontinuance proceedings, on the basis that no compensation was payable in respect of the former, was entirely lawful. The implicit decision to postpone any final decision on discontinuance proceedings until after enforcement proceedings had firmed up the planning bases upon which compensation could be payable on discontinuance was again entirely lawful.

[213]The decision of 16 December adds nothing on this particular aspect. If the decision was to issue enforcement notices which would tackle development without permission and breach of condition 4, this may be less effective than an allegation of a breach of condition 7 in establishing the extent of surviving existing use rights, if any. The decision, nonetheless for these purposes, still reflects the broad initial enforcement route chosen in November.

[214]Ms Ellis also submitted that, if the general cost and impact of paying compensation were irrelevant under s102, there could be cases in which the specific cost and impact were so closely related to “pure” planning impacts that they were relevant. This was such a case because the NPA, like other NPAs but unlike other local authorities, spent the larger part of its resources dealing with planning matters. Even on a narrow view of relevant planning considerations, this type and degree of planning impact was directly relevant to the decision on a discontinuance order.

[215]I disagree. If my conclusion on the relevance of compensation is wrong, this alternative submission is also wrong. It too involves taking into account the liability to pay compensation as a factor weighing against making the order. The impact is an indirect consequence of that liability. It would be very difficult to draw a clear distinction, and certainly not one which the section should be taken to have contemplated, between the position of one authority to which planning was the major function, and another where it was important but not the major function and another where the authority decided that the impact of the compensation would fall directly on the planning budget to its severe detriment, although it could have been spread more widely, or where further money could have been raised, had the authority so chosen.

[216]I should add that I do not think that it is necessary for an authority, which is taking into account the costs of compensation, to identify where the cost would fall with what impact or what further money would have to be raised and how, so as to take into account that further consequence. I do not say that it would be wrong for it to do so either. But it is sufficient for it to recognise that public expenditure, of an approximate order of magnitude, is involved in deciding whether the making of a discontinuance order or the taking of other steps is expedient. Obviously, though, greater weight may be given the larger the expenditure is in relation to resources and the clearer the nature and scale of the consequences.

The relevance of the particular valuations here

[217]Mr Davies submits that, even if the payment of compensation could be relevant to a decision not yet to make a discontinuance order, yet, the decision of the NPA was wrong in law because it took into account immaterial considerations. These are the two higher estimates of compensation, £600000 and £3.75m. These were immaterial because there was no factual or legal basis upon which compensation for discontinuance could be payable for more caravans and tents on the red edged land than the 50 of each limited by condition, and there was no basis upon which there could be a permitted or lawful existing use for caravans or camping outside the red edged land. If he is right about that, then he is right that they were legally irrelevant bases upon which the NPA could consider itself at risk of having to pay compensation.

[218]Ms Ellis submits that the basis upon which compensation might become payable was uncertain still; it could be that such levels might be payable, and it was relevant to the postponement of a decision on the making of a discontinuance order that the approximate basis of liability with its differing impacts was unclear, and might be made clearer by enforcement action. She referred me to occasions when uncertainty had been expressed about the scale of lawful use at Gilestone Farm. The scale had been a matter of discussion between Mr Eacock and Mr Bevan with whatever input from Mr Roberts, though not from the local residents, and without any input from the Thomases. Mr Hooker’s earlier two reports had expressed considerable doubts about the enforceability of the limiting conditions, and especially condition 7, on the 2005 permission, although his October report was less gloomy and recommended that the NPA proceed to enforce them.

[219]Ms Ellis also submitted that it was not known how extensive a reliance could be placed successfully by the Thomases on ss 171B and 191 of the 1990 Act which make a use immune from enforcement action, and lawful, if it has existed for more than ten years before enforcement action was taken. Part 5 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 also permits the use of land as a caravan site in certain circumstances, provided that it complies with the requirements of a site licence in force under the Caravan Sites and Control of Development Act 1960.

[220]Much but by no means all of the uncertainty stems from condition 7 and its prohibition of a caravan and camping use of the area “subject of this application outside the site area edged red…” But no part of the area which is the subject of the application is outside the red edged area. This phrase was intended to refer to the blue area of the Thomases’ ownership, outside the red edged area. The red edged area is the application area. It is obvious that the condition meant to refer to the blue area, which is identified on the application form and plan.

[221]The claimants’ submissions start from the premise that caravan and camping use fell into only two categories: that which was permitted by the 2005 permission, and that which was in breach of its conditions or was without permission, and which was therefore unlawful. No compensation could be payable in respect of the latter, which should be struck at by enforcement action. The compensation for the former could not be payable on either of the two higher bases. On that premise, the conclusion follows inevitably, and taking the two higher bases into account involved taking into account an immaterial consideration.

[222]These submissions in my judgment are in flat contradiction to their later submission that the conditions were so uncertain as to be obviously unenforceable; discontinuance was the only rational decision, taking into account the need to end this caravan use rapidly for good planning reasons. (But if the key conditions are so obviously unenforceable, the permission is obviously void, and always has been. It would have been simplicity itself for so obvious a point to have been taken by September 2005).

[223]The NPA’s submissions start from a different premise. Certainly the two categories exist, but there might be development which was not controlled effectively by the defective conditions, and there might be a lawful caravan site use outside the red edged land of an unknown extent, which had not been effectively taken away by the grant of the 2005 permission, whatever may have been intended. If that were so, and the aim of the discontinuance order was not simply to remove that which was granted by the 2005 permission, but also all but perhaps a very small scale of caravan use, it would be relevant to take the two higher bases of valuation into account, until investigation or enforcement action had ruled out the facts upon which they depend.

[224]In my judgment, even allowing for difficulties (somewhat overstated in my view) about the enforceability of the conditions controlling the level of use of the red-edged, and about the extent to which condition 7 is effective to control the use of the blue land, a failure to sustain the intended effect of those conditions would not of itself mean that a widespread caravan campsite use was lawful on the blue land.

[225]A more general and widespread lawful existing caravan/campsite use outside the area of permission is wholly without any evidential foundation. No application under section 191 for a widespread lawful caravan use has been made. A certificate can specify the area of use and number of units. The evidence in this case, notably from Mr Needham and Ms Inglis shows that there were only ever a few caravans on the field in the flood plain, which is supported by the Caravan Club certificates. The circumstances in which a caravan site could be permitted development under the GPDO do not apply on any evidence which the NPA or others produced, save for the very low level of use, not exceeding 5 caravans, which Mr Thomas’ Caravan Club certificates support, or the occasional days of rallies. The Thomases’ evidence of more than that number relates to rallies for no more than a few days a year. Mr Bevan had no direct knowledge of the level of use. Mr Roberts has denied ever saying what Mr Eacock says he said about the numbers, and Mr Eacock has no independent knowledge. The valuation report was not backed up before or after by any additional factual investigation the outcome of which supported such a fear; rather the criticism of the NPA was that Mr Eacock had rather casually accepted an assertion about the level of use, which no sensible investigation could support. The existence of a few caravans sporadically in one field could not warrant a certificate for lawful use of Gilestone Farm as a caravan site up to the limit of its capacity.

[226]In my judgment, the two higher valuations could only have been material if they had an evidential base. I have not seen any evidential basis which would warrant the highest valuation being treated as material. That said, if better evidence was produced to support the survival of any extensive existing use rights, the highest valuation might become material in the future.

[227]I can see the difficulties however over condition 3 which led to the middle valuation, even though I would expect a robust approach to identifying the plan; and I do not regard the problems of identifying which of the more than 50 caravans or tents are to be removed as significant. The breach arises and continues so long as more than 50 of either are present. I am however reluctant to hold that this is not a possible valuation and therefore relevant to the decision, in view of Mr Davies’ submissions that the conditions, including condition 3, were of doubtful enforceability. If Mr Davies may be right, it is not unreasonable for the middle valuation to be taken into account in deciding that enforcement action should precede a decision on discontinuance.

[228]Accordingly, if the obligation to pay compensation and its level are relevant to the decision as to whether a discontinuance order is made, the decision of 7 November 2008 was flawed because of its reliance on the unsustainable highest valuation. The decision to postpone a decision was itself in part predicated on uncertainty over the level of compensation created by the three bases of valuation. The same decision could still be reached again.

Rationality

[229]Mr Davies’ submission, that the NPA was bound to take discontinuance proceedings partly in view of the uncertainty over the effectiveness of the conditions on the permission and that the NPA could then argue in the compensation proceedings that part of the discontinued use was unlawful and so not compensateable, is an invitation to heedless risk taking with public money and to the use of quite inappropriate procedures to determine the important issue of lawfulness. It is an untenable submission. Rather, the decision which the NPA took in November 2008 was perfectly sensible. It appears to have been to take enforcement action based on breaches of conditions, including condition 7, which, if enforceable, would have established the absence of any surviving established use rights. There is obviously scope for enforcement action to remove or reduce some of the offending uses, and at the same time to establish the extent of lawful or permitted use the removal of which would attract compensation. There is a degree of uncertainty over that, although the degree of uncertainty over the largest amount was in my view significantly overstated on the evidence which I have. To take discontinuance action and risk paying compensation for a use which could be removed by enforcement action would obviously require a deal of justifying as a rational decision.

[230]However, in December 2008, the enforcement notices which I have seen rely on changes of use without planning permission and breach of condition 4 on storage of caravans. This may be a change of heart or an alternative approach to condition 7, the same issue of how much of the use being carried out was a lawful existing use without the benefit of a specific permission, or simply an attempt to test its enforceability. But if it was a more significant change of approach , I remain unpersuaded that the December 2008 decision was irrational, as far as it goes, and still less that discontinuance was the only lawful decision which the NPA could take. Discontinuance and further enforcement steps can still be taken.

Apparent bias

[231]Mr Davies contended that the PAROW decisions of 7 November and 16 December 2008 were vitiated by apparent bias on the part of two Members, Ms Taylor and Mr Morgan, who were the Delegated Panel which in 2005 agreed that the decision should be made by officers. Mr Davies submitted that even if he lost the argument about who actually made the decision, as he has, the two were inextricably tied up with the grant of permission.

[232]He criticised what he said was their failure to understand what was being presented by the officers on 13 May 2005, the nature of the application, and the equivalent failure at the later meeting when objections to what was proposed had begun to surface. Ms Taylor had allowed Mr Morgan and Mr Eacock to overrule her view that the matter should be taken to Committee for decision. They had both failed to consider the application against relevant policies, and had contributed substantially to what was a systemic failure on the part of the NPA in its decision-making process on this application.

[233]This created an apparent bias on their part because there was a clear and objectively justifiable danger that those two would have a personal interest in ensuring that the debacle for which they were seen as partly responsible should be resolved without the NPA incurring substantial costs by way of compensation. They would not wish their previous decision to risk them being the subject of further censure as the financial consequences came home to roost, and they would make and advocate decisions which would avoid such censure. The informed and fair-minded observer would conclude that there was a reasonable doubt that they would speak or vote on the various courses of action with their personal, but not pecuniary, interests in mind.

[234]This was not put forward as a case where the two came to the meeting with a prejudice against the claimants or for the Thomases nor is it said that this is an instance of pre-determination or a closed mind. Nor did they have any personal connection with the Thomases nor any actual or apparent financial interest.

[235]There is no suggestion that anything they said at or around the time of the meetings, or at any stage, showed that they might actually be biased.

[236]The most useful authority on this issue in the context of local authority decision making is R (Lewis) v Redcar & Cleveland BC

[2009] EWCA Civ 746

[2009] 1 WLR 83

[237]The judgments emphasise that although it is for the court, putting itself in the position of the fair minded and informed observer, to decide whether there was a real possibility that the two members were biased, the court must recognise that, in policy matters including planning decisions, which may have a history of political debate, it is considering the decision-making of locally elected or, as in this case, nominated politicians. There is a distinction between the independence and impartiality required in judicial contexts and that required of politicians taking decisions for which they are accountable in other ways.

[238]I do not regard it as irrelevant to take account of what the members themselves say about their attitudes though I recognise that, as the decision on appearance is for the court, it cannot be weighty. The same must apply to the evidence of those claimants who express surprise that the two members who were involved in the decision-making process did not recuse themselves, as the claimants think they should have done. The informed observer must be fair-minded and objective.

[239]What members say may of course be weighty in relation to what the informed observer would know about the facts. Thus it is relevant that Ms Taylor wanted the application brought back before the Delegated Panel, after she became aware that the conditions proposed would permit a larger development than she had anticipated, and at that meeting had argued, albeit unsuccessfully, for the application to be considered by the Committee. It is relevant that she took the advice of officers as well as Mr Morgan’s, that the officers told her that the permission would permit control to be gained of what was an otherwise uncontrolled level of use at the existing campsite at Gilestone Farm, and that she was also advised that the public notification process about which the Community Council was already complaining had been carried out properly. She was also aware of her obligations in relation to the declaration of personal or prejudicial interests; she was Chair of the NPA at the time of the 2008 decisions. It was her view that she had no personal or prejudicial interest in the decision. Mr Morgan also had no personal or prejudicial interest, in his view, and also said that he relied on what officers told him about the level of uncontrolled use on the site, and the adequacy of the notification process.

[240]Mr Cook, the Chief Executive Officer of the NPA, said that at the meeting of November 2008 there had been a careful discussion. Some members were keen to establish that a decision now to take enforcement proceedings would not prevent discontinuance proceeding in the future, and they were assured that it would not. The decision to take enforcement proceedings was unanimous. There was therefore an implicit unanimous decision not to take discontinuance action yet, but also no decision that it would not be taken at all.

[241]That is the decision in relation to which any apparent bias must be shown. I have already concluded that Mr Davies’ submission that such a decision was irrational is itself untenable. There is therefore nothing in the nature of the decision for which the members in question voted, along with all their colleagues, to show that there was any appearance of bias. The very fact that the vote was unanimous suggests that no appearance of bias can attach to the two members in question.

[242]I do not accept that Mr Davies has shown that the informed and objective observer would regard the two members as having a prejudicial interest in the subject matter of the decision. The fact that the James report may have been critical of the Delegated Panel process does not mean that the fair minded and objective observer would say that the two members could not approach this decision in a proper way. The two were not singled out for criticism in the James report, however critical it may have been of the process. I simply do not find their previous involvement generally was such that a fair-minded and informed observer would think that they might take into account some immaterial desire to protect themselves from criticism. If that were their aim, it does not point to a vote one way or another on discontinuance. A vote for discontinuance would have been an obvious way in which they could protect themselves, from one group of critics, and gain the favour of the claimants by spending the money which the claimants say should be spent.

[243]More fundamentally, I do not accept Mr Davies’ submission that, if members desire to protect themselves from further criticism and to avoid it being said that they caused both the problem in the first place and the cost of putting it right, they have an interest which means that they appear to be biased, and their presence or vote invalidates the decision. This is to ignore the broad political basis for local authority decision-making.

[244]A desire on the part of a politician to vindicate his views or to avoid political responsibility and personal criticism will inevitably be at times part of decision-making by elected or nominated members of an authority which exercises political powers in what they perceive as the public interest. It is not hidden or unknown. If this is an undesirable trait in a politician, it is not the sort of personal or prejudicial interest which should lead to the exclusion of a member on claims of apparent bias and interference by the court. It is part and parcel of the exercise of political power by accountable politicians in a public authority.

[245]Equally, I would have thought it wrong to say that those who might appear to wish to advance their personal position, by voting for a course of action which would lead to criticism or blame for a political opponent should be precluded from participation - on the same grounds. The goose and gander are served with the same sauce. Otherwise any who might vote for discontinuance out of a desire to heap criticism on the two in question, or to deflect blame from themselves for any want of interference in a process which they perhaps ought to have realised themselves was going wrong, could vote for it but those who wished to defend themselves by voting against it could not do so. I am not suggesting that any members fell into that second category but it serves as a hypothetical illustration of the ramifications of Mr Davies’ submissions. The fair-minded and informed observer, represented by the court, is not the appropriate analyst for such political considerations.

[246]Accordingly this ground of challenge to the November 2008 and December 2008 decisions fails. I do not need to deal with the question of whether the participation of the two in a vote which was taken unanimously by the twenty one members is invalid if the two should not have participated.

Conclusion

[247]The planning permission of 21 June 2005 is invalid for many reasons and is quashed. The decision of 7 November is flawed on narrow grounds. I am prepared to hear argument about remedies in respect of this decision, and the 16 December 2008 decision. I see no obvious benefit in quashing the decision to issue enforcement notices which may serve some purpose anyway. The one in respect of condition 4 falls anyway. A declaration may be sufficient.