Aaron Scott Canham, R (on the application of) v Calderdale Metropolitan Borough Council [2026] EWHC 1893 (Admin)

[2026] EWHC 1893 (Admin)Case No AC-2025-LDS-000111
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
Venue Sitting at the Leeds Business and Property Court, West Gate, 6 Grace St, Leeds LS1 2RPDate 24/07/2026
Before
THE HON. MR JUSTICE SWIFTTHE KING(on the application of)
Between
AARON SCOTT CANHAMClaimantCALDERDALE METROPOLITAN BOROUGH COUNCILDefendant- and –
Between
JONATHAN DUNNSRG PARK HOLDINGS LIMITED Interested Parties
RICHARD HARWOOD OBE KC (instructed by Goodenough Ring Solicitors) for ClaimantSTEPHANIE HALL (instructed by Calderdale Metropolitan Borough Council Legal Team) for Defendant for The Interested Parties were not represented and did not appearHearing, 10 July 2026
APPROVED JUDGMENT
[1]The Claimant owns Upper Butterworth End in Norland, near Sowerby. Upper Butterworth End is a two-storey stone-built former farmhouse dating from the late 17th century. The house was listed in 1988 and is Grade II listed. It is on land adjacent to Ladstone Park, standing close to the boundary with Ladstone Park. Since 1962 Ladstone Park has been licenced as a caravan site. At one stage, Upper Butterworth End was part of the Ladstone Park caravan site and was used as the toilet block for the site. In 1986 Upper Butterworth End was sold and converted back to residential use.[2]On 20 August 2018 Calderdale Council (“the Council”) granted a new site licence for Ladstone Park pursuant to the provisions of the Caravan Sites and Control of Development Act 1960 (“the 1960 Act). The licence was granted to SRG Park Holding Limited, and it is likely it was granted on the occasion that SRG Park Holding became the owner of the Ladstone Park site. In December 2018 the Council issued a certificate of use in respect of the caravan site pursuant to its power at section 192 of the Town and Country Planning Act 1990 (“the 1990 Act”). That certificate stated as follows:
“The Local Planning Authority considers that the use of the land for the siting of up to 28 caravans would not result in a material change of use, having regard to the change in the character of the use from an unrestricted caravan site which benefits from planning permission 90/1107 outline application for House and Caravan Site. As such the use of the land edged red on the submitted Site Location Plan for the siting of up to 28 caravans would be lawful and an express grant of planning permission would not be required.”
At the time the certificate was issued there were nine static caravans on the site and three vacant pitches. Each pitch was an area of hard standing. I have seen a site plan dated July 2019 which, according to the Second Interested Party (“the site owner”), was sent to the Council. This shows a proposed layout for the site comprising the existing pitches and additional pitches up to the maximum permitted 28. A photograph from Google Earth dating from April 2020 shows the work on the additional pitches was then in progress and included work on three areas of hard standing close to the boundary between Ladstone Park and Upper Butterworth End.[3]The Claimant bought Upper Butterworth End in July 2024. By this time the three areas of hard standing near to the boundary with Ladstone Park were in place but remained empty. There were park homes on each of the other areas of hard standing. Park homes are detached, single storey residential bungalows. They are prefabricated in factories and permanently installed on licenced sites. They are typically occupied year round, often by older or retired people. Ladstone Park advertises itself as providing homes for the over 55s.[4]This case concerns the Council’s decision not to take enforcement action in respect of the three areas of hard standing immediately adjacent to Upper Butterworth End. The land there is not level. In consequence, each of the areas of hard standing takes the form of a concrete-topped plinth. The plinths are referred to as plots 7, 9 and 11, respectively. The one closest to Upper Butterworth End (plot 7) is some 8 metres from the building. Plot 9 is the focus of this claim because a park home was put on it in January 2025. It is common ground that construction of all three concrete plinths started in 2020 and that the work on them had stopped by early 2021. Each plinth is approximately 14.5 metres long by 5.5 metres wide. Because each is built on sloping ground, each is supported by a structural wall, and the top of each stands well above ground level: in the case of plot 9, 1.5 metres above ground level at the front and 0.8 metres above ground level at the back, the side of the plinth closest to Upper Butterworth End.[5]On 15 December 2024 the Claimant wrote to the Council as follows:
“Concerns: I understand planning permission has been granted in respect of Ladstone park for park homes. However, has planning permission been authorised for 3 additional lots which are located very close to a listed build building. Effect: The 3 additional plots are located very close to a listed building (Upper Butterworth End). My concerns are, the 3 additional plots affect the seƫting of the listed building, resulting in overshadowing taking away beautiful views that have been in existence for hundreds of years. I do not believe any consideration has been given in terms of protecting the listed building. The listed building was unoccupied at the time generic planning permission was authorised. Therefore, the right to object against this did not exist at that time. time. The house was built in the 17th Century, and I believe it's setting should be protected. The 3 additional plots are too close to a beautiful, listed building. I do not believe any consideration has been given to protect the listed building. This is surely not in line with English Heritage values. I understand delivery of more units are imminent and would be directly positioned in front of this beautiful, listed building. I hope the council will review this - I was under the impression that the council would do everything within their power to protect a listed building. Other relevant information: The reality is that the views of the listed building would be completely removed and this this is very damaging to a listed building. This is not in line with English heritage values; how can this be allowed? This building and it its setting be protected. Otherwise, you would question whether the building should be listed in the first instance.”
[6]In January 2025 a park home was put on the plot 9 plinth. The park home is not attached to the plinth but sits on it, resting on wheels and an axle. In February and March 2025 further work was undertaken. A brick skirt was built around the edge of the plinth. This hides the gap between the top of the plinth and the bottom of the park home. The brick skirt is not attached to the park home and the park home does not rest on the skirt. The skirt’s purpose is aesthetic, although no doubt also it serves to prevent any debris collecting on the plinth in the void under the park home. A patio area was constructed on two sides of the park home. This is connected to the brick skirt but is not connected to the park home. A metal railing was put around the edge of the patio. Finally, new steps were built from ground level to the top of the plinth. The pictures I have seen suggest that the new steps were built over and subsumed steps originally built when the plinth was constructed between 2020 and 2021.[7]The Claimant filed these proceedings on 3 June 2025. The claim was directed to the Council’s decision in an email dated 14 May 2025. That email contained the Council’s response to the complaint the Claimant had made in December 2024. The Council’s response was as follows:
“I have now received comments from the owner’s agent. It is their opinion that the platforms are permitted development (PD) under Schedule 2, Part 5, Class B of the General Permitted Development Order, The Town and Country Planning (General Permitted Development) (England) Order 2015. This states that the following development is permitted; “Development required by the conditions of a site licence for the time being in force under the 1960 Act.”
There is a site licence (CSL), which was issued in August 2018 by the Licensing Authority; a plan of the caravan layouts was provided with the application. The ‘Model Standards 2008 for Caravan Sites in England’ requires the provision of bases for caravans in accordance with industry guidelines. Nonetheless, the agent has also advised that the platforms were completed in at least 2021, and they are shown on Google Maps from this time. There is a time limit for taking enforcement action, which is 4 years for development completed before April 2024. As such even if the development did require planning permission it would now be immune from enforcement, and we would be prevented from taking action even if we considered it necessary.” By its decision, the Council took no settled decision on whether the plinths had been built in breach of planning control. However, on the assumption that they had, the decision not to take enforcement action rested on the application of section 171B(1) of the 1990 Act. As applicable to cases where development in breach of planning control was substantially completed before 25 April 2024, that subsection provided:
“171B – Time limits (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.”
[8]By his claim, the Claimant contended that the decision not to take enforcement action was unlawful because no consideration had been given to the provisions of section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”), and that the Council had failed to take into account the affect on Upper Butterworth End of the erection of the park home in January 2025.[9]The Council’s Acknowledgement of Service and Summary of Grounds of Defence were filed on 3 July 2025. After those grounds were filed the Council produced a report dated 16 July 2025 and took a decision on 5 August 2025, each confirming the decision set out in the 14 May 2025 email. The report and decision were sent to the Claimant but were not filed at court.[10]On 15 August 2025, DHCJ Ockleton refused permission to apply for judicial review. The Claimant appealed that decision. On 10 November 2025, Holgate LJ granted permission to apply for judicial review and remitted the case to the Planning Court for hearing. He refused permission to apply for judicial review on any argument made by reference to the Listed Buildings Act. However, his observations raised the issue of whether the park home was a caravan within the scope of the definition at section 29 of the 1960 Act and section 13 of the Caravan Sites Act 1968 (“the 1968”). Holgate LJ noted that if the park home was not a caravan, erecting it would have been a building operation requiring planning consent, and that had planning consent not been obtained enforcement action would be a possibility.[11]These comments prompted the Council to consider the matter further. On 16 January 2026 the Council took another decision. In that decision the Council concluded that the park home on the plot 9 plinth was a caravan within the definitions at section 29 of the 1960 Act and section 13 of the 1968 Act, with the consequence that erecting the park home had been lawful permitted development. The Council re-stated its conclusion that enforcement action in respect of the plinths was prevented by section 171B(1) of the 1990 Act.[12]The Claimant applied to amend his Statement of Facts and Grounds by application made first on 18 February 2026 and then on 20 February 2026, in a slightly revised form to take account of the conclusions reached by the Council in its 16 January 2026 decision. The proposed Amended Statement of Facts and Grounds superseded the original grounds of challenge. As at the date of the hearing before me the application to amend remained outstanding. The proposed Amended Statement of Facts and Grounds contended as follows. First, the decision not to take enforcement action by reason section 171B of the 1990 Act was unlawful as it had not taken account of the work undertaken in February and March 2025 (i.e., construction of the patio, the new steps, the railings, and the brick skirt). The Claimant contended it was irrational to conclude:(a) that those works were not of themselves development, requiring planning permission such that they ought to have been the subject of enforcement action; and(b) that the plinths had been substantially completed in 2021 and were therefore immune from the possibility of enforcement action. Second, the Claimant contended that the decision that the park home was a caravan was an unlawful decision.[13]The proposed Amendment Statement of Facts and Grounds prompted the Council to consider the matter again. The Council made a further decision on 24 March 2026. That decision, for the first time, considered the significance of the work carried out in February and March 2025, after the park home had been constructed. By this decision the Council concluded first that the plinths had been completed and were usable by 2021, and that by then, their construction had been complete. As a result, no enforcement was possible by the reason of the four-year rule in section 171B(1) of the 1990 Act. The Council concluded that the features added in 2025, the brick skirt, the patio, the new steps and the railing were not an integral part of the original development of the plinths. Each could be removed without affecting the integrity of the plinth and none was necessary to make the plinth usable or complete. Second, the Council also concluded that the further work undertaken in February and March 2025 comprised “stand alone improvements”, that they comprised a separate phase of work and a separate set of building operations. The Council concluded that construction of the brick skirt was permitted development, and that part of the railings was also within the permitted development regime. Although the Council accepted that the remaining part of the work undertaken in February and March 2025 had not been permitted development and was operational development undertaken without planning permission, it concluded that it would not be expedient to issue any enforcement notice in respect of that or any other development. Third, the Council restated its conclusion that the park home fell within the definition of a caravan within the 1960 Act and the 1968 Act. That being so, erecting the park home was a use of land rather than operational development.[14]Following this decision, on 15 April 2026 the Claimant applied to re-amend his Statement of Facts and Grounds. That application also remains outstanding. The proposed Re-Amended Statement of Facts and Grounds maintained the grounds of challenge in the proposed Amended Statement of Facts and Grounds and added a further ground of challenge to the effect that the Council’s decision of 24 March 2026 was unlawful by reason of apparent bias.[15]It is common ground that the grounds of challenge in the proposed Re-Amended Statements of Facts and Grounds have overtaken all earlier versions of the Claimant’s challenge. The parties’ approach to the hearing before me has been that it should proceed as a rolled-up hearing of the April 2026 application to re-amend the Statement of Facts and Grounds and the substantive merits of those grounds.[16]At the hearing, leading counsel for the Claimant, Richard Harwood OBE KC, advanced the following grounds of challenge. First the Council’s decision that section 171B of the 1990 Act prevented enforcement action against the plinths was flawed. Second, the Council’s conclusion that the park home was a caravan within the definition within the 1960 and 1968 Acts was a misapplication of those provisions. Third, that the decision that it was not expedient to take enforcement action in respect of the work undertaken in February and March 2025 was flawed. Fourth, that the 26 March 2026 decision was unlawful on grounds of apparent bias. B. Decision (1). The Council’s decision on the application of section 171B(1) of the 1990 Act[17]The issue between the parties concerns the significance of the work done in February and March 2025 when the brick skirt, the patio, the railings and the replacement steps were added. The Claimant also relies on work done on drainpipes and rainwater drainage at this time. Although some downpipes came attached to park home, because the plinth stood above ground level, they did not reach the ground. Further lengths of downpipe were attached to the plinth to connect with those installed on the park homes to allow rainwater to reach ground level. Some drainage pipes were also installed to drain the patio. Taken together, the Claimant contends that these matters show, to use the language of section 171B(1), that the relevant building operations were not substantially complete by the beginning of 2021. The Claimant’s submission is that the Council’s conclusion to the contrary misidentified the purpose of the development. The purpose was to permit the occupation of a park home on the plinth, and that purpose was only attained once the brick skirt, patio, new steps and railings constructed in February and March 2025, were complete. Thus, completion of the work on the plinths in early 2021 was not substantial completion of the building operation.[18]The Claimant principally relied on two authorities: the decision of the House of Lords in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983; and the decision of the Court of Appeal in Devine v Secretaryof State for Levelling Up, Housing and Communities [2023] PTSR 1548. In each case the court considered the two questions posed whenever section 171B(1) needs to be applied: what was the relevant building (or other) operation; and when was it substantially completed. In both Sage and Devine the issue under the first question was whether the building operation concerned development of a house. On the facts of each case work had been undertaken on an agricultural building. If, notwithstanding the work done the building remained an agricultural building, the work would not have been done in breach of planning control. In each case, the factual premise for the enforcement notice had been that the work done comprised development of a house. In each case the court accepted that the answer to this question was a matter of fact and evaluation for the primary decision-maker (in each case, a planning inspector), taking account of the physical and design features of the building (in Sage, see per Lord Hobhouse at paragraph 14, and all other members of the panel) and possibly also the use of the building (only per Lord Scott at paragraph 41, and Lord Hope at paragraph 8).[19]The second question in Sage and Devine was when building operations had been substantially completed. In Sage the planning inspector concluded the house was a substantially incomplete house, with the consequence that section 171B of the 1990 Act did not prevent enforcement action. That conclusion was successfully challenged in the High Court and the Court of Appeal each concluding that when deciding whether the house was substantially completed the inspector ought to have disregarded any work that needed to be done that would not, if considered insolation, require planning permission. The House of Lords rejected that premise and restored the planning inspector’s conclusion. Lord Hobhouse’s reasoning was to the effect that whether the house was substantially complete was essentially a matter of evaluation for the planning inspector.[20]In Devine, the approach of the Court of Appeal was the same. The issue on the facts of that case was whether work undertaken by Mr Devine on a roof, less than four years before the enforcement notice was issued, was simply a repair or was evidence that building operations aimed at converting an agricultural building to a house were not substantially complete. The planning inspector had concluded that the work on the roof had not been a repair of an already substantially completed house, but was part of work needed to complete the work on the house. In reaching that conclusion the inspector had taken account of evidence that Mr Devine had considered the work on the roof to be part of “his project” which the inspector took to be the project of completing the house. The appeal against the inspector’s decision failed. The Court of Appeal considered whether operations had been substantially completed to be a question of fact requiring an evaluation of the reality of the matter. In answering that question, the decision maker could have regard to evidence of the intention of the person doing the work, taking care always to ensure that such evidence was not permitted to trump objective reality. Other cases that followed Sage, such as R(Dennis) v Sevenoaks DC [2005] 2 P&CR 4, and Fidler v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin), have emphasised that both questions that arise when section 171B(1) is applied are ones of fact and evaluation for the decision-maker: see in Dennis per Sullivan J at §32, and in Fidler per Sir Thayne Forbes at §§21 – 22 and 26 – 27.[21]In the present case, when applying 171B(1) of the 1990 Act the Council had to identify the building operation being undertaken and consider whether (and if so when) that operation had been substantially completed. The circumstances of the present case differ from those considered in Sage and Devine. In each of those cases the facts presented a binary choice: either the building operation was work on an agricultural building or it was the development of a house. In this case the issue is whether the Council’s decision on what the building operation did (or did not) comprise, involved any public law error.[22]The March 2026 decision relied on the Council’s site inspection undertaken in March 2025. In material part the report was as follows:
“Plinths The plinths are approximately 14.5m across and 5.5m deep. Due to the topography of the land, they slope from east (rear) to west (front). A structural wall has been constructed to create the raised plinths, and this is between 1.5m at the front to 0.8m towards the rear. They have a concrete a concrete hardstanding on top. ... It is considered that the works undertaken to create these plinths are building operations, and as such they are development within the meaning of section 55 of TCPA. ... The plinths were observed by the Site Investigation Officer during a visit in March 2025. Each consists of a masonry wall, flat at concrete platform and side steps providing access (see Photographs 1 to 3 of Appendix 18). The Council’s view is that, at the time of the visit and when the structures were completed in 2021, they provided a stable, level platform and were suitable for their intended use as bases for a caravan. They were complete and fully capable of performing that use as function without the 2025 additions. The subsequent structures constructed in 2025, as described below, I consider are best described as stand-alone improvements rather than a continuation of the same building operation. As a matter of fact and degree, the plinths were substantially complete in 2021, they were usable and functional at this point. The later works took place after a substantial gap in any operations and are in my view not an extension of the plinths nor do they form any integral part of the original operational development for the plinths, and therefore they do not affect or re-open the immunity accrued by the plinth itself.”
[23]I can see no public law error in this approach or this reasoning. What comprised the relevant building operation was a matter of evaluation for the Council. The conclusion that the operation comprised construction of the plinths to provide a level and stable base for a caravan was a permissible conclusion. This conclusion drew a distinction between the work done before the arrival of the park home and the work done in February and March 2025 after the park home had been put in place. In substance, the Council concluded this later work was consequential on the siting of the park home, and that the object of this work was largely aesthetic: the brick skirt to cover the gap between the top of the plinth and the bottom of the park home; and the patio, railings and the new steps to cover the entrance to the park home. On this approach, the later work was distinct from the building operation for the plinths. This was a conclusion of fact reasonably open to the Council.[24]The Claimant’s submission that the description of building operations should have been development to permit occupation of a park home does not identify any public law error. The Council might have chosen to describe the building operation in that way, but how to describe the operation was a question of fact. It is apparent from the March 2026 decision that the Council approached the issue as it did, considering all relevant and available information. The Council’s decision that the building operation was construction of the plinths to a usable standard was consistent with the evidence available to it and consistent with a realistic appraisal of that evidence. The Claimant relied on the fact that the site owner had told the Council that works such as the brick skirt and the patio were typical work done after a park home had been put on its hard standing. No doubt that is so. But that evidence is entirely consistent with the Council’s decision that these works were consequent on installation of the park home. It does not detract from the legality of the Council’s conclusion of fact that the relevant building operation was construction of the plinths. This part of the Claimant’s case therefore fails. (2). The decision that the park home is a caravan.[25]In Measor v Secretary of State for the Environment, Transport and Regions [1999] JPL 182 a planning authority had refused a request to issue a certificate of lawful use for a motel that comprised caravans and static units and had then served an enforcement notice. An inspector had refused an appeal against the enforcement notice concluding that the relevant limitation period in section 171B of the 1990 Act had not expired. The inspector’s decision was challenged on the basis he had applied the wrong limitation period. That submission rested on the contention that the caravans on the site had ceased to meet the definition of in the 1960 and 1968 Acts and were instead to be treated as buildings or dwelling houses. The challenge failed.

The Judge (Deputy High Court Judge Robin Purchas QC) reasoned as follows:

“The approach to the definition of "a building" for the purposes of development control is now well settled. It should be considered, as a matter of fact and degree, in the light of the factors identified by the Court of Appeal in Elitestone and helpfully summarised at paragraph 55.10 of the Planning Encyclopaedia. Generally, a mobile caravan would not satisfy that definition, having regard to factors of permanence and attachment. On the findings of fact of the Inspector in the present case, there were ample grounds for his conclusion that they did not constitute “buildings” in the light of that guidance. The definition of “caravan” in section 29(1) of the 1960 Act is applied to the definition of “caravan site” under section 336(1) of the 1990 Act. That requires consideration whether a particular “structure” is mobile or potentially mobile in the context of that legislation. It would, in my judgment, offend the purpose of section 55(1) and the other provisions of Parts III and VII of the Act for the control of development, to conclude from that that all caravans are structures and, therefore, buildings within the definition of “building” in the 1990 Act. The provisions of section 336(1) do not require the application of the definition of “caravan site” to the definition of “building”
. It would be contrary to the well-established approach on the authorities to determination of what is a building. In my judgment, it also would conflict with the purpose of the Act and common sense to treat mobile caravans as buildings as of right. While I would be wary of holding that, as a matter of law, a “structure” that satisfied the definition of, for example, a mobile home under section 13(1) of the 1968 Act could never be a building for the purpose of the 1990 Act, it seems to me that the conclusion of the Inspector, by reference to the definitions in the 1960 and the 1968 Acts and the decision at [1996] J.P.L. 435 makes it clear that he considered that in the present case the caravans lacked that degree of permanence and attachment to constitute buildings.”[26]Thus, in practice it will be a rare case that siting a structure that is a caravan within the definitions in the Acts will amount to “building” for the purposes of section 55(1) of the 1990 Act. However, in the present case the premise of the Claimant’s submission is that the park home placed on the plot 9 plinth did require planning permission because it is not a caravan within the definitions.[27]Section 29 of the 1960 Act and section 13 of the 1968 Act provide as follows:
“29. — Interpretation of Part I. (1) In this this Part of this Act, unless the context otherwise requires – “caravan” means any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted, but does not include (a) any railway rolling stock which is for the time being on rails forming part of a railway system, or (b) any tent; …” “13. — Twin-unit caravans. (1) A structure designed or adapted for human habitation which – (a) is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and (b) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer), shall not be treated as not being (or as not having been) a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 by reason only that it cannot lawfully be so moved on a highway when assembled. (2) For the purposes of Part I of the Caravan Sites and Control of Development Act 1960, the expression “caravan” shall not include a structure designed or adapted for human habitation which falls within paragraphs (a) and (b) of the foregoing subsection if its dimensions when assembled exceed any of the following limits, namely (a) length (exclusive of any drawbar): 65.616 feet (20 metres); (b) width: 22.309 feet (6.8 metres); (c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres).”
Drawing these definitions together (and so far as material for present purposes), a caravan must be a structure designed or adapted for human habitation. It must be capable of being moved from one place to another whether by being towed or transported on a vehicle. A structure consisting of two sections designed to be bolted or clamped together on a site will be a caravan if: (a) it is within the maximum specified dimensions; and (b) it is capable of being moved by road from one place to another disregarding whether that would be lawful under road traffic legislation. (a) any railway rolling stock which is for the time being on rails forming part of a railway system, or (b) any tent; …” (a) is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and (b) is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer), shall not be treated as not being (or as not having been) a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 by reason only that it cannot lawfully be so moved on a highway when assembled. (a) length (exclusive of any drawbar): 65.616 feet (20 metres); (b) width: 22.309 feet (6.8 metres); (c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres).”[28]In the present case the only issue is whether the park home, when assembled, is physically capable of being moved by road. The primary focus of the Claimant’s submission is whether the park home could be removed from the plinth without removing all or part of the brick skirt. The submission comprises the following contentions:(a) that the words “capable of being moved by road” must be understood to mean “capable of being moved by road without any need to take any step that would require planning permission” and(b) that on the evidence available the Council could not reasonably be satisfied that the park home could be removed from the plinth without removal of part or all of the brick skirt.[29]I do not accept these submissions. By the time of the 24 March 2026 decision the Council had information from the site owner that it would be possible to remove the park home from the plinth without any alteration to the brick skirt. When first asked, the site owner had stated that it could be done in principle but that it had not been done before. In a further letter dated 24 March 2026, which the Council had and considered before its decision of the same date, further information was provided:
“Mr Dunn has since spoken with two of his normal siting teams, and it has been confirmed that the caravan can be raised or jacked up so that the straps can be placed under the unit for lifting as a single piece. Written correspondence confirming this could be provided if necessary. However, as discussed below, the request for further information appears to be excessive and unnecessary. This is because the process for lifting a caravan is no different to raising a car or similar vehicle on portable jacks or hydraulics for maintenance purposes (to change a tyre). One simply gains access to the underside of the vehicle to place the jacking systems under it and lift the unit. It is a commonly understood process it that requires no further explanation. Indeed, as previously described, there remains access hatches for maintenance teams to access the underside of the caravan. Whilst it would be easier to remove to small portions of the brick skirting around the caravan to lift and move the caravan, there is in in fact no actual need to do so, because access to the underside of the caravan is maintained.”
This provided a more than sufficient basis for the Council to conclude, as it did, that the park home could be removed from the plinth without the need to dismantle any part of the brick skirt.[30]In any event, and even if there were some flaw in the Council’s conclusion on the facts, the Claimant’s submission on the meaning of “capable of being moved by road” is wrong. There is no reason to read those words as meaning anything more than they say. The only issue is whether the structure can be moved by road either by being towed or if put on a vehicle. In a case like the present, steps would have to be taken to remove the park home from the plinth either so it could be towed (the park home sits on its own axle and wheels) or put on a vehicle. The park home would only not “capable of being moved by road” if those steps could not be taken, or if the steps had to be taken were such that the park home as installed, had a degree of permanence and attachment sufficient for the structure to comprise building for the purposes of the 1990 Act. Ms Hall, counsel for the Council, referred me to the judgment of Jack J in Brightlingsea Haven Limited v Morris [2009] P&CR 11. The conclusion I have reached is consistent with the reasoning at paragraph 84 of the judgment in that case. On the facts of this case I do not consider, were it necessary to dismantle some part of the brick skirt to allow removal of the park home from the plinth, that that would amount to any indication of the degree of permanence necessary to render erection of the park home a building operation.[31]The Claimant made a further submission by reference to the downpipe attached to the plinth which was connected to the downpipe connected to the park home to ensure rainwater collected in the gutters drained to ground level, rather than only to the top of the plinth. It appears that were the park home to be moved from the plinth, the connection to this additional piece of downpipe would have to be dismantled. I do not consider this to be at all material. What would need to be done to disconnect the two pieces of downpipe is of the same order as disconnecting a park home from an electricity or gas supply. The downpipe connection suggests no element of permanence that prevents a conclusion that the park home remained capable of being moved by road. Therefore, this part of the Claimant’s challenge also fails. (3). The decision not to take enforcement action in respect of the 2025 works.[32]The Council considered the brick skirting to be permitted development under Part 2, Class A of the Town Country Planning (General Permitted Development) (England) Order 2015 (“the GDPO”). However, the Council also considered that planning permission ought to have been obtained for the replacement steps and the patio and the railings (that were in part too high above the ground to fall within the permitted development regime). The Council considered the possibility of enforcement action in its 24 March 2026 decision. The material parts of the decision are as follows:
“It is considered that the steps, patio, brick skirt and installation of railings are operational development. Planning permission is required for the steps and patio; there are no permitted development rights for these types of additions to a park home under The Town and Country Planning (General Permitted Development) (England) (England) Order 2015. As permission has not been sought or granted, there is a breach of planning. However, the steps and patio are well designed and in keeping with the character of the caravan park and would comply with CLP policy BT1 (High Quality Inclusive Design). Upper Butterworth End was first listed in 1988 (List Entry Number 1300476), at which time the caravan site had planning permission and was operational. At the time of listing, as noted in the list entry, the farmhouse was part unoccupied and part caravan site amenities. As such it is considered that the caravan site does form part of the setting of the Listed Building. It is considered that the addition of steps and a patio, which are well designed and within the context of the existing caravan park, would not harm the significance of the Listed Building or it’s setting and comply with CLP policy HE1 (Historic Environment). There would be a degree of overlooking from the patio to the windows of the Upper Butterworth End, but no more so than if residents were to use the existing ground level without the patio, as such it is considered that the impact on the privacy of residents is no greater and there would not be a conflict with CLP policy BT2 (Privacy, Daylighting and Amenity Space) Overall, the steps and patio do not result in harm or conflict with the policies of Calderdale's Local Plan and it would not be expedient to take act37 and ion. ... The railings and glass balustrade on the east side of the park home are less than 2m from ground level but, due to the site’s topography, on the south elevation areas of the railings, as they rise up with the steps, and glass balustrade would exceed 2m above ground level. The railings and glass balustrade integrate well with the overall character and appearance of the of caravan park, and it is considered that their addition does not result in harm to the setting of the nearby Listed Building. The section that would require permission is set further back from the Listed Building and even if it were removed the railings and balustrade that are permitted development could remain. It is considered that they comply with CLP policies BT1 and HE1, and it would not be expedient to take action to require their removal. ... Since the siting of the caravan is lawful and the plinths are immune, the Council must then assess the 2025 additions on their own merits and in in accordance with national enforcement policy. Even assuming some of those later items required planning permission, enforcement is discretionary and must be proportionate. National guidance emphasises that action should be taken only where it emphasises that action should be would deliver a meaningful planning outcome. Removal of the 2025 features would not remove the caravan, alter its lawful siting, or materially change any alleged visual or amenity impacts arising from the caravan itself. Any harm attributed by the Claimant to those items is marginal at most and would not justify formal action. Even if, contrary to the Council’s primary position, the caravan was found not to meet the statutory Council's definition of a caravan, it would still not be expedient to pursue enforcement action. The only realistic fallback position would be the removal of the 2025 operations-steps, patio sections, railings, balustrade and the brick skirt—leaving the site owner capable of siting a caravan sitting directly on the 2020/21 plinth, which is already lawful through the passage of time. Enforcement could not lawfully compel removal of the plinth and therefore could not secure removal of the caravan from the site.”
[33]In taking its decision not to issue an enforcement notice, the Council sought to apply the provisions of section 172(1) of the 1990 Act. By that provision a planning authority must consider whether it is “expedient” to issue an enforcement notice. Expediency is to be considered “having regard to the development plan and any other relevant considerations”. The Claimant’s submission is that the decision on expediency was unlawful: first that it was taken on a false premise because the Council had wrongly concluded that the brick skirt fell within the permitted development scheme; and second was taken without regard to a relevant consideration, namely that enforcement action taken against the 2025 works would enhance the amenity of Upper Butterworth End because without those works it was unlikely that any park home would remain on the plot 9 plinth with the consequence that Upper Butterworth End would cease to be overlooked by those living in the park home. I do not accept either of these submissions.[34]The first submission came in two parts, first taking the brick skirt in isolation, but then considering it together with the patio and the replacement steps. Considering the brick skirt in isolation, Class A of Part 2 of the GDPO permits:
“The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure ”
. The Claimant submits that the brick skirt was outside the scope of this provision as it was not a means of enclosure; although the brick skirt goes around the top of the plinth it does not divide one piece of land from another. The submission that, considered on its own, the brick skirt falls outside the permitted development right is wrong. The brick skirt does enclose the area of the plinth. The Claimant referred to the judgment of the Divisional Court in Prengate Properties Limited v Secretary of State for the Environment (1973) P&CR 311. In that case a wall had been built “… on or very close to the boundary of land … surrounding perhaps half of the total perimeter … with the intention of using the … wall as a retaining wall”. The court accepted the submission that, on its own terms, the wall fell within the scope of permitted development. Lord Widgery CJ stated (at page 314):
“I think that on the proper construction of this paragraph the building of a wall is not authorised unless the wall has some function of enclosure; in other words, it would not extend to someone who places a free-standing wall in the middle of his garden in circumstances in which the wall neither encloses nor plays any part in the enclosure of anything. ... If the wall in fact operates as a means of enclosure I do not for my part see why it should lose its privilege, as it were, under paragraph 1 merely because it has some function of retaining the soil as well. It does not seem to me that a wall which encloses and a wall which retains are necessarily two different things”
In the present case, while the purpose of the brick skirt may be largely aesthetic nevertheless it does serve to enclose the perimeter of the plinth. “I think that on the proper construction of this paragraph the building of a wall is not authorised unless the wall has some function of enclosure; in other words, it would not extend to someone who places a free-standing wall in the middle of his garden in circumstances in which the wall neither encloses nor plays any part in the enclosure of anything. ... If the wall in fact operates as a means of enclosure I do not for my part see why it should lose its privilege, as it were, under paragraph 1 merely because it has some function of retaining the soil as well. It does not seem to me that a wall which encloses and a wall which retains are necessarily two different things” In the present case, while the purpose of the brick skirt may be largely aesthetic nevertheless it does serve to enclose the perimeter of the plinth.[35]The Claimant also relied on the judgment in Prengate in support of its submission that took the brick skirt together with the patio and the replacement steps. Prengate is authority for the proposition that if a single operation comprises both permitted development and other development, the whole operation requires planning permission. The Council’s response is that the 24 March 2026 decision did consider enforcement considering removal of all the 2025 work including the brick skirt. The Council relies on the last two paragraphs set out above at paragraph 32. I accept this submission. All the work done in 2025 was considered in the round notwithstanding the Council’s other conclusion that, considered in isolation, the brick skirt fell was within permitted development.[36]The second submission is that the Council should have taken account of the possibility that if enforcement action were taken against all parts of the 2025 work the site owner would decide that it was not viable, for aesthetic reasons, to use the plot 9 plinth at all, and would remove the park home from that plinth, to the benefit of the amenity of the Upper Butterworth End. Subject to matters required to be considered by section 172(1) of the 1990 Act, it is for the Council to decide for itself which matters are relevant, subject only to the requirements of public law legality. The possibility the Claimant identifies is speculative. It is more likely that if required to remove the work done in 2025, the site owner would have adopted lawful alternative measures to enhance the aesthetic of the area around the park home rather than abandon the use of the plinth entirely. The Council was not, as a matter of law, required to have regard to the possibility the Claimant has identified. The decision that it was not expedient to issue an enforcement notice was not unlawful. In the premises, this ground of challenge fails. (4). Was the 24 March 2026 decision unlawful by reason of apparent bias?[37]The Claimant’s submission is that because the same council officers were involved in more than one of the Council’s decisions there is an appearance of bias. The first decision, in the email dated 14 May 2025, was taken by Claire Dunn, the Council’s Development Management Team Leader. Ms Dunn wrote the report dated 16 July 2025 which set out in more detail the reasoning that had supported the decision of the 14 May 2025 email. On 5 August 2025, a decision was taken based on that report, confirming the 14 May 2025 decision. The 5 August 2025 decision was made by Ruth Hardingham, the Council’s Development Manager. The report leading to the 16 January 2026 decision was written by Richard Seaman, the Council’s Corporate Lead, Planning. The decision was taken by Ms Hardingham. The report for the 24 March 2026 decision was written by Ms Dunn. Ms Hardingham took the decision. Drawing this together Ms Dunn took the first decision and wrote reports containing recommendations for the second and fourth decisions. Ms Hardingham took the second, third and fourth decisions. Mr Seaman wrote the report containing a recommendation for the third decision. By reference to the Council’s management structure, Ms Dunn is one of the officers who reports to Ms Hardingham. Ms Hardingham is one of the officers who reports to Mr Seaman.[38]In its judgment in the R(Good Law Project) v Minister for the Cabinet Office [2022] PTSR 933 the Court of Appeal reviewed the authorities on the common law rule against apparent bias. Lord Burnett CJ, who gave the judgment of the court, said as follows:
“63. The common law rules against bias date back to the 1860s with the decision of Blackburn J in R v Rand (1866) LR 1 QB 230 which established judges cannot determine an issue in which they have any pecuniary interest. The rules are rooted in the context of judicial and quasi-judicial decision-making. Procedural fairness requires that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the evidence and arguments being advanced by the parties. It aims at preventing a hearing or decision-making process from being a sham or a ritual because the decision-maker is not open to persuasion. 64. Actual bias has been described as rare and difficult to prove … the courts are therefore more commonly asked to look at the circumstances of a case to see if there is an appearance of bias, an allegation which should only be made on a proper basis. The rules against bias are an aspect of the principles of natural justice. The relevant test is now well-established: the court must first ascertain all the circumstances which have a bearing on the suggestions that the decision-maker was possibly biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased (see Porter v Magill [2002] 2 AC 357, paras 102–103). 65. The fair-minded and informed observer is someone who reserves judgment until both sides of any argument are apparent, is not unduly sensitive or suspicious, and is not to be confused with the person raising the complaint. This observer considers the evidence carefully, having particular regard to the specific factual circumstances, taking a balanced approach and appreciating that context forms an important part of the material to be considered … 66. These principles have been extended to apply to wider extra-judicial decision-making, but always and only in an adjudicative context, such as local authority and planning committee decision-making (see for example R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83); or a process to determine which of a number of hospitals should conduct specific treatments (Royal Brompton & Harefield NHS Trust v Joint Committee of Primary Care Trusts (2012) 126 BMLR 134). 67. In support of its submission that the common law principles of bias applied to the instant facts, Good Law referred to R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304. The relevant question in that case was whether a decision to grant outline planning permission was tainted by bias on the basis that the chairman of the local planning authority committee making the planning decision had a vested interest in the land under consideration. At p 324G Sedley J (as he then was) stated: “public law has returned to the broad highway of due process across the full range of justiciable decision-making. One effect is that the maxim audi alteram partem is not to be regarded as a free-standing principle covering only proceedings in which there can be said to be sides or parties but is one application of the wider principle that all relevant matters must be taken into account.”
Sedley J held that the principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings. 68. That common law principles of fairness applied on the facts of Kirkstall is unsurprising. The planning committee was considering a formal planning application in the context of an adjudicative process, determining whether or not to grant the planning permission sought. 69. Turning to the present case, however, there was very specifically (and, as the judge held, justifiably) no competitive procurement process or, for example, an application by Public First as part of an adjudicative procedure of any sort. Rather, the Minister was entering directly into a private law services contract with Public First. It is difficult to see how any analogy can be drawn between the award of such a contract and the adjudicative context in which the rules against bias have hitherto been engaged. ...” “public law has returned to the broad highway of due process across the full range of justiciable decision-making. One effect is that the maxim audi alteram partem is not to be regarded as a free-standing principle covering only proceedings in which there can be said to be sides or parties but is one application of the wider principle that all relevant matters must be taken into account.”[39]Public law standards are applied sensitive to context. Not every public law rule is applicable to every decision capable of being challenged by way of judicial review. In Good Law Project the Court of Appeal makes it plain that the rule against bias and the fair-minded and informed observer standard are apt to apply only where the decision challenged is in some relevant sense an adjudicative decision. The Claimant referred me to the recent judgment of the Court of Appeal in R(Ocean One Hundred Limited) v New Forest National Park Authority [2026] EWCA Civ 493. This concerned a challenge to a decision to revoke a certificate given under section 191 of the 1990 Act and, as the court said, arose in very unusual circumstances. I do not consider the conclusions reached in that case either detract or were intended to detract from the statement of principle in the Good Law Project judgment.[40]Section 172 of the 1990 Act which contains the power considered by the Council is as follows:
“172. — Issue of enforcement notice. (1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them— (a) that there has been a breach of planning control; and (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. (2) A copy of an enforcement notice shall be served— (a) on the owner and on the occupier of the land to which it relates; and (b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice. (3) The service of the notice shall take place— (a) not more than twenty-eight days after its date of issue; and (b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect.”
Further provision is made about enforcement notices in section 173 of the 1990 Act:
“173. — Contents and effect of notice. (1) An enforcement notice shall state— (a) the matters which appear to the local planning authority to constitute the breach of planning control; and (b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls. (2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are. (3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes. (4) Those purposes are— (a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or (b) remedying any injury to amenity which has been caused by the breach. … (8) An enforcement notice shall specify the date on which it is to take effect and, subject to sections 175(4) and 289(4A), shall take effect on that date. (9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities … (10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under section 172 to be accompanied by an explanatory note giving prescribed information as to the right of appeal under section 174. …”
When an enforcement notice has been served a right of appeal arises under section 174 of the 1990 Act. So far as material, section 174 provides: “174. — Appeal against enforcement notice. (1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. (2) An appeal may be brought on any of the following grounds— (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; (e) that copies of the enforcement notice were not served as required by section 172; (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed. … (3) An appeal under this section shall be made — (a) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or (b) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date [; or (c) by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date. (4) A person who gives notice under subsection (3) shall submit to the Secretary of State, either when giving the notice or within the prescribed time, a statement in writing— (a) specifying the grounds on which he is appealing against the enforcement notice; and (b) giving such further information as may be prescribed. …” (a) that there has been a breach of planning control; and (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. (a) on the owner and on the occupier of the land to which it relates; and (b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice. (a) not more than twenty-eight days after its date of issue; and (b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect.” (a) the matters which appear to the local planning authority to constitute the breach of planning control; and (b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls. (a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or (b) remedying any injury to amenity which has been caused by the breach. (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; (e) that copies of the enforcement notice were not served as required by section 172; (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed. (a) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or (b) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date [; or (c) by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date. (a) specifying the grounds on which he is appealing against the enforcement notice; and (b) giving such further information as may be prescribed.[41]Nothing in these provisions makes good the submission that a decision whether to issue an enforcement notice is the exercise of a function that is adjudicative. The decision on use of the section 172(1) power rests on the planning authority’s assessment (“where it appears to them”) that there has been a breach of planning control, and the planning authority’s further assessment of whether it is expedient to issue a notice taking account of the matter specified in section 172 (1)(b) of the 1990 Act. Similarly, when it comes to section 173 of the 1990 Act, that prescribes the contents of an enforcement notice, the information required will, no doubt, be the product of the planning authority’s assessment of all relevant circumstances, but not the product of adjudication. Finally, in contradistinction, the right of appeal provided by section 174 (exercised in accordance with the provisions in and arising from section 175 and 176 of the 1990 Act) clearly is an adjudicative process.[42]Exercise of the power at section 172(1) of the 1990 Act does attract the operation of other public law requirements, for example: the obligation to act for a proper purpose (which in practice includes a prohibition against actual bias); to have regard to only relevant matters; to act based on rational factual conclusions, and so on. However, exercise of that power does not attract operation of the principles concerning apparent bias.[43]This is a sufficient reason to dismiss this part of the Claimant’s challenge. However, and out of an abundance of caution, I will consider the matter on the assumption that the principles concerning apparent bias do apply. The fair-minded and informed observer would have in mind the substance and effect of an enforcement notice, i.e. as a statement of the planning authority’s opinion that a breach of planning control had taken place. On the fact of this case the observer would also appreciate the sequence of events between May 2025, when the first decision was made, and 24 March 2026 when the final decision was taken. Over that period new matters emerged: first whether the park home was a caravan (the issue identified by Holgate LJ when he granted permission to apply for judicial review); and the Claimant’s reliance on the work undertaken in February and March 2025. The observer would also pay close attention to the reasons given by the Council for each of the decisions in particular, the detailed reasons given in support of the second, third and fourth decisions.[44]Taking these matters in the round, applying the fair-minded and informed observer standard, I am satisfied that it was lawful for Ms Dunn to consider the matter on successive occasions (in May 2025, July 2025 and March 2026) and Ms Hardingham to do the same (in August 2025, January 2026 and March 2026). It is not uncommon for a planning authority that has decided not to issue an enforcement notice then to reconsider its decision considering further information or new arguments. When that happens there will be an advantage if the officer originally involved in the matter continues to be the responsible officer because that will promote continuity and consistency. It may also be an efficient use of finite resources. Any fair-minded and informed observer would see no inherent problem in such arrangements. It is not unreasonable to believe that local authority officers are able when exercising their powers, fairly and properly, to reconsider their initial views considering new matters. In this case any possibility that that might not be so is dispelled by the fully reasoned reports written in support the recommendations made in July 2025, January 2026 and March 2026, and the decisions then taken.[45]These points at paragraphs 43 – 44 above are also sufficient to distinguish the circumstances of this case from those considered by the Court of Appeal in R(Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927, a case the Claimant relies on. In that case a local authority’s chief planning officer had taken a decision to grant planning permission, deciding that the application was consistent with relevant provisions in a local plan. The Court of Appeal disagreed and concluded the decision to have been made unlawfully. When the court considered the question of relief, the council submitted that the decision should not be quashed because its planning committee had already resolved that “... it would be minded to grant permission on the merits of the application if it were to come before them ...”. The court rejected that submission. At §27 – 28 Pill LJ said this:
“27. ... I reject the argument on discretion. In my judgment, the appellant is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the decisions they did in October 2001 there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions. I stress that it is a potential risk. There is no evidence that there was improper motivation. 28. In my judgment, an appellant who has established what this appellant has established is entitled to a fresh consideration by a committee which is not burdened by the possibility of the extraneous factors to which I have referred. Upon a fresh application the procedures of the respondent permit the appellant to address them orally for a period of up to three minutes. That is a right which he should have the opportunity to exercise. ...”
The submission in the present case is that the informed and fair-minded observer would be concerned that the Council’s decisions in January and March 2026, taken when the judicial review claim was already under way, were not genuine consideration of new matters and evidence, but only exercises performed to re-state the conclusion the Council had previously reached. I do not agree. Any fair-minded observer reading the reports prepared in advance of the January and March 2026 decisions would conclude each to be a genuine reconsideration.[46]For these reasons this ground of challenge fails. C. Disposal[47]I am satisfied that the Claimant’s proposed Re-Amended Statement of Facts and Grounds raises issues that are properly arguable. I therefore grant the Claimant’s application for permission to re-amend made on 15 April 2026. However, on consideration of the merits of the grounds of challenge, none succeeds. The application for judicial review is therefore refused. _____________________________________________