Tom Delaney & Anor v Secretary of State for Housing, Communities and Local Government & Anor [2026] EWHC 2076 (Admin)

[2026] EWHC 2076 (Admin)Case No AC-2026-LON-000115
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 August 2026
Before
ROBERT PALMER KC(sitting as a Deputy Judge of the High Court)
Between
(1) TOM DELANEYApplicants(2) PETER DELANEYApplicant(1) SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENTRespondents(2) CANTERBURY CITY COUNCILRespondent
Between
FORDWICH TOWN COUNCILInterested PartiesFRIENDS OF FORDWICHInterested Parties
Alan B R Masters (instructed by the Public Interest Law Centre) for ApplicantsJack Barber (instructed by the Government Legal Department) for First RespondentGregory Jones KC and Emma Rowland (instructed by Fortune Green Legal Practice) for Interested PartiesHearing Hearing date: 7 July 2026
Approved Judgment

This judgment was handed down remotely on 5 August 2026

[1]The Applicants seek permission to appeal pursuant to section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) the decisions of an Inspector appointed by the First Respondent, the Secretary of State, communicated in a Decision Letter dated 15 December 2025 to dismiss their appeals against two enforcement notices. Those enforcement notices were issued by the Second Respondent, Canterbury City Council (“the Council”), on 6 December 2024 in respect of a site known as Moate Farm, Stodmarsh Road, Canterbury, Kent, CT3 4AP (“Moate Farm”). Three other enforcement notices (five in total) had been issued on the same date in respect of the same site, which were also subject to appeals before the Inspector. The Inspector allowed the appeals in respect of two of them, but dismissed the appeals in respect of the other three. Before this court, the Applicants seek permission to appeal against the Inspector’s decisions only in respect of two of those three.[2]These applications for permission were heard on 7 July 2026. Owing to lack of court time, it was necessary to reserve my judgment. These are my reasons for granting permission to appeal in respect of some of the grounds of appeal, but refusing it in respect of others.

The statutory framework

[3]Section 172(1) TCPA 1990 provides that a local planning authority may issue an enforcement notice where it appears to them that there has been a breach of planning control, and that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. Pursuant to section 171A(1), a “breach of planning control” is constituted either by carrying out development without the required planning permission, or by failing to comply with any condition or limitation subject to which planning permission has been granted.[4]Section 171B(4)(b) TCPA 1990 is commonly known as “the second bite provision”. Whereas the preceding subsections of section 171B provide that in the case of a breach of planning control in England, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach, the second bite provision in subsection (4)(b) makes clear that the preceding subsections do not prevent “taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.”[5]Section 174(1) TCPA 1990 provides for a right of appeal to the Secretary of State against an enforcement notice for an person having an interest in the land to which the enforcement notice relates. The grounds upon which such an appeal may be brought are set out at section 174(2). They include: i) Ground (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; ii) Ground (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; and iii) Ground (g): that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.[6]Where an appeal proceeds by way of an informal hearing, the procedure is governed by the Town and Country Planning (Enforcement) (Hearings Procedure) Rules 2002 (SI 2684/2002) (“the Hearings Procedure Rules”). Rule 11 provides, insofar as is material: “(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at a hearing. (2) A hearing shall take the form of a discussion led by the inspector and cross-examination shall not be permitted unless the inspector considers that cross-examination is required to ensure a thorough examination of the main issues. (3) Where the inspector considers that cross-examination is required under paragraph (2) he shall consider, after consulting the appellant and the local planning authority, whether the hearing should be closed and an inquiry held instead. … (6) A person entitled to appear at a hearing shall be entitled to call evidence but, subject to the foregoing and paragraphs (7) and (8), the calling of evidence shall otherwise be at the inspector’s discretion.

(b) presentation of any other matter,

[7]Section 289(1) TCPA 1990 provides that where the Secretary of State gives a decision in proceedings on an appeal against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may appeal to the High Court against the decision on a point of law. Section 289(6) TCPA 1990 provides that no proceedings in the High Court shall be brought by virtue of this section except with the leave of this Court.

The factual background

[8]The enforcement notices which are the subject of the proposed appeal were not the first enforcement notices to be issued in respect of Moate Farm. A previous enforcement notice had been issued on 22 July 2021 (“the 2021 enforcement notice”). This enforcement notice alleged without planning permission a material change of use of the same land as (collectively) covered by the enforcement notices of 6 December 2024 for the stationing of 37 “additional caravans” for residential use. This was intended to enforce against the stationing of 37 caravans additional to the number of caravans for whose stationing planning permission had been granted by three separate permissions dated 24 June 2008, 2 April 2015 and 4 October 2017, each relating to three different parts of Moate Farm. Both Tom Delaney and Peter Delaney had appealed against that enforcement notice. It was quashed on appeal on 23 February 2024, on the grounds that the three separate planning permissions had been granted at three separate times, with the result that each separate breach of planning control could have occurred at a different time (a point of relevance at least for any ground (d) appeals), giving rise to a potential injustice to each of the three main owners of the three different parts of Moate Farm.[9]The Council therefore proceeded to issue fresh enforcement notices on 6 December 2024, relying on the second bite provision, section 171B(4)(b) TCPA 1990. Each new enforcement notice concerned one of three separate areas of the Farm, which have been referred to as Areas A, B and C respectively.[10]Area A: On 24 June 2008, planning permission had been granted on appeal for the stationing of caravans for residential use on Area A. Condition 5 to that permission restricted the number of caravans that could be stationed on three defined plots within Area A to no more than eight caravans (including no more than four static caravans). The first enforcement notice issued by the Council on 6 December 2024 alleged that there had been a failure to comply with that condition, in that more than this number of caravans were sited on the land. The enforcement notice required that the caravans stationed in excess of the permitted number be permanently removed, along with all associated paraphernalia, within three months of the notice taking effect. Ms Philomena Brown, who is the registered freehold owner of Area A, appealed to the Secretary of State on the grounds set out in section 174(2)(a), (d) and (g) TCPA 1990. This appeal was referred to as Appeal A in the Decision Letter.[11]Area B: On 2 April 2015, planning permission was granted for the stationing of caravans for residential use on Area B. Condition 4 to that permission restricted the number of caravans that could be stationed within Area B to no more than four caravans (including no more than two static caravans). The second enforcement notice issued by the Council on 6 December 2024 alleged that there had been a failure to comply with that condition, in that more than this number of caravans were sited on the land. The enforcement notice required that the caravans stationed in excess of the permitted number be permanently removed, along with all associated paraphernalia, within three months of the notice taking effect. Mr Tom Delaney (the First Applicant), who is the registered owner of Area B, appealed to the Secretary of State on the grounds set out in section 174(2)(a) and (g) TCPA 1990. This appeal was referred to as Appeal B in the Decision Letter.[12]The third enforcement notice issued by the Council on 6 December 2024 also related to Area B. It advanced an alternative alleged breach of planning control in respect of the same land: for reasons I will set out below, it considered that the planning permission dated 2 April 2015 had never been implemented, and had since lapsed. The breach of planning control that it therefore alleged was without planning permission the material change of use of the land to use for the stationing of caravans for residential purposes. It required the cessation of the use of the land for the stationing of caravans for residential purposes, and the permanent removal from the land of [all] the caravans stationed there, along with associated paraphernalia, within three months after the notice took effect. Mr Tom Delaney also appealed against this enforcement notice, on the grounds set out in section 174(2)(a), (d) and (g) TCPA 1990. This appeal was referred to as Appeal C in the Decision Letter.[13]Area C: On 4 October 2017, planning permission was granted on appeal for the stationing of caravans for residential use on Area C. Condition 4 to that permission restricted the number of pitches on that site to a total of eight, and restricted the number of caravans that could be stationed on each of those pitches to no more than two caravans (including no more than one static caravan on each). The Council considered that this permission had never been implemented and had now lapsed. On that basis, the fourth enforcement notice that it issued on 6 December 2024 alleged without planning permission the material change of use of the land to use for the stationing of caravans for residential caravans, and required the cessation of the use of that land and removal of the caravans and associated paraphernalia within three months. Mr Peter Delaney (the Second Applicant), who is the registered freehold owner of Area C, appealed against that enforcement notice on the grounds set out in section 174(2)(a) and (g) TCPA 1990. This was Appeal D. He also appealed against the fifth enforcement notice issued by the Council on the same date, which advanced an alternative breach of planning control, being the breach of Condition 4 to the permission of 4 October 2017. This was Appeal E.[14]The Inspector quashed the enforcement notices in respect of Appeals B and E, being the two enforcement notices which alleged a breach of condition in respect of Areas B and C respectively. He did so on the basis that, as he found, the two planning permissions of 2 April 2015 and 4 October 2017 had not been implemented and had lapsed. There could therefore have been no breach of condition. However, he dismissed Appeals A, C and D. In summary: i) He dismissed the ground (d) appeals (raised by Appeals A and C only) on the grounds that it had not been demonstrated that the alleged breaches of planning control had occurred continuously since 21 July 2011, being 10 years prior to the issuing of the first notice on 22 July 2021 (relying on the second bite provision). In the case of Appeal C only, he also found that it had not been demonstrated that the alleged breach of planning control had occurred continuously since 7 December 2014, being 10 years before the date of the enforcement notice under appeal. ii) He dismissed the ground (a) appeals, concluding that planning permission should not be granted as the development failed to comply with the development plan having regard in particular to the policies on the effect on the character and appearance of the surrounding countryside, on the residential amenity of surrounding occupiers, and on the need for a landscaping plan and amenity space, as well as those on highway safety and the handling of wastewater. He acknowledged that there was a need for more gypsy and traveller sites, but reduced the weight to be attached to that consideration in light of the absence of evidence that the site was in fact being occupied by gypsies and travellers. iii) He dismissed the ground (g) appeals, finding that the 3-month compliance period allowed by the Council was sufficient.[15]There is no challenge to the Inspector’s conclusions on Appeal D. The enforcement notice in respect of the material change of use of Area C has therefore taken effect. This application for permission to appeal concerns only Appeals A and C.

The Applicants’ grounds of appeal

[16]Although his written grounds of appeal are somewhat diffuse, Mr Alan Masters for the Applicants helpfully focused his oral submissions on four principal grounds of appeal. Grounds 1 and 4 concern both Appeal A and Appeal C. Grounds 2 and 3 concern only Appeal C.[17]I address Grounds 1 to 4 in turn below, before dealing with the remaining written grounds which Mr Masters explained were not to be treated as abandoned.

Ground 1

[18]Ground 1 is a complaint that the Inspector acted in a procedurally unfair manner in refusing to allow Mr Peter Delaney to give evidence at the hearing of the appeal.[19]The circumstances in which that refusal occurred are as follows. Mr Delaney had submitted no witness statement in support of the appeal in advance of the hearing or at all. The applicants’ statement of case referred to a desire to call them at the hearing, if necessary as part of a “blended” hearing to allow them to be cross-examined, but stated that “Unfortunately, witness statements from these appellants are not yet complete, and an extension to their submission is requested.” No further request was made and no witness statements were subsequently submitted.[20]At about 2.30pm on the afternoon of the hearing, mid-way through the submissions on the ground (d) appeals, Mr Peter Delaney arrived at the hearing without prior warning, and his planning consultant (representing him at the hearing) asked that he be permitted to give evidence. Counsel for the Third Party objected on the grounds that he had not produced a written witness statement, was seeking to introduce new evidence, and would need to be cross-examined on oath if permitted to give evidence, which would necessitate an adjournment. The Inspector refused permission to Mr Delaney to give evidence, giving as reasons at the time that he accepted the submissions made on behalf of the Third Party. He did not record those reasons in the DL, or the fact that he had refused permission for Mr Delaney to give evidence.

Submissions

[21]Mr Masters’ complaint is that this was procedurally unfair, and materially prejudiced the applicants. He submits that Mr Delaney wished to give evidence about the date of occupation of the caravans on both Areas A and B, in support of Appeals A and C. It is said that he would have confirmed that residential occupation of caravans stationed on began earlier than ten years before the date of the relevant enforcement notice in each case (or in the case of Appeal A, that more caravans had been stationed on the land than had been permitted, in breach of condition).[22]Mr Masters pointed to the fact that the applicants’ statement of case dated March 2025 for the appeals had referred to the potential need for the Inspector to take a blended approach to allow evidence of fact to be given under oath. He submitted that while it was normal to provide a witness statement in advance, it was not mandatory to do so. The Inspector could have allowed oral evidence without a statement. This was critical evidence to the applicants’ appeal, and so it was disproportionate, unfair and irrational not to allow it in. Yet the Inspector had not even recorded the application or its significance in his DL, despite the weight he put on the alleged absence of evidence in support of the ground (d) appeal.[23]Mr Jack Barber for the Secretary of State pointed to the fact that by letter of 23 April 2025, the Planning Inspectorate had notified the parties that the appeal would proceed by way of informal hearing and not as an inquiry, and that evidence would not be allowed to be called – no doubt in the absence of any submitted witness statements. He submitted that there should have been a further application at that point if it was desired to call witnesses to give sworn evidence. No witness statements had been provided by the applicants; nor had any response been provided to the Council’s Statement of Case (which had made clear that the ground (d) appeals were in issue). The Inspector’s decision not to allow Peter Delaney to speak at the appeal in the absence of prior notice was consistent with the Inspector’s duty to ensure fairness to both parties. Moreover, rule 11 of Hearings Procedure Rules provided a broad discretion to the Inspector as to whether to accede to an application to call oral evidence to be cross-examined under oath, and the Inspector was not bound to close the hearing and hold an inquiry. There was nothing to prevent Mr Delaney from submitting evidence in writing, but at no time did he seek to do so, even when subsequently the hearing adjourned to a second day (for different reasons). No explanation has been provided as to why no witness statement was ever produced. Meanwhile, the Inspector’s approach was the correct one.[24]Mr Gregory Jones KC for the Interested Parties, leading Ms Emma Rowland, stressed that none of the other persons entitled to appear at the hearing had any indication of what Mr Delaney planned to say in relation to ground (d). Nor would it have been possible for them to adequately respond, or produce counter evidence, at the appeal hearing. The Inspector thus had to balance the fairness to all persons present of allowing Mr Delaney to speak. In light of the Appellants’ failure to comply with the Hearing Procedure Rules, which provide for the timely submission of evidence and are designed to avoid the giving of oral evidence at hearing, it was not irrational for the Inspector not to allow Mr Delaney to speak. In particular, since he still had the opportunity to submit written material to the Inspector.

(d) Discussion

[25]There is no doubt that any evidence given by Mr Peter Delaney could have been material, and potentially highly material, to the ground (d) appeals. However, its importance was not a reason justifying Mr Delaney’s failure to give the other parties advance notice of what it was he planned to say. There was no proper detail of the evidence that they proposed to give in the applicants’ hearing statement. The promise of witness statements was never fulfilled at any stage. There would have been no proper opportunity for the Council or the Third Party to cross-examine Mr Delaney or to gather evidence to challenge whatever evidence he chose to produce. The Inspector acted fairly and not irrationally in declining the application to give oral evidence at that point in proceedings.[26]The matter would have been capable of being revisited once the decision was taken later that day to adjourn the hearing until 1 October 2025. Even then, however, the applicants did not produce witness statements, and made no further application for their evidence to be admitted. At that point, the onus was upon them to apply to do so, rather than to store up a complaint of procedural unfairness until a section 289 appeal.[27]It is no doubt an unusual case in which an appellant would not be permitted to give factual evidence in support of his ground (d) appeal against an enforcement notice. However, the circumstances in this case were not only unusual but extreme: there had been a complete failure by Mr Delaney to provide any evidence before the hearing, and his unannounced appearance at the hearing occurred when submissions on the ground (d) appeal were already well advanced or substantially complete. It is entirely comprehensible why the Inspector considered that he should not admit new evidence at that point.[28]The Inspector gave reasons for his decision at the time. While it would have been helpful to record them in the Decision Letter, I do not regard that failure as fatal. Having excluded the evidence, he was entitled to proceed on the basis that the applicants had not provided any account of their own, and to consider the appeals on that basis.[29]I therefore refuse permission to appeal on Ground 1.

Ground 2

[30]Mr Masters’ second ground concerns Appeal C only. He submitted that the Inspector had been wrong to find that the planning permission of 2 April 2015 in respect of Area B had not been implemented: it was a retrospectively granted planning permission which required no further act to be undertaken in order to implement it.[31]It is therefore necessary to set out the Inspector’s reasons for his conclusion that the permission had not been implemented and was not retrospective.

The Inspector’s reasons

[32]The Inspector began by noting that planning permission of 2 April 2015 in respect of Area B included a 3-year commencement condition. It was for “Formation of hard-standing and earth bund for use of land for stationing of two mobile homes and two touring caravans, together with a day room for a gypsy/traveller family on land”. He noted that the permission was for a material change of use including associated operational development.[33]Next, he noted that Condition 6 of that permission stated:
“Before the development is commenced a scheme for the landscaping of the site incorporating native planting and to include the siting and specification of tree and shrub/hedgerow planting, seeding and turfing and the treatment of all hard surfaces shall be submitted to and approved by the local planning authority” (LPA). The reason given was: “To ensure that the site is adequately landscaped in the interests of the appearance of the locality.”
[34]The Inspector continued as follows at DL10 - DL12:
“10. This is obviously a pre-commencement condition that goes to the heart of the permission because, without such an agreed landscaping scheme, it would not have been granted. No such scheme was submitted before caravans were brought onto the site. Therefore, the development that has occurred on the site is not the development for which planning permission was granted. Consequently, the permission was never implemented and has now lapsed. 11. The appellant argues that some hardstanding was laid on the site and that the permission was therefore implemented. It appears from the 2013 aerial photo image that there may have been a small area of hardstanding and possibly some small piles of gravel on the western part of Area B. But that was prior to the grant of this permission and that image otherwise shows an undeveloped greenfield site. So, even if there was a small area of hardstanding at that time, it was entirely unrelated to the subsequent planning permission. 12. I acknowledge that the application form for the development indicated that it was partially retrospective in that work was indicated as being started on 15 May 2014, prior to the date of submission on 6 June 2014, but it is unclear what works were undertaken. In any case, Condition 6 still bites, because the Council must have considered that the material change of use of the land to a caravan site had not commenced. No challenge by way of a s73 application or appeal was made against that condition. The fact that the Council also attached a standard 3-year commencement condition to the permission for the material change of use of the land implies that the use had in any case not commenced. The application was a s70 planning application; it was not a s73A application for works that had already been carried out.”
[35]At DL14-15, the Inspector then turned to consider whether the planning permission dated 4 October 2017 for Area C had been implemented and found that it had not been, for the similar reason that a pre-commencement condition requiring a landscaping scheme had not been discharged; in addition, a similar pre-development condition had been imposed requiring visibility splays at the junction of the access drive and the highway had not been complied with.[36]The Inspector concluded at DL16 that “Since the two permissions were never implemented and have now lapsed, the breach of conditions notices the subject of Appeals B and E can therefore be quashed, allowing the alternative notices the subject of Appeals C and D to bite on the material changes of use that have occurred on Areas B and C of the site.” Submissions[37]Mr Masters submitted that there had been an issue before the Inspector as to whether Condition 6 was in fact a condition precedent: the Applicants’ planning consultant had referred to evidence that the Council was aware at the time of the grant of the planning permission that most of the work had already been done. In particular: i) The Applicants had produced a copy of the application form dated 6 June 2014 submitted for planning permission, which described the proposed development as being “Formation of hard standing and earth bund and use of land for stationing of 2 mobile homes and 2 touring caravans together with a day room for a Gypsy/Traveller family on land”, recorded that the development had already started on 15 May 2014, but that it had not been completed. The existing use of the site was described as “Gypsy/Traveller site”, and it was confirmed that the site was not currently vacant. ii) The Council had acknowledged the retrospective nature of the application in an email from the Council’s Planning Officer to the Applicants’ planning consultant dated 3 September 2014, which had sought to encourage the Applicants to provide further details in support of the application to prevent it from being rejected as invalid: “Clearly given the retrospective nature of this application, we would rather not have to reject as this would have to be followed with formal enforcement action.” iii) In the Officer Report prepared for the Planning Committee of 31 March 2015, the application was described as “part retrospective”, noting that at the time of the most recent site visit the hardstanding and earth bund had been provided and two touring caravans were present on the site. [I interpose that it therefore appears that the two proposed mobile homes had not yet been stationed on the site; nor is it apparent from this report that the site was as yet occupied.] iv) The Officer Report further noted the existing landscaping arrangements and explained why further landscaping would be required: “30. It is apparent that the site has had a limited impact upon the visual amenity of the rural locality. A large area of hard surfacing has been created on the site and a timber fence erected around its boundary. Around this is a landscaped bund that has been designed to soften the impact of the development when viewed from outside the site. Officers consider that this bund serves its purposes and does not appear as an unacceptably alien and incongruous feature to the detriment of the rural locality. Further it does not prevent glimpsed views into the site and whilst it has helped to blend the development into its surroundings it does not completely isolate the site and its occupants from the rest of the community to a significant extent. 31. It is considered that the site would potentially benefit from the planting of more trees around the landscaped bund to further soften the visual impact of the development. It is therefore considered appropriate to request a landscaping scheme be submitted which should also demonstrate how the landscaped bund will be reinforced with planting and how the landscaping of the site will be preserved and maintained in the future.” v) The planning consultant had also referred before the Inspector to his own observations at the site at the time of the application for planning permission, where he had seen Tom Delaney’s family in occupation of the two caravans.[38]Mr Masters submitted that whilst the wording of the conditions did not reflect this, it was evident from the consideration of that application that the material change of use had commenced. Yet the Inspector had failed to deal with these points at DL10-12, which flew in the face of the Officer Report’s explanation of the purpose of the landscaping condition and that two caravans were already on the site. This was irrational and/or amounted to a failure to provide adequate reasons.[39]Mr Barber emphasised that the Court will be slow to interfere with an Inspector’s conclusions as whether a condition was a condition precedent going to the heart of a planning permission, and would do so only on judicial review grounds: R (Friends of the West Oxfordshire Cotswolds) v West Oxfordshire District Council [2025] PTSR 526at §§82, 88. Further, the Inspector was not required to recall and record all relevant evidence, and his decision letter should not be subjected to hypercritical scrutiny but read with reasonable benevolence and in a reasonably flexible way: St Modwen Developments Limited v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746 per Lindblom LJ at §§6-7.[40]Mr Jones KC stressed that the Inspector had been well aware of the Applicants’ case that the permission was a retrospective one, but had relied not only on the uncertainty as to the extent of the works which had been done, but also on the fact that no section 73 TCPA 1990 application nor appeal had been submitted in respect of the landscaping condition, and the fact that the Council had included the standard three-year commencement condition for permission for material change of use. The condition must have been considered to be necessary, without which planning permission would not have been granted. There was therefore nothing irrational about the Inspector’s conclusion.[41]Mr Masters responded that since (on his case) the material change of use had already occurred, condition 6 was unenforceable from the moment it was imposed, without the need for any section 73 application. The Inspector had failed to grapple with this point.

Discussion

[42]In my judgment, this ground is sufficiently arguable to merit the grant of permission to appeal.[43]At the core of the Inspector’s reasoning was the conclusion that the Council must have considered that the material change of use of the land to a caravan site had not commenced. That was in turn based upon the fact that the planning permission had been imposed subject to the condition that development be commenced within three years, and subject to Condition 6 which required a landscaping scheme to be submitted to and approved by the local planning authority before development was commenced, without which planning permission would not have been granted.[44]This may be a powerful answer to Mr Masters’ complaint, as Mr Jones KC submits. However, in arriving at that conclusion, the Inspector observed that it was not clear what works had been undertaken beyond a small area of hardstanding that may have been present since 2013. He suggested that no caravans had been brought on to the site by the time that the pre-commencement condition was imposed by the Council. It is arguable that the Inspector may have failed to take into account the evidence submitted by the applicants contained in the officer report, to the effect that the bund had been constructed, that the hardstanding had been laid, and that two caravans had been stationed on the land and (on the planning consultant’s account) were in occupation. If and to the extent that it was said that these matters were within the Council’s knowledge, it may be difficult to reconcile that evidence with the Inspector’s conclusion that the Council must have concluded that no material change of use had commenced at the time of the grant of the planning permission.[45]It is not necessary to consider these matters further, in view of the grant of permission on this ground. I express no concluded view, other than that the appeal on this ground is not suitable for summary disposal at permission stage.

Ground 3

[46]Under Ground 3, Mr Masters argues that the Inspector erred in law in concluding that the second bite provision applied in the case of Appeal C.[47]The Inspector concluded at DL6 that the applicants’ argument that the second bite provision did not apply was misplaced, because “the current notices attack the same enforcement issue [as the 2021 enforcement notice], whether the breach is a material change of use of Areas B and C for the stationing of caravans for residential purposes or a breach of [a condition of] implemented planning permissions. That is precisely the purpose of the second bite provisions under s171B(4)(b) of the Act.”

Submissions

[48]Mr Masters argues that this was incorrect in law. The breach of planning control alleged in the 2021 enforcement notice was “Without planning permission, the change of use of the land for the stationing of 37no. additional static caravans for residential use.” On appeal, as the Inspector in the appeal against that enforcement notice had recorded in her decision letter of 23 February 2024 (“the 2024 DL”), the Council had confirmed that it was not alleging a material change of use by reason of intensification, but a breach of the conditions on the relevant planning permissions which limited the number of caravans which could be stationed on the land: hence the reference only to the 37 “additional” caravans. The Inspector had recorded in the 2024 DL that it had been accepted by all main parties that the wording of the 2021 enforcement notice needed to be corrected “having regard to the lawful use of the Land as a residential caravan site for Gypsy (sic) and Travellers”. In contrast to the 2021 enforcement notices, however, the new enforcement notice in respect of Appeal C went beyond that to allege a material change of use of the whole land, on the basis that there was no extant planning permission and no lawful use of the land. The result was that enforcement action was now being taken in respect of all of the caravans in Area B, not just the additional caravans as was the position in 2021. This, Mr Masters submits, takes the matter outside the scope of the second bite provision, as the Council had not previously taken any action in respect of the caravans which had been permitted by the planning permission of 2 April 2015.[49]Both Mr Barber and Mr Jones KC submit that the two enforcement notices dealt with the same essential important issue. They rely on Jarmain v Secretary of State for the Environment, Transport and the Regions [2000] J.P.L. 1063 for the proposition that section 171B(4)(b) can be relied upon where the earlier and later enforcement notices both relate to the same actual breach of planning control, even if described in different ways. Mr Masters responds that the two enforcement notices do not relate to the same actual breach of planning control, given that the later notice enforces against all caravans on Area B, not just the additional ones.[50]Mr Barber further responds that the difficulty with this argument for Mr Masters is that at DL21, the Inspector considered the ground (d) appeal in Appeal C not only on the basis that the relevant ten year period began ten years before the 2021 enforcement notice under the second bite provision, but also on the alternative basis that it only began on 7 December 2014, ten years before the date of the enforcement notice under appeal. On that basis, the Inspector concluded:
“The appellants have supplied no direct evidence of such a use occurring between that date and September 2016, notwithstanding the assertion that the development commenced on 15 May 2014 in the original application form. No photographic evidence has been supplied to show that there were caravans on Area B prior to 2016. Consequently, the ground (d) appeal on Appeal C must fail.”
Mr Barber contends that this provides a complete answer to Ground 3. Mr Jones KC further argues that there was no evidence to support the continuity of use of the site for caravans over this ten-year period. Mr Masters responds that these submissions fail to take into account the evidence in the Officer Report and of the planning consultant that the caravans were present prior to 2016, referred to above under Ground 2.

Discussion

[51]I grant permission on this ground. It is sufficiently arguable that the enforcement notice under appeal did not relate to the same breach of planning control as the 2021 enforcement notice, but was broader in scope. It is also sufficiently arguable that the Inspector erred in his consideration of the alternative basis of the ten year period beginning on 7 December 2014, in that he failed to have regard to evidence that the caravans were present on the site provided by the Officer Report and the planning consultant in concluding that there was “no direct evidence of such a use occurring between that date and September 2016.”

Ground 4

[52]Ground 4 is directed towards the manner in which the Inspector undertook an unaccompanied site visit on the day before the hearing. Complaint is made that he did so without permission to go on the site, and then unfairly took into account observations made while on his site visit without proper notice to the parties.[53]In his Decision Letter, the Inspector records that he undertook an accompanied site visit on 6 May 2025, before the hearing began on 7 May 2025. In a witness statement produced in response to this appeal, the Inspector accepts that that was an error: the site visit on 6 May 2025 was unaccompanied. An accompanied site visit did also take place on the following day, however, after the end of the first day of the hearing.[54]The Inspector had originally sought to hold the accompanied site visit on 6 May 2025 at 17.45, the time of which was notified earlier that day. In an email to the Inspectorate, the applicants’ agent informed the Inspectorate that they would be unable attend at that time owing to the short notice. It stated:
“As such the [site visit] advised should not proceed as an accompanied event.”
The email continued:
“In addition to this, we have been unable to obtain instructions from our client regarding the request. As such, we are unable to provide confirmation that the Inspector can access the site.”
[55]The Inspector did not take this to be an objection to an unaccompanied site visit taking place. He therefore visited the site on an unaccompanied basis to familiarise himself with it. Finding that he could access the site by walking along the access road, he observed the numbers and dispositions of the caravans in Areas A, B and C without entering the areas themselves. In his witness statement prepared for these proceedings, he stated:
“I explained at the start of the Hearing on the morning of 7 May that I had done so, that I had conversed with no one on the site, and that my USV was merely to familiarise myself with the site. I may also have pointed out that I saw several people on the site and heard them speaking in an eastern European language. It was on this visit that I saw and heard several adults and children speaking in eastern European language(s), including children playing and cycling on the main access route into the site… . I spoke to none of them and I certainly did not try to enter any caravans. My visit was brief – about 15-20 minutes. It was simply a fact-finding visit to prepare me for the Hearing the next day.”
[56]The Inspector referred to this site visit in his DL, during the course of his consideration of the ground (a) appeals. During the course of his assessment of the weight to be attached to the unfulfilled need for gypsy and traveller (“G&T”) sites, he said the following at DL47-49:
“47. … So, clearly at present, there is an unfulfilled need for more G&T sites and no current policy, save CLP Policy HD10, to address this. If the site is occupied by G&Ts, significant weight should be given to the lack of a 5-year supply of deliverable G&T pitches, albeit the tilted balance in paragraph 11(d) of the National Planning Policy Framework (NPPF) does not apply because of the above Habitats Regs objection. 48. However, I have my doubts that the site is actually occupied by G&T families. I acknowledge that Peter Delaney and family and Tom Delaney and family occupy the pitches edged in black on Plan DD-02, and that the blue and red edged areas are indicated as being for transit provision for their wider families. But I am not sure what is meant by transit provision and beyond this Plan and a list of family members that use these areas, I am none the wiser because no explanation of any personal circumstances was given to me at the Hearing, including what is meant by ‘transit provision’. 49. I say this because it was obvious when I visited the site that the majority of the people, including children, that I saw and heard there were speaking foreign, eastern European language(s). When I raised this point with Mr Woods subsequently, he suggested that these eastern European occupiers, who clearly live on the site now, could be gypsies. However, beyond the above information, no evidence or personal circumstances of occupiers has been supplied as to who occupies the wider site now, nor when and for how often the blue and red edged areas on Plan DD-02 are actually occupied for transit use by the indicated named relations of the Delaneys. Consequently, I am unclear as to how many of the 60+ caravans are occupied by G&Ts. Therefore, I reduce the weight I give to the Council’s lack of a 5-year supply of G&T pitches.”

Submissions

[57]Mr Masters submits that the unaccompanied site visit was an act of trespass conducted without permission, and that the Inspector unfairly took into account his perception of the languages that were being spoken on site at a time when he was unaccompanied by any others, as being evidence that the site was not being occupied by gypsies and travellers (at least in substantial part). This tainted his decision: he had undertaken a fact-finding exercise rather than using the site visit as simple familiarisation with the site.[58]Mr Barber submits that the unaccompanied site visit was entirely orthodox. Matters upon which the Inspector relied from the first site visit were put to the applicants’ agent at the hearing. The error on the date of the accompanied site visit was immaterial.

Discussion

[59]In my judgment, there was no arguable error of law. The Inspector acted fairly in putting what he had heard to the applicants’ agent. He did not in fact regard the speaking of Eastern European languages, as he perceived them to be (and which was not disputed at the hearing), as being necessarily inconsistent with occupation of the site by gypsies and travellers. Instead, he emphasised that he had had no evidence that the site was in fact occupied by gypsies and travellers, beyond the applicants’ families. He was fully entitled so to conclude, and to reduce the weight to be attached to the need for G&T sites in the area accordingly.[60]Permission to appeal on Ground 4 is refused.

Other grounds

[61]Mr Masters did not pursue any other grounds at the hearing. In his written submissions, there was an allegation that the Inspector had failed to read the papers before the resumed hearing on 1 October 2025. This was correct: the Inspector had overlooked the existence of certain documents before that date. He therefore took time on 1 October to read them, adjourning the hearing until later that day. The point therefore goes nowhere.[62]There was also an allegation of bias on the part of the Inspector, in that he had given preferential treatment to the Interested Parties. This allegation was wholly unsubstantiated, and Mr Masters was right not to pursue it further.[63]Permission to appeal is refused in respect of these further grounds.

Disposal

[64]Permission to appeal is granted on Grounds 2 and 3 as set out above. It is refused in respect of all other grounds. The effect is that the application for permission to appeal in respect of Appeal A (and Area A) is refused: Grounds 2 and 3 relate only to Appeal C (and Area B). As I have already noted, there is no application for permission to appeal in respect of the other appeals, including those which related to Area C.[65]I invite counsel to agree a draft order, including as to case management directions for the hearing of the substantive appeal.