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Court Considers s.193(5) TCPA 1990 For the First Time

George Mackenzie

The High Court has dismissed a s.288 application in respect of an Inspector’s decision to dismiss a s.195 appeal against an LPA’s non-determination of an application for a CLOPUD which sought the certification of the lawfulness of the use of land as “touring caravan site for the siting of touring caravans including as a person’s sole or main place of residence.”
The land in question benefitted from a CLEUD, schedule 1 of which provided that the land was lawfully being used as a “touring caravan site”. Schedule 1 of the CLEUD did not state that this use was lawful because planning permission had been granted for that use and nor did it say that this use was only lawful to the extent that it did not breach the conditions on any extant planning permissions.
There was in fact a conditional planning permission in place which was, in effect, the “source” of the lawful use set out in sch. 1 of the CLEUD. The conditions of that planning permission prevented the site being used other than for holiday purposes. However, the CLEUD itself did not refer to this planning permission or to these conditions. Instead, the CLEUD contained a “reasons” section which stated that it had been granted because a previous (i.e. a superseded) planning permission had been “implemented” and reminded the beneficiary of the CLEUD to comply with the conditions of that superseded planning permission.
The claimant argued that because schedule 1 of the CLEUD did not purport to impose any limitations on the extent of the use that it certified as lawful, its effect was to have rendered the use set out in schedule 1 unconditionally lawful. The Inspector rejected this argument and held that because the CLEUD did not purport to certify the lawfulness of any breaches of condition of the relevant planning permissions, it did not have the effect of rendering that permission otiose. 
Mrs Justice Lang agreed and held that it was correct for the Inspector to have applied s. 193(5) of the 1990 Act in the way that he did. She rejected the argument that s. 193(5) is only engaged where Sch. 1 of a CLEUD/CLOPUD says that it is certifying the implementation of a permission. It is believed that this is the first case in which the senior courts have considered the interpretation of s.193(5) and its relationship with the Broxbourne, Hannan and Breckland jurisprudence relating to the impermissibility of “going behind” certificates of lawfulness.
A copy of the decision can be found here. George Mackenzie acted for the Secretary of State and was instructed by Shahnaz Zaidi of the GLD.