Appeal Decision Inquiry held on 25 February 2014 Site visit made on 26 February 2014 by Simon Hand MA an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 4 March 2014

Appeal Ref: APP/L1765/X/13/2202029 South Hants Country Park, Blackhouse Lane, North Boarhunt, Fareham, PO17 6JS • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC). • The appeal is made by Turners (Britannia Parks) Ltd against the decision of Winchester City Council. • The application Ref FS/PL1/12/606, dated 3 March 2013, was refused by notice dated 9 May 2013. • The application was made under section 192(1)(a) of the Town and Country Planning Act 1990 as amended. • The use for which a certificate of lawful use or development is sought is use of the land for the siting of caravans for the purposes of residential occupation throughout the year.

Decision

1. The appeal is dismissed.

Main Issues

2. What is the lawful use of the land, in particular the green land; does condition 3 still have an effect on the green land; is the lawful use materially different from the use proposed in the LDC?

Background to the Appeal

3. The application for an LDC covers three parcels of land which together form the South Hants Country Park (SHCP) which it is agreed by the parties acts as a single planning unit. The red land is a rectangle in the centre of the site which has an LDC granted in 2011 for the siting of residential caravans with no restriction. The blue land covers the western and southern part of the site (just over half the area). This was granted planning permission for “continued use of land as site for touring and static holiday caravans” in 1984. It also has an LDC for “use of land for static holiday caravans without restrictions as to numbers and for occupation at any time of year”, granted in January 2008. The green land covers the eastern part of the site, just over a third in total area, and this was granted planning permission (370/03) in 1981 for “use of land as extension of existing naturist club site”. This permission has two relevant conditions, No.3 which says “there shall be no caravans on the site at any time between 1 st November and 1 st March” and No.4 which says “caravans

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shall not be placed on the site for the purpose of letting as holiday or residential accommodation”.

4. Because of the LDC on the red land, there is no dispute this can lawfully be used for the purposes described in the appeal LDC application and I do not refer to the red land again.

5. The SHCP it would appear was originally a naturist site, and operated in that capacity for many years. In the blue land there is a covered and an open swimming pool, a club house and bar with a games room, tennis courts etc. It is clear this use was in full swing in 1980s when the extension onto the green land was granted. There was also an attempt in 1986/87 to apply for permanent residential permission on the land. This was vigorously opposed by members of the ‘Sun Club’ that operated from the site (both the blue and green land). It seems there were 4-500 local members and a large number of others who lived further away, using the static and touring caravan facilities on a regular basis.

6. The naturist use was still going on in the 2000s, but in 2006 the park was sold to JDR developments and from then on has been used as a conventional holiday caravan park. I should imagine it was this change that prompted the LDC application in 2007 which led to the grant in 2008 of the LDC for the blue land for static holiday caravans. For a period between 2006 and 2008 the facilities on the blue land were opened up to use by any of the locals on the purchase of an annual membership.

The lawful use of the site

7. The Council maintain that the whole site was used a naturist club and this is a sui generis use which is quite different from a holiday caravan site. Consequently, although they accept the blue land now has a lawful use for static holiday caravans, the green land is still bound by the planning permission from 1981 as an extension to the naturist club site. Despite the 1984 planning permission on the blue land which refers only to “static holiday caravans”, the use was clearly a naturist club. Even after the naturist element ceased the buildings were still used as a club by local people, and they could hold parties and celebrations there, and according to Mr Coverdale’s evidence, can still do so.

8. It is true that a sports and leisure club is a sui generis use that is different from a holiday caravan site, but I am not convinced that is what was going on at the SHCP. Direct evidence as to the nature and extent of the use is hard to come by but even in the 1980s there was a significant part of the site being used for caravans, both static and touring, to enable non-local naturists to use the site for holidays. The grant of the planning permission in 1984 for “touring and static holiday caravans” which was then the lawful use of the land calls into doubt whether a sui generis club was going on at the same time. In 2008 there clearly was not a sufficiently intense club use to prevent the issue of an LDC on the blue land for “the use of the land for static holiday caravans”. It is the blue land that contains all the buildings and club facilities. Had they been in use for something else, such as a sports and leisure club, the LDC could not have been granted in the terms that it was. Thus by 2008 there was unequivocally no sui generis club use on the blue land.

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9. The green land, it would seem, was only ever used for caravans, mostly tourers, even when the naturist club was at its height. No buildings or facilities were ever erected on it, nor were they planned. Even when the whole site was being used as a naturist club, the actual use of the green land would have been indistinguishable from a typical touring caravan site, other than the lack of clothes of the occupants. The Council argued that the facilities on the blue land were excessive for a small holiday caravan park, but in the 1980s the blue land accommodated nearly 60 static caravans with room for more tourers. Once the green land extension was developed there can be no argument with the view that that the facilities were commensurate with the site. Most of the site was used for caravans.

10. Taking all this together, the 1984 planning permission and the 2008 LDC, the size of the site and the use of most of the blue land and all the green land for caravans, I conclude the naturist club was, as the appellant argued, a matter for the management of the site, not a specific land use. The site was a holiday caravan park that happened to be managed for naturists up to 2006 and thereafter available for anyone. The fact that later on the locals could use the facilities for a fee is of no great relevance as the facilities were then ancillary to the caravan site use, in the same way that many hotels with a pool and gym operate those facilities as a leisure club for locals as well as for occupants of the hotel, without it becoming a use separate from the hotel use.

11. Consequently, the description of development of the 1981 planning permission on the green land does not restrict the use of that land to a naturist club as there was no such use. The extension was actually to a holiday caravan site and that is how the green land has been used ever since. The lawful use of the land, both the blue and green land is therefore as a holiday caravan site. Apart from conditions 3 and 4 on the green land there is no restriction on the type of caravans, static or touring, or the length of occupation.

The Conditions

12. Condition No.3 of planning permission 370/03 refers to the green land only. It states that “there shall be no caravans on the site at any time between 1 st November and 1 st March”. There is no dispute that a static caravan has been placed by the entrance to the SHCP (which is in the green land) and occupied by the park manager in excess of 10 years.

13. The appellant’s evidence from various statutory declarations is that caravans have been left on the green land over the winter since 1998. It would seem that some people took their caravans home during the winter but some left them on the site and they would be moved temporarily during the winter months to a compound for storage to comply with the condition. Mr Wilson explained in his statutory declaration that the very wet winter of 1998/99 made it difficult to move touring caravans off the green land and so they were left where they stood. Following a complaint the Council reminded him about the condition but accepted the wet winter explanation. The following year was the same, but this time with no council interference. All 24 pitches were occupied, and all were left there during the winter months from then on. This seems to have been on the southernmost part of the green land. In 2003 the northern area of green land, adjacent to the houses in Southwick Road was laid with surfaced pitches for 17 seasonal touring caravans. These were occupied until 2006 when the site was sold.

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14. Mr Edward James bought the site in 2007 and his statutory declaration confirms there were 36 caravans on the green land at the time of the purchase. Although numbers fluctuated there was an average of about 36 throughout his ownership. Mr Coverdale, was the park manager from 2006 onwards. He confirmed that about 36 caravans were on the green land every year thereafter. At the Inquiry Mr Coverdale gave evidence to the effect that of the 36 he referred to 15 were on seasonal pitches in the northern part of the green land. These were tourers that stayed all year as they paid an annual fee. The remaining 21 was made up of tourers that came and went, some stayed in the winter some did not. From 2007 the site licence allowed the caravans to be occupied all year round and many people used them throughout the winter months, often coming for specific events in the clubhouse and staying for the weekend.

15. Contrasting evidence was given by local residents. Several letters argued that the green land had not been used at all for the stationing of caravans. Several people who were members of the club in the 2006-08 period were on site regularly in the winter and said it was very quiet, no-one was around as the site was closed November to March. One resident was friends with one of the naturists who confirmed the site was closed in the winter.

16. Dr Girgis, who lives in Southwick Road, the first house on the corner of the site, confirmed that from 2006 the use intensified as Hoseasons operated from the site. From then on he became more concerned about the use and monitored it more closely. He agreed that some caravans were on the green land during the closed season but they were not being lived in. This tied in with the letter from 6 concerned couples which also agreed that at least since 2006 some caravans had been parked on the green land, but not lived in.

17. Mr Ward also gave evidence at the Inquiry, although he does not have a view of the site from his house he pointed out in the aerial photograph provided by the appellant dated April 2007 clearly did not show the 15 seasonal tourers on the site in the locations pointed out by Mr Coverdale. If they were supposed to be there every year, all year, it was odd they were not in place when the site was open. Although the dates of some of the photographs were clearly wrong (one aerial photograph was dated January but was taken in the summer), whenever this photograph was taken, it does not show the caravans in the locations they are supposed to be in. This, according to Mr Ward casts doubt on the accuracy of Mr Coverdale’s evidence.

18. Some of the third parties evidence is a little confused as they are keen to refute any suggestion that caravans were being lived in during the closed season. I do not think there is any claim they were, but this leads some comments from third parties open to the suggestion they are not saying there were no caravans on the site, merely that none were lived in. For the sake of the condition is does not matter whether the caravans were occupied or whether the park was open or not, merely that there were caravan on the site between November and March.

19. I visited Dr Girgis’ house and garden and the gardens of several properties that back onto the site. It was clear that from many of the houses, including Dr Girgis there were clear views of large parts of the green land, but nowhere had unobstructed views of it all. I was informed that from 2006 onwards there had been a lot of site clearance and a row of large conifers had been removed from

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close to the residential boundary, plus other hedgerows within the green land. Thus the views today are much more open than in the past. Nevertheless the appellant’s evidence is that a substantial number of caravans have been placed on the land in full view of anyone in a garden that backs onto the site, but none of the local residents saw them.

20. What I am certain of is that the condition has been breached. There is agreement that the manager’s static has been lived in permanently for more than 10 years, and that some caravans have been stored on the green land over the winter. There is no reason to doubt the assertion of Mr Wilson therefore that due to difficulties with the ground it was easier to let some caravans remain all year rather than tow them off to another part of the site. This began back in 1998 and has continued since.

21. The appellant contends this is sufficient to demonstrate a breach of the condition for 10 years or more, and I agree the condition has been breached for the requisite period. However, to determine what this means I need to consider exactly what is the scope of the condition. It provides for an ongoing restriction, so that every year the green land has to be cleared of caravans. Any breach of this condition has to be significant and not de minimis and although it may have been breached for 10 years it is only that breach that can obtain lawfulness, any fresh breaches or a cessation in the demonstrated breach would start the 10 year period again.

22. With this in mind it is clear the caretaker’s caravan has become lawful. But contrary to the appellant’s assertion this does not mean the condition no longer has any effect. It remains in force over the rest of the green land. It is also clear that touring caravans have been stored on the green land for more than 10 years. What is not certain is where on the green land that breach has taken place. For example the northern area close to the houses does not seem to have had caravans on it until some time in 2003. Although the appellant’s witnesses assert that 15 caravans were on this part of the site from then on, the third parties, who would have had clear views of this part of the site, maintain this is not the case and this is supported by the aerial photograph.

23. I am aware of the Anselm 1 court case where it was held that although there had been a breach of a condition requiring an entire car park to be reserved for certain occupiers, only those spaces that had been so occupied were immune and the rest of the car park was still covered by the condition. However, in this case no-one has been able to define a specific area of land where there has definitely been no breach and there does seem, on the balance of probabilities, to have been a number of caravans on different parts of the green land during the winter months for a period in excess of 10 years. In this case I find this sufficient to suggest the condition can no longer be enforced across all the green land, and there is no reason why the appellant cannot therefore operate the green land in the same manner as the blue land, that is for static or touring caravans with no restriction on numbers or lengths of occupancy, except for that contained in condition 4.

24. Condition 4 states that “caravans shall not be placed on the site for the purpose of letting as holiday or residential accommodation”. Most of the purpose of stationing caravans on the site would seem to have been for storage, although since 2007 some have been used by the owners all year

1 R (oao St Anselm Development Co Ltd) v FSS and Westminster CC [2003] EWHC 1592 Admin251 www.planningportal.gov.uk/planninginspectorate 5 Appeal Decision APP/L1765/X/13/2202029

round. Nevertheless, there is no evidence that any caravans have been ‘let’ for any purpose at all. This condition therefore still bites, and no caravans, whether static or tourer can be ‘let’ for holiday or residential accommodation. This does not stop the use of the site for either holiday or residential uses, it merely curtails the type of tenure and so is no bar to the issue of the LDC as applied for.

25. Consequently, I consider the lawful use of the blue and green land is for a holiday caravan site with no restrictions as to whether the caravans should be tourers or statics or for what months of the year they can be stationed on the land. The key remaining issue is therefore whether there would be a material difference between that use and the proposed permanent residential use.

Is the residential use materially different from the holiday use?

26. I was given two decision letters, the first a Secretary of State case from 1995 at Clanna Caravan Park 2. The Secretary of State agreed with the Inspector that there was no material difference between use of the site for residential as opposed to holiday use. I note this was a small site with 12 static caravans and two touring caravans at the time of the site visit and space for other tourers which was vacant. The second decision was the Cotswold Manor Country Park 3, issued in 2011. Here, with reference to the Clanna decision, the Inspector agreed that for a site of 32 units there was no material difference between residential and holiday use. Because neither site was fully occupied at the time, both Inspectors adopted a generalised approach to the question of materiality.

27. Obviously these decisions should be given considerable weight insofar as they are relevant to this appeal. I also note the Moore v Suffolk 4 court case was discussed, where it was held the differences between residential and holiday occupation were a matter of fact and degree to be considered on a case by case basis.

28. At SHCP the appellant suggested there would be about 100 static caravans when the park was full, which is a significant number of units, akin to a small village. Indeed it was suggested it would almost double the size of North Boarhunt. Mr Houghton gave evidence for the Parish Council, and pointed out the impact of such an influx of residents on facilities in the locality, of which there were few. He felt the demands of residents would be quite different from holidaymakers, and although I agree, I consider these are more to do with sustainability issues which would be relevant to a planning assessment but not for an LDC.

29. In both the past appeal decisions the argument for off-site effects revolved around traffic generation and it was held there was likely to be little difference in traffic, especially in the Cotswold case because the residential use was restricted to over 45s. In my experience sites with a large touring element generate a vastly different amount of traffic, especially on change-over days than a residential use would, but that does not seem to have been the case in these two decisions, nor is it the case in the SHCP, where most of the pitches appear to be either statics or rented annually so there is little coming or going

2 APP/C/93/P1615/627553 3 G1630/X/11/2156048 4 Moore v Secretary of State for Communities and Local Government & Suffolk District Council [2012] EWCA Civ. 1202 www.planningportal.gov.uk/planninginspectorate 6 Appeal Decision APP/L1765/X/13/2202029

of caravans. No traffic issue was argued at this appeal and I have no reason to conclude differently.

30. In the other appeal decisions the on-site effects revolved mostly around the difference in appearance between permanent statics used for holidays and for residences. It was concluded that both types of use would generate a demand for some outside storage, washing lines and other domestic paraphernalia and perhaps the personalisation of plots by the owners, even if only used for holidays, with their site area delineated by a fence or hedge with some garden style planting. The end result was little difference between the two uses.

31. I am somewhat less convinced by these arguments in the case of SHCP. I saw on my site visit there was a considerable difference between the units at the western end of the blue land and others nearer to the central facilities. Those at the western end looked like permanent homes. They had substantial decked areas and gardens around them and several had parked cars suggesting occupancy. I do not know what there tenure was, but they looked like they were permanently occupied, even if they weren’t. By way of contrast, the statics nearer to the club house were all apparently empty. They had small decked entrance platforms with room for a table and a few chairs. Their plots were not delineated and they sat amongst the mown grass of the holiday park. They looked like holiday caravans not in use because it was a wet and cold February.

32. It is entirely possible that all the holiday units would eventually end up looking like those at the western end, but this is by no means certain. It seems in the two other appeals it was assumed that each unit was owned by a family and used as a second home for holidaying purposes. Hence the domestication of each unit. No such suggestion has been made here; indeed Mr Eiser accepted that most of the statics on the blue land were rented out to holidaymakers. There is also no reason why if each unit was separately owned the owners might not rent them out commercially during the season, just using them when vacant. It certainly seems this was the model up to recently when Hoseasons operated from the site, advertising holiday rentals. Mr Coverdale suggested that a 2 bed static could accommodate up to 6 people and a 3 bed one 8 people, as both had convertible sofa-bed type arrangements in the lounge and Mr Eiser accepted there would be a difference in intensity of occupation between holiday and residential. In the peak summer season it seems to me there could well be hundreds of holiday makers, including young children and teenagers, playing ball games, barbecuing, enjoying a typical holiday and, assuming it was sunny, carrying out many activities outside. This pattern of activity was described by Dr Girgis when Hoseasons operated form the site from 2006 onwards and by Mr Ward during his membership of the club in 2007-08 when it would be very busy in the summer and deserted in the winter. This would be entirely different from the model I was invited to consider for the residential use, of over 50s occupying each static as a couple or a singleton, quietly going about their everyday business. The holiday use would have peaks of use in the season and troughs in the winter, whereas a residential use would generate a steady low level of activity throughout the year. This would be the case regardless of the age of the occupants of the residential caravans. These differences would be obvious for neighbours and for anyone passing the site during the different periods of intensity of use. Consequently such differences are material.

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33. There was considerable discussion as to the validity of the over 50s clause. The appellant intended to operate the site for over 50s only, but there was no mention of that in the application for the LDC. It was argued that the Inspector in the Cotswold case took an over 45s restriction into account in his assessment of materiality and if I granted this LDC I could make it clear it was on the basis of over 50s only. If there was a deviation from that in the future then a new assessment of materiality could be made. I agree with Mr March that such an assessment would be difficult to make. The LDC applied for was permanent residential occupation with no mention of a restriction and that is what I should grant. I also note in the Cotswold case the restriction was already in place, hence the Inspector felt he could take it into account, here it is merely proposed. However, I think it would still be reasonable to allow my view of materiality to take into account the restriction. It is clearly the appellant’s intention to use it and in my experience it is not unusual for these park home type sites to be bound by such age limits. However I do not think it helps the appellant’s case at all. If the site is to be restricted to over 50s that simply reinforces my view of the significant difference between holiday and residential uses.

Conclusions

34. From the discussion above it is clear I think a holiday use at the SHCP would be materially different from a residential use, whether there was an age restriction or not. On this basis, an LDC as proposed cannot be issued as the change would represent a material change of use which requires planning permission.

35. It was suggested I should consider issuing an LDC for a lesser area if the evidence led to that conclusion. There is no dispute that the red land can be used without restriction for the stationing of caravans for residential purposes and this is the only parcel of land that I could consider issuing the LDC for. However as far as I am aware this already operates as a residential use under the terms of the LDC granted in 2011 and it would not be appropriate to issue another LDC for an identical but proposed use as the use is already in existence.

Simon Hand

Inspector

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APPEARANCES

FOR THE APPELLANT:

Tim Sheppard of counsel He called Ben Eiser BSc (Hons) EJ Planning Ltd MA PGDip Alan Coverdale Park manager

FOR THE LOCAL PLANNING AUTHORITY:

Trevor Ward of counsel He called Neil March BSc Hons DIP Winchester CC TP MRTPI

INTERESTED PERSONS:

Dr Maged Girgis Local resident David Houghton Parish Councillor Christopher Ward BA (Hons) Local resident LLM MRTPI

DOCUMENTS

1 Summary of Local Planning Authority proof 2 Mr Ward’s speaking notes 3 Local Planning Authority’s closing submissions 4 Appellant’s closing submissions

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