Whose side are you on?

How would you decide which planning approval notice was the authorised version if there were two different versions in existence, both appearing to be legitimate?

This was the question facing an inspector in a recent appeal against the refusal of a certificate of lawfulness for the occupation of a staff dwelling at a caravan park on Dartmoor without complying with a condition restricting occupancy (DCS Number 200-009-504).

The inspector recorded that the appellant and the planning authority both held copies of a planning permission dating from 1986, granted for the conversion of a barn to a dwelling. The copy held by the planning authority had five conditions attached, one of which limited the dwelling to use as accommodation for a manager or staff employed at the caravan park and their dependents. However, the copy held by the appellant had only four conditions attached; the condition restricting the occupancy of the dwelling was not present.

The planning authority’s refusal notice indicated that its refusal to grant a LDC was based primarily on its conclusion that there was insufficient information to show that the 1986 permission was not subject to a condition restricting occupancy. At the inquiry, however, it clarified that it did not take issue with the legitimacy of the copy of the 1986 permission held by the appellant: rather, it acknowledged that there were in existence two copies of that permission, one with an occupancy condition and one without, both of which appeared on their faces to be entirely regular. At the start of the inquiry the position taken by the planning authority was that it was simply not possible to know which of the two versions of the 1986 permission was the authorised version, but having reviewed that position, it withdrew its objection to the grant of the LDC. This was on the basis that while it might have been possible that one of the two versions of the grant of permission had been issued without the proper authority it was not possible to establish which, and in any event, the “unauthorised” version would not necessarily be a nullity. In its closing submissions, the planning authority invited the inspector to allow the appeal.

The inspector remarked that the circumstances of the case were unusual. Neither party was able to provide any further information to shed any light on how the existence of two different versions of the same permission had come about. It was of course possible to speculate, she observed, but in the absence of any further evidence at all, it was not possible to conclude that any one possible explanation was more or less likely than any other.

There are two sides to every story but in the end the inspector reasoned that there was no evidence that the version of the 1986 permission which did not contain a condition restricting occupancy was in any way invalid, or that it should be regarded as anything less than a full and operative grant of conditional permission. That being the case, no enforcement action could be taken against the use of the barn as an unrestricted dwellinghouse, and it followed that such use must be lawful. She determined that the appeal should succeed.

There is a section on occupancy conditions at 4.4262 of DCP Online.