Carter v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judgment Date | 14 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0314-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 1994 |
[1994] EWCA Civ J0314-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Gerald Moriaty Q.C., Sitting as a Deputy High Court Judge)
Before: President (Sir Stephen Brown) Justice Russell Justice Roch
MR. JOHN HOBSON (instructed by Messrs. Coodes, Solicitors, Truro) appeared on behalf of the Appellants.
MISS ALICE ROBINSON (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
THE PRESIDENT: This is an appeal from a decision of Mr. Gerald Moriaty Q.C., sitting as a deputy judge of the Queen's Bench Division, on 17th March 1993. The learned judge granted leave to appeal. The appeal has in fact centred on one quite short point involving consideration of the provisions of section 29 of the Caravan Sites and Control of Development Act 1960. The matter which has given rise to these proceedings has already occupied the attention of three deputy High Court judges, and has been the subject of two planning inquiries and appeals against enforcement notices. The court is grateful to Mr. Hobson, who appears for the appellants, for providing a helpful skeleton argument which contains a chronology. The appellants, Mr. and Mrs. Carter, bought a smallholding at Higher Crescent Farm, Penhallow, near Truro in Cornwall, in 1986. Situated on the land was a caravan which had been occupied for residential purposes. On 18th September 1986 the Carrick District Council issued an established use certificate providing for the stationing of a caravan for human habitation. Subsequently Mr. and Mrs. Carter considered that they required rather more commodious living accommodation, and Mr. Carter sought to replace the caravan with a form of mobile home. He acquired what is described as a "Park Home". The structure is described in the report of the planning inspector who heard an appeal against a subsequent enforcement notice. It was delivered to the site by lorry in four prefabricated sections. The sections were bolted together and the structure was positioned on concrete blocks on an existing concrete base where, as I understand it, the caravan had been situated. Concrete blocks had been used to support the former caravan, and these were adapted to suit the new unit and were cemented together. When it had been assembled the "Park Home" was manoeuvred into place by dragging it with a mechanical digger. In its final location it eventually had a porch which was attached to the north-eastern end. The Park Home has no wheels or sub-frame. It rests upon, but is not fixed to, the concrete blocks. Mains electricity and water connections were provided, and there is drainage to a septic tank. Mr. Carter was visited by an officer from the District Council. It was Mr. Carter's evidence that he was given to understand that this structure would be an acceptable replacement for the caravan which had been previously situated upon the site. He then applied for planning permission in November 1986. In response to the application for planning permission the Council resolved to grant only a temporary permission for five years with a requirement that Mr. and Mrs. Carter should enter into what is termed a "section 52 agreement". This would require the removal of the Park Home and the relinquishing of established use rights at the end of that period. That did not satisfy Mr. and Mrs. Carter. A further application for planning permission was made in March 1988, and that was refused by the Council in June 1988. On 22nd July 1988 two enforcement notices were issued by the Council. The first, which is material in the context of the present proceedings, cited in Schedule 2 as a breach of planning control:
"The carrying out on the land of building, engineering or other operations namely the erection of a timber building for habitation."
It required the cessation of the use of the building for human habitation and its removal from the land. The second enforcement notice is not material for the purpose of these proceedings. It is sufficient to say that it referred to the use of a farm building for domestic purposes. Mr. Carter appealed against the enforcement notice, and a public inquiry was held in respect of his appeal. The inspector, who was appointed to determine the matter made his report, giving his decision on 27th April 1989. The inspector, in what may now be referred to as the first inquiry, described the structure in the terms that I have already indicated. He said at paragraph 25 of his report, after referring to the decision in Barvis Ltd. v. Secretary of State [1971] P.& C.R. 710:
"… it seems to me that an appropriate starting point is to consider whether, on an objective view, the item in question would be recognised as a structure or erection. As a matter of impression I would regard the Park Home as a building. Nevertheless I am mindful that, on the face of it, there might not be much apparent difference between the appeal construction and what might be perceived to be a mobile home. I have therefore considered the matter in greater detail and also had regard to" - and he cited two decisions of the court. "My conclusions are these. The physical characteristics of the land were materially changed by the building of the low concrete block wall in the position required to suit the new unit. Furthermore I do not consider the construction of the wall to have been a separate operation, because I believe that the wall is essential to the support of the Park Home and functions in the manner of a prepared and tailored foundation.
In my view, that points to the Park Home at the appeal site being a building. There is other evidence which I find supports that view. It is a relatively large unit; it has no wheels or visible signs of being mobile; and I find no evidence of any intention on the part of the appellants that it should be moved.
Having reviewed all the evidence, it is my judgment that, as a matter of fact and degree, the allegation contained in the enforcement notice correctly describes the breach of control which has taken place. Your client's appeal on ground (c) therefore fails."
In point of fact he quashed the enforcement notice and granted limited planning permission for a period of five years restricted to occupation by Mr. and Mrs. Carter. Mr. and Mrs. Carter appealed to the High Court from that decision under section 246 of the Town and Country Planning Act 1971. The appeal first came before His Honour Judge Marder Q.C., sitting as a deputy judge of the Queen's Bench Division. In fact he did not deal with the matter in substance because he required the presence of the local authority in order to assist him. He did, however, make some observations in passing, which were not definitive. His observations cannot carry any weight in the context of the consideration by this court of this appeal. Following the necessary adjournment for the local authority to appeal, the matter was considered substantively by another deputy High Court judge, Mr. Lionel Read Q.C. He gave judgment on 28th February 1990. He allowed the appeal and held that the inspector had fallen into error in failing to consider whether the Park Home was a caravan within the statutory definition. He observed at page 15G of the transcript of his judgment:
"Prima facie -- I say no more than that -- Park Home was a caravan within the statutory definition."
The Secretary of State remitted the matter for re-determination concerning the enforcement notice to which I have referred. A second inspector considered the matter on further written representations, and then reported to the Secretary of State on 12th August 1991. In the report he described the structure which he had been to see. He 5 considered the terms of section 29(1) of the Caravan Sites and Control of Development Act 1960, and he expressed his view in paragraph 18 of his report. I cite the whole of that paragraph in order to indicate how he expressed his opinion:
"In relation to the definition of the word 'caravan' in S29(1) of the Caravan Sites and Control of Development Act 1960 Part 1 it is my opinion that the 4 units which make up the Park Home form a structure 'designed or adapted for human habitation'. The Park Home is capable of being moved from one place to another. The evidence at the inquiry was that it was delivered to the site on a lorry in 4 prefabricated sections. It is clearly capable of being moved again in like manner. There is no criteria to require that the 4 units have to be moved together as a single unit, nor is there any criteria which state that the movement has to be by road. Limitations as to the size of loads that can be moved on public highways do not in my opinion have any bearing here. The ability to move it from one place to another, say within the same field, appears to me to be embraced in the overall definition. The Park Home is not a motor vehicle and (a) and (b) of the definition do not apply either. In my view the Park Home is a caravan in terms of the definition in the 1960 Act."
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