Deakin v First Secretary of State and Others
| Jurisdiction | England & Wales |
| Judge | JUDGE GILBART QC |
| Judgment Date | 06 December 2006 |
| Neutral Citation | [2006] EWHC 3402 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1961/2006 |
| Date | 06 December 2006 |
[2006] EWHC 3402 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
His Honour Judge Gilbart Qc
CO/1961/2006
MR P GREATOREX (instructed by Bar Public Access) appeared on behalf of the CLAIMANT
MR R PALMER (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
: In this matter, by permission of Bean J, a challenge is brought against a decision letter of an inspector of the First Secretary of State of 20th December 2005, whereby he dismissed the appeal of the claimant, Mr Jeremy Deakin, against an enforcement notice issued by the Tunbridge Wells Borough Council on 22nd April 2005. The enforcement related to land at Priest Farm, Goudhurst Road, Horsmonden in Kent, an attractive area of the weald.
The breach of planning control alleged in the notice is:
"The change of use from agricultural to use of land for stationing two caravans, one for residential purposes and the other for a use unconnected with agriculture."
The plan attached to the enforcement notice showed an area of land substantially larger than the area occupied by the two caravans.
A central issue which arose at the inquiry was the question of whether or not the caravans were being used as part of the agricultural use of the land.
Mr Greatorex, on behalf of the claimant, says this. He says it was necessary to determine what the use of the land was before the caravans were stationed, what the use of the land was after the caravans were stationed and to determine whether there had been a material change of use.
I shall come to what the Secretary of State says in a minute. I shall also come to the way in which the inspector dealt with it.
I am going to start by looking at the authorities. The first authority to which I draw attention is the decision in Restormel Borough Council v Secretary of State for the Environment and Rabey [1982] JPL 785. It is a decision of Forbes J, who was a judge of particular experience in planning law. That case concerned the stationing of a caravan within the grounds of a hotel in Newquay for the purposes of being used as overnight accommodation by waitresses who were working at the hotel.
Counsel for the planning authority in that case submitted that the stationing of a caravan itself amounted to a material change of use of the land irrespective of any use to which the caravan itself was put. That argument had been rejected by the Secretary of State, and the Borough Council's challenge to the Secretary of State's decision failed before Forbes J.
I am going to start by referring to the submissions for the Secretary of State on page 787:
"Mr Simon Brown [then appearing for the Secretary of State], on the other hand, took the view (as the inspector did) that what you had to consider was what was the use of the caravan, because it was only by deciding what was the use to which the caravan had been put, that you could decide the main question: was there a material change of use of land? If the caravan was going to be used, as here, as an ancillary dormitory for two waitresses, or as ancillary to the hotel use, then it was right to say that there had been no material change of use."
Forbes J went on at a later stage in his judgment to say this:
"It did seem that whichever way one decided this matter difficulties were going to arise, but it appeared that the proper way of looking at this was to ask: what was, in planning terms, the effect on the planning unit? It was not, looked at in that way, sufficient to stop at the stationing of the caravan. You had to look further and say: for what purpose was the caravan to be stationed? If the stationing of the caravan for the purpose envisaged was not a material change of use of the land consisting of that particular planning unit, then it seemed that no breach of planning control existed. It was very important that enforcement notices should be sufficiently precise to indicate to the person on whom they are served what it was that he has done wrong and what it was that he had to do to right it. Having said that, he was not in the least unmindful of what fell from Lord Denning in the Miller-Mead case, but he thought one did get into difficulties if what happened was that you were told that the mere stationing of the caravan, without regard to the purpose for which it was to be used (which in itself may well have been a purpose which required no planning permission) required planning permission. You would have in every case to make an application for two pieces of development, namely, (a) the stationing of the caravan and (b) its use for a particular purpose and he did not believe that that was right."
He then went on at the foot of page 788 (in the first column) to say this:
"In the end, he came quite firmly to the view that the situation was that you had to look at the planning unit; you had to look at the use to which that planning unit was being put, and if there was a caravan stationed there, then the inspector was right in saying that if the use to which the caravan was being put was in fact a use which did not amount to a material change of use, then there was no breach of planning control. It was inappropriate, when a caravan was stationed on land for a particular purpose, to look at the stationing of the caravan separately and say that that was something which was development requiring planning permission because it made a material change of use. He [that is Forbes J] did not believe you could decide whether the material change of use had been made until you knew the purpose for which the caravan was to be used, and whether that purpose fitted in with the existing use of the land."
That decision in Restormel was revisited by the Court of Appeal in the important authority of Wealden District Council v Secretary of State for the Environment and Day 87 LGR 1. It is a decision of Parker, Ralph Gibson LJJ and Sir George waller. I am going to read the headnote:
"A farmer placed a caravan on his land, in an area of outstanding natural beauty, for the purpose of storing and mixing animal feed and to provide shelter because his existing farm buildings were in poor condition and were not waterproof. The council issued an enforcement notice to secure the removal of the caravan, which they considered unsightly and detrimental to the visual amenities of the area, on the ground that the stationing of the caravan was a material change on the use of the land for which planning permission had not been obtained. The farmer appealed to the Secretary of State under section 88(1)(a) of the Town and Country Planning Act 1971 claiming that planning permission ought to be granted as the caravan was being used as a farm office and was an agricultural necessity. The inspector appointed by the Secretary of State allowed the appeal on the grounds that the uses of the caravan were ancillary to the agricultural use of the land, that there had therefore been no material change of use and that the caravan itself was not a structure and did not of itself constitute a change of use because the land uses carried on in it were not materially different from the lawful and permitted use of the land."
The appeal of the local authority was dismissed by Kennedy J, as he then was, and the local authority appealed to the Court of Appeal. The leading judgment was given by Ralph Gibson LJ. The breach of planning control in that case was said to be the stationing of a caravan for the purposes of storage, shelter and feed preparation.
During the course of his judgment Ralph Gibson LJ went through the history of the difficulties that have arisen in planning law with regard to the stationing of caravans. He noted that Kennedy J had followed the reasoning of Forbes J in Restormel and at page 6 Ralph Gibson LJ said this:
"Kennedy J accepted that was a correct statement of the law [that is the statement in Restormel] and concluded that, in the face of it, nothing remained of the case for the Wealden District Council. He held, in accordance with the submission of Mr Laws for the Secretary of State, that, in order to determine whether there had been a change of use of land, it is first necessary to ascertain the existing lawful use of the planning unit: in this case it was agricultural. The next question to be considered is whether that use has been departed from by the event complained of in the enforcement notice. The arrival of the caravan on this land did not of itself signify a change in the use of the planning unit and since the caravan was used for agricultural purposes it actually contributed to that existing use."
That ratio of the decision of Kennedy J was upheld by the Court of Appeal.
I go to page 10 of the judgment of Ralph Gibson LJ:
"It is convenient to start with the proper construction of section 22(2)(e) [of the then Act] and its application to the facts of this case. It was not in issue that Mr Day stationed the caravan on the land for the purposes of agriculture in the sense that he intended to use the caravan for those purposes and no others.
The effect of section 22(2)(e) operated where there is 'use of any land for the purposes of agriculture'."
Ralph Gibson LJ then referred to the definition of agriculture in section 290(1) of 1971 Act and to the submissions of Mr Burrell who was then appearing for the local planning authority.
He went on later on page 10:
"The only ground upon which Mr Burrell has submitted that section 22(2)(e) was not...
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