Skerritts of Nottingham Ltd v The Secretary of State for the Environment, Transport and the Regions and Another
| Jurisdiction | England & Wales |
| Judge | MR MALCOLM SPENCE QC |
| Judgment Date | 04 June 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0604-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/1912/98 |
| Date | 04 June 1999 |
[1999] EWCA Civ J0604-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Malcolm Spence QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
CO/1912/98
and
MR C KATKOWSKI QC [MS L WILDER—JUDGMENT ONLY] (Instructed by Messrs Actons, Nottingham NG1 5DB) appeared on behalf of the Appellant.
MR J HOBSON [ MS D RHEE-JUDGMENT ONLY] (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent.
THE SECOND RESPONDENT did not appear and was unrepresented.
Friday, 4th June 1999.
This case raises the interesting question as to whether the erection of a marquee every year to remain on site from February to October amounts to a building operation within the meaning of section 55 of the Town and Country Planning Act 1990.
The Appellants own the Grimsdyke Hotel in the London Borough of Harrow. Every year they erect this marquee on the lawn of the hotel and use it in conjunction with the hotel. But in 1997 the Council served an Enforcement Notice on them requiring them to remove it. They appealed to the Secretary of State for the Environment. The appeal was dealt with by written representations and the Inspector dismissed their appeal, holding that it was a building and that they were carrying out building operations every year. Mr Robin Purchas QC, sitting as a deputy judge of this court, gave them leave to appeal to this court in pursuance of section 289.
I shall now read the relevant passages from the Inspector's decision letter:
"5. The marquee stands on the lawn of a sunken garden to the north-west of the main entrance to the hotel. The sunken garden is rectangular and enclosed by low brick and flint walls with balustraded steps leading to the gravel paths between the central lawn and the perimeter flower beds. The marquee has a tubular aluminium portal frame for seven bays. Five bays are enclosed by white plastic covered canvas and the two eastern bays are roofed only. The five enclosed bays have a timber floor spanning aluminium ground beams resting on the lawn. The entrance to the enclosed area is via aluminium doors leading from the roofed bays. The main enclosure has an electricity supply for lighting and blown warm air heating. Three small aluminium framed structures, clad with canvas, adjoin the marquee and provide storage space and toilet facilities.
…
8. My conclusions on the appeal under ground (c) follow. If the marquee can be said to be a 'building' then the Courts have said that what has taken place is most probably a 'building or other operation' ( Barvis Ltd v SSE [1971] 22P&CR710). Three factors were identified in Cardiff Rating Authority v Guest Keen Baldwin Iron and Steel Co Ltd [1949] 1KB385 in deciding what was a building: size; permanence and physical attachment."
It appears that the parties did not inform the Inspector about these authorities, and that he must have discovered about them himself:
"9. The marquee is a substantial object which is about 40m long, including the additions, and some 17m wide and the ridge height is around 5m. Your letter dated 12 February 1998 mentions that it was scheduled for delivery on 18 February 1998 and would be erected over the following 14 days. There is no direct evidence before me of the assembly method or period, but from my inspection, I consider that it took several days with a number of erectors and amounted to a sizable and protracted event. I imagine that its dismantling follows much the same process. It is assembled on site, not delivered ready made. I do not regard its considerable bulk to be de minimis in relation to planning controls.
10. Evidently, the marquee stands on the lawn between February and October each year. When in place, I saw that it has a solid and permanent character which derives from its cladding material and the metal framed structure. It is provided with the services and utilities that are normally found in spaces for use by the public. Even, though the marquee only remains on site for eight or so months a year, I do not consider that the marquee is so transient or ephemeral that it lacks permanence.
11. The 16 feet of the metal portal frames sit on square metal plates which are spiked to the soil beneath. The structure appears to be held in place by its own considerable weight, the internal bracing and the ground spikes. The timber floor is supported by metal ground beams resting on the land. From this, I consider that the marquee has a significant degree of physical attachment to the land on which it stands. Moreover, the Courts have held that an absence of physical attachment is not itself decisive.
12. I conclude that, as a matter of fact and degree, the marquee, due to its simple ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, is a structure which is to be regarded as a building for planning purposes. Consequently, the erection of the marquee each year amounts to the carrying out of a building or other operation, which constitutes 'development' as defined in section 55(1) of the 1990 Act. Planning permission has not been granted for the marquee and so there has been a breach of planning control. Your client's appeal on ground (c) therefore fails."
Mr Katkowski QC appears for the Appellants in this court and made submissions to the effect that the Inspector should not have found that the marquee was a building. He reminded me of the judgment of Nourse LJ in Moore v Secretary of State for the Environment [1998] 2 PLR 65 at 70C to D:
"… A question of fact and degree, although it is a question of fact, involves the application of a legal test. If the Secretary of State applies the correct test, the court, on an appeal under section 289, can only interfere with his decision if the facts found are incapable of supporting it. If, on the other hand, he applies an incorrect test, then the court can interfere and itself apply the correct test to the facts found. Mr Alesbury submits that here the Secretary of State has applied an incorrect test."
Mr Hobson, who appears for the Secretary of State, emphasised that the conclusion was one of fact and degree, and that this was a conclusion which the Inspector was entitled to reach. So the question is fairly and squarely whether or not the Inspector did indeed apply the right test.
As I have said, the Inspector referred to the Cardiff Rating Authority case in paragraph 8 of his decision. I shall read part of the headnote:
"At certain iron and steel works, tilting furnaces with a capacity of 200 to 250 tons of steel rested by their own weight on steel rollers, meeting on curved roller paths, which were themselves supported on concrete piers. It was possible by the use of certain appliances to lift each furnace off its supporting piers. At the works were also a 13,000 ft run of overhead gas mains, cold blast and hot blast mains, made up of 20 ft long lengths, bolted together and resting on but not attached to, steel vertical supports on metal bridge structures at a height of from 10 to 35 feet above ground."
I shall read a passage from the judgment of Denning LJ on page 396:
"… A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be movable, as, for instance, about a pivot. …"
I should emphasis that a "building" is defined so as to include a structure or erection, hence the relevance of the Cardiff Rating Authority case.
I shall also read from the judgment of Jenkins J at page 402:
"… It would be undesirable to attempt, and, indeed, I think impossible to achieve, any exhaustive definition of what is meant by the words 'is or is in the nature of a building or structure'. They do, however, indicate certain main characteristics. The general range of things in view consists of things built or constructed. I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures. That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made. It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces. I do not, however, mean to suggest that size is necessarily a conclusive test in all cases, or that a thing is necessarily removed from the category of buildings or structures or things in the nature of buildings or structures because by some feat of engineering or navigation it is brought to the hereditament in one piece. For instance, floating docks or pontoons, items specifically mentioned in class 4, would not, I think, be excluded merely on account of having been towed complete to the hereditament instead of having been built or constructed there. The question whether a thing is or is not physically attached to the hereditament is, I think, certainly a relevant consideration, but I cannot regard the fact that it is not so attached as being in any way conclusive against its being a...
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