Wealden District Council v The Secretary of State for the Environment and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE RALPH GIBSON,SIR GEORGE WALLER,Lord Justice Parker |
| Judgment Date | 14 December 1987 |
| Neutral Citation | [1987] EWCA Civ J1214-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1258 |
| Date | 14 December 1987 |
[1987] EWCA Civ J1214-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE KENNEDY
Royal Courts of Justice
Lord Justice Parker
Lord Justice Ralph Gibson
Sir George Waller
87/1258
and
MR MICHAEL BURRELL, instructed by Messrs Cripps Harries Hall (Crowborough), appeared for the Appellants (Appellants).
MISS A.M. WILLIAMS, instructed by the Treasury Solicitor, appeared for the Respondent (Respondent).
I will ask Lord Justice Ralph Gibson to give the first judgment.
This appeal is concerned with a caravan which Mr Colin Day brought on to his land at Shepherd's Gate Farm, Coleman's Hatch at Hartfield in East Sussex. The Wealden District Council, the appellants in this court, contend that by stationing the caravan on his land Mr Day was in breach of planning control, in that he thereby made a material change in the use of the land for which he had not obtained a grant of planning permission.
Mr Day's land is some six hectares in extent, or about 15 acres. He bought the land in 1983 with a view to raising beef cattle. The site plan shows the land as including two fields, each of a little over five and a half acres, and two smaller fields. The land is in a rural area of deeply undulating countryside, forming part of the High Weald area of outstanding natural beauty. At the south-eastern end of the land there are some farm buildings, but there is no farm house.
In January 1984 it was observed on a site inspection by the Council's enforcement officer that a caravan measuring 6.4 metres long and 2.8 metres wide had been placed by the farm buildings. Mr Day informed the Council's officer that because the existing farm buildings were in poor condition and not weatherproof the caravan had been placed on the land in order therein to store and mix calf feed and to provide shelter for himself and his wife.
On 8th March 1984 the Council resolved that enforcement action be authorised pursuant to section 87 of the Town and Country Planning Act 1971 ("the 1971 Act") to secure the removal of the caravan which was considered to be unsightly, alien in character and appearance to traditional farm buildings, and detrimental to the visual amenities of the area. The enforcement notice was issued on 30th April 1984. The breach of planning control alleged in the notice was:
"The making of a material change in the use of the land namely to use for the purpose of stationing of a caravan thereon for the purpose of storage shelter and feed preparation."
Mr Day appealed to the Secretary of State on the ground that planning permission ought to be granted for the development to which the enforcement notice related—section 88(l)(a). His case on the facts was that the caravan was being used as a farm office and was an agricultural necessity. He used it to store milk powder and to prepare feeds. He regretted any blot caused upon the beauty of the area by the presence of the caravan and was willing to consider changing its colour.
The appeal was by consent conducted by written representations. A number of residents near the site sent in objections to the presence of the caravan because of its obtrusive appearance. Mr Day had thus appealed on the ground that permission ought to be granted to him to retain the caravan, and not on the ground that he did not in law need permission and had therefore not committed any breach of planning control. The written submissions of the Council were therefore directed to the contention that there was no agricultural need for the caravan as a specialised and visually inappropriate structure to be on that piece of land.
They said in paragraph 5.2:
"On the County Development Plan the appeal site is shown to be within an Area of Great Landscape Value where, according to the Written Statement, it is the intention that the principal land uses shall continue to be agriculture and forestry and that development 'not directly related to these pursuits shall in general only be permitted if a strong case for such development can be proved and subject in any event to appropriate siting and a high standard of design.'"
The inspector appointed by the Secretary of State, after inspecting the site, allowed Mr Day's appeal on 21st January 1985 and quashed the enforcement notice. The grounds of decision were that: (i) the caravan was used by Mr Day for storage, for preparation of animal feed and for shelter; (ii) those uses were ancillary to the agricultural use of the land and there had therefore been no material change of use; (iii) the caravan itself was not a structure and did not of itself constitute a material 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 inspector made no reference to section 22(2)(e) of the 1971 Act.
The Council appealed to the High Court against that decision under section 246 of the 1971 Act on the ground that the inspector had gone wrong in law. The Council did not claim to rely on the fact that the inspector had decided the appeal on a ground different from that on which the appeal of Mr Day had been based and without notice to the Council. Kennedy J. dismissed the Council's appeal and held that the inspector had directed himself correctly in law.
The Council now appeals to this court. Before describing the submissions made on behalf of the Council, some reference is necessary to the outline of the statutory provisions by which planning control of development is imposed by and may be enforced under the 1971 Act. Subject to certain exceptions not relevant in this case "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land: see section 22(1) which, in this regard, contains provisions substantially identical to those in section 12(1) of the original Act of 1947. Subject again to certain exceptions not relevant to this case, planning permission is required for the carrying out of any development of land: section 23(1). Where it appears to the local planning authority that there has been a breach of planning control, then, if it considers it expedient so to do, it may issue a notice requiring the breach to be remedied: section 87(1).
Returning to section 22, the definition of "development" in subsection (1), to which I have referred, describes two sorts of development: firstly, operational development by the carrying out of building or other operations in, on, over or under the land, of which the most obvious example is construction of building; and, secondly, the making of a material change in the use of any building or other land. There is then provided in subsection (2) a list of "operations and uses of land" which are not to be taken to involve development of the land and, of them, three must be noted:
"(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;
"(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;
"(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use thereof for any other purpose of the same class." The contention is made in this court, as it was before the learned judge, for the Secretary of State that use made by Mr Day of the caravan was within (e) above, being use of land for the purposes of agriculture and therefore expressly provided not to be development by material change of use.
Next, reference must be made to a principle which has been developed as to the correct approach to analysis of the factual situation for the purposes of considering whether there has occurred a material change of the use of land, namely, identification of the appropriate planning unit: see G. Percy Trentham v. Gloucestershire County Council [1966] 1 W.L.R. 506. It is common ground in this case that the question whether any material change was made in the use of the land by Mr Day is to be determined by reference to the whole occupation unit held by Mr Day, namely, the six hectares of agricultural land and not the specific piece of land on which the caravan stands. To that extent the enforcement notice was, as Mr Burrell has acknowledged, defective, but the notice was, of course, capable of correction: see section 88A(2) of the 1971 Act. Mr Burrell has submitted that, if the appeal succeeds and the matter is remitted for rehearing, the notice should be amended so as to read: "The making of a material change in the use of the land to a mixed use for the purpose of agriculture and of stationing a caravan thereon for agricultural purposes, which stationing is not ordinarily incidental to the agricultural use".
Mr Burrell's submission before the learned judge was in essence as follows:
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(i) that the stationing of the caravan upon the land was itself a use of the land apart from any activity which Mr Day carried on inside it;
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(ii) that use of the land for stationing a caravan upon it was not ordinarily incidental to the existing use of the site for agriculture because the caravan was designed for human habitation; and use of the land for stationing the caravan was therefore a new primary use and not the use of that piece of land for the purposes of agriculture within...
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