Royal Borough of Windsor & Maidenhead v Smith [2012] EWCA Civ 997

[2012] EWCA Civ 997Case No A2/2011/3330
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE GLOBE
HQ09X05666
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/07/2012
Before
LORD JUSTICE RIXLORD JUSTICE ETHERTONLORD JUSTICE PATTEN
Between
Royal Borough of Windsor & MaidenheadAppellantBonnie SmithRespondent
Mr David Lintott (instructed by Shared Legal Solutions) for AppellantMr Stephen Cottle (instructed by Bramwell Browne Odedra Sols) for RespondentHearing Hearing dates : 11th July 2012
Approved
[1]This is an appeal from the order of Mr Justice Globe dated 6 December 2011 by which he dismissed the appellant’s committal application for breach of an injunction granted by Mr Justice Nichol on 22 December 2009 (“the injunction”).[2]The appeal turns on the meaning of the word “caravan” in the injunction.

Background

[3]The appellant is the relevant local planning authority. The respondent is the occupier of plot 8 on land off Shurlock Road, Waltham St Lawrence (“the Site”). The lawful use of the site is for agriculture. It lies in an area designated as part of the Green Belt. The respondent’s occupation of the Site is a breach of planning control.[4]The respondent took up occupation of plot 8 on the Site on about 9 December 2009. She lives there with her three young children. It is one of ten plots on the Site.[5]On 22 December 2009, on the application of the appellant, Mr Justice Nicol granted the injunction against the respondent and others restraining them, until trial or further order, from (among other things) carrying out or allowing any further works of construction or development and from causing or allowing any further caravans (including mobile homes) to be brought on to the Site. The injunction was endorsed with a penal notice. The following is the material part of the injunction for the purpose of this appeal:
“IT IS ORDERED THAT the Defendants: …. (2) shall not cause or allow any further caravans (which term includes mobile homes) to be brought onto the land beyond the 10 caravans already stationed on the land; …”
[6]On 24 December 2009 the appellant issued an enforcement notice specifying an apparent breach of planning control in materially changing the use of the Site from agricultural use to the siting of caravans and/or mobile homes used for residential purposes and the importation of materials to form an access road and other hardstandings. The period for compliance specified in the notice was two months from 28 January 2010.[7]On 12 January 2010 an application was made for planning permission to permit change of use of the Site. On 25 February 2010 the appellant refused that planning application. There was an appeal, a public inquiry and, ultimately, on 11 August 2011 the Secretary of State agreed with the inspector’s recommendation and dismissed the appeal but varied the compliance period for the enforcement notice from 2 to 18 months.[8]On 5 October 2011 the appellant issued an application for the committal of the respondent on the ground that on about 29 August 2011 she caused or allowed a further caravan to be brought onto the Site in breach of the injunction. It is not in dispute that she brought a structure onto the Site on about 29 August 2011. The respondent contends, however, that it is not a caravan.[9]The Judge had the benefit of written and oral evidence, including photographs. So far as relevant to this appeal, his findings of fact on the question whether the unit brought onto the Site by the respondent is a caravan, within the prohibition in the injunction, are as follows.[10]The caravan which has been occupied by the respondent and her three young children since before the unit was brought onto the Site in August 2011 has no shower or toilet facilities. The toilet was in a very small portacabin, which the respondent described as being a lean-to against the caravan. To obtain a shower the family has had to go to the local leisure centre two or three times a week.[11]Following a request from the appellant for a shower unit to be placed on plot 8, the appellant’s cousin delivered a portacabin, which measures 4.78 metres by 2.15 metres. It is on wheels. When the portacabin was originally delivered it was divided into three shower cubicles and two toilets. The appellant took out the partitions. She made one shower unit and one toilet. The toilet is not in use because of the one next to the caravan, which is in use. There is a large drum under the unit to collect water from the shower. There is apparently another large tank underneath the unit which could also be connected to the shower unit inside. The appellant put windows in because the unit was dark. One is a two-sectioned window at the rear of the unit and covers about a third of the rear section. The other is a four-sectioned large window along the side of the unit next to the door, which is itself approximately two-thirds glass. The door and the window on the side cover about one-third of the side of the unit. She repainted the unit. She put tiles on the floor. In addition to the shower and the toilet, which is not used, there is a freezer, a sink and a table top which is used for ironing and on which she has put a small tumble dryer.[12]When two of the appellant’s enforcement officers, Mr Melvin and Mr Nichol, went to the Site on 1 September 2011 nothing was connected up and it did not appear as if the unit was occupied. It was the first respondent’s case before the Judge that there was not, and never had been, any intention of using the unit to live in. It was and is solely to be used as a utility unit.[13]The Judge addressed the issue whether or not the unit brought onto plot 8 is a caravan by reference to the definition of “caravan” in section 29 of the Caravan Sites and Control of Development Act 1960 (“the 1960 Act”). He held that it did not satisfy that definition because it was neither designed nor adapted for human habitation. He referred to Carter v The Secretary of State for the Environment [1984] 1WLR at 1214, Becker v The Secretary of State for Environment [1983] 2 All ER 1021, and Uratemp Ventures Limited v Collins [2002] 1 AC 301.[14]The Judge recorded in his judgment that it was common ground that, as a portacabin, the unit was not designed for human habitation. He said that the issue was whether it had been adapted for human habitation. The core of his reasoning in deciding that issue against the appellant and in dismissing the appeal was as follows:
“22. It is for the claimant to make out its case. In the context of committal proceedings, the standard of proof is high. It is the criminal standard. I have to be satisfied so I am sure that a caravan has either been brought onto the site or has been allowed to be kept on the site. I have to be sure, in the words of the definition, that the unit has been adapted for human habitation. There is no evidence before me that it is being used for human habitation in the sense envisaged in the Uratemp case. There is no evidence of anyone living there and making it his or her home. There is no evidence of anyone habitually sleeping there and usually eating there. If any of that were to happen it would, in my view, be a caravan but, as matters stand, there is no such evidence of any of those things. 23. I agree with the claimant that the fact that no one presently is inhabiting the unit is not by itself decisive. If I am satisfied that the unit has been adapted for the purpose of human habitation in the sense envisaged in the Uratemp case then it would be a caravan, whether or not anyone presently is inhabiting it. However, on the facts before me I accept the evidence within the affidavit and statement of the first respondent that that has never been the purpose of the adaptation and it is not presently the purpose of it. In my view it is not sufficient to say, as is the claimant’s case, that all that has to be satisfied is that it is available for use for some element of habitation. 24. For these reasons, I am not satisfied that the claimant has made out its case to the high standard required in committal proceedings in that I am not satisfied that the unit is at the moment a caravan. …”

The appeal

[15]Mr David Lintott, counsel for the appellant, submitted that section 29 of the 1960 Act is not directly relevant since what is in issue is the meaning of “caravan” in the injunction and not in the 1960 Act. He submitted that the relevant context is that an injunction was granted to prevent harm being caused to the Green Belt by the stationing of further caravans on Green Belt land. He said that, in that context, and, in any event, under the definition of “caravan” in section 29(1) of the 1960 Act, a structure may be a caravan even if it was neither designed nor adapted for occupation as a home: it simply needs to have been adapted as living space for residential use provided it could be moved from one place to another. He said it could be any domestic living space of any kind. He distinguished Uratemp Ventures as being a case about the meaning of the provision in section 1(1) of the Housing Act 1988 “A tenancy under which a dwelling-house is let as a separate dwelling is…an assured tenancy” and as raising wholly different considerations from those in the present case.[16]Mr Lintott submitted that, accordingly, the Judge had applied the wrong test and so made an error of law in holding, in paragraph 22 of his judgment, that the unit was not a caravan because there was “no evidence of anyone habitually sleeping there and usually eating there”. In circumstances where the respondent had altered the mobile structure by building windows, inserting a toilet, a shower and a sink, and laid tiles on the floor, all to improve her living conditions, the Judge ought to have found that the structure was a caravan whether or not the definition in section 29(1) of the 1960 Act applies. What was critical, he submitted, was that it had been adapted to be inhabited as living space, whether or not for sleeping or eating, and irrespective of whether or not it was actually being used for any particular purpose.[17]The appellant criticises the Judge’s conclusion to the contrary as perverse. Mr Lintott submitted that, if the Judge’s interpretation were correct, the respondent could bring a series of structures onto the Site and set them up as a pool room, a television room, a games room and so forth, but none could be termed a caravan simply because she lived in all of them rather than any one individually. He said that, on the same line of reasoning, if an occupier had four caravans, one adapted to prepare food and eat, one to spend leisure time, one to sleep and one to shower and use the bathroom, none of those units would be a home even though they would all have been adapted for use as living space.

Discussion

[18]The respondent did not argue before the Judge, and has not argued before us, that there was no breach of the injunction because the injunction only prohibits an additional caravan being “brought onto the land”, and the respondent’s unit was not a caravan when it was brought onto the Site. The respondent accepts that the injunction is to be interpreted as prohibiting changing something on the Site into a caravan which was not a caravan when it was brought onto the Site.[19]The argument before the Judge proceeded on the footing that “caravan” in the injunction has the same meaning as in section 29(1) of the 1960 Act.

(b) any tent;

[20]Mr Stephen Cottle, counsel for the respondent, submitted that the Judge was right to apply that definition, bearing in mind particularly the planning context in which the injunction was sought and granted. He cited in support Wyre Forest District Council for Secretary of State for the Environment [1990] 2 AC 357. I do not consider that case is authority for Mr Cottle’s proposition. In that case the issue was whether the erection of a chalet was authorised by the grant of planning consent relating “to the siting of 205 caravans”. It was common ground that the chalet, though lacking wheels, was capable of being moved and accordingly fell within the statutory definition of “caravan” in section 29(1) of the 1960 Act. The planning authority contended the word “caravan” in the planning consent should be given its ordinary and natural meaning and not the extended meaning in section 29(1) of the 1960 Act. It was common ground that, if the word had its ordinary and natural meaning, the chalet was not within the planning permission. The House of Lords held that the statutory definition applied. Lord Lowry, with whom the other members of the judicial committee agreed, gave the reason for that conclusion as follows, at page 365E:
“My Lords, I have to say that I regard the council's proposition as quite untenable: if Parliament in a statutory enactment defines its terms (whether by enlarging or by restricting the ordinary meaning of a word or expression), it must intend that, in the absence of a clear indication to the contrary, those terms as defined shall govern what is proposed, authorised or done under or by reference to that enactment.”
[21]He also said as follows at page 368 F-H:
“My Lords, I have to say that none of the foregoing observations dissuade me from the view that the terms "caravan" and "caravan site," when used at any time since D-Day in a formal document under the Planning Acts, prima facie have the meaning which they are given by the Act of 1960 as amended. … [P]rima facie in planning applications and planning permissions the terms "caravan" and "caravan site" bear their statutory meanings. The party who contends for the ordinary meaning must therefore show in each particular case that that is the right meaning.”
[22]That reasoning does not have any application to the terms of the injunction in the present case. The injunction was not served under the 1960 Act or in connection with any planning consent for, or relating to, caravan use. It was granted to prevent unlawful non-agricultural use of the Site in breach of planning control. The appellant was entitled to an injunction to restrain any unlawful non-agricultural use of the Site. The injunction was, however, necessarily restricted to, and reflective of, the actual unlawful activity that had taken place. It was descriptive of what factually had happened and, in the absence of an injunction, was likely to happen unless restrained. That is the key to its meaning.[23]The relevant part of the injunction prohibits “further caravans” being brought on the Plot “beyond the 10 caravans already there”. It appears to have in mind the same type of thing as the then existing caravans. Those were caravans in the conventional sense, that is to say in the sense which the word bears as a matter of ordinary usage of English language. The Shorter Oxford English Dictionary defines “caravan”, so far as relevant, as:
“a covered carriage or cart …Now usu. a dwelling on wheels, able to be towed by a horse or a motor vehicle.”
[24]The unit in issue in the present case is a substantial structure with windows which, from the photographs of its exterior, might be said to bear some resemblance to a caravan. It cannot, however, fairly be described as “a dwelling on wheels”. It is not a carriage or a cart. More importantly, although it has some features of a dwelling, namely windows, a toilet, a shower and a sink, it is not, in ordinary language, “a dwelling”.[25]That does not mean that, in ordinary language, something can only be a caravan, any more than something can only be a dwelling, if it is designed or adapted for all the principal functions of living to take place there. I do not believe that the Judge intended to say that in paragraph 22 of his judgment since he states expressly at the beginning of paragraph 23 of his judgment that it is not decisive that no one was living in the unit. It seems to me that he was merely saying that, if someone was living in the respondent’s unit, in the sense of habitually sleeping there and usually eating there, it would undoubtedly be a caravan. That is obviously correct.[26]What is a caravan, and a dwelling, is, therefore, always a matter of fact and degree according to the legal and non-legal context. Those words do not, in ordinary language, however, bear the very extended meaning advanced by Mr Lintott, namely something designed or adapted for domestic living space of any kind. There is no dictionary or legal basis for such a sweeping proposition. The Judge was, therefore, quite correct to reject in paragraph 23 of his judgment the appellant’s proposition that “all that has to be satisfied is that it is available for use for some element of habitation”. In the present case, for the reasons I have given, the terms of the injunction do not indicate that the term “caravan” was to be given any other meaning than its usual meaning. On the contrary, they positively indicate that “caravan” in the injunction is referring to the same type of thing as the other 10 caravans already on the Site at the date of the injunction. The unit in issue in the present case is quite unlike those caravans.[27]I do not consider that Uratemp Ventures takes the matter any further. As Mr Lintott rightly observed, it has to be read in its context as a case about the expression “let as a separate dwelling” in housing legislation. I do not agree, however, that the Judge was in some way misled by the speeches in that case. On the contrary, they are authority for the very proposition on which the appellant relies, namely that something may be a dwelling even though not all living functions are carried on there.[28]Fairly reading the judgment as a whole, the Judge does appear to have taken the correct course of avoiding the overly narrow approach (by analogy rejected in Uratemp Ventures) of holding that something cannot be a caravan unless all the principal living functions are carried on in it and the overly wide approach (of the appellant) that it is sufficient if it contains any domestic living space of any kind. The Judge’s ultimate conclusion was that it was for the appellant to make out its case to the high standard of proof required to be discharged in committal proceedings, and it had failed to do so. I consider that it is preferable to approach the matter by examining the meaning of “caravan” first in its ordinary, dictionary sense, and then seeing whether the injunction and its factual context provide any basis for a different or more refined meaning. In addition to what I have said earlier in that connection, while I do not endorse the precise way the Judge has relied on the fact of committal proceedings, the special nature of committal proceedings does prompt a further material consideration which supports the interpretation of “caravan” in the injunction as meaning the same type of thing as the 10 caravans already on the Site at the time of the injunction. Breach of the injunction, which was endorsed with a penal notice, would give rise to various sanctions, including committal. That makes it even more likely that the Court intended the word “caravan” in the injunction to carry a clear, conventional meaning, easily understood and applied, and consistent with what was actually present and happening on the ground at the time of the injunction.[29]It is not necessary, in the circumstances, to consider whether the application of the definition in section 29(1) of the 1960 Act, particularly the words “designed or adapted for human habitation”, would produce a different result. It is sufficient to say that, even if there is a presumption that the statutory definition applies as Mr Cottle has urged, and it would produce a different result, the presumption is rebutted by the contrary intention disclosed by the terms of the injunction and the context in which it was made.[30]The conclusion to which the Judge arrived in this case does not mean that the appellant was left without any means to obtain the removal of the unit in issue. If the appellant would have been entitled on 22 December 2009 to an injunction wide enough to prevent the unit being brought on the land (and no one has contended the contrary), then it is difficult to see why the appellant could not have applied at any time after that date to vary the injunction or to seek a new one to procure the unit’s removal.

Conclusion

[31]For those brief reasons, I would dismiss this appeal.[1]I agree with Etherton LJ that the reference in the injunction to “further caravans” falls to be construed having regard to the type of “caravans” which had already been brought on to the site. In that context the respondent’s converted portacabin is outside the terms of the injunction and on an application to commit any uncertainties about the meaning of the order should be resolved in her favour.[2]It is not therefore necessary to resort to the statutory definition of a “caravan” in s.29(1) of the Caravan Sites and Control of Development Act 1960; still less the meaning of a “dwelling” in the context of the Housing Act 1988.[3]But if it had been necessary to consider whether the respondent’s second vehicle was a “caravan” as a matter of ordinary language I am inclined to agree with Rix LJ for the reasons which he gives in his judgment that it might properly be described as one notwithstanding that no catering or sleeping takes place within it.[4]In the event I agree that the appeal should be dismissed.[5]I agree that the appeal should be dismissed, for I agree with the judge’s conclusion that he could not be sure that the respondent had committed a breach in contempt of court of the terms of the injunction and with Lord Justice Etherton’s reasoning that what matters is that in context the word “caravans” in the injunction, in the phrase “further caravans…beyond the 10 caravans already stationed”, can reasonably be understood as referring to caravans in the sense in which the caravans already on site were caravans, namely as (mobile) dwellings in themselves for those occupying them. I do so the more readily in that:(i) as Etherton LJ has shown, what is in question here is not so much the interpretation of a statutory formula, but whether it is proper to find that the respondent was in contempt of the court’s injunction in circumstances where that contempt had to be proved to the criminal standard; and(ii) it would have been appropriate in the circumstances for the appellant to return to court to vary or extend the terms of the injunction to make it perfectly clear that, in the interests of safeguarding the planning controls applicable to Green Belt land, no such structures should be permitted on the site, be they strictly speaking caravans or not. Any such application would take into account the presence of other portacabin utility units used by other caravan occupiers on the site, and the fact that the appeal to the Secretary of State had resulted in an extension of the compliance period to 18 months.[6]However, although in the circumstances it may not be necessary to say it, I do not think I do agree with the judge’s approach, which he has mistakenly derived (as he was asked by the respondent to do) from Uratemp (an authority concerned with a very different context), to the effect that the test, for the purposes of the definition contained in section 29 of the 1960 Act, is that of “living there” in the sense of “habitually sleeping there and usually eating there” (his [22]). It seems to me that, whether one is concerned with the ordinary meaning of the word “caravan” or with the 1960 Act definition, the test is likely to be broader than that, although ultimately a matter of fact and degree.[7]For instance, it seems to me plain that a caravan which was in use merely for holiday purposes, a form of travelling hotel room, for a few weeks a year, would remain the caravan that it was, even though it could hardly be called a “dwelling” and certainly not in the same sense in which Lord Millett was thinking of that word in the context of the Housing Act 1968 (see Uratemp at [30]). I say that in the light of the OED’s definition of caravan as a “dwelling on wheels”. Nor would it seem to me to matter in the slightest whether anything was done or intended to be done in the caravan “habitually”.[8]Similarly, it seems to me that context is likely to be important. Where a person or family is living, in every sense of that word, in one caravan, and then extends its home life into another mobile structure, so that its home is now divided between the two units, I see potential force in the submission that the essence of domestic life should not be sought, artificially, by asking whether it is sleeping, watching TV, cooking, eating or washing facilities which should be regarded as the essence of home life, but rather that the question is raised whether in all the circumstances the occupiers’ second unit can be said to be a real or material part of their home or living accommodation.[9]In that connection it could be very relevant to ask what the unit concerned looked like. I have to say that, to judge purely from the photographs, the adapted portacabin unit in this case looks very much like a caravan. It would be only on entering it, and seeing that it was not fitted out as other than a shower and utility space, that one might be persuaded that its functions were just too limited to permit it to be so described. Certainly its appearance is radically different from the smaller and entirely box-like structures which serve as shower and/or toilet facilities ancillary to other caravans on the site.[10]I make these comments in deference to the extensive submissions which have been made to the court on this appeal. While I believe that the judge’s test was too narrow, and Mr Lintott’s test too broad, I suspect that a correct application of either the ordinary meaning of the term “caravan” or of its statutory definition probably needs to be more sensitive to context (and thus in the case of section 29 to its statutory purposes). I am intrigued to find that etymologically speaking “caravan” is derived from the Persian “karwan”, so that its first meaning is a company of merchants or pilgrims travelling together. Hence the important concept of mobility: but in its origin at any rate a caravan could not come as a single unit, and it does not seem that there was any conception of the caravan being a place of abode. On the contrary, a “caravanserai” (Persian “karwansaray”) is an Eastern inn with an inner court where caravans rest.

Cited in 1 later judgment