Lee, R (on the application of) v Swale Borough Council [2003] EWHC 2139 (Admin)

Case No CO/1970/2003[2003] EWHC 2139 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 3 September 2003
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE RICH QC
(sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF LEEClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendant&DefendantSWALE BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR GREEN (instructed by CLARKE KIERNAN) appeared for CLAIMANTMISS DAVIES (instructed by TREASURY SOLICITOR) appeared for 1st DEFENDANT for The 2nd DEFENDANT did not attend and was not represented
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]THE DEPUTY JUDGE: This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the first respondent's inspector, dated 20th March 2003, whereby he dismissed an appeal against a refusal by the second respondent of the appellant's application, dated 6th March 2001, for a lawful development certificate in respect of the residential use of a building known as "the barn", in Seed Road on the edge of the village of Newnam in the Kent Downs Area of Outstanding Natural Beauty. Application is also made for permission to appeal against the upholding by the same decision of an enforcement notice, issued on 15th August 2002, requiring the removal of certain works to the barn. That decision follows from the decision that residential use of the barn is not lawful and should not be permitted. It is therefore accepted that if the residential use is lawful, the decision on the enforcement notice should be reconsidered. Argument before this court is therefore directed to the correctness of the decision on the lawful development certificate application.[2]It is desirable to explain, before referring further to the decision, that the barn contains two caravans, so that the layout is -- as was described in paragraph 5 of the decision letter, which is being impugned in these proceedings -- as follows:
"The front door of the building leads into an area furnished as a dining room, beyond which is a kitchen with a sink unit, cooker and freezer. To the left of the front door steps lead up to patio doors giving access to the original mobile home which is now a single open area fitted out with two settees, a bed, hanging space, television and tables. Access to a second caravan is taken from the kitchen area. This caravan is immediately recognisable as such from its internal layout and fittings."
[3]The decision now under appeal follows the remission of a previous decision by a different inspector, dated 4th March 2002. He also had dismissed the appeal. He, however, held that an enforcement notice issued in 1999, which required an assessment of the use of land for the stationing of a caravan/mobile home for permanent human habitation, prohibited the stationing of the two caravans within the barn. The Secretary of State accepted that was an erroneous construction of that enforcement notice, and submitted to the first inspector's decision being quashed on that ground.[4]The decision now being challenged was in conformity with the first inspector's decision that the two caravans stationed within, and thereby used to provide residential accommodation within the barn, remained caravans. He therefore concluded, at paragraph 20 of his decision:
"Therefore, I find that the appellant has failed to demonstrate that, on the balance of probability, the appeal building was in use as a dwellinghouse at the time of the application."
[5]The distinction between whether the use being made of the building was for stationing caravans or use as a dwellinghouse is crucial because by section 171B of the Act, subsection (2) provides:
"Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."
But subsection (3) provides:
"In the case of any other breach of planning control [than as specified in either subsection (1) (operational development or subsection (2)] no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach."
[6]It was found by the inspector that the caravans were stationed on the land and used for residential purposes more than four years before, but it was at all times accepted by the appellant that they had been stationed less than 10 years before 6th March 2001. The question to be determined was, therefore, whether such stationing and use had the effect that the use of the barn, which was not constructed as a dwellinghouse, was changed to use as a single dwellinghouse. The inspector, at the end of paragraph 13 of his decision letter, recorded the council's submission that:
"... by virtue of their nature and construction the two caravans in the barn do not constitute a dwellinghouse, they are not a building or part of a structure formed by building operations. There is insufficient attachment to the barn for the caravans to be an integral part of it."
On this he concluded, at paragraphs 14 and 15, as follows:
"14.There is no statutory definition of a dwellinghouse, but the case of Gravesham BC v SSE [1982] P&CR 142 provides a description which has become commonly used and was referred to at the inquiry by both parties; that the building affords the facilities required for day-to-day private domestic existence. Therefore I have to consider the nature of the appeal building and domestic facilities provided but also need to examine the evidence concerning the presence of caravans in the building and the nature and extent of their use. "15.Section 29(1) of the 1960 Act defines a caravan as a structure designed or adapted for human habitation. It follows, then, that a caravan can afford the facilities for day-to-day domestic existence. But it is nonetheless a caravan within the meaning of section 29(1) until it becomes incapable of being moved from one place to another. The act of siting a caravan, in the open or within a building, does not, in itself, amount to operational development. Rather it is a use of land. Consequently, whether or not one or both of the caravans in the appeal building was occupied for residential purposes is not in my view the determining issue in relation to use of the building as a dwellinghouse. The question is whether, at the relevant date, they had ceased to be caravans within the statutory definition, and become a building or part of a building which constituted a dwellinghouse."
[7]This identification of the determining issue involved the proposition that the use of the caravans did not determine the use of the building, unless they were part of the building. Once the inspector had concluded that they were not part of the building, it remained for him only to consider the use of the building apart from the caravans. This he did at paragraph 19 of his decision letter, as follows:
"Even if the fittings and fixtures I saw in place in the rest of the building (other than in the caravans) during my site visit were in place at March 2001 they do not comprise all that is necessary for day-to-day domestic living. Consequently, there is no reasonable basis for concluding that other parts of the building constituted a dwellinghouse at the relevant date."
[8]Mr Green's submission in support of the appeal can be encapsulated in the simple proposition that it does not follow from the fact that the caravans are not part of the building that their use is not part of the use of the building.[9]Although it is easy to understand how the inspector came to overlook that proposition, it seems to me to be clear and unassailable. Non-operational development involves the making of a material change in the use of land. That includes a building. The space enclosed by a building is necessarily the area whose use determines the use of the building. In my judgment the use of caravans positioned within a building must be part of the use of the building, and will be material to, if not determinative of, the question whether the use of the building is, or is not, use as a single dwellinghouse. Of course, if a caravan is merely stored within a building, its use may be ancillary to the use of the building, or independent of that use. Where, however, its use is residential, and such use is in conjunction with the use of the building, it must constitute a part of the use of the building. It is on that basis that the test which the inspector set out correctly in paragraph 14 of his decision letter, namely whether the building affords the facilities required for day-to-day private domestic existence, must be judged. Of course, if the caravans were regularly moved, that would lead to a different conclusion than if they are, although not fixed to the realty, in fact permanently stationed to provide the facilities for the use made of the space enclosed by the walls and roof of the building.[10]It may be, therefore, that there are other matters which would justify the conclusion at which the inspector arrived, although there are no findings in respect of any such matters. I must, however, quash and remit the inspector's decision on the basis that he erroneously treated as determinative the question which is not determinative of the issue which he had to decide.[11]Mr Green raised a second point, with which I ought also to deal briefly. The first inspector in his decision letter had said, at paragraph 3:
"In my view it is clear that within the building are all the facilities required for day-to-day domestic existence, and that accordingly it satisfies the commonly used test set by the Gravesham judgment (1982) as to what constitutes a dwellinghouse."
Mr Green says that the second inspector should not have differed from that conclusion without giving his reasons.[12]Miss Davies, for the first respondent, submits that as the first decision was quashed, the second decision should be made de novo, starting from a clean sheet. She refers to the decision of Mr Graham Eyre QC in Kingswood District Council v Secretary of State for the Environment [1988] JPL 248.[13]I do not, however, think that Miss Davies' conclusion follows from her premise. Although the first decision is not after it has been quashed to be treated as determinative, it would still, in my judgment, be desirable to explain, as part of the reasons for a second decision, how the second inspector differs, if he does, from any part of the first inspector's decision, in so far as it is not a part held or admitted to be wrong, and his reasons for so doing.[14]I am, however, far from satisfied that the second inspector's decision is for this reason to be impugned for lack of reasons. The first inspector himself concluded, at paragraph 11 of his decision letter:
"I consider that while the two caravans now act as part of a dwellinghouse, they do not have any degree of permanence and cannot be considered to be an integral part of the building. Therefore I do not accept the appellant's view that it is incorrect to distinguish the caravans from the structure which contains them."
The second inspector was not, in my judgment, differing from the first inspector when he set the test that he did to determine whether the building was being used as a single dwellinghouse. His reasons were clear. They were, however, in my judgment, wrong, and the decision must therefore be remitted again.[15]It is, I believe -- but I will hear further submissions if I am mistaken -- accepted that that is sufficient reason for me to permit an appeal against the decision on the enforcement notice and allow such appeal. Further reasons are, I think, unnecessary and inappropriate.[16]MR GREEN: My Lord, I am grateful for that, and I ask that the formal orders that your Lordship has indicated should be made: in respect of the application, I ask that the decision be quashed; and in respect of the permission to appeal, I request that permission be granted, an appeal be allowed, and the matter remitted.[17]THE DEPUTY JUDGE: Yes. Is that the right form of order?[18]MISS DAVIES: My Lord, yes.[19]THE DEPUTY JUDGE: You are content nothing more needs to be said about the enforcement notice?[20]MISS DAVIES: I am, yes.[21]MR GREEN: That simply leaves the issue of costs. I understand that the parties are agreed on the amount of costs and, I think, also on the principle, which is that the Secretary of State should pay the claimant's costs of this application and appeal. I am instructed the total sought is £4,776.60, and I understand that is agreed.[22]THE DEPUTY JUDGE: Very well. Then the costs are summarily assessed at £4,776.60.[23]MR GREEN: I am very grateful, my Lord.[24]MISS DAVIES: May I trouble your Lordship for just one moment? Obviously, those who instruct me will consider carefully what your Lordship has said before proceeding further, but at this stage, I do ask permission to appeal. In my submission, both aspects of the matter that your Lordship has just been concerned with are underpinned by matters of some importance more generally to the inspectors --[25]THE DEPUTY JUDGE: What do you mean by both matters?[26]MISS DAVIES: Well, first of all, the proper approach to what is a dwellinghouse, and whether the Gravesham test is determinative of it. I say, that underpins the fist part.[27]THE DEPUTY JUDGE: I have not held other than that it was, and that is in accordance with your submission. The only question was whether or not part of that use was stationary caravans.[28]MISS DAVIES: I say it is of some importance that the inspectors know, when considering what is a dwellinghouse, whether they are to look at the question of whether something forms part of a building physically or not. I say that is a matter of some importance. It is important there is clear guidance to the inspectors.[29]The other aspect is the proper approach to a previous decision letter --[30]THE DEPUTY JUDGE: As far as that is concerned, you obviously have not an appeal because I have held against the appellant. I do not think that I can properly say that this is a matter where there is a reasonable prospect of success.