Tewksbury Borough Council v Keeley & Ors [2004] EWHC 2594 (QB)

Case No HQ 04X00439

[2004] EWHC 2594 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12 November 2004

Before

THE HONOURABLE MR. JUSTICE JACK

Between

Tewksbury Borough CouncilClaimant

Mr. Michael Keeley (1)Defendants

Mrs. Karen Adams (2)Defendant

Mr James Pereira (instructed by Tewksbury Borough Council legal Dept.) for Claimant

Mr. Michael Keeley and Mrs. Karen Adams appeared in person for in person

Hearing Hearing dates: 3 - 4 November 2004

Judgment

Introduction

[1]In this action the Tewkesbury Borough Council acting in its capacity as a local planning authority seeks an injunction under section 187B of the Town and Country Planning Act 1990 against Mr Michael Keeley. No relief is now sought against the second defendant to the action, Mrs Karen Adams. Mr Keeley is the owner of land in Gloucestershire lying a little to the south of the village of Toddington and to the east of Tewkesbury. The land was originally called Warren Farm or Warren Fruit Farm. It is now divided and called Warren Fruit Farm, Warren Park Farm, Woodlands Farm and Hillview Farm. There have been planning problems in relation to the land for a long time, going back to 1988. Its lawful use is as agricultural land. It lies within a Special Landscape Area in the Council’s development plan. On 22 July 2003 the Council passed a resolution authorising the Borough Solicitor, ‘subject to the evidence, to seek an injunction …. to restrain breaches of planning control involving the illegal stationing of caravans, the illegal storage of vehicles, the unauthorised parking of chassis with timber building sections on the basis that they cause serious harm to the character and appearance of an attractive area of landscape designated a Special Landscape Area.’

The events

[2]The claim form naming Mr Keeley as the sole defendant was issued on 13 February 2004. On that day Cox J. granted an interim injunction restraining him from bringing any additional mobile homes or caravans onto the land and from allowing any residential use save in one caravan (which was that occupied by Mrs Adams and her children). On 23 February the injunction was continued by Hunt J. with a variation as to residential use permitting Mr Burns to continue to reside in a shed.

[3]The trial of the action took place on 3 and 4 November 2004. The Council was represented by Mr James Pereira. Mr Keeley appeared in person. Mr Pereira put forward a draft of a permanent injunction against Mr Keeley with 14 paragraphs. Mr Keeley did not object to the granting of an injunction and in due course the wording of all save 3 paragraphs was agreed. Those three paragraphs gave rise to a point of principle, a question of mixed fact and law, which requires determination by the court.

[4]Although Mr Keeley did not contest the granting of an injunction in some form in the circumstances of the case, as he has been unrepresented I should state that I have considered whether the circumstances are such that the court should exercise its jurisdiction under section 187B. It may be proper for the court to exercise its jurisdiction under the section in a variety of circumstances. One situation is where there is an unauthorised development in progress which the Council considers must be stopped immediately, that is, nipped in the bud. Another situation is where there is a long history of the unauthorised development and the service of enforcement orders has failed to provide control. The history of the site is set out in the statements of the Council’s principal development control and enforcement officer, Mr Andrew Winstone, in particular his second statement. The immediate reason for the application for an order was the concern that Mr Keeley was intending to introduce further residents onto the land, but the Council’s aim overall is to bring the planning situation within proper control, which it has been unable to do to date. I am satisfied by the history of the site that it is an appropriate situation for the court to exercise its jurisdiction and to make an order which can be enforced by committal. In reaching that conclusion I have had in mind what was said by the House of Lords in South Bucks district Council v Porter

[2003] UKHL 26

;

[2003] WLR 1547

… about the jurisdiction under section 187B and its exercise, in particular in paragraph 29 of the speech of Lord Bingham.

[5]In order better to understand the outstanding point of dispute which the court has to determine it is necessary to follow the course of events giving rise to it. I will leave out from the following history the Council’s on-going struggle to get unauthorised caravans removed from the site, that is, caravans of the kind everyone would recognise as a caravan. I will also omit various other matters which were on-going at this time and are covered in Mr Winstone’s second statement.

[6]On 13 December 2001 appeals were determined by the inspector against enforcement notices issued by the Council concerning 14 wooden buildings on the land, 13 of them constructed in July 2000 and one in 1994. The appellants were persons who were apparently tenants on the land. I am, however, satisfied by Mr Keeley’s evidence that from 1988 when he told me that he purchased the land and put it in trust for his family he has been the moving force behind what has happened on the land since. The first ground of appeal, abandoned at the start of the hearing before the inspector, was that the buildings were caravans. That was a hopeless argument because they were wider than the maximum provided by section 13(2)(b) of the Caravan Sites Act 1968, were built on site and had the characteristics of buildings. The argument which was run at the hearing was that the buildings were permitted Part 6 of Schedule 2 to the Town & Country Planning (General Permitted Development) Order 1995, or, in the case of the 1994 building, its predecessor. That argument was rejected by the inspector. He held that the buildings were attached to holdings which did not exceed 5 hectares and were not for agricultural purposes but appeared to be small dwellings. He held that the appellants had behaved unreasonable in taking the matter to appeal, and made an order for costs against them. The land was by this time divided into 14 small holdings, now 16 small holdings, and the buildings were intended to be used by the tenants of these holdings.

[7]In January 2002 Mr Keeley wrote to the Council with a proposal to bring onto the land wooden caravans having some resemblance to the wooden buildings the subject of the appeal but mounted on a steel chassis with a draw bar. On 15 March 2002 the Council wrote to Mr Keeley stating its view that the proposal would involve operational development requiring planning permission.

[8]In January 2003 it became apparent that Mr Keeley intended to manufacture timber building sections for assembly on site on chassis. An application had been made a tenant on the site, Mr Jim Alpin, for planning permission for such a structure, which was refused on 16 January 2003 on landscape impact grounds. The decision was not taken to appeal. By April 2003 a number of chassis with the unassembled structures lying on them had been towed onto the site. At some point in 2003 Mr Keeley constructed the two halves of one of these structures in the industrial unit in Toddington where he was manufacturing the items and it was towed to the site. The construction took him and one other two days. On site the two halves were assembled and the metal roofing sheets put on. The metal sheets had been left off for road safety reasons. All this was witnessed by the Council’s officers.

[9]A description of the structure is required. I take it in part from photographs, in part from an agreed statement of facts and in part from the oral evidence of Mr Keeley. The chassis are made of box girders welded together with a V section at the front to make a towing connection. Each chassis has a pair of 14 inch pneumatic wheels on an axle about two thirds the way along the chassis. Two chassis are bolted together to form the complete structure and a towing connection can be made to the two Vs at the front. There are laid across the chassis a number of timber slats which support a chipboard floor. The walls are made of chipboard panels supported by a light steel frame. The roof is pitched with its high point along the centre line. It consists of chipboard panels overlaid with plastic-coated steel roofing sheets. It has window openings at the side and a low rectangular entry for chickens at the front. The dimensions are: length 9.58 metres, width 5.78 metres and height 2.9 metres. The weight at the rear is taken by the wheels. The front is supported by breeze blocks. The whole can be towed by a suitably powerful tractor, as Mr Keeley has demonstrated to the Council.

[10]Mr Keeley stated that he planned to have one building (the word he used) on each small holding as a multifunctional agricultural building for the benefit of the tenant farmer. It would be used for storage of animal feed such as hay and straw, and machinery, and as housing for chickens. He said that if they were used for keeping chickens they could be moved to prevent the ground round them becoming excessively soiled. He stated that it was his intention to use them to replace the caravans which are on site and which are now, though not originally, used for agricultural purposes such as the keeping of chickens.

[11]In September of this year Mr Keeley said that he adapted one part of the structure for human habitation. He blocked off one end with straw bales and brought a bed, a table, a portaloo and a cooker. He cut a panel to form a door opening and put a grill over it. He heated up some baked beans for supper and spent the night. This was shown to Council officers and was later restored to chicken use. I was unclear what Mr Keeley intended to derive from this exercise. It may that he intended to show that the structure could be adapted for human habitation. I do not think that the exercise came anywhere near to adapting the structure for human habitation. It went through the superficial form without approaching the substance.

[12]At the trial Mr Keeley relied on two reports by Mr R.G.R.Mumford, FRICS, FAAV, IRRV. The first dated 15 September 2004. It concluded in respect of the chassis mounted sheds that they were agricultural structures, which were fully mobile, and did not require planning permission. In a further report dated 28 September 2004 Mr Mumford was asked by Mr Keeley specifically to consider the status of such a shed. He concluded that it was not a caravan because it was not constructed or adapted to human habitation. Mr Mumford referred to a number of authorities which consider the meaning of ‘building’ for the purpose of the definition of development. He considered the aspects of size – which was within the limit provided by section 13(2) of the 1968 Act, that of permanence, and that of physical attachment. He concluded that the shed was not a building. He then referred to further authorities (which had also been attached to his earlier report) and concluded that as a movable structure it did not require planning permission. His report ended ‘… the first structure described is a moveable free range hen house, constructed for that purpose, used for that purpose and demonstrated to be fully compliant with being mobile, therefore, acquiring the same status as a normal agricultural trailer.’ Mr Mumford’s reports in effect constituted Mr Keeley’s submissions as to the status under planning law of the structure in question. He said that he was not able to address me on the question himself. Mr Mumford did not attend the trial.

[13]At the start of the trial it was apparent that the only matter of dispute was as to the status in law of these mobile sheds as I will call them. Mr James Pereira representing the Council at first requested me not to determine the point but to leave it to be decided by the planning process, that is, by the service on an enforcement notice and such proceedings as might be consequent on that. The Council had not served an enforcement notice but had come to court seeking an order in respect of the mobile sheds – both erected and unerected, further, the service of an enforcement notice might itself ultimately lead to the point of law having to be determined by the court. So I expressed surprise. Mr Keeley said that he wanted the point to be determined so that he knew where he stood: that was why he had come to court. Mr Pereira then stated that on further consideration the Council did ask the court to determine the matter. It is important that the issue is not one which gives rise to any question of planning policy, which of course would be a matter for the Council. The issue is whether the mobile sheds require planning permission. If they do, then Mr Keeley could apply for it and the Council would have to consider the merits of his application. Neither was there any difficulty in determining the relevant facts.

The Council’s case and the law

[14]The Council’s case for an order for the removal of the existing mobile shed was based on the fact that no planning permission existed in relation to it and on the contention that its setting up on the site constituted ‘development’ within the definition provided by section 55(1) of the Town and Country Planning Act 1990 so that permission was required. The case was that the setting up of the shed on the land constituted, in the words of the section, ‘the carrying out building … or other operation .. on … land’. Its case in respect of the unbuilt sheds lying on their chassis, which had been brought onto the site, was that this constituted development because it involved ‘the making of any of [a] material change of use of … land’, because use of the land was being changed from agricultural use to use for storage. There does not seem to be any answer to this second part of the Council’s case. However, as Mr Pereira said, that does not much help the Council, because, if Mr Keeley is required to remove them he can assemble the sheds off site and then bring them onto site as an agricultural need arises unless he would need planning permission to do so. So it all hinges on the position as to the existing shed.

[15]I will next set out the definitions which are provided by the 1990 Act: Section 55(1) …. “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. (1A) For the purposes of this Act “building operations” includes –(a) demolition of buildings;

(b) rebuilding;

(d) other operations normally undertaken by a person carrying on business as a builder. Section 336(1) …… “building” includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building. “buildings or works” includes waste materials, refuse and other materials deposited on land ….. . …… “engineering operations” includes the formation or laying out of means of access to highways …… “erection” in relation to buildings as defined in this subsection, includes extension, alteration and re-erection

[16]A number of cases have been concerned with whether an operation involved the erection of a building and so constituted development. The law was considered by the Court of Appeal in Skerritts of Nottingham Limited v Secretary of State

[2000] 2 PLR 102

, and I do not think that I need look further for the law than that case. It may, however, be instructive to consider the facts and the outcome in the earlier cases.

[17]Cardiff Rating Authority v Guest Keen Baldwin’s Iron & Steel Company Limited

[1949] 1 KB 385

was a rating case, but the Court of Appeal considered the meaning of the words (which were there relevant) ‘is or is in the nature of a building or structure’ and it has been relied on in cases as to what is a building for the purpose of planning. It was held that 5 tilting furnaces, each capable of taking 200 to 250 tons of steel, which rested by their own weight on steel rollers, were in the nature of a building or structure.

[18]Cheshire County Council v Woodward

[1962] 2 QB 126

was a planning case and concerned a large mobile coal hopper and a conveyer. The coal merchant appealed against enforcement notices and the inspector found that the conveyor and hopper, being mobile, did not constitute development. The minister accepted the inspector’s findings and quashed the notices. The divisional court held that the Minister had not erred in law.

[19]In James v Brecon County Council

(1963) 15 P & CR 20

the matter of dispute was two units of fairground swing boats, each having 3 boats, which were 12 to 15 feet high and anchored by stakes. Each could be lifted and carried by 4 men. The justices held that the owner was in breach of an enforcement notice. The Divisional Court held that the boats were not capable of being a building.

[20]Barvis v Secretary of State

(1971) 22 P & CR 710

concerned a mobile crane 89 feet high which ran on a track fixed in concrete. It was capable of being moved from site to site and would be so moved perhaps after about 12 months. It was prefabricated in sections and took days to dismantle. The Secretary of State upheld an enforcement notice, not following the decision of the inspector. The Divisional Court dismissed the appeal. The crane was a ‘structure or erection’.

[21]In R v Swansea City Council ex parte Elitestone

(1993) 66 P & CR 422

it was held by the Court of Appeal that the demolition of a number of chalets of varying size resting on pillars, constituted development.

[22]R on the application of Westminster City Council v Secretary of State and the Market Café

[2001] EWHC Admin 270

concerned the placing of a kiosk for the service of hot and cold drinks in the Covent Garden Piazza. The inspector’s decision had been made after the decision at first instance in Skerritts and shortly after that of the Court of Appeal allowing the appeal but the inspector was not referred to the latter. The inspector had concluded that no building operation was involved in siting the kiosk. The case was referred back to the Minister for further consideration by the inspector.

[23]The offending object in Skerritts itself was a marquee erected on a hotel lawn and attached to the hotel, where it would remain between February and October each year. It was of substantial size and took several days to erect. The inspector hearing an appeal against an enforcement notice held that it was a building and that its erection constituted development. The Court of Appeal held that the inspector was entitled to reach that conclusion.

[24]In his judgment Schiemann LJ decried the reliance upon a rating case, the Cardiff Rating Authority case, in planning law, but accepted that it had often been done. He cited from the judgment of Lord Denning in that case where Lord Denning stated, and I set out part of the citation only: “A thing which is not permanently in one place is not a structure, but it may be in the nature of a “structure” if it has a permanent site and has all the qualities of a structure, save that it is on occasion moved on or from its site”.

[25]He also cited a passage from the judgment of Jenkins J which has been used to derive a three-fold test of size, degree of permanence and degree of physical attachment:

“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 consist 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.”

[26]He cited from the judgment of Lord Parker CJ in the Cheshire case:

“The sections in question are not altogether easy to construe. Section 12(2), which defines “development,” does so by reference to two matters, first, a change in use of the land, and secondly, quite regardless of the change of use, whether there has been a “carrying out of building, engineering, mining or other operations in, on, over or under land.”

I feel that the concept behind that definition is two-fold, first, in regard to the change of use, one takes the land as it is and ascertains if it has been put to a different use, and secondly, and this is quite regardless of use, one has to ascertain whether the land itself has been changed by certain operations. I go further and say that, having regard to the prepositions describing the operations as “in, on, over or under land,” the concept must in regard to that limb be whether the physical character of the land has been changed by operations in or on it… Having got that far, the next question is: what sort of operations, in the case of an operation in or on the land, can be said to change the physical characteristics of the land. I do not think that there is any one test. The mere fact that something is erected in the course of a building operation which is affixed to the land does not determine the matter. Equally, as it seems to me, the mere fact that it can be moved and is not affixed does not determine the matter. It seems to me that the position is really rather analogous to the problems with which one is faced in dealing with fixtures when deciding what fixtures pass with the freehold. There is no one test; you look at the erection, equipment, plant, whatever it is, and ask: in all the circumstances is it to be treated as part of the realty? So here, as it seems to me, under this Act one must look at the whole circumstances, including what is undoubtedly extremely relevant, the degree of permanency with which it is affected, in order to see whether the operation has been such as to constitute development.”

[27]He then came to Barvis citing from the judgment of Widgery J where Widgery J is considering the judgment in Woodward:

“I think it is important to bear in mind that the words of the judgment have not the force of statute and also to bear in mind the circumstances in which the appeal came before the court. The planning authority’s complaint, as appears from the reported argument of counsel, was that the inspector and in due course the Minister, had misdirected themselves in founding their conclusion that the conveyor and hopper had not involved development of the land solely on the consideration that they were mobile, and it was submitted, that that was the wrong test. The judgment of my Lord, Lord Parker CJ, as I understand it, accepted that, if that was indeed what the inspector and Minister had done, that would have been wrong; that the right approach was to look at all the circumstances of the particular case, and the court concluded, indeed, that that was precisely what the Minister had done. The tests if the kind there suggested may be tests which it is necessary to apply to a borderline case. There again, for my part, I think that one should avoid the danger of finding oneself, in trying to solve one problem, involved in the solution of another different problem which is really more difficult. We have been referred in the course of argument in this case to some of the decided cases in the field of real property law deciding what do and what do not amount to fixtures. It would be quite wrong, in my judgment, to substitute that question for the statutory question which is asked under the Town and Country Planning Act 1962……. . I should want a great deal of persuading that the erection of it had not amounted to a building or other operation. “Building” includes any structure or erection. If, as a matter of impression, one looks objectively at this enormous crane, it seems to be impossible to say that it did not amount to a structure or erection.”

[28]He cited a short passage from the Swansea case:

“In the light of those observations Mr Thom accepts that incorporation in the realty is but one factor and is not determinant either way. I think that he is right in so accepting. I also think that he is right in accepting that the degree of permanence is a highly material factor. Other significant factors are, size and composition by components: see by way of analogy the discussion in Cardiff Rating Authority v Guest Keen Baldwin’s Iron & Steel Co Ltd.”

[29]In considering the judgment under appeal Schiemann LJ stated that the judge had been wrong to consider following Lord Denning in the Cardiff Rating case that there was a necessity for permanence in an absolute sense. The inspector had concluded:

“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 in itself decisive. I conclude that, as a matter of fact and degree, the marquee, due to its ample dimensions, is 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.”

Schiemann LJ held that he had asked the right question and had come to a defensible answer. I conclude that, as a matter of fact and degree, the marquee, due to its ample dimensions, is 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.”

[30]In his judgment in Sherritts Pill LJ emphasised that there was a degree of flexibility in the concept of permanence, as did Morritt LJ.

Conclusion

[31]I turn now to the decision which I must make. There has to be an operation on site which is a building operation. That has to result in the creation of a building as defined. ‘Building’ is defined as including ‘any structure or erection’ and the case of Barvis, the crane case, shows that this incorporates into the definition of building structures which would not ordinarily be called buildings.

[32]Here the only work which took place on site was the joining of the two halves and the addition of the metal roofing sheets. That was, however, an essential part of the construction of the whole, and if a building resulted, then it would, in my view, constitute a building operation. It would not be excepted by section 55(2) of the 1990 Act - which provides that, inter alia, the carrying out for the alteration of any building of works which do not materially affect the external appearance of the building shall not be taken to involve development.

[33]The following factors are in my view those most relevant to the issue whether the mobile shed is a building. As to size, if it is a building, it is not a large building, but if it were constructed in a conventional way there would be no doubt that it was a building. It is intended to be permanently on the site. It is capable of being moved about the site on its wheels. If it is used for chickens, as it now is being used, it is likely to be moved from time to time. If it is used for storage, it is much less likely to be moved. It is not attached to the land in any way. It was substantially constructed off site, and towed to the site on its own wheels in two sections. Its presence on the land does not affect the physical character of the land : its impact is visual.

[34]While each case turns on its own facts and the approach of the court in other cases can only be of general rather than specific guidance, I note that in none of the cases has a structure been held to be a building which is mobile to the extent of having wheels so that it can be freely moved about a site.

[35]Directing myself in accordance with the citations I have made, I conclude that the mobile shed is not a building and therefore that the work done on site in assembling the two halves did not constitute a building operation and therefore development. The main factor is that the shed is not in any way attached to the land and can be moved freely.

[36]Something which has caused me some difficulty is the analogy that might be drawn between the mobile shed and a caravan. It is well-established in planning law that the placing of a caravan on land does not constitute operational development: Wealden District Council v Secretary of State

(1987) 56 P & CR 286

at 291. It may involve a change of use, but that is another matter. Change of use does not arise here because the shed is used for agricultural purposes, which is the existing use of the site. A caravan is defined in law to include a mobile home (which expression I use as it is used in ordinary speech), because ‘caravan’ is defined as ‘any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer)’ – section 29(1) of the Caravan Sites and Control of Development Act 1960. Section 13 of the Caravan Sites Act 1968, which I have previously mentioned, includes structures which are composed in two sections which are assembled on site having been towed or transported separately. It also sets a limit to size - length, 60 feet, 18.288 metres, width 20 feet, 6.096 metres, height of accommodation, 10 feet, 3.048 metres. So the assembly work (where it is involved) and the installation work which may be involved in setting up a mobile home on site is not treated as a building operation. If planning law does not treat the work done in connection with the setting up of a mobile home as a building operation, why should it treat what was done in connection with the mobile shed here as a building operation? If the mobile shed was adapted for human habitation, it would fall within the definition of ‘caravan’ and would not be a building. Should the fact that it is not adapted for human habitation mean that it might be a building? I was initially impressed with the analogy. I think, however, that limited weight should be put on it because it may well be that the law has put ‘caravans’ in a special category of their own. Nonetheless consideration of this aspect does provide support for my conclusion.

[37]As a fall-back position Mr Pereira submitted that, if there was no building operation because the mobile shed was not a building, the operation on site concerning the shed fell within the words ‘the carrying out of … other operations .. on … land’ as they appear in section 55(1). It appears that there is only one authority on ‘other operations’ namely the House of Lords’ decision in Coleshill & District Investment Co Ltd v Minister of Housing & Local Government

[1969] 1 WLR 746

. I regret that I have not found it of assistance here. I do not however think that ‘other operations’ can assist the Council. That is because, if there was no building operation because the shed was not a building, then it has fallen outside the potentially apposite category and should be treated as outside the section.

[38]There will be an order in the terms which have been agreed. There will be no order in respect of the assembled mobile shed which is on site. I will hear submissions as to the unassembled sheds which are also on site.