“The replacement of 10 accommodation portakabins with 27 timber log pods for overnight accommodation by school children using the facilities at the Outdoor Activity Centre … subject to the following conditions: … 2 The development shall be carried out in all respects strictly in accordance with the approved pans (drawing nos NP1v1, NP4v1, NP5v1, NP6v1, NP7v1, NP8v1, NP9v1, NP10v1 and NP11v1) unless otherwise agreed in writing by the Local Planning Authority. 3 No development shall take place until details or samples of the materials to be used externally on walls and roofs have been submitted to and approved by in writing by the Local Planning Authority. Development shall be carried out in accordance with the approved details. … 7 None of the 27 logpods hereby approved shall be occupied between 1st October in any one year and 31st March the succeeding year. … Policies considered relevant to this decision: Local Development Plan (2013) … Policy 46 – Non-permanent Holiday Accommodation.” (6) The plans and documents referred to at paragraph number 2 of the Notice of Decision show drawings of the pods, provide their dimensions, the layout of the site pre and post consent. We note that nothing in the planning documentation draws a distinction between the Basic and Teacher Pods. No information is provided regarding the configuration of the Teacher Pods, and it is not stated that they will be plumbed into foul water drainage. (7) Condition 7 was subsequently varied to 1 November – 31 March. (8) Policy 46 provides: “1.1 The [BBNPA] is a special purpose Local Planning Authority (LPA) and therefore holds the responsibility of carrying out the statutory planning function for the National Park. … 1.4 The Authority is committed to supporting appropriate sustainable development to encourage economic and social well-being of its local communities. … the Park will support exemplar sustainable tourism. … 2.2 Policy 46 of the LDP … set out the policy stance in relation to low impact development or more specifically low impact tourist accommodation. … Policy 46 Non-permanent Holiday Accommodation Development of non-permanent holiday accommodation will only be permitted in exceptional circumstances where: a. The applicant has demonstrated … that the proposed development is fully integrated into the landscape … b. On-site facilities, including any accommodation for a site manager, washroom facilities, stores … can be provided by the conversion of existing buildings if available; c. The development will not be occupied as permanent residential accommodation and will be subject to a seasonal occupancy condition … d. The proposed site will have an adequate means of access to and into the site that is capable of accepting the width of vehicles required for movement of the accommodation without detriment to highway amenity. 3.0 Low Impact Tourist Accommodation with the Breacon Beacons National Park 3.1 The [BBNPA] Local Development Plan (2013) sees to support Low Impact Development (LID) and adopt a positive approach to emerging trends for low impact accommodation solutions ( … see appendix 1). Appropriate proposals will be those which have a minimal landscape and environmental impact and are capable of being removed without leaving a permanent trace. … 3.4 … Sites should remain available solely for the intended tourism purposes. Below is a list of matters that would require analysis when considering such a development as part of a campsite • Would the proposal lead to more permanent structures on the land as a result of the new structures (e.g. decking)? • Would the proposal change the operational function of the campsite beyond that of which is already granted through the land use planning for a particular campsite? • Would the structures be removed from the campsite out of operating season? 5.0 Planning conditions 5.1 … Appendix 1 Clarification of typical examples of Low Impact Tourist Accommodation … Log pods (Wooden Tents) – Wooden structures much like sheds that are permanent structures. Although it could be the case that they are portable – usually if bought onto a site compete. They have no foundations and for the majority are not connected to services. (9) Having obtained the permission the Appellant purchased the 26 Pods. The Pods are of the same external construction but configured differently inside. The external dimensions of each pod were: 5088cm long, 3157cm wide and 2704cm high. The internal dimensions were: 3726cm long, 3000cm wide 2400cm When viewed from the front they were approximately triangular and similar to an up turned boat hull. There was a small awning or overhang of tongue and groove boarding protruding over a centrally situated pvc lockable door with glazed upper panel and solid lower panel. The buttress panel at the front and around the door was timber. The “roof” ran from the apex to the base i.e. it also formed the “walls” it was made with a Decra Oberon outer skin and tongue and groove timber lining. At the rear there was a small ventilation window set in a wooden panel. There was insulated flooring with ply deck over a dark stained wooden base frame. (10) The pods were sited on the hardstanding area where the former portakabins had been. The pods were sat on top of breeze blocks which had been cemented into the ground and on which a further wooden frame was attached. The base frames of the pods rested by their own weight on the breeze block/wooden frame which provided for air circulation beneath the Pods. Each Pod was anchored to the ground to preclude movement of the Pod caused by wind/weather events and, presumably, movement from inside the pod. (11) There were two types of internal configuration. The six pods Teacher Pods were equipped with flushing toilets and washing facilities, a small “kitchen” area (we were not told what this consisted of but as all catering was provided centrally we assume tea/coffee making facilities) and two bed. The remaining twenty Children’s Pods were more basic with five beds, two beds of 750cm by 1900cm were down either side of the length of the pod with a fifth elevated bed across the end. All beds were of timber construction and were built into the Pod. All 26 pods had an electric hookup which provided lighting (and we assume electricity for the “kitchen” in the Teacher Pods). The electric hook up was the standard connection for a mobile or static caravan, we understand that to be a 32amp commando socket and such was visible on one of the photographs with which we were provided. (12) The pods were delivered to site fully constructed on trailers. Once on site they were placed in position using a forklift truck. It was not known how heavy each pod was though Mr Gardiner was of the view that it could probably be moved (rather than carried over a distance) by four men, one at each corner. (13) We find that the basic pods are broadly what the Lake District National Park Authority describe as “camping pods” i.e.: “Small units of holiday accommodation that are prefabricated and delivered to their site complete. They are timber structures with a curved roof that has the appearance of timber shingles and they are placed on the land with simple support and no foundations. Internally they have a single open space and limited headroom with sufficient space to allow two adults or a small family to sleep on the floor. The accommodation that they provide is basic and akin to a tent.” (14) Mr Gardiner explained, and we accept, that when the pods were purchased they were seen as a replacement for the more permanent accommodation offered by the portakabins but also with a view if they were well received and as need arose for replacing some or all of the tented villages. He considered them to be flexible accommodation with a longer life, and more durability than the tents. (15) The anticipated the drive to replace tents began already begun at the time of the purchase. At that time essentially it came from teachers who were becoming increasingly unwilling to be accommodated in tents. However, particularly at the Royal Oak site, which was situated by a lake, post the purchase parents of primary school age children were becoming concerned that children were expected to walk to a toilet block from the tents at night. (16) In terms of a comparison to tented accommodation we note that correspondence prepared by the Appellant’s representative had variously described the pods as more luxurious, high class and similar. Mr Gardiner explained that in terms of the Basic Pods the accommodation was broadly comparable to a tent in terms of the experience of the children. As indicated above, the tents too had accommodation for 4 or 5 children who slept on beds with mattresses. The tents had an electrical took up so were lit. The pods, however, self-evidently, presented a higher degree of protection from inclement weather facilitating a longer period in which children could be accommodated in a season. Tents were usually used for only approximately 4 months per year whereas the Pods could be used earlier and later in the season (March – November). (17) As the Pods had a lockable door they provided a greater level of security than a tent. This greater security and the fact that they remained in situ through the off season also facilitated their use as storage for the tents and camping equipment when that equipment was not in use. (18) Like the tents the Pods were arranged on site to provide living villages. Each group of children was usually about 50 in number and arrived in a 52-seater coach with their teachers/accompanying adults. The Pods and tents served the same purpose of providing sleeping accommodation for the adults and children in proximity to one another and in a group which was discrete from other groups which were at the site. (19) The tent living villages were completely flexible and could be readily moved about on the camping field in order to accommodate different groups and the capacity of the site would be flexed by reference to demand. (20) Mr Gardiner explained that the bases used for the tents which consisted of a frame and a deck of boards which rested on the ground could be used for Pods which could have been comfortably moved and sited on the bases. He believed and understood that the planning team at the BBNPA considered canvas tents and pods to be largely interchangeable such that they could be sited in the camping field but also understood and expected that the BBNPA’s permission was required before tents could be so replaced. He understood that permission was not by way of formal planning consent but simply by written agreement (as per the Notice of Decision as it would be a variation to the plans attached). Further, he did not anticipate that there would have been any resistance from the BBNPA had he asked to move the Pods so as to site them in the camping field, but he had never in fact asked to move them. (21) Thre was paucity of documentary evidence of an intention that the Pods be moved. HMRC had repeatedly requested documentary evidence of such an intention. The evidence provided by the Appellant was limited to: (a) The accountants note dated22 December 2015 recording their research as to capital allowance entitlement and a telephone conversation between the Appellant’s accountants and Mr R Miller (director of the Appellant). The note confirms that the accountants were told that whilst the Pods were “fixed on a foundation and plumbed and wired in” they are moveable and “would be moved to Hauteville if bookings at Breacon are down”
“(1) Allowances are available under this Part if a person carries on a qualifying activity and incurs qualifying expenditure. … (4) The general rule is that expenditure is qualifying expenditure if (a) it is capital expenditure on the provision of plant and machinery wholly or partly for the purposes of the qualifying activity carried on by the person incurring the expenditure.” (2) Section 21: “(1) For the purposes of this Act, expenditure on the provision of plant or machinery does not include expenditure on the provision of a building. … (4) This section is subject to section 23 …” (3) Section 22: “(1) For the purposes of this Act, expenditure on the provisions of plant or machinery does not include expenditure of a structure … … (3) In this section (a) “structure” means a fixed structure of any kind … (4) This section is subject to section 23 …” (4) Section 23: “(3) Sections 21 and 22 … do not affect the question whether expenditure on any item described in list C is, for the purposes of this Act, expenditure on the provision of plant and machinery.”
“7. … made of wood. It has a regular polygon plan. Above a wooden floor up walls run up to a heigh of about 3 foot. Above the walls crosshatched wooden lattice work runs up to the wooden roof. The gaps in the lattice work are not filled in and the wind and elements may pass through. One side of the polygon is an open entrance. Thre is no door. Around the panelled sides of the gazebo is wooden seating. It is place on the ground in the garden: there is no base and it is not bolted to the ground or held down otherwise than by its own weight. It could be moved (although such an activity might require a couple of strong people) and we accept that Mrs Andrew is presently considering moving it.”
“[102] It is a striking feature of section 21 that, although there is now a blanket exclusion of buildings from the scope of ‘plant or machinery’, Parliament has chosen not to provide a full definition of ‘building’ in this context. Some assistance, however, may be gained from the partial definition in section 21(3), which tells us that certain assets are included in the term, or (if contained in List A) are to be ‘treated as buildings’. Thus, the term includes assets which are fixtures (‘incorporated in the building’, subsection (3)(a)), or which are of a similar nature but not fixtures (subsection (3)(b)), or which are ‘in, or connected with, the building’ and in List A (subsection (3)(b)). The List A assets comprise standard physical features of many ordinary buildings (‘walls, floors, doors, gates, shutters, windows and stairs’); utility services for water, electricity and gas; systems for waste disposal, sewerage, drainage, and fire safety; and ‘shafts or other structures in which lifts, hoists, escalators and moving walkways are installed’. [103] It is therefore tolerably clear from the wording of section 21 itself that the meaning of ‘building’ in this context requires a focus on the physical features of the relevant structure or premises, as well as the services and systems which enable it to function in the taxpayer’s trade or business. This is turn suggests that a consideration of both structure and function may be required in deciding what kind of structure or premises answer to the description of ‘building’. Furthermore, the fact that Parliament has chosen to use an ordinary word in everyday use, which is not a legal term of art, indicates that the test was intended to be simple to operate and relatively unsophisticated. [104] Although ‘building’ is not a term of art, I consider that Parliament must be taken to have been aware of, and endorsed, the guidance on the meaning of the word which can be derived from the judgment of Sir Donald Nicholls V-C in Carr v Sayer in 1992, not long before the enactment of the 1994 amendments. It will be recalled that one of the principles identified by the Vice-Chancellor in the predecessor legislation then in force was that plant ‘does not convey a meaning wide enough to include buildings in general’. He also observed (65 TC 15, at 23) that: ‘one of the functions of a building is to provide shelter and security for people using it and for goods inside it. That is a normal function of a building. A building used for those purposes is being used as a building. Thus, a building does not partake of the character of plant simply, for example, because it is used for storage by a trader carrying on a storage business. This remains so even if the building has been built as a specially secure building for use in a safe-deposit business. Or, one might add, as a prison’. So, the provision of shelter and security are typical features of a building, and as Sir Donald Nicholls also observed ( ibid): ‘A purpose-built building, as much as one which is not purpose-built, prima facie is no more than the premises on which the business is conducted’. [105] It is true that in the cases where the ‘premises test’ has been applied, a contrast is not normally drawn between ‘buildings’ and ‘structures’. Rather, the contrast is between ‘plant’ on the one hand, and buildings or structures on the other. It is, therefore, a new and relevant feature of the 1994 amendments that there is a separate blanket exclusion for expenditure on the provision of a structure in what is now section 22 of CAA 2001, subject to various exceptions. For the purposes of section 22 , ‘structure’ is defined as meaning ‘a fixed structure of any kind, other than a building (as defined by section 21(3))’: see section 22(3)(a). However, this point is of little assistance in determining what constitutes a ‘building’ for the purposes of section 21 . The wording of section 22 simply makes it clear that there are fixed structures which are not buildings for the purposes of the Chapter, and that while every building is likely to be a fixed structure, the converse is not always true. Examples of fixed structures which are not buildings might include, for example, pylons, wind turbines, mobile telephone masts, or bus shelters. [106] It is common ground that there is no previous authority on the meaning of ‘building’ in section 21. That is why I have concentrated on the statutory language of the section and the remainder of the Chapter of which it forms part, together with such guidance as may be gleaned from the case law on the ‘premises test’ in relation to plant. We were also referred to a few cases which have discussed the meaning of ‘building’ in other statutory contexts. For the most part, they seem to me to provide little useful guidance, because the question is always so context specific. I would, however, make an exception for the judgment of Lord Neuberger of Abbotsbury MR (with whom Moore-Bick and Etherton LJJ agreed) in R (Ghai) v Newcastle City Council[2010] EWCA Civ 59 ,[2011] QB 591 . The claimant in that case was an orthodox Hindu, who asked the local authority to dedicate land for traditional open air funeral pyres. The local authority refused, on the basis of legislation relating to cremation contained in theCremation Act 1902 and associated regulations. The relevant issue for present purposes was whether open air funeral pyres fell within the definition of a crematorium insection 2 of the 1902 Act , as a ‘building fitted with appliances for the purpose of burning human remains’. [107] In dealing with this issue, Lord Neuberger MR reasoned as follows: ‘[21] On behalf of the Secretary of State, Mr Swift contended that a structure could only be a “building” within the Act if it was “an inclosure of brick or stonework, covered in by a roof”
“[27] … on the basis of the agreed facts the excavation works were such that it was likely that a vegetation and top-soil strip reducing levels by approximately 200-300mm would be required to expose the formation. A layer of terram geotextile was laid on the prepared and rolled formation and on the terram was laid a layer of stone. Between 200-300mm of stone … was usual for most conditions. Once the stone base had been prepared, rolled and levelled it received a further layer of terram geotextile material. The synthetic grass carpet, which was some 25mm deep, was then laid on the terram later and approximately 25-35kg of sand was applied per square meter. Accordingly, it appears that the excavation was relatively shallow, the layers of terram and the layers of stone were placed in the excavation and the carpet was laid on top of the upper layer of terram, being effectively held down by the weight of the sand which was applied. If part of the carpet became worn, that part could be patched. After a period of between five to nine years it would be expected that the carpet would be removed and replaced by a new carpet. Two days would be spent taking up the new carpet. In the circumstances we tend to the view that the pitch, comprising both the carpet and the works underneath, did not constitute a ‘fixed structure’ and that the Special Commissioner reached the correct conclusion on this matter. …”