Applicant erecting marquee in grounds of hotel – Council issuing enforcement notice requiring removal – Inspector dismissing applicant’s appeal against notice – High Court allowing appeal – Whether marquee a building constituting development – Whether inspector applying correct test in relation to permanence – Secretary of State’s appeal allowed
In April 1997 Harrow London Borough Council issued an enforcement notice in respect of an alleged breach of planning control consisting of the erection of a marquee in the garden of the Grade II listed Grimsdyke Hotel, which was owned by the applicant. The applicant appealed, relying on section 174(2)(c) of the Town and Country Planning Act 1990, on the ground that the erection of the marquee was not a breach of planning control because it was only erected during the summer months and did not, therefore, constitute development as defined in section 55 of the Act.
Dismissing the appeal, the inspector referred to Cardiff Rating Authority v Guest Keen Baldwin’s Iron & Steel Co Ltd [1949] 1 KB 385 and the three factors of size, permanence and physical attachment used to determine whether or not a structure was a building. He concluded that the marquee was not so transient or ephemeral that it lacked sufficient permanence to qualify as a building, even though it remained on site for only eight or so months a year.
On the applicant’s appeal from that decision, the judge considered himself bound by the words of Denning LJ in Cardiff Rating Authority that a structure was “something… intended to remain permanently on a permanent foundation”. He therefore concluded that the inspector had approached the question of permanence incorrectly, in that he had considered the character of the marquee rather than its permanence. Accordingly, the appeal was allowed and the matter was remitted to the Secretary of State for rehearing and redetermination. The Secretary of State appealed.
Held: The appeal was allowed.
1. The judge had erred in concluding that he was bound by the words of Denning LJ in Cardiff Rating Authority. Although that case was concerned with construing a provision of a statutory instrument in a planning context, the instrument related to rating and had been enacted to achieve a different aim than the instrument under consideration in the present case.
2. In considering whether the marquee was a building, it was appropriate to consider the factors identified by Jenkins J in Cardiff Rating Authority, namely: (i) the size of the structure; (ii) its degree of permanence; and (iii) its degree of physical attachment to the land. It was also to be borne in mind that, in some circumstances, the degree of permanence might be a highly material factor. However, all the factors identified by Jenkins J had been present and the inspector had applied the correct test when considering the question of permanence. He had borne in mind the history of the marquee and had rightly stated that it stayed on site for eight months a year. “Permanent” did not necessarily mean 365 days a year. Accordingly, the inspector had been entitled to reach the conclusion that he did.
John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State; Christopher Katkowski QC (instructed by Actons, of Nottingham) appeared for the applicant; the council did not appear and were not represented.
Thomas Elliott, barrister
