Council serving five enforcement notices – Inspector dismissing appeals – Whether caravan used for ancillary or residential purposes – Whether kennel structure reducing openness of green belt – Judge quashing one notice – Applicant appealing – Secretary of State’s cross-appeal allowed
The second respondents, South Gloucestershire District Council, served five enforcement notices on the applicant in relation to Firlea Kennels and Cattery, Swan Lane, Winterbourne, Bristol, which was within the Bristol green belt. The site was approximately 0.36 ha, flat in character and was used as an animal boarding establishment. The site contained a wooden cattery capable of accommodating 35 cats, together with an ancillary building for which a certificate of lawful use was issued on 31 May 1996. There was also a long, low kennel building accommodating 37 dogs, and a caravan providing lounge, kitchen and bathroom facilities that was used as an animal kitchen. The applicant appealed against the enforcement notices. The inspector dismissed the appeal. In relation to notice B, which alleged change of use of the site by the siting of the caravan for residential purposes, she upheld the notice, concluding that its main use had been residential, and that any food preparation for animals by the persons living in it was ancillary to that main function. In relation to notice D, which alleged the unlawful erection of the kennel building, she upheld the notice, concluding that the structure encroached on to open land and materially reduced the green belt.
The applicant appealed under section 289 of the Town and Country Planning Act 1990 challenging the inspector’s decision in relation to notices B and D. The judge refused the application in relation to notice D, but quashed the inspector’s decision in relation to notice B, finding that the inspector’s conclusion that the main use of the caravan had been residential was not one that could reasonably be reached on the evidence before her. The applicant appealed against the judge’s decision in relation to notice D contending that since the judge had concluded that the inspector had been wrong in her conclusions about the lawfulness of the presence of the caravan upon the site, then it inevitably followed that it would have altered her approach to the question of the kennel’s encroachment on to open space and the green belt. The Secretary of State cross-appealed against the judge’s decision to allow the application in relation to notice B.
Held: The appeal was dismissed; the cross-appeal was allowed.
The judge’s conclusion that the finding made by the inspector in relation to notice B was not one that could reasonably be reached on the evidence before her, had required strong and clear justification. It was insufficient for the judge to hold that: the evidence appeared to show no change in the nature of use; the appellant accepted no greater use than for purposes ancillary to the keeping of the animals; and because of the presence of a mobile home nearby there was no apparent need to use the caravan as a residence. Once it had been conceded that there had been occasional 24-hour occupation of the caravan, the inspector had been entitled to conclude that it had been used for residential purposes unless there was cogent evidence that such use was truly limited. Since there was no such evidence, the Secretary of State’s cross-appeal was to be allowed, and the plaintiff’s appeal did not fall to be considered.
Glyn Edwards (instructed by Reynolds Porter Chamberlain) appeared for the applicant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondents, South Gloucestershire District Council, did not appear and were not represented.
Thomas Elliott, barrister
