Town and country planning — Development — Whether a mobile home comprising four units bolted together on site is a caravan within section 29(1) of the Caravan Sites and Control of Development Act 1960
On September
18 1986 Carrick District Council issued an established use certificate, in
respect of a smallholding owned by the appellants, providing for the stationing
of a caravan for human habitation. The appellants then replaced the original
caravan with a form of mobile home; this was delivered by lorry in four
prefabricated sections, each section was bolted together and the structure was
positioned on concrete blocks on an existing concrete base. The mobile home had
no wheels or subframe; it rested on, but was not fixed to, the concrete blocks.
Planning permission to retain the mobile home was refused in June 1988 and
appeals against two enforcement notices requiring the home’s removal were
dismissed on April 27 1989. After a remission by the High Court to reconsider
whether the structure was a caravan within the meaning of section 29(1) of the
Caravan Sites and Control of Development Act 1960, the Secretary of State
decided in April 1992 that it was not a caravan, quashed the enforcement
notices and gave limited planning permission. This was an appeal from the
decision of the High Court upholding the Secretary of State’s decision.
find that the structure was not a caravan within the meaning of section 29(1)
of the 1960 Act. That section contemplates that the structure must be capable
of being moved as a single unit; the whole of the structure, and not its
component parts, must possess the quality of mobility. It must be capable of
being towed or transported on a single motor vehicle or trailer.
The following
cases are referred to in this report.
Barvis
Ltd v Secretary of State for the Environment
(1971) 22 P&CR 710, DC
Hobday v Nicol [1944] 1 All ER 302
Wyre
Forest District Council v Secretary of State for
the Environment [1990] 2 WLR 517; [1990] 1 All ER 780; [1990] 2 PLR 95, HL
This was an
appeal by the appellants, Neville James Carter and Audrey Christine Carter,
from the decision of Mr Gerald Moriarty QC, sitting as a deputy judge of the
Queen’s Bench Division, who upheld a decision of the first respondent, the
Secretary of State for the Environment, quashing enforcement notices issued by
the second respondents, Carrick District Council, and granting limited planning
permission.
John Hobson
(instructed by Coodes, of Truro) appeared for the appellants; Alice Robinson
(instructed by the Treasury Solicitor) represented the first respondent; the
second respondent, Carrick District Council, did not appear and was not
represented.
Giving the
first judgment, SIR STEPHEN BROWN P said: This is an appeal from a
decision of Mr Gerald Moriarty QC, sitting as a deputy judge of the Queen’s
Bench Division, on March 17 1993. The learned judge granted leave to appeal.
The appeal has in fact centred on one quite short point involving consideration
of the provisions of section 29 of the Caravan Sites and Control of Development
Act 1960. The
attention of three deputy High Court judges, and has been the subject of two
planning inquiries and appeals against enforcement notices. The court is
grateful to Mr John Hobson, who appears for the appellants, for providing a
helpful skeleton argument which contains a chronology.
The
appellants, Mr and Mrs Carter, bought a smallholding at Higher Crescent Farm,
Penhallow, near Truro, Cornwall, in 1986. Situated on the land was a caravan
which had been occupied for residential purposes. On September 18 1986 Carrick
District Council issued an established use certificate providing for the
stationing of a caravan for human habitation. Subsequently Mr and Mrs Carter
considered that they required rather more commodious living accommodation and
Mr Carter sought to replace the caravan with a form of mobile home. He acquired
what is described as a ‘park home’. The structure is described in the report of
the planning inspector who heard an appeal against a subsequent enforcement
notice. It was delivered to the site by lorry in four prefabricated sections.
The sections were bolted together and the structure was positioned an concrete
blocks on an existing concrete base where, as I understand it, the caravan had
been situated. Concrete blocks had been used to support the former caravan, and
these were adapted to suit the new unit and were cemented together. When it had
been assembled the park home was manoeuvred into place by dragging it with a
mechanical digger. In its final location it eventually had a porch which was
attached to the north-eastern end. The park home has no wheels or subframe. It
rests upon, but is not fixed to, the concrete blocks. Mains electricity and
water connections were provided, and there is drainage to a septic tank.
Mr Carter was
visited by an officer from the district council. It was Mr Carter’s evidence
that he was given to understand that this structure would be an acceptable
replacement for the caravan which had been previously situated upon the site.
He then applied for planning permission in November 1986. In response to the
application for planning permission the council resolved to grant only a
temporary permission for five years with a requirement that Mr and Mrs Carter
should enter into what is termed a ‘section 52 agreement’. This would require
the removal of the park home and the relinquishing of established use rights at
the end of that period. That did not satisfy Mr and Mrs Carter. A further
application for planning permission was made in March 1988 and that was refused
by the council in June 1988.
On July 22
1988 two enforcement notices were issued by the council. The first, which is
material in the context of the present proceedings, cited in Schedule 2 as a
breach of planning control:
The carrying
out on the land of building, engineering or other operations namely the
erection of a timber building for habitation.
It required
the cessation of the use of the building for human habitation and its removal
from the land. The second enforcement notice is not material for the purpose of
these proceedings. It is sufficient to say that it referred to the use of a
farm building for domestic purposes.
Mr Carter
appealed against the enforcement notice, and a public inquiry was held in
respect of his appeal. The inspector, who was appointed to determine the
matter, made his report, giving his decision on April 27 1989. The inspector,
in what may now be referred to as the first inquiry, described the structure in
the terms that I have already indicated. He said at para 25 of his report,
after referring to the decision in Barvis Ltd v Secretary of State
for the Environment (1971) 22 P&CR 710:
it seems to
me that an appropriate starting point is to consider whether, on an objective
view, the item in question would be recognised as a structure or erection. As a
matter of impression I would regard the Park Home as a building. Nevertheless I
am mindful that, on the face of it, there might not be much apparent difference
between the appeal construction and what might be perceived to be a mobile
home. I have therefore considered the matter in greater detail and also had
regard to
— and he cited
two decisions of the court —
My conclusions
are these. The physical characteristics of the land were materially changed by
the building of the low concrete block wall in the position required to suit
the new unit. Furthermore I do not consider the construction of the wall to
have been a separate operation, because I believe that the wall is essential to
the support of the Park Home and functions in the manner of a prepared and
tailored foundation.
In my view,
that points to the Park Home at the appeal site being a building. There is
other evidence which I find supports that view. It is a relatively large unit;
it has no wheels or visible signs of being mobile; and I find no evidence of
any intention on the part of the appellants that it should be moved.
Having
reviewed all the evidence, it is my judgment that, as a matter of fact and
degree, the allegation contained in the enforcement notice correctly describes
the breach of control which has taken place. Your client’s appeal on ground (c)
therefore fails.
In point of
fact he quashed the enforcement notice and granted limited planning permission
for a period of five years restricted to occupation by Mr and Mrs Carter.
Mr and Mrs
Carter appealed to the High Court from that decision under section 246 of the
Town and Country Planning Act 1971. The appeal first came before Judge Marder
QC, sitting as a deputy judge of the Queen’s Bench Division. In fact he did not
deal with the matter in substance because he required the presence of the local
authority in order to assist him. He did, however, make some observations in
passing, which were not definitive. His observations cannot carry any weight in
the context of the consideration by this court of this appeal.
Following the
necessary adjournment for the local authority to appeal, the matter was
considered substantively by another deputy High Court judge, Mr Lionel Read QC.
He gave judgment on February 28 1990. He allowed the appeal and held that the
inspector had fallen into error in failing to consider whether the park home
was a caravan within the statutory definition. He observed at p15G of the
transcript of his judgment:
Prima
facie — I say no more than that — park home was a
caravan within the statutory definition.
The Secretary
of State remitted the matter for redetermination concerning the enforcement
notice to which I have referred. A second inspector considered the matter on
further written representations, and then reported to the Secretary of State on
August 12 1991. In the report he described the structure which he had been to
see. He considered the terms of section 29(1) of the Caravan Sites and Control
of Development Act 1960, and he expressed his view in para 18 of his report. I
cite the whole of that paragraph in order to indicate how he expressed his
opinion:
In relation
to the definition of the word ‘caravan’ in S29(i) of the Caravan Sites and
Control of Development Act 1960 Part 1 it is my opinion that the 4 units which
make up the Park Home form a structure ‘designed or adapted for human
habitation’. The Park Home is capable of being moved from one place to another.
The evidence at the inquiry was that it was delivered to the site on a lorry in
4 prefabricated sections. It is clearly capable of being moved again in like
manner. There is no criteria to require that the 4 units have to be moved
together as a single unit, nor is there any criteria which state that the
movement has to be by road. Limitations as to the size of loads that can be
moved on public highways do not in my opinion have any bearing here. The
ability to move it from one place to another, say within the same field,
appears to me to be embraced in the overall definition. The Park Home is not a
motor vehicle and (a) and (b) of the definition do not apply either. In my view
the Park Home is a caravan in terms of the definition in the 1960 Act.
He was of
course reporting to the Secretary of State and not himself giving a delegated
decision.
The Secretary
of State gave his decision in a letter of April 16 1992. He set out the history
of the matter. In para 8 under the heading ‘Reasons for the decision’ he
described the appeal site and the relevant planning history. As to the structure
in question he said:
It is
constructed of horizontal lapped timber and is sub-divided into four sections
by narrow vertical timber uprights. It was delivered by road to the appeal site
in separate pre-constructed sections and assembled by being bolted together
on-site, adjacent to its present position. After assembly, it was moved
into place by being dragged, by a mechanical digger, over scaffold poles which
acted as rollers.
In para 11 he
said:
The essence
of the submissions on behalf of your clients — that is to say, the appellants —
was that the ‘Park Home’ in question was a ‘caravan’ for the purpose of the
planning control legislation, and it was stationed on land which had the
benefit of an ‘established use’ certificate for that purpose. Having regard to
the definition of the term ‘caravan’ in section 29(1) of the Caravan Sites and
Control of Development Act, this ‘Park Home’ was a structure designed or
adapted for human habitation. The requirement that it was capable of being
moved ‘from one place to another’ was met. This was demonstrated by the fact
that, after assembly on your clients’ land, it was manoeuvred into place on the
concrete blocks: the dragging amounted to towing and thus the ‘Park Home’ could
be moved as a structure, after removal of the two extensions. Moreover, the
structure could be moved if disassembled into sections.
He recorded
the district council’s submission in the following terms:
. . . that
the structure in question was not a ‘caravan’, within the statutory definition,
for the following reasons. The structure required to be lifted or winched and
lacked wheels, axles, sub-frames and a chassis. It had not been designed to be
moved as a structure and could only be removed from the site after demolition
if disassembled. In assembled form it would break up, if moved.
He then gave
his decision in para 14. He set out his consideration of certain authorities,
and in particular the judgment of the House of Lords in Wyre Forest District
Council v Secretary of State for the Environment [1990] 2 WLR 517
and accepted that:
the question
whether a particular structure is a ‘caravan’ for the purpose of planning
control is to be determined on the basis of the statutory definition in section
29(1) of the Caravan Sites and Control of Development Act 1960.
He said in
respect of the structure in question that:
it is
necessary to consider whether [it] ‘is capable of being moved from one place to
another (whether by being towed, or by being transported on a motor vehicle or
trailer)’. It lacks wheels and axles, but their absence, whilst it would
preclude towing, would not necessarily prevent movement by other means . . .
However, in the opinion of the Secretary of State, a structure must be capable
of being moved as a structure (that is, in one piece) in order to come
within the definition of a ‘caravan’ in section 29(1) . . . As a matter of fact
and degree, the view is taken, therefore, that the appeal structure is not a
‘caravan’ within the statutory definition of the term (or in its ordinary
sense).
He then made
his formal decision quashing the enforcement notice because, in the exercise of
the power residing in section 177 of the 1990 Act, as amended, he gave limited
planning permission for the occupation of the structure as a residence by the
appellants.
The appellants
then appealed to the High Court. On this occasion the appeal was heard by Mr
Moriarty QC, sitting as a deputy judge of the Queen’s Bench Division. It is
from his decision that the matter now comes before this court.
I need not
dwell on the fact that to some extent a technical matter occupied the attention
of that court as to whether the appeal to Mr Moriarty in the High Court was
properly brought under section 288 of the 1990 Act. The matter was resolved by
treating the appeal as having being brought under section 289. That does not
need to trouble this court as it is accepted that the appeal is now properly
constituted under section 289.
Mr Moriarty QC
considered the terms of section 29(1) of the 1960 Act. The section provides:
‘caravan’
means any structure designed or adapted for human habitation which is capable
of being moved from one place or another (whether by being towed, or by being
transported on a motor vehicle or trailer) and any motor vehicle so designed or
adapted, but does not include —
(a) any railway rolling-stock which is for the
time being on rails forming part of a railway system, or
(b) any tent;
It is
submitted to us that three elements are contained in that definition. First,
there has to be a structure; second, it has to be designed or adapted for human
habitation; and, third, it must be capable of being moved, but not necessarily
towed. Mr Hobson, in his concise submissions, has argued that this is a matter
of fact and degree, and that the inspector who considered the second appeal
had, as a matter of fact and degree, decided that in his opinion this structure
was a caravan within the terms of section 29(1) of the Act. Of course, the view
of the inspector was properly stated by him as being his opinion, for he was reporting
to the Secretary of State who had the responsibility of making the decision.
The Secretary of State differed from his inspector in that he considered that
this structure could not be regarded as being a caravan within the terms of
section 29(1), in particular because it was in four prefabricated sections,
which had been bolted together and manoeuvred across the site to its final
resting place in the way he described in his decision letter. This showed that
it could not be considered as a structure capable of being moved from one place
to another as a single unit.
Mr Moriarty QC
said at the bottom of p9 of the transcript of his judgment:
In my
judgment, he
— ie the
Secretary of State —
applies the
test to the facts correctly, and he is entitled to reach his own conclusion
which is one of law. The process of dragging the completed unit, that is the
whole of the park home after the four subunits are bolted together, which was
described by the inspector, does not, in my view, demonstrate the capacity for
being moved which is indicated in the statutory definition. Accordingly, the
Secretary of State’s reasons are, in my view, clear and intelligible and proper
and adequate.
He may be
criticised on details, for one example, his reference to the extension to the
Park Home which were in some measure fixed to the ground, but these are
expressly disregarded in his conclusion. For another, there is his reference to
the ordinary sense of the word ‘caravan’ which, having regard to the decision
in the Wyre Forest case, seems to me to be irrelevant. However, it is
clear that his conclusion was arrived at without reliance on either of those
points, in other words, the Secretary of State disregarded the element of
fixture to the ground provided by the extensions to the Park Home, and he
disregarded, in effect, the ordinary meaning of the word ‘caravan’ in applying
the statutory definition to the facts.
The learned
deputy judge dismissed the appeal and upheld the decision of the Secretary of
State.
Mr Hobson, as
I have said, has rehearsed in attractive submissions the arguments which were
placed before each of the planning inquiries and before the two substantive
hearings before deputy judges of the Queen’s Bench Division. He submits that in
this case there is merely the question of mobility to be considered because the
other two ingredients of the definition are conceded — ie that it is a
structure and that it is for human habitation. He argues that it is unnecessary
to seek to place a limitation in the definition to require that the structure
should be capable of being moved as a unit. Mr Hobson submits that the fact
that it is in four sections which have to be fixed together is nothing to the
point when considering the terms of the statute. He argues that since the statute
does not include a specific restriction, the court ought not to imply such a
restriction into the language of the section.
In reply,
counsel for the Secretary of State submits that this is clearly a structure
which falls outside the ambit of the section. It is entirely artificial,
submits Alice Robinson, to consider that a structure which is prefabricated in
four separate sections and is transported in those separate sections, albeit
upon one motor lorry, can be considered to be a unit such as is contemplated by
the statute.
For my part, I
am satisfied that the minister gave a correct decision in this case. In my
judgment, it is straining the language of the section to an unacceptable degree
to seek to embrace in the definition a structure which is prefabricated in as
many as four separate sections. It cannot be considered to be a unit within the
terms of section 29(1). In
matter, and accordingly I would dismiss this appeal.
It is to be
observed that at each stage of the various proceedings which have taken place
in relation to this structure a great deal of sympathy has been extended to the
position in which the appellants have found themselves. The district council do
not accept that they were misled, but the inspector at the first inquiry did
find specifically that Mr Carter was allowed to believe that he might replace
the then existing caravan with this larger structure. For that reason the
limited planning consent was granted. However, this is not a matter which is
before this court, and indeed we can consider only the narrow point which has
been raised as a matter of law in this appeal.
Finally, I
have to say that this court is not in a position to formulate a comprehensive
definition to explain further the terms of section 29 in relation to the
various types of structure which may fall for consideration in the future.
Quite plainly each case will have to be considered on its merits. However, I am
quite clear that the section contemplates that the structure must be capable of
being moved as a single unit.
Agreeing, RUSSELL
LJ said: This appeal turns upon the proper construction of section 29(1) of
the Caravan Sites and Control of Development Act 1960. So far as is material to
this appeal the subsection provides as follows:
‘caravan’
means 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) . . .
In order to
qualify for the description ‘caravan’ in section 29 it is therefore ‘the
structure’ that has to possess two qualities. The first part of the section
provides that it is necessary for ‘the structure’ to be designed or adapted for
human habitation. This, in my view, clearly contemplates the structure as a
whole, as a single unit, and not the component parts of it. The second quality
which ‘the structure’ has to possess is mobility. The structure has to be
capable of being moved by being towed or transported on a single motor vehicle
or trailer. ‘The structure’ contemplated by the second part of the section is,
in my judgment, precisely the same structure as that contemplated by the first
part of the section, not a structure which has been dismantled before loading
has taken place. In my view, the second limb of the definition can therefore
refer only to a whole single structure and not to component parts of it.
I am fortified
in arriving at this conclusion by some words of Humphreys J in Hobday v Nicol
[1944] 1 All ER 302 where, with the other members of the court agreeing, he
said:
‘Structure,’
as I understand it, is anything which is constructed; and it involves the
notion of something which is put together, consisting of a number of different
things which are so put together or built together, constructed as to make one
whole, which then is called a structure.
I add only
this. There is, in my view, no good reason why ‘the structure’ contemplated in
the first part of the section under review should have a different meaning from
‘the structure’ contemplated in the second part of the section. In the first
part it is clearly a single unit; in the second part, in my judgment, likewise.
For these
reasons and all those which have been adumbrated by Sir Stephen Brown P, in his
judgment, with which I agree, I take the view that the Secretary of State came
to a correct conclusion upon the effect of the law, and I too would dismiss
this appeal.
Also agreeing,
ROCH LJ said: I have been concerned that many homes which have long been
accepted as caravans will cease to be so as a result of this decision and that
the difference between structures which are caravans and structures which are
not caravans, but which occupy similar spaces and look the same as structures which
are caravans, will be the existence of a subframe or other means of
construction which will allow the home to be placed on a single-motor vehicle
trailer and transported as a single unit. Nevertheless, the legislation
relating to caravans forms an exception to planning control and consequently I
have been persuaded that a literal and restrictive approach should be adopted
to the definition of ‘caravan’ in section 29(1) of the 1960 Act. The definition
refers to a single structure which is capable of being moved from one place to
another by being towed or by being transported on a single-motor vehicle or
trailer. In short, Parliament has deliberately chosen to use the singular. In
the context of this legislation the singular does not include the plural. It
follows, in my opinion, that the Secretary of State did not misdirect himself
as to the law, and I also would dismiss this appeal for these reasons and also
those given by Sir Stephen Brown P.
Appeal
dismissed with costs not to be enforced without the leave of the court;
application for leave to appeal to the House of Lords refused.
