Town and Country Planning Act 1971 — Stationing of caravan on agricultural land — Whether in the circumstances a material change of use — Caravan placed in order to store and mix calf feed in it and to provide shelter for farmer and his wife — The farm consisted of some six hectares and was used for raising beef cattle — There were some farm buildings on the land, not in weatherproof condition, but no farm house — The farm formed part of the High Weald area of outstanding natural beauty in East Sussex — The planning authority issued an enforcement notice alleging a material change of use in the placing of the caravan without planning permission — The farmer appealed to the Secretary of State, invoking section 88(1)(a) of the 1971 Act, that is he claimed that planning permission ought to be granted and did not at this point claim that permission was not necessary — The inspector quashed the enforcement notice on the ground that there was no material change of use and his decision was upheld by Kennedy J when the planning authority appealed to the High Court — The authority now appealed to the Court of Appeal — It was submitted on behalf of the authority that the stationing of the caravan was itself a use of the land apart from any activity carried on by the farmer in it; that it was a new primary use; that the use of the site had thus changed from the single primary use for agriculture to a mixed use for agriculture and for the stationing of the caravan; and that this change was a material change of use so as to constitute development and that the caravan was visually objectionable as an alien and incongruous feature in a rural area of outstanding natural beauty — Held, upholding the decision of Kennedy J, that the submission put forward by the planning authority was an artificial approach to the facts — The correct approach in principle was that of Forbes J in Restormel Borough Council v Secretary of State for the Environment — It was not disputed that the farmer stationed the caravan on the land for the purposes of agriculture — Section 22(2)(e) of the 1971 Act applied where there was the ‘use of any land for the purposes of agriculture’, which covered activities ancillary or incidental to the activities listed in section 290(1) — As the use of the caravan was use for the purpose of agriculture, section 22(2)(e) ensured that it did not constitute development — The question whether it would otherwise have been development by virtue of a material change of use did not therefore arise — Appeal dismissed
The following
cases are referred to in this report.
Britt v Buckinghamshire County Council (1963) 14 P&CR 332; 60
LGR 430
Cheshire
County Council v Woodward [1962] 2 QB 126;
[1962] 2 WLR 636; [1962] 1 All ER 517; (1962) 13 P&CR 157; 60 LGR 180;
[1962] RVR 148, DC
Guildford
Rural District Council v Fortescue [1959] 2
QB 112; [1959] 2 WLR 643; [1959] 2 All ER 111; (1959) 10 P&CR 232; 57 LGR 169,
CA
Restormel
Borough Council v Secretary of State for the
Environment and Rabey [1982] JPL 785
Trentham
(G Percy) Ltd v Gloucestershire County Council
[1966] 1 WLR 506; [1966] 1 All ER 701; (1966) 64 LGR 134; 18 P&CR 225, CA
This was an
appeal by Wealden District Council from the decision of Kennedy J dismissing
the council’s appeal from the decision of the inspector appointed by the
Secretary of State quashing an enforcement notice issued by the council. The
enforcement notice required the removal of the caravan stationed by Mr Colin
Day on his land at Shepherd’s Gate Farm, Coleman’s Hatch, Hartfield, East
Sussex, on the ground that the stationing of the caravan was a breach of
planning control.
Michael
Burrell (instructed by Cripps Harries Hall, of Crowborough) appeared on behalf
of the appellants; Miss A M Williams (instructed by the Treasury Solicitor)
represented the respondent Secretary of State.
Giving the
first judgment at the invitation of Parker LJ, RALPH GIBSON LJ said: This
appeal is concerned with a caravan which Mr Colin Day brought on to his land at
Shepherd’s Gate Farm, Coleman’s Hatch at Hartfield in East Sussex. The Wealden
District Council, the appellants in this court, contend that by stationing the
caravan on his land Mr Day was in breach of planning control, in that he
thereby made a material change in the use of the land for which he had not
obtained a grant of planning permission.
Mr Day’s land
is some six hectares in extent, or about 15 acres. He bought the land in 1983
with a view to raising beef cattle. The site plan shows the land as including
two fields, each of a little over five-and-a-half acres, and two smaller
fields. The land is in a rural area of deeply undulating countryside, forming
part of the High Weald area of outstanding natural beauty. At the south-eastern
end of the land there are some farm buildings, but there is no farmhouse.
In January
1984 it was observed on a site inspection by the council’s enforcement officer
that a caravan measuring 6.4 metres long and 2.8 metres wide had been placed by
the farm buildings. Mr Day informed the council’s officer that because the
existing farm buildings were in poor condition and not weatherproof the caravan
had been placed on the land in order therein to store and mix calf feed and to
provide shelter for himself and his wife.
On March 8
1984 the council resolved that enforcement action be authorised pursuant to
section 87 of the Town and Country Planning Act 1971 (‘the 1971 Act’) to secure
the removal of the caravan, which was considered to be unsightly, alien in
character and appearance to traditional farm buildings, and detrimental to the
visual amenities of the area. The enforcement notice was issued on April 30
1984. The breach of planning control alleged in the notice was:
The making of
a material change in the use of the land namely to use for the purpose of
stationing of a caravan thereon for the purpose of storage shelter and feed
preparation.
Mr Day
appealed to the Secretary of State on the ground that planning permission ought
to be granted for the development to which the enforcement notice related —
section 88(2)(a). His case on the facts was that the caravan was being
used as a farm office and was an agricultural necessity. He used it to store
milk powder and to prepare feeds. He regretted any blot caused upon the beauty
of the area by the presence of the caravan and was willing to consider changing
its colour.
The appeal was
by consent conducted by written representations. A number of residents near the
site sent in objections to the presence of the caravan because of its obtrusive
appearance. Mr Day had thus appealed on the ground that permission ought to be
granted to him to retain the caravan and not on the ground that he did not in
law need permission and had therefore not committed any breach of planning
control. The written submissions of the council were therefore directed to the
contention that there was no agricultural need for the caravan as a specialised
and visually inappropriate structure to be on that piece of land. They said in
para 5.2:
On the County
Development Plan the appeal site is shown to be within an Area of Great
Landscape Value where, according to the Written Statement, it is the intention
that the principal land uses shall continue to be agriculture and forestry and
that development ‘not directly related to these pursuits shall in
and subject in any event to appropriate siting and a high standard of design’.
The inspector
appointed by the Secretary of State, after inspecting the site, allowed Mr
Day’s appeal on January 21 1985 and quashed the enforcement notice. The grounds
of decision were that: (i) the caravan was used by Mr Day for storage, for
preparation of animal feed and for shelter; (ii) those uses were ancillary to
the agricultural use of the land and there had therefore been no material
change of use; (iii) the caravan itself was not a structure and did not of
itself constitute a material change of use because the land uses carried on in
it were not materially different from the lawful and permitted use of the land.
The inspector made no reference to section 22(2)(e) of the 1971 Act.
The council
appealed to the High Court against that decision under section 246 of the 1971
Act on the ground that the inspector had gone wrong in law. The council did not
claim to rely on the fact that the inspector had decided the appeal on a ground
different from that on which the appeal of Mr Day had been based and without
notice to the council. Kennedy J dismissed the council’s appeal and held that
the inspector had directed himself correctly in law.
The council
now appeals to this court. Before describing the submissions made on behalf of
the council, some reference is necessary to the outline of the statutory
provisions by which planning control of development is imposed by and may be
enforced under the 1971 Act. Subject to certain exceptions not relevant in this
case, ‘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: see section 22(1) which, in
this regard, contains provisions substantially identical to those in section
12(2) of the original Act of 1947. Subject again to certain exceptions not
relevant to this case, planning permission is required for the carrying out of
any development of land: section 23(1). Where it appears to the local planning
authority that there has been a breach of planning control, then, if it
considers it expedient so to do, it may issue a notice requiring the breach to
be remedied: section 87(1).
Returning to
section 22, the definition of ‘development’ in subsection (1), to which I have
referred, describes two sorts of development: first, operational development by
the carrying out of building or other operations in, on, over or under land, of
which the most obvious example is construction of a building; and, second, the
making of a material change in the use of any buildings or other land. There is
then provided in subsection (2) a list of ‘operations or uses of land’ which
are not to be taken to involve development of the land and, of them, three must
be noted:
(d) the use of any buildings or other land within
the curtilage of a dwelling-house for any purpose incidental to the enjoyment
of the dwelling-house as such;
(e) the use of any land for the purposes of
agriculture or forestry (including afforestation) and the use for any of those
purposes of any building occupied together with land so used;
(f) in the case of buildings or other land which
are used for a purpose of any class specified in an order made by the Secretary
of State under this section, the use thereof* for any other purpose of the same
class.
The contention
is made in this court, as it was before the learned judge, for the Secretary of
State that use made by Mr Day of the caravan was within (e) above, being use of
land for the purposes of agriculture and therefore expressly provided not to be
development by material change of use.
*Editor’s
note: The words ‘the use thereof’ were replaced by ‘the use of the buildings or
other land or, subject to the provisions of the order, of any part thereof’ by
the Housing and Planning Act 1986, s49 and Sched 11, para 1, from January 7
1987.
Next, reference
must be made to a principle which has been developed as to the correct approach
to analysis of the factual situation for the purposes of considering whether
there has occurred a material change of the use of land, namely, identification
of the appropriate planning unit: see G Percy Trentham Ltd v Gloucestershire
County Council [1966] 1 WLR 506. It is common ground in this case that the
question whether any material change was made in the use of the land by Mr Day
is to be determined by reference to the whole occupation unit held by Mr Day,
namely, the six hectares of agricultural land and not the specific piece of
land on which the caravan stands. To that extent the enforcement notice was, as
Mr Burrell has acknowledged, defective, but the notice was, of course, capable
of correction: see section 88A(2) of the 1971 Act. Mr Burrell has submitted
that, if the appeal succeeds and the matter is remitted for rehearing, the
notice should be amended so as to read: ‘The making of a material change in the
use of the land to a mixed use for the purpose of agriculture and of stationing
a caravan thereon for agricultural purposes, which stationing is not ordinarily
incidental to the agricultural use.’
Mr Burrell’s
submission before the learned judge was in essence as follows:
(i) that the stationing of the caravan upon the
land was itself a use of the land apart from any activity which Mr Day carried
on inside it;
(ii) that use of the land for stationing a caravan
upon it was not ordinarily incidental to the existing use of the site for
agriculture because the caravan was designed for human habitation; and use of
the land for stationing the caravan was therefore a new primary use and not the
use of that piece of land for the purposes of agriculture within section 22(2)(e);
(iii) the use of the site was therefore changed from
the single primary use for agriculture to a mixed use for agriculture and for
the stationing of a caravan;
(iv) the change of use to that mixed use was a
material change of use, so as to constitute development, of the site as the
planning unit because the caravan was visually objectionable as an alien and
incongruous feature in a rural area of outstanding natural beauty.
The learned
judge rejected those submissions. First, he held that the caravan, for whatever
purpose it was originally designed, was being used for an agricultural purpose,
ie the mixing of feed and the provision of shelter for agricultural workers,
which was ordinarily incidental to the agricultural use of the land. In that
approach the learned judge followed the inspector in not separately considering
the use of the land for the stationing of an allegedly unsightly caravan as
distinct from the activities of Mr Day inside the caravan. Second, he held that
the reasoning on which Mr Burrell’s submissions were based was flawed by a
misunderstanding of the provisions of the 1971 Act in that section 22(2)(e), to
which reference has been made, ‘is not concerned with aesthetics’. Kennedy J
continued:
Perhaps it
ought to be, but it is not. The fact that an item which is brought on to land
is aesthetically objectionable does not of itself cast any light upon the
question of whether the land is being used for the purposes of agriculture and
whether the item complained of is contributing to that purpose.
Kennedy J
referred to a decision of Forbes J in the case of Restormel Borough Council
v Secretary of State for the Environment [1982] JPL 785, where a similar
question was raised by an enforcement notice in relation to a caravan stationed
on land comprising a hotel and used to house hotel waitresses during the
holiday season. He cited a passage from the judgment of Forbes J as follows:
It did seem
that whichever way one decided this matter difficulties were going to arise,
but it appeared that the proper way of looking at this was to ask: what was, in
planning terms, the effect on the planning unit? It was not, looked at in that way, sufficient
to stop at the stationing of the caravan. You had to look further and say: for
what purpose was the caravan to be stationed?
If the stationing of the caravan for the purpose envisaged was not a
material change of use of the land consisting of that particular planning unit,
then it seemed that no breach of planning control existed.
Kennedy J
accepted that that was a correct statement of the law and concluded that, on
the face of it, nothing remained of the case for the Wealden District Council.
He held, in accordance with the submission of Mr Laws for the Secretary of
State, that, in order to determine whether there has been a change of use of
land, it is first necessary to ascertain the existing lawful use of the
planning unit: in this case it was agricultural. The next question to be
considered is whether that use has been departed from by the event complained
of in the enforcement notice. The arrival of the caravan on this land did not
of itself signify a change in the use of the planning unit and since the
caravan was used for agricultural purposes it actually contributed to that
existing use.
On behalf of
the Wealden District Council Mr Burrell has mounted an attack upon the process
of analysis and reasoning by which the inspector reached his conclusion and by
which the learned judge upheld it. The council maintains that the issues of
control of the use of caravans in the countryside is important and that, if the
learned judge has correctly stated the law, that law is deficient and should be
amended by legislation. For my part, I agree with the council that the issue is
of importance for all who care for the preservation of the traditional
appearance of the countryside. Whether or not the law requires to be amended
and, if yes, in what terms are matters of social policy for others to consider.
Control of the
placing of caravans upon the land has given rise to problems over the years. It
was long ago established that a caravan with wheels was not a structure and the
placing of it on land did not constitute operational development within section
12(2) of the 1947 Act, now section 22(1) of the 1971 Act: see Guildford RDC
v Fortescue [1959] 2 QB 112 CA; Britt v Buckinghamshire CC
[1963] 14 P&CR 332, Widgery J; Cheshire CC v Woodward [1962]
2 QB 126. Operational development, of course, requires planning permission
(save in certain excepted cases) regardless of the use intended to be made of
the land or of the building intended to be constructed. It followed that
planning control of the placing of a caravan upon land depended solely upon the
concept of the material change of use. A separate system of control with reference
to caravans was enacted by the Caravan Sites and Control of Development Act
1960 to apply in addition to the control of development under the 1971 Act; but
that system is concerned with caravans stationed for human habitation; and it
has not been contended that its provisions are relevant to this case.
Since planning
control of the placing of a caravan upon land depended solely upon the concept
of the ‘material change of use’, the extent and effectiveness of control by a
planning authority depend in cases covered by paras (d), (e) and (f) of section
22(2) upon the proper construction of those special provisions, and in cases
not covered by those paragraphs upon the general principles established in
planning law for the construction and application of the phrase ‘material
change of use’.
Mr Burrell, in
order to emphasise the importance of this appeal, explored the extent of the
deficiency in the law which the Wealden District Council contends is apparent
if the learned judge has correctly stated the law. The judge’s view means, he
said, that, by reference to the general principles, there can be no ‘material
change of use’ constituted by the stationing of a caravan upon the land, if the
use made of the caravan, ie the activities within it, is incidental or
ancillary to the existing primary use of the planning unit. Further, by reference
to the special provisions of para (e) of section 22(2), there can be no
development by ‘material change of use’ constituted by the stationing of a
caravan upon any land if the use of the caravan, ie, again, the activities
within it, is ‘for the purposes of agriculture’. In either case the planning
authority is deprived of any control over the stationing of the caravan upon
the land, however damaging to the appearance and visual amenities of the
immediate area the presence of the caravan may be. The court’s attention was
drawn to what are said to be the unwelcome consequences of that view of the
law: see, for example, the discussion at [1986] JPL 248 in the article by Mr L
A Rutherford and Mr J D Peart.
It must be
noted that such a lack of power of aesthetic surveillance and control by the
planning authority over the consequences of the activities of occupiers upon
their land is present at other points in planning law, probably, I think,
because complete control over the visual appearance of such activities was
regarded as both objectionable and as administratively impossible of
achievement. An example concerned with operational development, as opposed to
material change of use, which is immediately relevant to agricultural land, is
provided by the provisions of the Town and Country Planning General Development
Order 1977 (SI 1977 No 289), which consolidated with amendments earlier orders.
The order was made under section 24 of the 1971 Act. By article 3 development
of any class specified in Schedule 1 to the order is permitted by the order
itself and may be undertaken without the permission of the local planning
authority or of the Secretary of State, subject to the provision there stated.
In Schedule 1,
Class VI is headed ‘Agricultural buildings, works and uses’: the development
permitted by the order under this class includes:
the carrying
out on agricultural land having an area of more than one acre and comprised in
an agricultural unit of building . . . operations . . . requisite for
the use of that land for the purposes of agriculture (other than the placing on
land of structures not designed for those purposes or the provision and
alteration of dwellings), so long as — (a)
deals with
limitation on ground area covered by a building
(b) the height of any buildings . . . does not
exceed three metres in the case of a building . . . within three kilometres of
the perimeter of an aerodrome, nor 12 metres in any other case.
Mr Burrell drew
attention to the fact that the building operations must be both requisite
for the use of that land for the purposes of agriculture and that any structure
placed on the land within this permission must be designed for those
purposes. It would, he said, be surprising if this consent for buildings
extended only to buildings designed for the purposes of agriculture, so that
planning consent would be required for any building not so designed, even if
the use to be made of the building would be agricultural, but that the occupier
of agricultural land were free without consent to bring on to the land a
caravan which is not designed for the purposes of agriculture.
At this stage
attention must be drawn to two matters. First, as Mr Burrell acknowledged, no
requirement is imposed that any building erected under this permission must be
well or appropriately designed, or that it must not be as to shape, materials
or colour ‘unsightly, alien in character and appearance to traditional farm
buildings or detrimental to the visual amenities of the area’ to use the words
applied by these appellants to Mr Day’s caravan. These aspects of a new
building permitted under the General Development Order are left to the good
sense and judgment of the developer. But, second, as to the structure of
control of the appearance of such buildings to be assumed, article 4 (omitting
words irrelevant for this purpose) provides that if either the Secretary of
State or the appropriate planning authority is satisfied that it is expedient
that development of any of the classes specified in Schedule 1 should not be carried
out in any particular area, or that any particular development of any of those
classes should not be carried out, unless permission is granted on an
application in that behalf, the Secretary of State or the planning authority
(where necessary with the approval of the Secretary of State) may direct that
the permission granted by article 3 shall not apply to all or any development
of all or any of those classes in any particular area. By the Town and Country
Planning (National Parks, Areas of Outstanding Natural Beauty and Conservation
Areas, etc) Special Development Order 1985 (SI 1985 No 1012) (which replaced SI
1981 No 246), Schedule 1 to the General Development Order of 1977 was modified
so far as concerned land within such areas by restriction upon certain classes
of development including enlargement etc of a dwelling-house, but the
provisions of Class VI, Agricultural buildings, works and uses, are not thereby
affected. Finally, special provision was made generally with reference to land
within national parks and certain other areas listed by the Town and Country
Planning (Agricultural and Forestry Development in National Parks etc) Order
1986 (SI 1986 No 1176). Thereby the carrying out of any development under Class
VI of the General Development Order (Agricultural buildings, works and uses) is
subjected to the condition that a 28-day notice of the proposed development
must be given and, upon notice given by the planning authority within that
period, the development may not be carried out without the prior approval of
the planning authority to the siting, design and external appearance of any
building which is to be erected, altered or extended.
In short, it
seems that it has not yet been thought necessary to give general control over
the appearance of new agricultural buildings, constructed within the permission
given by the General Development Order of 1977, in areas designated as of
outstanding natural beauty as contrasted with the national parks and other
areas listed in Order No 1176 of 1986.
I have
sympathy with the contention of the Wealden District Council that it is both
surprising and a reasonable ground of concern if the occupier of agricultural
land is free under planning law to station at any point upon his land one or
more caravans, intended to serve the same purpose as farm buildings, regardless
of the harm which the planning authority reasonably considers will be caused by
the presence and appearance of the caravans in the place where they are
stationed. Nevertheless, I agree with Kennedy J that such reflections upon
apparent gaps in the extent of planning control cannot affect the proper
construction of section 22(2)(e), because, in my view, the meaning of the words
there used in the context of the Act as a whole is clear, nor are such reflections
of any real assistance in determining whether, by stationing the caravan on the
land, Mr Day may be held to have initiated a new primary use of land within the
planning unit.
It is
convenient to start with the proper construction of section 22(2)(e) and its
application to the facts of this case. It is not in issue that Mr Day stationed
the caravan on the land for the purposes of agriculture in the sense that he
intended to use the caravan for those purposes and no others.
The effect of
section 22(2)(e) operates where there is ‘use of any land for the purposes of
agriculture’. The word ‘agriculture’ is defined by section 290(1) as including
a list of agricultural activities
livestock. No reliance was placed by Mr Burrell upon any argument to the effect
that section 22(2)(e) can apply only to use of land for the purposes of one of
the listed agricultural activities and not to use for the purposes of
activities ancillary or incidental to those listed agricultural activities. I
think he was right not to rely upon such argument. The definition is an
inclusionary definition. Construed in its context, in my judgment, there is
‘use of land for the purposes of agriculture’ where the land is used for
activities in direct furtherance of an agricultural activity.
The only
ground upon which Mr Burrell has submitted that section 22(2)(e) was not
applicable to this case is, as submitted to the learned judge, that because
this use of the land for stationing of the caravan upon the land by Mr Day was
not ordinarily incidental to the agricultural primary use of the planning unit,
therefore the use of the land effected by the stationing of the caravan could
not be ‘use of land for agricultural purposes’ within the meaning of section
22(2)(e).
The concepts
used in that submission, namely, ‘ordinarily incidental’, ‘primary use’ and
‘planning unit’ have become part of planning law by decisions of the courts and
of the Secretary of State. I have referred above to ‘planning unit’. Mr Burrell
referred to the Encyclopedia of Planning Law and Practice, edited by Sir
Desmond Heap, Mr Harold Brown and Dr Malcolm Grant, where it is pointed out
(para 2-815) that, apart from the exclusionary definition of ‘use’ in section
290(1), there is no further definition contained in the Act of the formula
‘material change of use’ and that, in general, the application of it in
individual cases contains often a significant element of subjective judgment
and is regarded by the courts as being primarily a matter of fact and degree
for the Secretary of State in the first instance. The passage continues:
But certain
limits to the formula, and certain tools of analysis, have emerged from
decisions of the courts and of the Secretary of State. They have, for example,
insisted that a distinction be drawn between the primary use of land and the
ancillary uses which accompany it and are thus protected through the link with
the primary use. Secondly, they have indicated that a change need not be a
change to a different kind of use altogether (such as from residential to
industrial) before it may be regarded as material, and that change in the
‘character’ of the use may suffice.
There follow
references to the concepts of intensification and of the planning unit.
The words
‘ordinarily incidental’ do not occur in the 1971 Act but were used in the Town
and Country Planning (Use Classes) Order 1972 (SI 1972 No 1385), which
re-enacted with amendments the Use Classes Order of 1963 and which was made
under, and for the purposes of, section 22(2)(f), which is set out above. If
land is used for a purpose of any class specified in the order, section 22(2)
provides that use of that land for any other purpose of the same class shall
not be taken to involve development of the land, ie by the making of a material
change of use. By article 3(3) of the order ‘A use which is ordinarily
incidental to and included in any use specified in the schedule to this order
is not excluded from that use as an incident thereto merely by reason of its
specification in the said schedule as a separate use’. Mr Burrell has contended
that this phrase appears in article 3(3) because it is a concept generally
applicable for the purposes of deciding what ancillary uses are to be regarded
as included within a primary use. He relied upon the decision of this court in G
Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR
506, where Lord Denning MR said (at p 512D):
In applying
the Use Classes Order, you must consider the whole of the unit which is being
used. I think that Diplock LJ indicated the right test towards the end of the
argument. You should look at the whole area on which a particular activity is
carried on, including uses which are ordinarily incidental to or included in
the activity.
Diplock LJ (at
p 513H) said:
What is the
unit which the local authority are entitled to look at and deal with in an
enforcement notice for the purpose of determining whether or not there has been
a ‘material change in the use of any buildings or other land’? As I suggested in the course of the argument,
I think for that purpose what the local authority are entitled to look at is
the whole of the area which was used for a particular purpose, including any
part of that area whose use was incidental to or ancillary to the achievement
of that purpose.
Mr Burrell
cited a number of other decisions and submitted that they bear out his
submission and show that the test is objective by reference to the facts and
not to the intentions or purposes of the particular occupier. For my part, I
would accept this part of the submission to the extent that the question
whether there has been a material change of use is to be approached in
accordance with the guidance given by this court in the G Percy Trentham Ltd
case. I would accept also that the question whether a particular additional use
is ancillary to or included within the primary use of the planning unit is to
be determined objectively in the sense that the purposes for which the land is
used must be determined according to all the evidence, in addition to evidence
of what the occupier says is his purpose, including evidence of what is being
done on the land and the assessment of the relationship of that activity to the
primary use.
Mr Burrell’s
argument was further developed as follows. He contended that the stationing of
this caravan upon the land was a use of land and was a new use. There was, he
said, no justification for ignoring that particular use and for inquiring only
what use would be made of the caravan or what would be done in it, as the
inspector had done. So to do was to ignore a necessary step in the required
analysis. No doubt in many cases the stationing upon the land of some vehicle,
or equipment, is so obviously itself a use without separate significance with
reference to planning considerations (for example an ordinary vehicle) that it
will be safe to pass straight to the question as to the use for the purposes of
which the vehicle has been placed there and to consider that use with reference
to the primary use. But where, as here, the use by stationing this caravan on
the land does have separate planning significance because of the effect upon
the visual amenities of the area, then, he argued, it is error to ignore that
step in the analysis.
There seemed
to me to be force in this submission. It is not clear why the impact upon the
land and its immediate area caused by the appearance of the vehicle or
equipment and by the use of the land constituted by stationing the vehicle or equipment
upon the land should be required by some rule to be treated as irrelevant even
in the most extreme case provided that the use made of the vehicle or equipment
is for the purposes of the existing primary use. One idea of an extreme case
would be the stationing upon the land such as that at Hartfield in East Sussex
of two double-decker buses as substitutes for agricultural buildings.
Miss Williams,
for the Secretary of State, submitted that the stationing of the caravan by Mr
Day was what she called a nil use — irrelevant provided that the use to be made
of it is for the purposes of the existing primary use. Nothing in the 1971 Act
expressly requires this rule to be applied. The concepts developed by the
courts as stated above were devised, as I understand it, in part at least for
the purposes of working out when a new or additional use of the land is to be
treated as constituting a material change of use: if by the reasoning so
developed the new use is to be regarded as ancillary, or ordinarily incidental,
then the new use has been shown, having regard to the relevant planning
factors, as of no materiality. It is not clear to me why such reasoning and
concepts can be said to require in every case, provided that the new use of the
land by stationing a caravan or caravans upon it is for the purposes of the
existing primary use, that there be disregarded the damage caused by the new or
additional use to the visual amenities of the area which in other situations is
a relevant and material planning factor.
There was
cited to the learned judge the decision of the late Forbes J in Restormel
Borough Council v Secretary of State for the Environment [1982] JPL
785. Forbes J had long experience of planning law and I approach his decision
with the very greatest of respect. I have set out above the passage from his
judgment which Kennedy J cited. I agree with Kennedy J that, if that is the
correct statement of the law, nothing remained of the case for the appellants.
It was necessary, said Forbes J, to look further than the stationing of the
caravan and to ask for what purpose it was stationed:
If the
stationing of the caravan for the purposes envisaged was not a material change
of use of the land consisting of that particular planning unit, then it seemed
that no breach of planning control existed.
The report in
[1982] JPL 785 shows that the inspector had held that the use of the caravan at
the hotel was not a separate self-contained unit of living accommodation, but
solely as a bedroom for two waitresses, and that use was to be regarded as
ancillary to the main use of the premises as a hotel. The argument for the
planning authority was that as a matter of law the mere stationing of a caravan
on land could amount to a material change of use of that land irrespective of any
use to which the caravan was put. Caravans, it was said, had a visual impact on
amenity and that that was a planning matter: it was the stationing itself which
was the important issue. The
the use of the caravan, because it was only by deciding to what use the caravan
had been put that it was possible to decide the main question, namely whether
there was a material change of use of land. The stationing of the caravan
itself was an equivocal act. Forbes J acknowledged that the case raised
difficult policy questions whichever way the case was decided. He concluded
that the contentions for the Secretary of State were right. In addition to the
passage cited above, he said:
It was inappropriate,
when a caravan was stationed on land for a particular purpose, to look at the
stationing of the caravan separately and say that that was something which was
development requiring planning permission because it made a material change of
use.
Mr Burrell
submitted that, assuming the decision of Forbes J to be right, it was
distinguishable on the facts. He submitted that the stationing of a caravan was
a use ordinarily incidental to the primary use of the premises as a hotel
because the caravan was being used for the purpose for which it was designed,
whereas in this case it was not. He submitted further that Forbes J was not
right in that he asked the wrong question, namely, for what purpose was the
caravan stationed? And that he should
have asked: Was the stationing of the caravan for the purpose of the primary
use ordinarily incidental to the primary use?
The answer would have been yes, so the result of the case was right.
In the five
years since Forbes J decided the Restormel Borough case there has been,
as I understand it, no departure from it or criticism of of it. For the reasons
I have given, I agree with Forbes J that the questions of policy raised by the
decision were difficult, but I have reached the conclusion that his decision
and his reasoning were right. It seems that the point raised in that case had
not been raised for decision before 1982 in any reported case. A large number
of caravans, vehicles and pieces of equipment must, I think, have been
stationed upon land and permitted to remain without challenge in reliance upon
the state of the law as it was submitted in that case on behalf of the
Secretary of State to be. I find it impossible to hold that the decision or
reasoning have been shown to be wrong, and I can see no reason to depart now
from a principle which appears to have been long accepted. To subject the
stationing on land for the purposes of a primary use of a caravan or other
mobile equipment to possible control by reference to the concept of material
change of use of land, depending upon the impact on visual amenities caused by
the presence of the caravan or other equipment in the particular place chosen
for stationing it, as assessed by the local planning authority, could have
substantial effects upon the freedom of use of land for agricultural purposes,
and I am not persuaded that such control was intended to be imposed by the
words of the statute.
If, as I
think, the decision and reasoning of Forbes J in the Restormel Borough case
should be approved, then the argument that the principle does not apply in this
case, by reason of distinctions of fact, cannot, in my judgment, succeed. Since
the stationing of the caravan on the land was without doubt for the purposes of
agriculture, there is no occasion to assess separately the use of the land by
the stationing of the caravan upon it unless there is some aspect of the facts
of this case which could require or justify application of a different
principle. Mr Burrell’s submission is that the stationing of the caravan on
this piece of land takes the case outside the principle established in the
decision of Forbes J. A typical caravan, which we can assume Mr Day’s caravan
to be, equipped with cooking and washing and sleeping facilities, as well as
with space to sit, is, said Mr Burrell, designed for human habitation as a
residence, and therefore the stationing of it on land cannot be ordinarily
incidental to a primary agricultural use.
It is assumed
in that submission that the degree of connection, between the land use in
question and the primary agricultural use, is accurately expressed by the
phrase ‘ordinarily incidental’ if the land use is to be held to be ‘for the
purposes of agriculture’ within section 22(2)(e). I shall assume that this is
so, but I do not find it necessary to decide in this case whether the
connection expressed by the meaning contained in that phrase would in every
case be necessary for this purpose. Upon that assumption I would hold on the
facts of this case that these appellants have made out no ground for holding
that this case is outside the principle decided by Forbes J. There is, as I
think, nothing in the nature of the typical residential caravan, of which we
have all seen large numbers both on the road and parked in caravan sites, which
renders the use of such a caravan incapable of being properly regarded as
ordinarily incidental to the agricultural use of land, that is to say, as an
ordinary piece of equipment for stationing upon land and for use when so
stationed for the purposes of agriculture. I accept that the typical caravan is
primarily designed and equipped so as to be used for human habitation, usually
over short periods of time; but the primary use of a planning unit for
agriculture, whether, for example, it be called a farm or a smallholding, may
in my judgment include many different incidental or ancillary uses of different
characters for some of which the use of a typical caravan would seem to me to
be an ordinary piece of equipment. I have in mind such ancillary uses as the
provision of shelter and accommodation for the person in charge of parts of a
farm or orchard where members of the public are allowed to pick fruit or
vegetables for themselves and, to that end, are provided with containers and
with facilities for weighing and for paying for what they have picked. I also
see no reason why, for the activities carried on by Mr Day in his caravan,
namely, storing and mixing of feed, some related office work and the taking of
shelter, the typical caravan should not be regarded as an ordinary piece of
equipment. The purpose of the caravan for such uses is to provide protection,
for the things to be placed within and for the people using it, against the
weather and against interference whether by people or by animals.
If this
question were raised with reference to a four-wheeled farm cart with a canvas
or wooden cover, it would, I think, in accordance with Mr Burrell’s argument,
admit of only one answer. Such a thing would, I think, be recognised as an
ordinary piece of equipment for the purpose, although now in most parts of the
country it might be impossible to find, whereas the typical caravan is readily
available and reasonably cheap. There is, I think, in planning law, even with
reference to the most beautiful parts of our countryside, no basis for
excluding from the notion of ordinary equipment a useful and suitable article
such as a caravan on the ground only that it is not traditional in construction
or appearance for the particular purposes for which Mr Day has applied it.
At one stage
of the argument Mr Burrell was pressed as to the status in his submission of a
caravan of typical shape and size, but constructed with animal feed boxes
within it, and a small desk for keeping stock and feed records, instead of the
kitchen and washing facilities and beds usually supplied. He was, I think,
constrained to concede such a piece of equipment on land could not be
classified as incapable of being ordinarily incidental to a primary
agricultural use on the ground that it was designed for human habitation; but
he suggested that, if the caravan was a typical caravan when stationed on the
land, the later removal of kitchen and washing facilities and of beds could not
make it ordinarily incidental. In my judgment, this argument cannot be right.
The typical caravan must, I think, be regarded as being as useful and
convenient a means of providing protection and storage for things and shelter
for people as would be a suitable building. I reject the contention that
because of its nature and ordinary use and associations the stationing of a
typical caravan on a planning unit used for agriculture must be regarded as
incapable of being incidental to the primary use for agriculture. The risk of
abuse of the limitations upon planning control over the placing of caravans
upon agricultural land, as revealed in this case, is obvious. Forbes J referred
to it in his judgment in the Restormel Borough case. If it should be
thought necessary to impose further control, it seems to me that legislation
will be necessary.
For these
reasons, in my judgment, the appellant has failed to show that Kennedy J was
wrong in dismissing its appeal from the decision of the inspector. I would
dismiss the appeal.
Agreeing,
PARKER LJ said: We are here concerned with a planning unit of some 15 acres in
area, which, prior to the advent of Mr Day’s caravan, was, it is common ground,
being wholly used for the purposes of agriculture.
Mr Day brought
on to a part of that land measuring some 21 ft x 9 ft a caravan for the purpose
of providing a weatherproof place for the storage and mixing of food for his
cattle and providing shelter for himself and his wife. He thereafter used it
for such purposes.
The question
for determination is whether such actions on Mr Day’s part constituted a
‘development’ within the definition of that word set out in section 22(1) of
the Town and Country Planning Act 1971. They can only have done so if Mr Day
thereby made a material change in the use of the land within the meaning of the
subsection, because it is rightly accepted on behalf of the local planning
authority that Mr Day’s actions did not constitute an operational development
within the subsection.
The definition
set out in the subsection is, however, expressly made subject to the following
provisions of the section, and subsection (2)(e) provides:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land, that is to say . . .
(e) the use of any land for the purposes of
agriculture or forestry (including afforestation) and the use for any of those
purposes of any building occupied together with land so used.
If, therefore,
Mr Day’s actions constituted the use of the small area of land on which the
caravan stood for the purposes of agriculture, they do not constitute a
development and the question whether they would otherwise have constituted a
development by material change of use does not arise.
That Mr Day’s
land was, before the advent of the caravan, being used for the purposes of
agriculture is common ground. ‘Agriculture’ is defined by section 290 of the
Act to include the breeding and keeping of livestock and this was the activity
being carried on by Mr Day.
The question
is, therefore, whether Mr Day’s actions were such that the plot of land upon
which the caravan stood was, on its arrival, still being used for the purposes
of agriculture or whether, as the planning authority contend, it was then being
used for mixed uses, namely use for the purposes of agriculture and use for
stationing a caravan.
This
contention is in my view artificial in the extreme. If it were right, it would
seem to follow that any land upon which a farmer placed a mixing trough must be
regarded as being subject to mixed uses, namely, the stationing of a mixing
trough and the mixing of food, the latter being a use for the purposes of
agriculture but the former not being for such purpose.
To escape from
this obvious absurdity, it was submitted that that case was different because
the mixing trough would be ordinary agricultural equipment and therefore the
stationing would itself be for an agricultural purpose, whereas a caravan is
not such equipment.
I cannot
accept this. If it were right, different results would follow if the farmer
used for his mixing a trough sold for the purpose and if, to save expense, he
used instead a container of the same size and appearance which had originally
been sold for some other purpose. Such a result cannot, in my view, be
extracted from the language used or be taken to have been intended by Parliament.
In both cases the land is, in my view, being used for the agricultural purpose
of keeping livestock. That purpose may be effected by mixing the food in a
trough and it can make no difference whether the trough was itself
purpose-designed or not.
The position
would no doubt be different if a farmer merely parked his holiday caravan on
the land. It could then be said that the land on which it stood was being used
not for agricultural purposes but for parking of a residential caravan. It
would, however, be unreal to say that the land was being used for parking a
caravan if a farmer, his mixing shed having been destroyed by fire or storm,
decided to forfeit his holiday caravan previously parked in his garage,
stripped it of internal fittings, equipped it with storage bins and mixing
troughs and then placed it in the farmyard, was using the land on which it
stood for anything other than agricultural purposes.
On this simple
ground I, too, would dismiss the appeal.
SIR GEORGE
WALLER agreed that the appeal should be dismissed for the reasons given by
Ralph Gibson LJ and Parker LJ and he did not add anything of his own.
The appeal
was dismissed with costs. Application for leave to appeal to the House of Lords
was granted.