England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 July 2015

1. HIS HONOUR JUDGE JARMAN QC: This is an application by Mr Harold Gray under section 288 of the Town and Country Planning Act 1990 seeking the quashing of a decision letter, dated 23 December 2014, by an inspector appointed to determine appeals under sections 78 and 195 of the 1990 Act.
2. Two days ago Mr Gray's solicitors applied to come off the record because they had not been paid. I granted that application and it was indicated that neither they nor counsel previously instructed would be attending the hearing of this application. I asked that that message be sent forthwith to the defendant's solicitors, the claimant's former solicitors and, if possible, to the claimant. The hearing was listed for 10.30 this morning. I adjourned until 11.00 to read the skeleton argument of Miss Tafur, who appears on behalf of the Secretary of State for Communities and Local Government, and in order to see if the claimant, Mr Gray, or someone on his behalf, attended. In the event, he has not.
3. In those circumstances Miss Tafur invited me to determine the application and in the circumstances, as I have described, and in light of the very thorough and helpful skeleton argument which Miss Tafur has filed, the hearing took place very shortly.
4. Counsel previously instructed on behalf of Mr Gray was James Burton. On 2 February 2015, he set out detailed grounds of the claim which run to some 47 paragraphs. In addition, a witness statement of Mr Gray's agent, a Mr Wright, was filed. Miss Tafur submits that, in so far as that seeks to adduce evidence which was not before the inspector, I should not take it into account and I accept that submission. Furthermore, Mr Wright made a serious but unparticularised allegation of predetermination against the inspector in paragraph 77 of the statement. That does not appear in the detailed grounds and I do not deal with that.
5. The background is that Mr Gray and his son operate a farm holding at Upper Austby Farm in Ilkley. Prior to 2002 the main activities comprised the rearing of livestock and the use of a farm building as an abattoir. That licence was lost and there was then an outbreak of foot-and-mouth disease on the holding. As a result, the rearing of sheep and cattle ceased and the land was put to equestrian uses, but the rearing of sheep recommenced in 2012.
6. On 21 August 2013 Mr Gray applied to the local planning authority, Harrogate Borough Council, pursuant to section 191 of the 1990 Act, for a certificate of lawful use. The use which was described in the application for the certificate was as follows:

i. "the erection/construction of dwellinghouse and residential curtilage with outbuildings, septic tank and services including incorporation of static caravan."

7. The authority granted a certificate in respect of the construction of a timber framed structure incorporating internal breeze blocks and timber decking, because that had been made or built 4 years before the application. However, the Council refused the certificate in respect of the static caravan giving these reasons:

i. "The Council is not satisfied on the evidence, on a balance of probability, that the caravan unit is [a] permanent structure, being neither attached to the adjacent timber and steel framed structure, nor is its removal prevented by the construction of breeze block columns or the siting of portions of telegraph poles. Service connection to the caravan could be readily disconnected. The caravan unit remains on its original chassis and possess (sic) its wheels. As a consequence, the caravan which amounts to a use of land, was first occupied as a dwelling unit in July 2004 and as such has not gained immunity from enforcement action, the 10 year rule contained in Section 171B [of the 1990 act] applying."

8. In November 2013 the authority also granted planning permission for the retention of an agricultural shelter and storage on the holding. On 21 August 2013, Mr Gray sought planning permission for an additional field shelter some 90 metres down hill to the south of that site. Mr Gray appealed to the Secretary of State of against the authority's refusal to grant the certificate, pursuant to section 195 of the 1990 Act, and its refusal to grant planning permission for the field shelter, pursuant to section 78 of the 1991 Act. The appeals were considered together by the inspector and they were known, and referred to in this judgment, as Appeal A and Appeal B respectively.
9. The decision letter is dated 23 December 2014. It follows a hearing which took place over some four days. Mr Burton of counsel was instructed on behalf of Mr Gray and he called a number of witnesses: Mr Smith, who was the former owner and occupier of the caravan, Mr Poyser, a charted engineer, Mr Gray and his son and Mr Wright. The authority was also represented by counsel who called a principal planner in the authority, a Mr Siddall.
10. The decision letter runs to some 169 paragraphs. The inspector set out the general principles, which she applied in the assessment of the evidence. Some of the grounds of the claim allege that the inspector has made mistakes of law as well as fact. I will come on to the facts in due course. In respect of the general principles relating to building operations, the inspector at page 30 referred to the authority of Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2002] 2 PLR 102 which, in turn upheld the finding in Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co Ltd [1949] 1 KB 385.
11. The former case considered whether a marquee in the grounds of a hotel amounted to a building. Schiemann LJ referred to Jenkins J in the Cardiff case stating that there was a threefold test in relation to whether furnaces were "in the nature of a structure for rating purposes. The threefold test involved considering size, permanence and degree of physical attachment in determining whether an item was a building or a structure. Schiemann LJ asdopted that test and said that it introduced:

i. "a degree of flexibility into the approach to permanence. It does so, first, by qualifying the word 'permanence' by the expression 'some degree.' Secondly, it does so by using the word, 'normally'. Thirdly, it does so by introducing the concept of removing the building, 'by taking to pieces.'"

12. In paragraph 31 of the decision letter the inspector referred to that test and said this:

i. "At the risk of summarising too succinctly, the main findings include that the wording of the statutory test must take primacy; there is not a closed range of factors as to what is a building and the factors listed above must be considered with flexibility; and it is relevant if something is created with a prospect of permanence when objectively assessed."

13. She then refers to section 29(1) of the Caravan Sites and Control of Development Act 1960 as amended, which defines a caravan as:

i. "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)."

14. At paragraph 33 of the decision letter she said that:

i. "The siting of a caravan normally constitutes a use of land, although it may be in permanent or semi-permanent residential use. If a caravan remains mobile, then it is likely that a use of land is involved. To be deemed mobile, it is not essential that a caravan can be moved on its wheels and axles or by a tow bar. It is enough that the unit can be picked up intact and put on a lorry by crane or hoist."

15. There is then a footnote which refers to the authority of Carter & Anor v Secretary of State for the Environment & Anor [1994] WLR 1212. In that case the Court of Appeal considered section 29 of the 1960 Act and held that that contemplated a structure which had to be capable of being moved from one place to another as a single unit. In that case the structure had to be dismantled in order to transport it and it could not come within the definition of a caravan within that section. At page 1218G Sir Stephen Brown said that he was "satisfied that the minister gave a correct decision" and that it was "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."
16. In paragraph 34 of the decision letter the inspector referred to another authority: Pugsley v Secretary of State for the Environment and North Devon District Council [1996] JPL 124. In it she uses the phrase "permanent appendages, such as a blockwork surround, extension or conservatory". She goes on to say that in such a case "it is necessary to assess, as a matter of fact and degree, whether what is on the site has become a building". One of the errors of law relied upon on behalf of the claimant is the use of the phrase by the inspector "permanent appendages". That does not appear in the authority referred to.
17. Sir Graham Eyre QC, sitting as a Deputy High Court Judge of the Queen's Bench Division, gave judgment in that case. What he said at page 7 is this:

i. "It seems to me that there is little doubt that the point is being taken that the structure is the creation and result of a building operation or operations, namely the fixation of this structure to a foundation which, there is no doubt, had been erected on the site outside the four-year period. I should add that in forming a judgment of fact as to whether or not a structure is a building for the purpose of the Act, the question of fixation is not conclusive but may depend on the degree of fixation. It further seems to me that that is the question first to be resolved.

ii. However, by virtue of the approach of the inspector, the structure of the decision letter and the question to which she directs herself, there is no investigation as to the extent to which there was a degree of fixation that could constitute the structure the creature of a building operation and no finding of fact on that potentially important matter. Accordingly, in order that the issues unsatisfactorily identified by the appellant can be properly resolved, findings have to be made on those questions."

18. Finally, for present purposes, the inspector referred to a further authority: Measor v Secretary of State for the Environment, Transport and the Regions [1999] JPL 182. Further on she refers to that authority as being comparable in one respect to the findings which she made. That respect was that the static caravan in the present case was not attached to the land and still satisfied the definition of a caravan under the Caravan Sites Act 1968. In that case reference was made to the test under that Act not of the means of lifting the structure, but the practicality of moving it once lifted.
19. I am not persuaded on the submissions set out in writing, on behalf of Mr Gray, that there is any error of law.
20. I then turn to the issues of fact. As I have indicated, very many allegations are made that the inspector made errors of fact. In approaching the inspector's decision I must have regard to the fact that matters of fact and planning judgment are matters for her and not this court. It is only if I am satisfied that there has been an error of law that I should interfere with the decision which the inspector came to. Appeals under section 288 are limited to a point of law. Accordingly it is not a valid ground of appeal that the inspector has paid insufficient heed to certain factors.
21. As I have indicated, matters of planning judgment are within the exclusive province of the inspector. Decision letters should be read in a straightforward down-to-earth way without excessive legalism or exegeticalsophistication (see Clarke Homes v Secretary of State for the Environment [1993] 66 P&CR 263 and Sir Thomas Bingham MR at page 271). The proper approach is to look broadly at the findings of the inspector, the reasoning and the decisions, and not a sentence-by-sentence look at the minutiae (see ELS Wholesale (Wolverhampton) Ltd v the Secretary of State for the Environment [1988] 56 P&CR 69 per May LJ).
22. In my judgment, the grounds of appeal, insofar as they alleged errors of fact or reasoning, amount to no more than looking at certain words or phrases used by the inspector in a decision letter which runs to some 169 paragraphs. I have already alluded to one example: the use of the phrase "permanent appendages" made by the inspector. It is true that that phrase does not appear in any of the authorities I have cited. However, in my judgment the inspector was not using that as a test to be applied, but using it as a convenient phrase.
23. It is said that the inspector made an error of law in noting that the foundations to the static caravan were deep and it took a builder some time to construct the blockwork on which the caravan was placed. The inspector then went on at paragraph 52 to say this:

i. "However, the pillars were built with the caravan in place above, the majority of pillars do not brace the chassis and even those that do are not cemented to the caravan."

24. The reason given for that in the evidence was that such cement might damage the metal work in the chassis. That was a conclusion which the inspector was entitled to come to. It is further said that the inspector in paragraph 53, in saying that Mr Gray had not shown that the pillars could not be demolished so as to release the caravan with undue difficulty, was adopting a mistaken burden of proof. In my judgment she was not.
25. At paragraph 54 she went on to refer to Mr Smith's evidence agreeing that the caravan could be pulled up if the bricks in the pillars were broken. She also referred to Mr Poyser's proof where he listed reasons why the caravan could not be moved, but that did not include the holding effect of the pillars. The inspector also referred to the fact that Mr Poyser agreed in his oral evidence that some pillars were built around the chassis and might well be strapped to it, and that the caravan could not be jacked up or lifted without, as it was said, busting the blockwork. The inspector at paragraph 54 went on:

i. "However, this indicates that the pillars are not integral to the structure of the caravan. It seems that, as a matter of fact and degree, the caravan could be detached and removed. It has not been shown that the pillars render the caravan a permanent building or attached to the land."

26. In my judgment, there the inspector applied the right test and was entitled to come to that conclusion on the evidence before her.
27. At paragraph 55 she then refers to the Council's concession at the inquiry that the caravan was attached to the timber structure surrounding it, and that the caravan, pillars and decking could be regarded as a whole. She then noted that the veranda roof was simply bolted or nailed in place and could readily be detached. She then referred to the telegraph poles and said that those represented a pre-existing site enclosure and any caravan may be placed next to them or surrounded by what she called a boundary treatment. The poles were not attached to the caravan and did not render it permanently sited. Then she referred to the cost and difficulty of diverting the overhead cables which run just some metres above the caravan. At paragraph 57 she said that would not "justify a finding that the caravan had become a building, again because any caravan could be stationed beneath cables or similar structures".
28. It is said on behalf of Mr Gray that in dealing with those matters she took into account matters which were immaterial, but it seems to me that those were matters to which she was entitled to have regard. At paragraph 58 she said that Mr Gray had emphasised that the caravan was likely to be damaged if moved, so as to become uninhabitable and unviable to repair, but went on to find that the main reason for this was that the structure was not maintained so that the chassis had rusted and the wheels had seized up. She concluded that it had not been shown that the strength and rigidity of the caravan was so reduced that hoisting off would be likely to be impractical. It is said that in coming to that conclusion she applied an incorrect burden of proof, but I cannot see why it is said that she did.
29. Then she referred to Mr Smith's intention that he thought the caravan was there to say. Complaint too is made of that approach. It is said that the test is an objective one, but the inspector specifically refers to what may be objectively taken as indications as to Mr Smith's intention. There is nothing in that complaint either in my judgment.
30. Accordingly, the inspector concluded, in referring to Mr Poyser's evidence again, that he could not say that the problems with the wheels on the caravan could not be remedied and it had not been shown that the caravan could not be hoisted off the land. She concluded:

i. "As a matter of fact and degree, I find that the caravan has not taken on a quality of permanence or become so integrated into other structures on the land so as to be deemed a building or part of a building."

31. On the balance of probabilities she found it remained a caravan and was not part of a building, and accordingly the siting of it constitutes use of land that is not immune from enforcement action under section 171B.
32. Complaint was also made that the inspector failed to have regard to the claimant's contention that the caravan and adjacent structures were constructed as a single building operation and formed a single building, but she did expressly have regard to that in paragraph 29. Accordingly, in respect of appeal A, in my judgment there is nothing in the grounds of appeal. I have not referred to them all, but in my judgment I have taken them into account and there is nothing in them.
33. There are then criticisms made in respect of appeal B. Criticisms in respect of the inspector's assessment of the character and appearance in the area of outstanding natural beauty in which the site fell. There are also criticisms in relation to how the inspector dealt with how the process of lambing was carried out on the holding. At paragraph 136 the inspector referred to the fact that Mr Gray had confirmed that sheep were only kept in pens for about 5 days. "Prior to giving birth, sheep may be kept in a 'big pen' but individual pens are required after birth for mothering". She refers to Mr Wright's evidence that "if there is severe weather when all the ewes have given birth, there would be a need for '400 m2 of pen space under cover'". At paragraph 139 she concludes that "these calculations do not show a need for the proposed building". That is criticised because it is said the inspector misunderstood that pens were needed after lambing for a few days, but in my judgment it is clear from the passages I have cited that the inspector had that well in mind.
34. At paragraph 140 the inspector expressed concern that the appellant had discounted the rebuilt cattle shelter and she is criticised for saying that there is little to suggest that the sheep could not be kept securely in the cattle buildings. That again was something which she was entitled to have regard to in my judgment. Then there was an issue about whether it was difficult or time consuming for sheep on the southern fields to walk the 90 metres further up the track to the present building on the site. She is criticised in respect of that finding on the basis that in times of severe snow and snow drifting that might be difficult. However, in my judgment she had regard to that. The phrase she used was that it would not "ordinarily be difficult". Again, in my judgment, there is no error disclosed.
35. So for all these reasons I dismiss this application.
36. MISS TAFUR: I am grateful, my Lord. In the circumstances I do have an application for costs. I wonder if your Lordship has a copy of the costs schedule.
37. HIS HONOUR JUDGE JARMAN QC: Only electronically.
38. MISS TAFUR: I might hand up a copy now. You will see on the penultimate page that the total sum sought by the Secretary of State is £10,177. It may appear to your Lordship that that is slightly higher than might often be the case in an application of this type, but in my submission, given the extensive material put before the court by the claimant of over 20 grounds of appeal, much evidence, including new evidence, inevitably it took some time to unpack all of those allegations and to go back through the submissions and the evidence put before the inspector. That explains why considerable time has been spent on this case both by the solicitors and by myself in preparing the skeleton argument.
39. HIS HONOUR JUDGE JARMAN QC: I was concerned about the schedule of work done on the documents because at item 3 there is reference to the work on the bundles, which are the grounds that you have just referred to, the Inspector's decision letter, and 7½ hours is claimed for that making a total of £1,200. The next item then is "work on minute of advice" where 24 hours is claimed with a cost of £3,920. What is all that about?
40. MISS TAFUR: In terms of the minute of advice what usually happens, your Lordship will be aware that in section 288 claims the Secretary of State is not required to do very much until serving the skeleton argument. Of course the Treasury Solicitor does not just sit on the papers until them. What happens is that government lawyers draft an internal advice to the Secretary of State setting out whether they think this is a claim that is worth defending and what the prospects of successfully defending that are.
41. HIS HONOUR JUDGE JARMAN QC: Why did they take 24 hours to do that? It is your case that there was nothing in this application at all.
42. MISS TAFUR: Yes, that is certainly is my case and it was intensely frustrating both for my instructing solicitor and myself to have to go through each of those grounds in quite some detail, but of course that is what we must do. The temptation may have been to say this is a merits challenge and leave it to that. That is not an acceptable approach in that both my instructing solicitor and myself in the skeleton argument were required to go through each and everyone one of those twenty something--
43. HIS HONOUR JUDGE JARMAN QC: The work in the skeleton argument is a different heading.
44. MISS TAFUR: Yes because the minute of advice is prepared internally by the government solicitors.
45. HIS HONOUR JUDGE JARMAN QC: It is that one that I am concerned about: 24 hours at £3,920. I would have thought 12 hours would have been sufficient.
46. MISS TAFUR: All I can say is that it took some considerable time and additional to 12 hours both for myself and certainly for my instructing solicitor who did prepare a detailed minute of advice. All can I say is that the material that was put before us your Lordship may not have had to go through quite as much of that material.
47. HIS HONOUR JUDGE JARMAN QC: That is the point I am trying to make. That is already counted for by the work in the bundle, which is a separate heading. Your skeleton is a separate heading. I am not querying any of that, it is the work on the minute of advice a further 24 hours.
48. MISS TAFUR: I see. The work on the bundles and in the grounds and in the inspector's comments and the decision letter that really involves going back to the inspector and asking for the inspector's comments and liaising with the inspector as to the inspector's recollection and response to the grounds. That is often the case. The inspector comes back with comments which are then incorporated into the minute of advice which the government's internal lawyers prepare for the Secretary of State. So work on the bundles, inspectors grounds, inspectors comments and the decision letter is not really going through the evidence exercise and coming to a view as to whether this is a case that should be defended. That is in the minutes of advice.
49. HIS HONOUR JUDGE JARMAN QC: Thank you. I am afraid I am not persuaded that that took another 24 hours over and above the 7½ hours on the bundles and, as indicated, I would assess that at 12 hours, but otherwise I will assess the costs as set out in the schedule. Would you like your bundle of authorities back?
50. MISS TAFUR: Yes, thank you. There is a claimant's bundle, but in the circumstances I think it would be a bit unfair to expect you to take that Miss Tafur, but I am very grateful to you for your assistance and for your thorough and helpful skeleton argument.