Jones v Green

J U D G M E N T

Friday, 16th December 2005

1. LORD JUSTICE LAWS: This is an appeal brought with permission granted by the judge below against the decision of Gibbs J given in the Administrative Court on 13th April 2005 when he allowed a statutory appeal brought pursuant to section 288 of the Town and Country Planning Act 1990 against the decision of the Secretary of State's inspector, dated 7th May 2004, to grant planning permission for the use of land at Moate Farm, Stodmarsh Road, Canterbury, for the siting of caravans or mobile homes. I use those words at this stage without prejudice to the application of any statutory definition of caravan.

2. The planning permission was granted to the third defendant in the proceedings before Gibbs J, Mr Shane Jones. The appellant, Mrs Bridget Jones, is his mother and was the fourth defendant. The claimant, the respondent to the appeal, was chairman of an organisation called the Friends of Fordwich and District. The Secretary of State was the first defendant. The local planning authority, the Canterbury City Council, was the second.

3. The judge below succinctly described the background facts of the matter as follows:

"6. A brief history of what led to those three associated appeals is as follows. On 28th March 2001 the third defendant purchased the site. On 19th June 2001 he applied to the second defendant for permission to site 3 caravans of 20-foot by 40-foot for all-the-year-round dwellings. He supplied details, in response to the second defendant's request, in support of his contention that he and his family had gypsy status. He told them, among other things, that he had been on their list for rehousing for 10 years and that their papers had been lost. He said that they wanted to settle at the site; he and his wife, two children, his sister, her husband and four children, and his mother and father.

"7. In or about August 2001 Mr Jones and his family and other relatives moved on to the site because they had no other place to park their vehicles or to live. The council's officers reported on 16th October 2001 that the application made by the third defendant was retrospective and said:

'Faced with increasing difficulties in maintaining gypsy travelling lifestyle both in terms of employment, finding sites to stay and concern for their children's future the applicant wishes now to settle down with his immediate family.'

The second defendant decided to defer considering the third defendant's application pending a site visit.

"8. On 13th November 2001 the second defendant's sub-committee considered the application again and resolved to grant planning permission. However, the claimants, the Friends of Fordwich and District, a local residents' organisation, challenged the decision. They did so on the ground that there had been an error in the second defendant's consideration of whether Mr Jones and his extended family were gypsies. The council conceded to the challenge in that they agreed to reconsider the application.

"9. In a statement to the council in April 2002 the third defendant gave further details about his reasons for moving on to the site. It included considerations related to the ill-health of members of the extended family, and indeed the immediate family. It contained details about the third defendant's recent employment, his travelling and his lifestyle.

"10. On 3rd December 2002 the third defendant made a further statement relevant to his alleged gypsy status. It is pertinent to note at this point that on 4th August 2002 there was a memorandum from the second defendant's licensing officer expressing reservations over whether the homes on the site at that time fell within the statutory definition of caravans. To that issue I shall return later.

"11. Meanwhile, on 30th April 2002 the further consideration of the third defendant's application had again been deferred by the second defendant's sub-committee and the matter was reconsidered on 11th December.

"12. In his affirmation statement, dated 3rd December 2002, the third defendant stated that it was neither his nor his family's intention to give up their gypsy way of life and they would use the site as a place where they could return to without any concerns about being removed. The third defendant provided an explanation for points that had been raised by the claimant in connection with his alleged employment. A number of documents were produced by the third defendant to support his affirmations."

4. On 6th March 2003 the second defendant, the local planning authority, refused planning permission. On 29th May 2003 the second defendant issued two enforcement notices. One, I will call it A, alleged a breach of planning control consisting of a change of use from agricultural land to (a) the stationing of three units of mobile living accommodation and ancillary storage, including touring caravans, and (b) residential use. The other enforcement notice, which I will call C, alleged a series of unauthorised acts done in connection with the stationing of the caravans. It included such matters as the installation of a cesspit and associated soil pipes, gas cylinders, hardstanding, mains electricity cables and water pipes, and, this is of some significance in light of the issues in the case, the erection of timber structures abutting the caravans, and, lastly I think, the construction of boundary fences and a driveway.

5. The third defendant appealed against the refusal of planning permission and against the two enforcement notices. The appeal against the refusal of planning permission was designated Appeal B. Against what I have called enforcement notice A, was appeal C, and that against enforcement notice C was appeal C.

6. The appeals went before the Secretary of State's inspector at a public enquiry. The third defendant was represented by counsel, as was the second defendant. The respondent, Mr Green, acted in person on behalf of the Friends of Fordwich District. As I have said the inspector, in resolving the appeals, decided to grant planning permission. That was both on appeal B and on the deemed application for permission arising under appeal A. Although the application for planning permission had been retrospective and thus related to the state of affairs on the ground as it was before the inspector, the third defendant had made it clear that its intention was to replace the existing older units with three modern purpose-built mobile homes. The inspector also allowed appeal C which related, as I have shown, to ancillary services and equipment.

7. It was integral to the inspector's decision that, as she held, the third defendant and his family were gypsies. That was because of the impact of planning policies in the structure plan and district plan which provided the framework for the inspector's decision. There were policies imposing strong restrictions on development in rural Kent where the relevant site in this case is to be found. The judge below set these out. It is not necessary for me, however, to do more than cite the planning policies relating to gypsies. Policy H8 of the structure plan provided:

"Where is there an identified need, the local planning authorities will make provision for accommodation for gypsies in local plans and through development control. Provision should be consistent with the Structure Plan's environmental, countryside, agricultural, archaeological and green belt policies, and will not normally be permitted in areas protected under policies ENV3 - ENV6."

8. I should say that the site here is not within the Green Belt or within the protected areas there referred to in policy H8. Then, at paragraph 2.181 of the Canterbury District Plan, after the statutory definition of "gypsies" given by the Caravan Sites Act 1968 is set out at 2.179, this is stated:

"The Structure Plan Policy H8 and Circulars require provision be made for gypsy sites in accordance with identified need. The City Council will continue to support the existing official permanent gypsy caravan site in the District at Vauxhall Road which is adequate to meet expected demand and does not propose a need for any additional provision. Private planning applications for gypsy sites could be made and it is considered that the Plan should provide general policy guidance."

9. Finally, policy D64 in the District Plan:

"In considering proposals for private gypsy caravan sites the Council will have regard to the following criteria:

(a) The use of the site does not have any adverse impact on the residential amenity of existing buildings or uses, either by the close proximity, activities or operations on the site which would be detrimental to the surrounding area.

(b) It should not be located within areas designated as having special nature conservation, landscape, or conservation importance.

(c) The site, caravans and associated activities shall be adequately screened from the surrounding land.

(d) The site should be well related to local services and facilities - shops, public transport, medical and social services.

(e) Access to the site should not be detrimental to highway safety for vehicles and pedestrians and will not conflict with transport policies."

10. The statutory definition of "gypsies", given by the Caravan Sites Act 1968 is:

"...persons of nomadic habit of life, whatever their race or origin..."

11. The respondent, Mr Green, challenged the third defendant's gypsy status before the inspector. Some of the arguments on that issue are no longer live. The point which persuaded the judge to allow the statutory appeal concerns the inspector's approach to the accommodation on the site and in particular her approach to the accommodation not occupied by the third defendant but by his relatives. The inspector said this at paragraph 25 of the decision letter:

"25. Mr Green submitted that in order to qualify as 'gypsies' the Appellant and his family must live in a caravan. He believed that the dwellings currently occupied on the site fell outside the legal definition of what could constitute a caravan. He contended that the Appellant was not a gypsy as his 'mobile home' was too large to come within the legal definition of a caravan.

"26. The type of accommodation occupied by Mr Jones is clearly a material consideration in determining his gypsy status. The term 'caravan' when used in a formal document under the Planning Acts, has the meaning given by the Caravans Sites and Control of Development Act 1960, namely, 'Any structure designed and 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) 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 the railway system, or (b) any tent.'"

12. Thereafter the inspector considered the dimensions of the third defendant's home (I use a neutral expression to refer to it) against detailed criteria as to dimensions which are given in amendments made by the Caravans Sites Act 1968 to the statutory definition of "caravan". There were some differences between these respective dimensions which the inspector regarded, as she put it, as de minimis. Then, at paragraph 29 of the decision letter, she said this:

"In any event, even if this structure were not technically a caravan I saw that it has the traditional design and appearance of a typical twin unit mobile home. It has wheels and is similar in character to other caravans occupied by gypsies. It is physically capable of being moved by road from one place to another. It is very similar in size to other mobile homes that fall within the statutory definition. Having regard to its degree of physical attachment, potential mobility and size I find, as a matter of fact and degree, that its presence has involved a use of the land rather than operational development. Mr Jones clearly thought that he had purchased a mobile home and believed that he was living in one. I do not consider that his occupation of this structure materially affects his gypsy status."

It will be obvious from that text that the inspector was only dealing with the unit occupied by Mr Jones, the third defendant, and not with two other units on the site with which we have been concerned in these proceedings, to which I may refer as units 2 and 3.

13. After paragraph 29, the inspector went into various matters concerning the third defendant's background and pattern of life. She said this at paragraph 32:

"The Appellant does not currently own a touring caravan nor does he take his existing home with him when travelling. However, he indicated that the touring caravans had been sold in order to resource this appeal. Having regard to the Appellant's general pattern and location of work I find, as a matter of fact and degree, that his gypsy status has not been lost. Although he now wishes to establish a permanent base on the land it remains his intention to travel from the site in order to earn a living. I do not consider that he and his family have abandoned their gypsy lifestyle in favour of a more settled existence. I am entirely satisfied that they fall within the statutory and policy meaning of the term 'gypsy'."

14. Later, the inspector's conclusions are summarised at paragraph 64 of the decision letter which was also set out by the learned judge below. It reads as follows:

"The Appellant and his family are gypsies for planning purposes. The development complies with the Council's CDLP Policy D64 and is consistent with national policy regarding the provision of gypsy sites. It is not within an area of the countryside that enjoys special protection under statutory development plan policies. There is an unmet need for gypsy site provision in the District. In my opinion, there was no substantial evidence that the benefits provided by the site could be met from other possibly less harmful sites in planning terms in a similar way. I believe that the siting of the residential caravans should be restricted to the northern dog-leg part of the site. This part has the benefit of mature screening to the northern and part-western boundaries. The visual impact of the development could be satisfactorily mitigated by undertaking further landscaping. I consider that the effect on the character and appearance of the surrounding area and residential amenity would be limited in this position. I believe that the development would preserve the setting of the Fordwich Conservation Area. The family were initially encouraged by the Council to remain on the site. It would provide a settled base to meet the exceptional healthcare needs of the family. No alternative site is available and the family would suffer personal hardship if required to leave the site. I consider that there is an overriding need for this development in the countryside. I conclude that the personal needs of this family strongly outweigh any harm to the character and appearance of the surrounding rural area in this case."

15. Referring to the inspector's reasoning at paragraph 32 of the letter which I have set out, the learned judge said this at paragraph 49:

"But for matters relating to the vans and other structures on the site, to which I shall return in due course, I can detect no error of law or material omission in the finding there made by the inspector and the discussion which led to that finding."

16. So the judge is referring, of course, to paragraph 32 which includes (as I have just shown) the single sentence, "I am entirely satisfied that they fall within the statutory and policy meaning of the term 'gypsy'."

17. The judge then proceeded to recall the respondent's submission recorded by the inspector at paragraph 25 of the decision letter which I have set out. He referred to a written submission which had been made by the respondent on 4th March 2003:

"This is the first of three proposed residential units, created by bolting together two 'mobile' units. To qualify as a caravan (under the Caravan Sites Act 1968) it needs to be capable of being transported on public highways in one piece, without separation into its component parts. If the above structure is not a mobile home according to the 1968 Act, then the application fails the first test of Gypsy status employed by the Officer."

18. The judge had already noted the terms of a memorandum, dated 4th August 2002, which actually is in the form of an e-mail passing between officers of the second defendant local planning authority. It read:

"Having now been out to the above, they have 3 homes there - one consists of two static caravans linked by a timber structure, the second & third both have timber extensions to them, & they have a fourth static used for storage. Are all of these included in the pp? The timber extension/link structure takes the homes out of the definition of a caravan under the Caravan Sites & Control of Devt Act. They said you know all about them all, but I am a bit concerned about licensing caravans that aren't strictly speaking caravans any more!"

19. The judge summarised the submissions of Mr Green, the respondent, at paragraph 54 of his judgment crisply as follow:

"It is contended that the two mobile homes, apart from that of the third defendant, are not only not single units but each has an extension. The second mobile home has a timber construction which must not only be included in the calculation, and the third mobile home is made up of two units connected by a timber extension. In both cases it is submitted that the inspector failed to consider the dimensions of those units, whereas it is clear that they should have been addressed and taken into account in determining whether the third defendant had retained his gypsy status."

20. Then the judge's conclusions are, first, at paragraphs 57 to 60 as follows:

"57. In considering these submissions, I note that the structures of the two units, other than the third defendant's caravan brought more recently on to the site, are shown in a photograph taken in summer 2003 at page 25 of the trial bundle. From the descriptions given of those two structures, together with the photograph in question, I conclude that there is clearly a sustainable argument that each of those units taken as a whole amounts to a single fixture consisting of a caravan or caravans bolted on to other structures. It is clearly arguable that each of those units should be considered as a whole. If each unit is so considered then it is more than arguable that each unit is incapable of being moved as a single unit. That applies with particular force to the unit stationed in the most westerly position on the site, which actually appears to consist of two mobile residential units connected by a timber extension.

"58. These issues were not dealt with by the inspector. In my judgment they were material considerations for two associated reasons. First, they had at least a significant potential impact on the question of gypsy status, but secondly, because if those structures, or one of them, are not in law 'caravans' within the definition of the 1990 Act and/or were not properly described as 'units of mobile living accommodation', then the formal decisions made by the inspector are not consistent with the factual reality of the development on site.

"59. One only has to consider the terms of paragraphs 73 of the letter which sets out the formal decisions to become aware of that, because planning permission was granted by the inspector in these terms: for 'the use for the stationing of three units of mobile living accommodation'. One of the conditions attached to that permission, from which I have already quoted, are that:

'No more than 3 units of mobile living accommodation falling within the definition of a caravan as set out in the Caravans Sites and Control of Development Act 1960 as amended by the Caravans Sites Act 1968 shall be stationed on that part of the land shown hatched black on the plan annexed to this decision at any time'.

"60. I have considered the possibility that the inspector's findings imply that each of the homes in question falls within the definition of 'caravans' and that the structures attached to the various vans are merely 'ancillary storage' (to use an expression set out in the decision). But in my view that argument does not assist. There was a very real problem here which needed to be addressed specifically and there is no indication that it was identified by the inspector. If it was identified there is no indication of her reasoning in relation to it."

21. On the basis that the inspector thus failed to have regard to a material consideration the judge allowed the appeal and quashed the inspector's decision.

22. Ground 1, as it has been formulated for the purposes of the appeal to this court, is that the question whether units 2 and 3 were "caravans" within the statutory definition given by the 1960 Act, was not a material consideration going to the question of the third defendant's gypsy status; and the judge was wrong to find otherwise.

23. Ground 2 alleges that the judge was wrong to condemn the inspector for granting planning permission for the existing units subject to condition 2 (that was the condition quoted by the judge at paragraph 59 of the judgment) without deciding whether units 2 and 3 were in truth "caravans" as defined in the 1960 Act or otherwise units of mobile living accommodation.

24. Thus grounds 1 and 2 assert different reasons for a single alleged failure by the inspector. The failure was to consider and decide whether units 2 and 3 were, if I may use the expression, "statutory caravans".

25. Ground 3 is that the judge erred in forming his own planning judgment to the effect that units 2 and 3 each consisted of a single fixture bolted on to other structures.

26. Ground 4 concerns the e-mail which I have quoted, to which I will refer very briefly shortly.

27. I turn then to ground 1. It is first convenient to recall the respondent's submission as recorded by the inspector at paragraph 25 of the decision letter:

"... in order to qualify as 'gypsies' the Appellant and his family must live in a caravan."

So far as this was advanced as a proposition of law it was, in my judgment, clearly wrong. It is no part of the statutory definition of 'gypsy', which I have set out, that in order to qualify as such a person has to live in a caravan, whether one that is within the statutory definition of caravan or otherwise. The requirement for gypsy status in terms of the Act of 1968 is that the person must have a "nomadic habit of life".

28. There is authority of the High Court to the effect that whether a person lives in a caravan may be a factor in determining whether he is a gypsy (see per Burton J in Clarke v Secretary of State [2001] EWHC Admin 800, paragraph 32). That, if I may say so, is obviously right. Plainly it is capable of being a relevant factor. But Burton J was not holding that residence in a caravan was a sine qua non of gypsy status. If he had, he would have been wrong to do so.

29. Next, it is plain that a gypsy within the definition given by the statute may have a permanent base from which he goes out and to which he returns (see Wrexham County Borough Council v The National Assembly of Wales [2004] JPL 65, paragraphs 60 to 62 of which are cited by the judge in the present case at paragraph 43 of his judgment). In this case the inspector's finding that the third defendant was a gypsy (decision letter, paragraph 32, which I have cited) cannot, in my judgment, conceivably be undermined by the circumstance that she has not considered the statutory status of the two units on the site not occupied by the third defendant. The appellant says, and I see no reason not to accept, that the status of these other two units was not, in substance, alleged to be relevant to the gypsy status of their occupancy. I have not forgotten the use of the plural "dwellings" in paragraph 25 of the decision letter, but there is no trace in the careful reasoning of the inspector that the issue of the statutory status of units 2 and 3 was confronted fair and square or even discussed.

30. The inspector's findings as to the dimension of the third defendant's home (paragraph 28 of the decision letter), only concern that dwelling. It is clear that Mr Green, the respondent, did not invite the inspector to measure the other two units.

31. I should say that there is an issue, addressed by fresh evidence sought to be put in on each side, as to whether the memorandum of 4th August 2002, cited by the judge at paragraph 50, which is as I have said an internal e-mail, was before the inspector. This issue is raised by ground 4 in the appeal. I mention it now lest it be thought to be of some relevance to the question whether the status of units 2 and 3 was gone into. But, in truth it does not seem to me to matter at all whether the inspector saw the e-mail or not. The fact is that the status of units 2 and 3 was not in effect canvassed at the inquiry, at any rate in any express substantial way, so as to cast light on the question whether the third defendant or members of his family were gypsies. The focus was all on the unit occupied by the third defendant himself.

32. I think the judge fell into error in regarding these other units as being a relevant consideration on which the inspector should have formed the view in order to decide whether in truth the third defendant was a gypsy. More importantly, once the inspector had found (paragraph 32 of the decision letter) that the third defendant had not abandoned his nomadic way of life it is really impossible to see how that view could be affected or undermined by a conclusion on the question whether units 2 and 3 fulfilled the statutory definition of caravan.

33. So, for my part, I would hold that the judge was wrong to fault the inspector for not having decided upon the status of units 2 and 3 in the context of the question: was the third defendant a gypsy?

34. I turn to ground 2 which, to say the least, is more problematic. It will be recalled that the judge said this at paragraph 58 of his judgment:

"... if those structures, or one of them, are not in law 'caravans' within the definition of the 1990 Act and/or were not properly described as 'units of mobile living accommodation', then the formal decisions made by the inspector are not consistent with the factual reality of the development on site."

35. It is necessary here to look a little more carefully at the words in which the planning permission was granted. At paragraph 73 of the decision letter the inspector sets out, under the heading "Formal Conclusions", her conclusion on appeal A. It is to be noted, as Mr Comyn reminded us, that the proceedings in this court and before Gibbs J, strictly speaking were a statutory appeal only against the inspector's conclusion on appeal B. But, for reasons which will be obvious, it is necessary to read the words given by the inspector relating to appeal A. She says:

"I allow the appeal insofar as it relates to the land shown hatched and cross-hatched black on the plan annexed to this decision. I grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended, for the development already carried out, namely, the use for the stationing of three units of mobile living accommodation and ancillary storage including touring caravans and residential use subject to the following conditions:"

Then condition 2, already cited by the judge, was as follows:

"2) No more than 3 units of mobile living accommodation falling within the definition of a caravan as set out in the Caravans Sites and Control of Development Act 1960 as amended by the Caravan Sites Act 1968 shall be stationed on that part of the land shown hatched black on the plan annexed to this decision at any time."

36. The formal result on appeal B was described by the inspector at paragraph 75 as follows:

"I allow the appeal insofar as it relates to the land shown hatched black and cross-hatched black on the plan annexed to this decision and I grant planning permission for the use of the land for the stationing of three units of mobile living accommodation and ancillary storage including touring caravans... subject to conditions identical to those set out above in relation to Appeal A."

37. It is true that in paragraph 75 the inspector does not use the words appearing in paragraph 73 "I grant planning permission... for the development already carried out", but there is no doubt and no argument but that the subject matter of the planning permission given on appeal B was the same as on appeal A.

38. The submission made by the respondent successfully before Gibbs J and in the skeleton argument here, is that the inspector ought to have determined whether units 2 and 3 were, in truth, statutory caravans. At least she ought so to have determined if she was going to (a) grant permission for the development that had already taken place, that is what was on the ground, and (b) impose condition 2 as she worded it. It was necessary for her to determine the issue of the status of units 2 and 3 in those circumstances because unless those units were indeed statutory caravans within the definition given in the statute, then the condition would be repugnant to the terms of the grant of the planning permission. There would, in short, be an inconsistency between "the development already carried out" and the reference in condition 2 to "mobile living accommodation falling within the definition of a caravan".

39. Moreover, it is submitted for the respondent that although the judge was not properly a fact finder as to the merits of the matter, there is at least a very strong pointer to the effect that units 2 and 3 cannot have been statutory caravans. Reference is made to the decision of this court in Carter [1994] 1 WLR 1212. Russell LJ said this at 1219C (I note that the learned judge, at paragraph 56, wrongly attributed this passage to Sir Stephen Brown, President):

"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."

40. It is said for the respondent that given the timber additions and the whole nature of what has been done on the site in relation to units 2 and 3, it seems almost inevitable that units 2 and 3 could actually only be moved by being dismantled and so would not, given the reasoning in Carter, fall within the statutory definition.

41. I emphasise that it is not for this court, any more than it was for Gibbs J, to arrive at a conclusion on the facts as to whether in truth units 2 and 3 were caravans within the meaning of the statute. The argument is that the inspector for her part owed a duty to perform that exercise if, as I have said, she was going to grant the planning permission she granted with the condition that she imposed.

42. Mr Comyn for the appellant has been at pains to emphasise before us this morning what I have already mentioned, namely that there was no real substantial dispute about the status of units 2 and 3 before the inspector. I have already indicated that for my part, reading the decision letter, I would accept that. But it seems to me to be nothing to the point. If condition number 2 would have been repugnant to the planning permission as framed by the inspector unless these units were statutory caravans, then the inspector could not, as I see it, grant the permission subject to that condition as she did, without deciding the question of those units' status.

43. Accordingly it seems to me that the judge was right to hold that on this part of the case, and for the purposes of framing the planning permission which she was to grant and the condition which she was to impose, the inspector was indeed bound to enter into and determine this question as to the status of units 2 and 3.

44. Mr Comyn has some other points. He was faced with the question from the court: what would happen if the local planning authority sought to enforce against the existing structures on the basis that they were in breach of condition 2 because they arguably are not statutory caravans? Part of his answer was: the inspector has given permission on appeal C for the very timber structures in question, so, on the face of it, she has. But if she had granted a planning permission by way of appeal A and appeal B in which there is a more than de minimis possibility that the condition imposed is repugnant to the terms of the permission, the collateral grant of a permission on appeal C does not seem to me to save the matter.

45. For all those reasons then I would reject ground 2 and uphold the learned judge.

46. Ground 3 was an assault on the judge's reasoning at paragraphs 57 to 60 which I have set out. It said that the reasoning there amounts to an illegitimate exercise by the judge in which he has constituted himself a fact-finder on the merits. I am not inclined to accept the criticism. All the judge was doing was holding that there was a "sustainable argument" (paragraph 57) that each of the units taken as a whole amounted to a single fixture. But no matter: my views on ground 2, were my Lords to agree, are sufficient to sustain the judge's decision quashing the inspector's decision.

47. Ground 4 concerned the e-mail, as I have said. The parties energetically joined issue on the extent to which the inspector must have seen or taken notice of this e-mail. I do not think it sheds any light on the case whatever and I would propose to say no more about it.

48. For the single reason I have given relating to ground 2, the appeal in my judgment ought to be dismissed.

49. LORD JUSTICE MOORE-BICK: I agree that this appeal ought to be dismissed for the reasons given by my Lord, Laws LJ.

50. LORD JUSTICE TUCKEY: I also agree that the appeal should be dismissed on the ground which has been identified by Laws LJ.

ORDER: appeal dismissed; appellant to pay respondent's costs; detailed assessment of appellant's costs; permission to appeal refused.