Bury Metropolitan Borough Council v Secretary of State for Communities & Local Government & Anor

This is an appeal brought by Bury Metropolitan Borough Council ("the Council") under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act") against a decision of the Inspector made on 23 February 2011. By that decision she allowed an appeal by the Interested Party, Mr Gary Entwistle against an enforcement notice issued against him by the Council on 4 June 2010 (“the Enforcement Notice”), and quashed it.

Mr Entwistle and members of his family currently occupy a structure (to use a neutral expression) situated on their land at Springside Farm, Walmersley in Bury. It has the appearance of a modest one story wooden house - see the photographs at pages 233 to 227 of the hearing bundle - but Mr Entwistle contends that as a matter of law, it is a caravan. It arrived on the land on 15 March 2010 on a lorry and trailer, in two parts which were subsequently bolted together. Following its arrival the Council issued the Enforcement Notice on the basis that it constituted a material change of use since the designated use for the land was agricultural and there was no planning permission for a residence.

On his appeal to the Inspector Mr Entwistle contended it that there was in fact no breach of planning control as a result of the development constituted by the use of the structure because:

It constituted a caravan within the meaning of section 13 of the Caravan Sites Act 1968;

There were building operations adjacent to the caravan, it was occupied by Mr Entwistle and he was employed on those works, and accordingly

By reason of Part 5 to Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (“the 1995 Order”) and paragraph 9 of Schedule 1 to the Caravan Sites and Control of Development Act 1960 (“the 1960 Act”) there was a deemed planning permission in such circumstances so no specific planning permission for the change of use was necessary.

It is common ground that there are indeed under way, building works for the extension and conversion of an existing pheasant rearing shed for which planning permission was granted on 28 September 2009. However, it is also common ground that this permission was subject to certain conditions which had to be fulfilled before building could start. They were not fulfilled until 7 July 2010. The building works themselves commenced with some preparation works at around that time with substantial works starting in around October. (The expected completion date is January 2012). Accordingly, as at the date of the Enforcement Notice there were no relevant building operations and even if there had been they would not have been carried out lawfully because the conditions of the planning permission had yet to be fulfilled. At that time, therefore, and even assuming that the structure was a caravan, there was a breach of planning control. Conversely however, and on the same assumption, at all times after July or October 2010, and in any event as at the date of the appeal before the Inspector, there was no breach of planning control.

By her decision, the Inspector held as follows:

the structure was a caravan in law;

there were the relevant building operations being carried out lawfully pursuant to the 2009 planning permission as at the date of the appeal;

Mr Entwistle (together with members of his family) were occupying the structure for the purpose of his employment on the adjacent building works, and accordingly

There was no breach of planning control.

In the present appeal, the Council challenges the Inspector’s decision in two essential respects:

There was in truth no evidential or rational basis for the Inspector’s finding that the structure was a caravan (“the Caravan Issue”);

Even if there was, there was still a breach of planning control at the time of the Enforcement Notice because of the absence of lawful building operations, and as a matter of law, this was the relevant time to assess the position not, as the Inspector found, as at the time of the appeal (“the Timing Issue”).

I deal with each issue in turn.

Although not discernible from the photographs, the structure is made up of two parts joined together by bolts. Each part has its own chassis and set of wheels, with a small jockey wheel at the front. It was supplied “off-the shelf” by a caravan supplier designed to comply with the legal definition of a caravan when assembled. Mr Entwistle’s statement of case for his appeal, compiled by Mr Furness of Fairhusrt and Partners, Planning Consultants, said this in Mr Entwistle’s statement of case at paragraph 4.12:

The structure is 19.74m long, 6.7m wide and 2.9m high and weighs 28 tons.

Section 59 of the 1990 Act empowers the Secretary of State to make orders (referred to as “development orders”) that provide for the granting of planning permission. A development order may itself grant planning permission for development specified in the order. The 1995 Order was made pursuant to section 59.

Article 3(1) of the 1995 Order provides that “planning permission is hereby granted” for the classes of development described as permitted development in Schedule 2. Article 3(2) provides that any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.

Part 5 of Schedule 2 to the 1995 Order deals with caravan sites. It provides that the following constitutes permitted development:

Paragraph A.2 then provides that

Paragraph 9 of Schedule 1 to the 1960 Act provides that:

s29 of the 1960 Act defines a caravan thus:

However, the structure here is or purports to be a “twin-unit caravan” and is thus governed by s13 of the 1968 Act which provides as follows:

s13 (2) then excludes in any event any purported caravan which is more than 20m long, 6.8m wide or 3.05m high. It can be seen therefore that this structure narrowly avoids exclusion by reason of these limits.

There is no issue before me over sub-paragraph (a) but there is, over the satisfaction or otherwise of sub-paragraph (b), commonly referred to as “the mobility test”.

In the case of Byrne v. Secretary of State for the Environment (1997) 74 P & CR 420 His Honour Judge Rich QC stated that “ ‘when assembled’ means when and as assembled in the state where the question of whether or not it is to be deemed a caravan falls to be determined”. Ms Hannett, for Mr Entwistle was not disposed to accept that this was necessarily the right test, having regard to the observations of Jack J in Brightlingsea Haven Ltd v. Morris [2009] 1 EGLR 117. However, any such difference as to where, notionally, the structure is to be viewed as being transported from does not arise in this case where its location presented no special difficulties for its removal, assuming it could be removed in one piece. In Byrne HHJ Rich QC also noted that consideration had to be given to the practicality of moving the structure once lifted as part of the mobility test. It is clear that the Inspector directed herself to that in paragraph 11 of her decision.

Ms Hannett has referred me to the well-known authorities holding that on applications such as this (a) the Court should not interfere with matters of planning judgment for the Inspector (b) they do not permit what is in truth no more than a rerun of the arguments over the planning merits before the Inspector and (c) decision letters should be read in a down-to-earth and not in an over-legalistic way. See paragraph 9 of her skeleton argument. I of course agree with all of that. I would only point out that the question of whether the mobility test is satisfied or not is not a question of planning judgment, it is a question of fact. But of course it is equally true that the Courts should be very slow to interfere with an Inspector’s finding of fact.

Finally, as with an enforcement appeal generally, it was for the appellant (here Mr Entwistle) to prove that there was no breach of planning control so the burden of satisfying the Inspector that the structure was a caravan rested upon him. The Inspector refers to this in paragraph 4 of the Decision Letter.

The Inspector dealt with this issue in paragraphs 9 – 12 of the Decision Letter as follows:

It is common ground that there was no specific evidence before the Inspector, whether expert, technical or otherwise, as to whether the structure when assembled was physically capable of being moved by road from one place to another. Indeed the only material which might be thought to be specifically relevant was paragraph 4.12 of Mr Entwistle’s statement of case, referred to in paragraph 8 above, which suggests that the appropriate way to move it would be first to dismantle it. I accept that this should not be treated as a formal admission that the structure could not be moved in one piece, as it were, but it clearly is a matter bearing upon the issue. It is not referred to by the Inspector. It is further common ground that at the appeal hearing itself, Mr Entwistle’s representative asserted that the Inspector could be moved in one piece but it was no more than an assertion.

On that basis, the Council contends that in reality there was no or no proper evidence before the Inspector at all on the question of the mobility test and such material as there was (paragraph 4.12 of Mr Entwistle’s statement of case) suggested that it could not be fulfilled. So there was no evidential foundation for the Inspector’s conclusion which was simply speculation, or (because there was no foundation for it) irrational. Her references to movement without the structural damage being “just” achievable (whereas towing without the risk of that damage was not) are a reflection of this, as it is not apparent how she makes that judgment. The Council also submits that this lack of proper evidence is all the more important because it is Mr Entwistle who has the burden of proof.

As against that Ms Hannett submits that weight should be given first to the fact that the Inspector visited the site and saw the structure. I follow that but I do not see how that could assist here very much on what after all is a question of lifting and moving capacity. Second she says that the Inspector was very experienced and was a charted planner. I accept that of course but it does not mean that she had any particular expertise in deciding questions such as this in the absence of any real evidence which could help her.

Third she says that at the end of the day this was a factual decision made by the Inspector and as such the Court should not interfere. I agree that it was a factual decision but the difficulty in my view is that there is really no evidential basis for it. Nor did the Inspector grapple with the counter-suggestion in paragraph 4.12 of Mr Entwistle’s statement of case. Put another way, there was no evidence upon which the Inspector could rationally conclude as she did. In that context I have to say that the failure on the part of Mr Entwistle to adduce any specific evidence on the points seems a remarkable omission. If in truth this the structure was designed so as to comply with both limbs of s13 (1) of the 1968 Act, then one imagines that there is evidence available from the manufacture to make that good.

For all those reasons I conclude that the first ground of this appeal must succeed. This means that the Inspector’s decision must be quashed and remitted for reconsideration.

It is still necessary for me to deal with the Timing Issue however, first out of deference to the arguments addressed to me and second, because if the Inspector on a redetermination finds in favour of Mr Entwistle on the Caravan Issue in the light of the evidence then adduced, the Timing Issue will need to be dealt with because if the Council is right on that point, Mr Entwistle would still lose his appeal.

The short point is whether the Inspector was right to look at the position in terms of the fulfilment of the ground of appeal advanced, as at the date of the appeal as opposed to the date of the Enforcement Notice.

In order to address this issue its legal context must be set out.

First, planning permission is required for development of land – see section 57(1) of the 1990 Act. Section 55(1) defines development as meaning, inter alia, “the making of any material change in the use of any buildings or other land”. Pursuant to section 171A(1) of the 1990 Act, carrying out development without planning permission constitutes a breach of planning control. The other form of breach of planning control is failing to comply with any condition or limitation subject to which planning permission has been granted. The relevant breach in this case is the former. Thurs, for there to have been a breach of planning control there must have been (a) a development and (b) without the required planning permission.

Part VII of the 1990 Act deals with planning enforcement. Section 172(1) empowers a local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice. By section 173 (1) the notice must state

By section 173A, the local planning authority may withdraw an enforcement notice or waive or relax any requirement in it, even after it has taken effect.

By section 180, if planning permission is granted in respect of any development which is the subject of the enforcement notice after it has been served, the notice shall cease to have effect so far as inconsistent with that permission.

By section 181 (1), compliance with an enforcement notice shall not discharge it and by section 181 (2) any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it be discontinued permanently. Accordingly the resumption of that use at any time after it has been discontinued in compliance with that enforcement notice will to that extent contravene the enforcement notice.

Failure to comply with the terms of an enforcement notice results in the commission of an offence by reason of section 179 (1). Furthermore, section 187B provides that where a local planning authority considers it necessary or expedient for any actual or threatened breach of planning control to be restrained by injunction they may apply to the Court for an injunction whether or not they have exercised any other powers under that part of the Act.

Section 174(1) permits a person having an interest in the land to which the appeal relates or a relevant occupier to appeal to the Secretary of State against the enforcement notice. An appeal may be brought on the grounds set out in section 174(2) which provides as follows:

Section 176(1) provides that on an appeal, the Secretary of State may correct any defect, error or misdescription in the enforcement notice or vary any terms of the enforcement notice if he is satisfied that the correction or variation will not cause injustice to the appellant or to the local planning authority. Pursuant to section 176(2), where the Secretary of State determines to allow the appeal, he may quash the notice. During the appeal process the enforcement notice is suspended.

Furthermore, by section 177 (1) on the determination of any appeal the Secretary of State may grant planning permission in respect of the matters stated in the enforcement notice and under section 177 (5) and (5A), on any appeal the appellant will be deemed to have made an application for such planning permission provided that the relevant fee is paid.

It is clear from these provisions that the object of an enforcement notice is to prevent an ongoing breach of planning control. To that extent, it functions rather like an injunction, containing, as it does, an order that the recipient shall desist from certain activity or take certain positive steps so as to end the offending breach of planning control. The recipient is encouraged to comply (absent an appeal) because of the threat of a criminal prosecution or possibly injunction proceedings (with their own remedy of imprisonment for contempt of court) if he does not. The enforcement notice is not itself a punishment for being in breach of planning control in the first place. But in order to have the jurisdiction, or power, to issue the enforcement notice, it must appear to the local planning authority that a relevant breach of planning control has occurred. The method of challenging an enforcement notice is by way of the statutory appeal under s174.

Given that this is the nature of the scheme, and working from first principles, one might expect that a challenge to an enforcement notice could be brought on two different kinds of ground (putting to one side procedural bars like limitation):

There was no breach of planning control in the first place ie when the enforcement notice was issued. In that event, the local planning authority had no basis for issuing the notice;

The breach of planning control has been removed not because enforcement notice is now complied with, but because the underlying development for some reason is not now unlawful in planning terms. Therefore there is no need for enforcement notice because that which it seeks to prevent is not a breach of planning control.

In my judgment, and as will be shown below, the various grounds of appeal do indeed reflect this dual approach to a challenge by way of appeal. Accordingly, looking at the scheme as a whole, it must follow, as Ms Hannett suggests, that however one describes the appeal process, it is not limited to an assessment of whether the enforcement notice, when issued, was validly issued.

By paragraph 3 of the Enforcement Notice the matters appearing to constitute the breach of planning control were:

On the appeal, the Inspector varied that part of the Enforcement Notice so that for the word “residential” was replaced the words:

see paragraph 1 of the Decision Letter.

Under paragraph 5 of the Enforcement Notice, Mr Entwistle was required, among other things, permanently to cease the use of the site for residential purposes and permanently remove the building (ie the structure) from the site within 90 days.

On 2 July Mr Entwistle appealed on Grounds (c) and (f). The latter ground has not been pursued.

In paragraph 13 of the decision letter the Inspector noted that the caravan had arrived on 15 March 2010 and that the pre-commencement conditions under the planning permission were discharged on 7 July 2010. She then stated as follows:

Before turning to the interpretation of Ground (c) itself it is necessary to consider some of the other grounds.

Ground (a): “..in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted..” It is accepted that this is concerned with matters as at the time of the appeal. The fact that retrospective planning permission is now granted does not of course mean that there was not a breach of planning control initially. But it does mean that the enforcement notice will be quashed.

The “matters stated” in this case are the contents of paragraph 3 of the Enforcement Notice as set out in paragraph 43 above.

Ground (b): “..those matters have not occurred..” Conversely, and again as accepted by parties, this ground is concerned only with the position as at the date of the enforcement notice. “Those matters” is a reference back to the “matters stated” in the enforcement notice. So if the appellant wished to challenge the underlying facts relied upon by the local planning authority by saying that there was no development, he would proceed under this ground.

So Grounds (a) and (b) each illustrate one of the two aspects of the enforcement notice scheme as described in paragraph 41 above.

Ground (d): “at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;”. This relates to the situation at the time of the issue of the enforcement notice. The same is true of Ground (e).

Conversely, Ground (f): “.. the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters..” at least in part looks to the future operation of the enforcement notice and its terms, not simply the original breach of planning control.

One then turns to Ground (c) itself: “those matters (if they occurred) do not constitute a breach of planning control.”

Again, “those matters” is a reference back to the matters stated in the enforcement notice. But the focus here is on the planning control significance, or otherwise, of the development. Obviously, Obviously, Ground (c) can refer back exclusively to the matters as they were at the time of the issue of the enforcement notice. If there was in truth no breach of planning control then, there was no basis for an enforcement notice. If there was some later breach, then that could and should be dealt with by a further notice.

That, in my judgment, is the import of the decision of the Divisional Court in Prengate Properties Ltd v. Secretary of State for the Environment (1973) 25 P & CR 311. On the facts, the Court found that at the time of the enforcement notice the landowner had erected a wall whose ultimate purpose was to contain large amounts of soil brought in to form the basis of a new terrace to his house, built on a slope. But at the time of the enforcement notice, much of the work had yet to be done and the wall could properly be described at that stage as simply an “enclosing wall”. On that basis there was no breach of planning control because the erection of such a wall was permitted development.

In this context, Lord Widgery CJ stated thus:

However, I do not read this as meaning that when ground (c) is invoked on behalf of the appellant, it follows that the absence of a breach of planning control can only be alleged in relation to the position as it was at the time of the enforcement notice. The challenge in Prengate, as it happened, was on the basis that there was no breach of planning control at the time of the enforcement notice. If so, what Prengate established is that whatever might have happened after the issue of the enforcement notice is irrelevant because there must have been a breach of planning control originally in order to found the enforcement notice. That is not the issue, or Mr Entwistle’s ground of appeal, here. Accordingly I do not find Prengate to be of any real assistance.

The language of ground (c) certainly does not prevent it from covering the case where, by the time of the appeal hearing, there is no breach of planning control. That is because of the words in the present tense: “..do not constitute a breach of planning control.”.

Moreover, adopting a purposive approach, and with regard to the scheme as a whole, it would be entirely logical and consistent with the scheme if an appellant in the position of Mr Entwistle was able to rely upon a change in the planning control situation since the enforcement notice, for it would mean that there was now in truth no planning control purpose to be served by its continued existence. This point is brought into sharper focus by a comparison between an appellant in Mr Entwistle’s position and an appellant who relies upon Ground (a). Where there was an undoubted breach of planning control at the time of the enforcement notice because of a development which need a specific planning permission, that permission can be sought from and granted by the Inspector in the appeal. The enforcement notice will then have no purpose and must be discharged. Yet, if the Council is right in its interpretation of Ground (c) Mr Entwistle, who, without needing to apply, already has the benefit of a deemed planning permission by reason of paragraph 3 of the 1995 Order, cannot similarly invoke it. That would be a very odd and unfair state of affairs and so the Court should strive to adopt an interpretation which avoids it.

Mr Owen for the Council submitted that if the wider view of Ground (c) was adopted, in favour of Mr Entwistle, this would somehow open the floodgates to unmeritorious conduct on behalf of landowners. He gave the example of a car park in a public house used as a car sale site in breach of planning control. If the cars were removed the day before the appeal, the Inspector, he submitted, would be bound to quash the enforcement notice even if the cars returned the day after. I consider this to be an unreal example. First, the act of removal would normally be in order to comply with the enforcement notice not challenge it. So one would not expect the landowner actually to desire the continuance of his appeal. Second, even if that enforcement notice was quashed, the landowner would know that to bring the cars back later on would again be a breach of planning control exposing him to a further enforcement notice. Thirdly, and most importantly, Ground (c) assumes the fact of the original development as it occurred at the time of the enforcement notice, so, on this example, the siting of the cars. Ground (c) can only be made out here if the siting of the cars does not now amount to a breach of planning control. But it does, so their temporary removal will not assist and would not give rise to a Ground (c) appeal.

By contrast in Mr Entwistle’s case, there can now never be another enforcement notice (absent a change in planning law and assuming no change in the underlying facts) because the development is not now unlawful.

So, in truth this interpretation of Ground (c) is limited in its effect and this case is itself somewhat unusual no doubt because for the most part the planning control aspect of the case does not change between the time of the enforcement notice and the hearing of the appeal.

Indeed if the position were otherwise, it would mean that unless the Council exercised its discretion to withdraw it pursuant to its powers under s173A (see paragraph 33 above), the Enforcement Notice would remain in force requiring the permanent removal of the structure by reason of its own terms and section 181 – see paragraph 35 above. Although it was assumed in argument that if the Enforcement Notice was not quashed, Mr Entwistle could remove the structure but then return to site the following day with impunity, that is not in fact correct. If the Enforcement Notice remained in force, removal for a day would not be permanent removal and even if it purported to be, such compliance does not discharge the Enforcement Notice. Recommencing the forbidden activity on site would constitute a further breach of the same notice. So it is not even as if at worst, Mr Entwistle is faced with some temporary inconvenience. In truth, if the Enforcement Notice is not quashed he will have to remove the structure permanently even though it is now lawful. That does not make much sense.

Mr Owen also relied upon the decision of Dyson J (as he then was) in R v. Secretary of State for the Environment, ex p. Hammond (1996) JPL 497 (QBD). This decision was upheld by the Court of Appeal, (1997) JPL 724. Here Dyson J undertook a detailed analysis of when certain breaches of planning control had occurred, all being prior to the enforcement notice. He did so in order to see whether a limitation argument succeeded. I do not see that case as assisting me on the Timing Issue which did not arise in that case in the way that it has arisen before me.

Mr Owen also referred me to certain prior decisions of other Inspectors. Of course they do not bind me but in any event they afford no real support for the Council’s position. So, for example, in 206 Harrow Road the Inspector found no breach of planning control at the time when the enforcement notice was issued. That is a Prengate-type decision and as stated above, does not in fact entail the wider view of Ground (c). Then in Climax Works, Stockport the appeal was in fact on ground (f) not (c) so it is not directly on point. The Inspector did however observe that the use said to amount to the development complained of in the enforcement notice had subsequently ceased. He said that despite this his decision must be based on the development as it was when the notice was issued. That is consistent with what I said at the end of paragraph 62 above – the “current” part of ground (c) relates not to whether the development is still there but whether it remains in breach of planning control. The same applies to Belmont Road, Burton on Trent where the issue was whether there had been a material change of use ie development, or not. Nor did I see Former Conoco Site as being particularly on point.

For all of those reasons, I am clearly of the view that in the case of Ground (c) an appellant can, if necessary, rely upon matters occurring since the date of the enforcement notice so as to show (and only to show) that at the time of the appeal hearing, the development which has occurred does not amount to a breach of planning control.

It follows that in examining the planning control position as at the time of the appeal, the Inspector did not err in law.

I should add that, as can be seen from paragraph 16 of the Decision letter, the Inspector took the view that even if she had to examine the position as at the date of the Enforcement Notice so that there was a breach of planning control and Ground (c) would fail on this score, she would still quash the notice. This was originally a further ground of challenge before me but Ms Hannett realistically conceded that the Inspector must be wrong here – there is no residual power in the Inspector to quash absent a successful ground of appeal. In the event this point has fallen away because of my finding in Mr Entwistle’s favour on the Timing Issue.

Nonetheless because I am against him and in favour of the Council on the Caravan Issue, the appeal succeeds to that extent and the matter will be remitted for redetermination. I am most grateful to Counsel for their excellent oral and written submissions.