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

Factual and Procedural Background

This appeal arises from a decision by an Inspector dated 23 February 2011, which allowed an appeal by the Appellee against an enforcement notice issued by the Appellant on 4 June 2010. The enforcement notice concerned a structure situated on the Appellee's land at a farm in The City. The structure appeared to be a modest one-story wooden house but was contended by the Appellee to be legally a caravan. The Appellant issued the enforcement notice on the basis that the use of the land for residential purposes constituted a material change of use from agricultural use without planning permission.

The Appellee argued that the structure was a caravan within the meaning of relevant legislation and that, due to adjacent building operations for which planning permission had been granted (subject to conditions later fulfilled), there was a deemed planning permission allowing the use of the land as a caravan site for accommodation of a person employed on those works. The building operations commenced lawfully only after the date of the enforcement notice. The Inspector found the structure to be a caravan, that lawful building operations were underway at the time of the appeal, and that the Appellee occupied the structure for employment purposes, concluding there was no breach of planning control.

The Appellant appeals this decision on two main grounds: that there was no evidential basis for the finding that the structure was a caravan (the Caravan Issue), and that the relevant time to assess breach of planning control was the date of the enforcement notice, not the date of the appeal (the Timing Issue).

Legal Issues Presented

1. Whether the structure in question qualifies as a caravan under the relevant statutory definitions, particularly the mobility test under section 13 of the Caravan Sites Act 1968 (the Caravan Issue).
2. Whether the correct time to assess the existence of a breach of planning control is the date the enforcement notice was issued or the date of the appeal determination (the Timing Issue).

Arguments of the Parties

Appellant's Arguments

• The Inspector had no evidential or rational basis to conclude the structure was a caravan, as the only material suggested it had to be dismantled to move, failing the mobility test.
• The relevant time for assessing breach of planning control is the date of the enforcement notice, at which time there were no lawful building operations, so a breach existed regardless of subsequent developments.

Appellee's Arguments

• The Inspector’s site visit and expertise justify the factual finding that the structure met the mobility test and was a caravan.
• The appeal process under Ground (c) allows consideration of the planning control position as at the date of the appeal, not solely at the date of the enforcement notice.
• There is a deemed planning permission for use of the land as a caravan site due to ongoing lawful building operations and occupation by a person employed in connection with those works.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Byrne v. Secretary of State for the Environment (1997) 74 P & CR 420	Interpretation of "when assembled" and the mobility test for caravans.	The court accepted that the mobility test relates to the structure as assembled at the time the legal question arises, focusing on practical capability to move without damage.
Brightlingsea Haven Ltd v. Morris [2009] 1 EGLR 117	Consideration of the point from which the mobility test should be assessed.	The court noted differing views but found no special difficulties in this case regarding the point of removal of the structure.
Prengate Properties Ltd v. Secretary of State for the Environment (1973) 25 P & CR 311	Assessment of breach of planning control based on the factual position at the date of the enforcement notice.	The court held that the factual situation at the time the notice was served is decisive for establishing a breach, but this does not preclude consideration of changes by the time of appeal under certain grounds.
R v. Secretary of State for the Environment, ex p. Hammond (1996) JPL 497 (QBD)	Analysis of timing of breaches of planning control and limitation arguments.	The court’s detailed analysis was noted but found not directly applicable to the Timing Issue in this appeal.

Court's Reasoning and Analysis

The court first addressed the Caravan Issue, focusing on whether the Inspector had a sufficient evidential basis to find the structure met the mobility test under section 13(1)(b) of the Caravan Sites Act 1968. The structure was a twin-unit caravan delivered in two parts bolted together, with each part having its own chassis and wheels. The Inspector found that, although towing the assembled unit on its wheels would likely cause damage, it could be moved intact by lifting onto a suitable trailer, thus meeting the mobility test.

However, the court found no specific expert or technical evidence was presented to support this conclusion, only an assertion from the Appellee’s representative and a statement suggesting dismantling was necessary for moving. The court held that the Inspector’s conclusion lacked an evidential foundation and was therefore irrational, given the burden of proof rested with the Appellee. Consequently, the court quashed the Inspector’s decision on this ground and remitted the matter for reconsideration.

Turning to the Timing Issue, the court analysed the statutory framework governing enforcement notices and appeals under the Town and Country Planning Act 1990. It explained that enforcement notices aim to prevent ongoing breaches of planning control, which must exist at the time the notice is issued. However, the appeal process under Ground (c) allows an appellant to argue that the matters stated in the notice do not constitute a breach of planning control at the date of the appeal, reflecting a change in circumstances or law.

The court reviewed relevant statutory provisions and case law, including Prengate Properties Ltd, and concluded that Ground (c) can validly be relied upon to show that at the time of the appeal hearing no breach of planning control exists, even if one existed at the date of the enforcement notice. This interpretation aligns with the overall scheme of enforcement and appeal provisions and avoids unfairness where the development becomes lawful after the notice is issued.

Accordingly, the court found no legal error in the Inspector’s approach to assess the planning control position as at the date of the appeal rather than the date of the enforcement notice.

Holding and Implications

The court held that the appeal succeeds on the Caravan Issue, as the Inspector’s decision was quashed due to lack of evidential basis for the finding that the structure was a caravan. The matter is remitted to the Inspector for redetermination on that issue.

DISPOSED OF

The court also held that assessing the breach of planning control at the date of the appeal under Ground (c) is legally correct, meaning that if on redetermination the structure is found to be a caravan and the building operations lawful, there would be no breach of planning control at the appeal date.

There are no broader precedential implications beyond clarifying that Ground (c) appeals may consider changes in planning control status occurring after the enforcement notice was issued. The direct effect is that the enforcement notice is quashed and the case remitted for reconsideration on the caravan status of the structure.