Massingham v Secretary Of State For Transport, Local Government & Regions & Anor

A planning inspector’s conclusion whether a mobile home has sufficient permanence and attachment to constitute a building is a matter of fact and degree. An inspector may reach that conclusion by applying the established case law to the particular facts. The interpretative obligation in section 3(1) of the Human Rights Act 1998 does not permit the word building in the Town and Country Planning Act 1990 to be given a different meaning where the asserted Convention rights are not presently engaged. A lawful development certificate is declaratory and does not itself create or remove rights.

The applicant sought permission to appeal from Forbes J, who had dismissed an application under section 288 of the Town and Country Planning Act 1990. The application concerned the Secretary of State’s decision, following an inspector’s determination, to refuse a lawful development certificate under section 191.

The applicant argued that moving a mobile home onto a caravan site constituted a material change of use and building operations. He contended that the seasonal planning condition did not apply and that the four-year enforcement period for building operations governed the case. He also relied on Convention rights and section 3(1) of the Human Rights Act 1998. The central issue was whether the inspector’s approach to the meaning of building and the asserted human-rights arguments disclosed any arguable basis for an appeal.

1. Application refused. There was no prospect of successfully challenging the decision below.
2. The inspector was entitled to conclude that the mobile home was not a building for the purposes of the Town and Country Planning Act 1990. Whether a caravan has acquired sufficient permanence and attachment to become a building is a matter of fact and degree. The inspector applied the approach identified in Measor (Terence Charles) v Secretary of State for the Environment and reached a conclusion open to him on the evidence.
3. The argument that the definition of caravan as a structure under section 29(1) of the Caravan Sites and Control of Development Act 1960 necessarily made the mobile home a building under section 336(1) of the 1990 Act was therefore rejected.
4. The interpretative obligation in section 3(1) of the Human Rights Act 1998 did not permit the court to give building a different meaning in the circumstances. The asserted rights under Articles 8 and 14 of the Convention and Article 1 of the First Protocol were not presently engaged by refusal of the certificate. A certificate is declaratory of existing rights; granting or refusing it does not itself create or remove rights.
5. The court noted that Convention arguments might be raised if human rights later became directly relevant. Any Article 8(2) assessment would involve balancing the individual’s interest against the public interest. No order for costs was made.

• Court of Appeal (Civil Division): Permission to appeal from the decision of Forbes J was refused; no order for costs.
• Administrative Court: Forbes J dismissed the application under section 288 of the Town and Country Planning Act 1990: [2002] EWHC 1578 (Admin).