Lee, R (on the application of) v Swale Borough Council

For planning purposes, the use of caravans positioned inside a building may form part of the use of that building. Where caravans are used residentially in conjunction with the building, their use is material, and may be determinative, in deciding whether the building is used as a single dwellinghouse. The question must be assessed by reference to whether the building, considered as a whole, affords the facilities required for day-to-day private domestic existence. Physical integration is not essential. Storage of a caravan, or use independent of the building, may lead to a different conclusion. A planning inspector errs in law by treating the caravans’ status as determinative while excluding their residential use from the assessment.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an inspector’s dismissal of an appeal concerning refusal of a lawful development certificate for residential use of a barn. The barn contained two caravans, one of which was accessible from the kitchen. The inspector found that the caravans remained caravans and considered the use of the remainder of the barn separately.

The inspector also upheld an enforcement notice requiring removal of works. The central issue was whether the residential use of caravans stationed within the barn formed part of the use of the barn as a single dwellinghouse, thereby engaging the four-year limitation period for enforcement.

1. Appeal allowed and decision quashed and remitted. The inspector’s decision on the lawful development certificate was quashed because he treated the question whether the caravans had ceased to be caravans and become part of the building as determinative of whether the barn was used as a single dwellinghouse.

2. Non-operational development includes a material change in the use of land, including a building. The enclosed space of a building is the area whose use determines the use of the building. Accordingly, caravans positioned within a building may form part of the building’s use even though they are not physically part of its structure.

3. Where caravans are used residentially and in conjunction with the use of the building, that use must be considered in deciding whether the building affords the facilities required for day-to-day private domestic existence. The inspector correctly identified that test, derived from Gravesham BC v SSE [1982] P&CR 142, but applied it wrongly by excluding the caravans from the assessment. A caravan merely stored in the building, or used independently of it, may be ancillary or separate. Whether caravans are regularly moved, or are in fact permanently stationed, is relevant.

4. Although a quashed decision is not determinative and the fresh decision must be made independently, it is desirable for the decision-maker to explain any departure from material reasoning in the earlier decision which was not held or admitted to be wrong. That point did not itself invalidate the second inspector’s decision because his reasons were clear, although those reasons were legally erroneous on the principal issue.

5. Permission to appeal against the enforcement notice was granted and that appeal was allowed consequentially. The matter was remitted. The Secretary of State was ordered to pay the claimant’s summarily assessed costs of £4,776.60.

1. Previous inspector: An earlier decision dated 4 March 2002 was quashed after the Secretary of State accepted an erroneous construction of an earlier enforcement notice.
2. Inspector’s decision under challenge: The inspector dismissed the appeal concerning the lawful development certificate and upheld the enforcement notice.
3. High Court (Administrative Court): The decision was quashed and remitted. Permission to appeal against the enforcement notice was granted and that appeal was allowed.