Tewksbury Borough Council v Keeley & Ors

For planning purposes, a structure mounted on wheels is not necessarily outside the concept of a building or development. The court must assess all the circumstances, including size, permanence, physical attachment, construction and the extent to which the structure can be moved. No single factor is decisive. A structure which is freely movable and unattached to the land may nevertheless fall outside the statutory definition of a building where, viewed objectively, it does not alter the physical character of the land. Assembly on site constitutes a building operation only if the resulting object is a building. The special statutory treatment of caravans may provide an analogy, but does not determine the status of a non-habitable agricultural structure.

The claimant local planning authority sought an injunction under section 187B of the Town and Country Planning Act 1990 concerning unauthorised development on agricultural land. The defendants had placed chassis-mounted timber structures on the land. One had been assembled on site and was being used as an agricultural shed; others remained unassembled.

The defendants did not oppose an injunction in principle. The disputed issue was whether assembling and siting the mobile shed constituted development requiring planning permission, either as a building operation or as another operation on land. The court also considered whether the unassembled structures involved a material change of use.

1. The court exercised its jurisdiction under section 187B of the Town and Country Planning Act 1990. The long history of unauthorised development and the failure of enforcement notices to secure control made an injunction appropriate. The court had regard to South Bucks District Council v Porter [2003] UKHL 26; [2003] WLR 1547, particularly paragraph 29 of Lord Bingham’s speech.

2. Under sections 55(1) and 336(1) of the 1990 Act, there must be an operation on the land which is a building operation and which results in the creation of a building. Building includes any structure or erection. The fact that an object is mobile or unattached is not, by itself, determinative.

3. The relevant assessment is fact-sensitive. Relevant considerations included size, intended permanence, physical attachment, the extent of off-site construction, mobility and whether the object altered the physical character of the land. The principles in Skerritts of Nottingham Ltd v Secretary of State [2000] 2 PLR 102 were applied as general guidance.

4. The mobile shed was substantially constructed off site, rested on wheels, was not attached to the land and could be freely moved about the site. Although joining its two halves and adding the roof sheets were essential parts of its construction, the resulting structure was not a building. Those works therefore did not constitute a building operation or development.

5. The statutory treatment of caravans supported that conclusion by analogy. However, limited weight was given to the analogy because caravans may constitute a special statutory category. The shed was not a caravan because it was not designed or adapted for human habitation.

6. The alternative argument based on “other operations” under section 55(1) failed. Where the operation did not amount to a building operation because the object was not a building, it fell outside the potentially applicable category. An injunction was made in the agreed terms, but no order was made concerning the assembled mobile shed. Submissions concerning the unassembled sheds were adjourned.

Not stated in the judgment.