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

In an enforcement appeal under the Town and Country Planning Act 1990, the question whether a twin-unit structure is a caravan is one of fact, not planning judgment. The party relying on caravan status bears the evidential burden. An inspector cannot rationally decide the statutory mobility test without evidence that the assembled structure can be moved by road without significant structural damage.

Ground (c) of section 174(2) may also be established by showing that, although there was a breach when the notice was issued, the development no longer constitutes a breach at the time of the appeal. The interpretation is limited to cases where the development has become lawful, rather than cases where unlawful activity has merely ceased temporarily.

The Council appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision allowing Mr Entwistle’s appeal against an enforcement notice and quashing it. The notice concerned a material change of use arising from residential occupation of a large twin-unit structure at Springside Farm.

The inspector found that the structure was a caravan under section 13 of the Caravan Sites Act 1968 and that its use benefited from deemed planning permission associated with lawful building operations. The Council challenged the evidential basis for the caravan finding and argued that the relevant planning position had to be assessed when the enforcement notice was issued.

1. Caravan issue. The inspector’s decision was quashed and remitted for reconsideration. Whether the assembled structure satisfied the mobility test in section 13(1)(b) of the Caravan Sites Act 1968 was a question of fact, although the court would ordinarily be slow to interfere with an inspector’s factual findings.
2. The party asserting that there was no breach of planning control bore the burden of proving that the structure was a caravan. There was no specific technical or other evidence that the assembled structure was physically capable of being moved by road. The inspector’s conclusion that it could be lifted onto a sufficiently large trailer or low loader, without significant structural damage, was therefore speculative. She had also failed to grapple with material information suggesting that the structure would need to be dismantled before movement.
3. Timing issue. Ground (c) of section 174(2) refers to whether the matters stated in the notice do not constitute a breach of planning control. Read in the context of the statutory scheme, it can be relied on where a breach existed when the notice was issued but the development has become lawful by the time of the appeal. This prevents an enforcement notice from continuing to require permanent removal of development which is no longer unlawful.
4. The broader interpretation does not allow a landowner to avoid enforcement merely by temporarily stopping an unlawful use. The development must no longer constitute a breach of planning control. On that issue, the inspector had not erred in law.
5. The inspector’s alternative view that she could quash the notice even if Ground (c) failed was wrong. There was no residual power to quash an enforcement notice without a successful statutory ground of appeal. The appeal nevertheless succeeded on the Caravan Issue, and the matter was remitted for redetermination.

This was a statutory appeal to the High Court under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 23 February 2011. The inspector had allowed the interested party’s enforcement appeal and quashed the enforcement notice. The High Court quashed the inspector’s decision on the Caravan Issue and remitted the matter for redetermination, while rejecting the Council’s challenge on the Timing Issue.