London Borough of Newham, R (on the application of) v Commissioners for HMRC

For Community Infrastructure Levy purposes, the statutory meaning of building is not enlarged by the broad purpose of the levy or by the wider definition in the Town and Country Planning Act 1990. The term must be given its natural meaning in the statutory context. A vessel may acquire the characteristics of a building, but it does not become a building merely because it is large, fitted out for accommodation, or intended to remain in place for a substantial period. Relevant considerations include size, permanence and physical attachment. The Skerritts guidance is persuasive in this context, although it arose under a different statutory scheme. A dictionary definition must be read as a whole: the expression “a thing which is built” is too broad to determine the statutory meaning by itself.

The local planning authority challenged an appointed person’s determination that the Good Hotel, a floating accommodation platform moored at Royal Victoria Dock, was not a building and therefore was not chargeable development under the Community Infrastructure Levy Regulations 2010.

The appointed person had allowed an appeal under regulation 114 after an unsuccessful review under regulation 113. Mould J refused permission on the papers. The renewed application concerned whether the appointed person had erred in construing “building”, applying the Skerritts guidance, treating the hotel as a vessel, and interpreting the Oxford English Dictionary definition.

1. Permission refused and order confirmed. The renewed application for permission to apply for judicial review was refused on all five grounds. The court agreed overall with Mould J’s reasons.
2. The statutory framework was correctly identified. Under regulation 9(1) of the Community Infrastructure Levy Regulations 2010, chargeable development is the development for which planning permission is granted. Section 209(1) of the Planning Act 2008 defines development for CIL purposes as anything done to create a new building or to an existing building. The broad definition in section 336(1) of the Town and Country Planning Act 1990 was expressly excluded by section 235(1) of the Planning Act 2008.
3. The purpose of CIL could not expand the statutory limitation to buildings. The appointed person was entitled to decide whether the permitted development, namely mooring the hotel, concerned a building rather than a vessel. The planning conditions did not alter the terms of the permission.
4. Skerritts was persuasive rather than binding because it concerned different statutory tests. Nevertheless, the appointed person was entitled to consider its guidance on size, permanence and physical attachment. The Good Hotel was brought onto the site ready-made, could be disconnected and moved in one piece, and was not sufficiently attached to the ground. Those evaluative conclusions were rationally open to her.
5. A vessel is not itself a building, although it may be adapted into a structure having the characteristics of a building. The appointed person considered that issue, including the dictionary definition, and was entitled to conclude that the hotel remained a vessel.
6. The Oxford English Dictionary definition had to be read as a whole. “A thing which is built” was too broad in this statutory context. The distinction between the verb “to build” and the substantive “building”, illustrated by Stevens v Gourlay, supported that conclusion.

Mould J refused permission to apply for judicial review on the papers on 13 June 2024. On renewal, the High Court refused permission on all grounds and confirmed that order.