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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Skerritts Of Nottingham Ltd v Secretary Of State For Environment, Transport & Regions & Anor  EWCA Civ 5569 (22 March 2000)
Cite as:  EWHC 465 (Admin),  JPL 1025,  EWCA Civ 5569
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR MALCOLM SPENCE)
(sitting as a Deputy High Court Judge))
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE SCHIEMANN
|SKERRITS OF NOTTINGHAM LIMITED|
|- v -|
|THE SECRETARY OF STATE FOR THE ENVIRONMENT,|
|TRANSPORT AND THE REGIONS|
|HARROW LONDON BOROUGH COUNCIL|
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR C KATKOWSKI QC (instructed by Actons, Nottingham NG1 SDB) appeared on behalf of the Respondent
Crown Copyright ©
Wednesday, 22nd March 2000
"... except when the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land. [(1A) For the purposes of this Act 'building operations' includes -
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder."]
"4. Grimsdyke is a two and three storey, Grade II listed building which was designed by Norman Shaw in 1872 in a romantic'Old English' picturesque style. It is in use as an hotel. The wooded grounds, which were laid out at the same time, have been included in the Register of Parks and Gardens of Special Historic Interest. The appeal site lies within the Green Belt and the Grimsdyke Estate and Brookshill Drive Conservation Area which was designated in May 1997.
5. The marquee stands on the lawn of a sunken garden to the north-west of the main entrance to the hotel. The sunken garden is rectangular and enclosed by low brick and flint walls with balustraded steps leading to the gravel paths between the central lawn and the perimeter flower beds. The marquee has a tubular aluminium portal frame of seven bays. Five bays are enclosed by white plastic covered canvas and the two eastern bays are roofed only. The five enclosed bays have a timber floor spanning aluminium ground beams resting on the lawn. The entrance to the enclosed area is via aluminium doors leading from the roofed bays. The main enclosure has an electricity supply for lighting and blown warm air heating. Three small aluminium framed structures, clad with canvas, adjoin the marquee and provide storage space and toilet facilities.
8. My conclusions on the appeal under ground (c) follow. If the marquee can be said to be a'building' then the Courts have said that what has taken place is most probably a'building or other operation' (Barvis Ltd v SSE  22P & CR710). Three factors were identified in Cardiff Rating Authority v Guest Keen Baldwin Iron and Steel Co Ltd  1 KB 385 in deciding what was a building: Size; permanence and physical attachment.
9. The marquee is a substantial object which is about 40m long, including the additions, and some 17m wide and the ridge height is around 5m. Your letter dated 12th February 1998 mentions that it was scheduled for delivery on 18th February 1998 and would be erected over the following 14 days. There is no direct evidence before me of the assembly method or period, but from my inspection, I consider that it took several days with a number of erectors and amounted to a sizable and protracted event. I imagine that its dismantling follows much the same process. It is assembled on site, not delivered ready made. I do not regard its considerable bulk to be de minimis in relation to planning controls.
10. Evidently, the marquee stands on the lawn between February and October each year. When in place, I saw that it has a solid and permanent character which derives from its cladding material and the metal framed structure. It is provided with the services and utilities that are normally found in spaces for use by the public. Even though the marquee only remains on site for eight or so months a year, I do not consider that the marquee is so transient or ephemeral that it lacks permanence.
11. The 16 feet of the metal portal frames sit on square metal plates which are spiked to the soil beneath. The structure appears to be held in place by its own considerable weight, the internal bracing and the ground spikes. The timber floor is supported by metal ground beams resting on the land. From this, I consider that the marquee has a significant degree of physical attachment to the land on which it stands. Moreover, the Courts have held that an absence of physical attachment is not in itself decisive.
12. I conclude that, as a matter fact and degree, the marquee, due to its ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, is a structure which is to be regarded as a building for planning purposes. Consequently, the erection of the marquee each year amounts to the carrying out of a building or other operation, which constitutes'development' as defined in section 55(1) of the 1990 Act. Planning permission has not been granted for the marquee and so there has been a breach of planning control. Your client's appeal on ground (c) therefore fails."
"The following parts of a plant or a combination of plant and machinery whenever and only to such extent as any such part is, or is in the nature of, a building or structure."
"A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be movable, as, for instance, about a pivot. Thus, a windmill or a turntable is a structure. A thing which is not permanently in one place is not a structure but it may be, 'in the nature of a structure' if it has a permanent site and has all the qualities of a structure, save that it is on occasion moved on or from its site. Thus a floating pontoon, which is permanently in position as a landing stage beside a pier is 'in the nature of a structure', even though it moves up and down with the tide and is occasionally removed for repairs or cleaning."
"It would be undesirable to attempt, and, indeed, I think impossible to achieve, any exhaustive definition of what is meant by the words, 'is or is in the nature of a building or structure'. They do, however, indicate certain main characteristics. The general range of things in view consists of things built or constructed. I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures. That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made. It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces."
"As regards the notice which alleges development by the 'erection of a coal hopper and conveyor equipment', both items are on wheels and movable, although having regard to the nature of the site, it would be difficult to move them and their movement is unlikely whilst employed as at present. Neither item is attached to the land.' I am advised that in the circumstances of the case, the installation of the hopper and conveyor did not involve development within the meaning of section 12 of the Act of 1947."
"The sections in question are not altogether easy to construe. Section 12(2), which defines 'development' does so by reference to two matters, first, a change in use of the land, and secondly, quite regardless of the change of use, whether there has been a 'carrying out of building, engineering, mining or other operations in, on, over or under land.' I feel that the concept behind that definition is two-fold, first, in regard to the change of use, one takes the lands as it is and ascertains if it has been put to a different use, and secondly, and this is quite regardless of use, one has to ascertain whether the land itself has been changed by certain operations. I go further and say that, having regard to the prepositions describing the operations as 'in, on, over or under land', the concept must in regard to that limb be whether the physical character of the land has been changed by operations in or on it.
... having got that far, the next question is: what sort of operations, in the case of an operation in or on the land, can be said to change the physical characteristics of the land. I do not think that there is any one test. The mere fact that something is erected in the course of a building operation which is affixed to the land does not determine the matter. Equally, as it seems to me, the mere fact that it can be moved and is not affixed does not determine the matter. It seems to me that the position is really rather analogous to the problems with which one is faced in dealing with fixtures when deciding what fixtures pass with the freehold. There is no one test; you look at the erection, equipment, plant, whatever it is, and ask: in all the circumstances is it to be treated as part of the realty? So here, as it seems to me, under this Act one must look at the whole circumstances including what is undoubtedly extremely relevant, the degree of permanency with which it is affected, in order to see whether the operation has been such as to constitute development."
"It is noted that although the crane is available for use elsewhere as and when required, it has been in its present position since May or June 1969 and your clients could give no indication as to when it was likely to be moved except that it would probably be within the next twelve months. It is clear that it is intended that it should be returned to the site when its period of use elsewhere is ended. ... in these circumstances it has been concluded that the erection of the crane with all that it entailed did alter the physical characteristics of the land as a matter of fact and degree and amounted to building, engineering and other operations in, on or over land comprising development."
"I think it is important to bear in mind that the words of the judgment have not the force of statute and also to bear in mind the circumstances in which the appeal came before the court. The planning authority's complaint, as appears from the reported argument of counsel, was that the inspector and in due course the Minister, had misdirected themselves in founding their conclusion that the conveyor and hopper had not involved development of the land solely on the consideration that they were mobile, and it was submitted, that that was the wrong test. The judgment of my Lord, Lord Parker CJ, as I understand it, accepted that, if that was indeed what the inspector and Minister had done, that would have been wrong; that the right approach was to look at all the circumstances of the particular case, and the court concluded, indeed, that that was precisely what the Minister had done.
The tests of the kind there suggested may be tests which it is necessary to apply to a borderline case. There again, for my part, I think that one should avoid the danger of finding oneself, in trying to solve one problem, involved in the solution of another different problem which is really more difficult. We have been referred in the course of argument in this case to some of the decided cases in the field of real property law deciding what do and what do not amount to fixtures. It would be quite wrong, in my judgment, to substitute that question for the statutory question which is asked under the Town and Country Planning Act 1962."
"I should want a great deal of persuading that the erection of it had not amounted to a building or other operation. 'Building' includes any structure or erection. If, as a matter of impression, one looks objectively at this enormous crane, it seems to me impossible to say that it did not amount to a structure or erection."
"I would only add that we have been referred, in addition, to certain cases from the rating field, and, whilst conscious of the danger in the field of statutory construction of applying considerations derived from the decisions in one body of legislation to the consideration of another body of legislation, I do find assistance in this case from a passage in the judgment of Jenkins J in Cardiff Rating Authority v Guest Keen Baldwin's Iron & Steel Co Ltd."
"If one substitutes throughout that passage the phrase 'structure or erection' for the phrase 'structure or in the nature of a structure,' in my judgment it is fully applicable to the considerations which govern the application of the definition in the Town and Country Planning Act 1962, and I think that one only has to read it to see how apt it is in the circumstances of this case."
"The significance of the point which lies behind this ground is this: in a conservation area buildings cannot be demolished without consent... One of the objects of achieving conservation area status in this case, as advanced before the subcommittee, was that it would prevent demolition of the chalets without consent. If the chalets were not buildings then the object is not achievable. Mr Thom submitted that the subcommittee and the committee failed specifically to address themselves as to whether the chalets were buildings. They have, of course, no need so to do if it was obvious that they were."
"In the light of those observations Mr Thom accepts that incorporation in the realty is but one factor and is not determinant either way. I think that he is right in so accepting. I also think that he is right in accepting that the degree of permanence is a highly material factor. Other significant factors are, size and composition by components: see by way of analogy the discussion in Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co Ltd.
Reference is there made to the passage from Jenkins J which I have already read. His Lordship continued:
"In those circumstances I cannot, for my part, see any conclusion as a matter of objective judgment other than that these chalets were and are structures or erections. Such a conclusion seems to me to respond to common sense and means that these chalets are buildings for the purposes of this planning legislation."
"There are three factors to be taken into account, one of which is permanence. I consider that the chain of cases cited reveals that the question of whether the object under discussion forms part of the realty is now largely subsumed in the question of its permanence. But Lord Parker's judgment has never been overruled or doubted, and I consider that the question as to whether it forms part of the realty remains a relevant consideration. I fully accept Mr Katkowski's submission that 'permanent' means, as Denning LJ put it, 'intended to remain permanently on a permanent foundation', and, as Jenkins J put it, 'normally remain in situ'. That authority has, since Bridge J's words at the end of his judgment in Barvis, been good law for planning purposes."
"The approach of the inspector has been to go straight into the consideration of whether or not the marquee is a building. And in my judgment he has fallen into error in that part of his analysis which relates to permanence. I regard myself as bound by the judgments in Barvis in the light Bridge J's words at the end of his judgment. As I have said, that case is good law in planning as well as in rating. I am bound, particularly by Denning LJ's words'intended to remain permanently on a permanent foundation.'"
"My view is that the inspector has approached the question of permanence incorrectly in paragraph 10. I agree with Mr Katkowski's emphasis upon the words "when in place". What the inspector has done is to consider its character rather than its permanence. When it is not in place from November to February it has no character at all. So this approach does not go to the question of permanence at all. And the last sentence of the paragraph, in my view, is tantologous. If it is there for eight months only, it is, as a matter of ordinary English, not permanent. Maybe the best indication that he has not applied the Cardiff meaning of 'permanent' is that he contrasts the word with transient or ephemeral. That is definitely wrong because there are many degrees of 'stability', for want of a better word, between transient or ephemeral and permanent. In particular, it is obvious from the judgment of Cardiff that Denning LJ and Jenkins J were not envisaging that the converse of what they laid down as permanent was transient or ephemeral. I consider that the if the inspector had approached the question whether the marquee was a building on the basis of Denning LJ's and Jenkins J's judgments, he might well have reached the opposite conclusion."
"If one substitutes throughout that passage the phrase 'structure or erection' for the phrase'structure or in the nature of a structure,' in my judgment it is fully applicable to the considerations which govern the application of the definition in the Town and Country Planning Act 1962, and I think that one only has to read it to see how apt it is in the circumstances of this case."
"I go back to be the definition in the Act itself and ask, first: was the crane, when erected, a 'building' within the definition in section 221, and, if it was, then I should want a great deal of persuading that the erection of it had not amounted to a building or other operation."
"It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces."