Control of Caravan Sites Q & A DCP Section 4.35

The purpose of this section is to explain the main strands of the law pertaining to the control of caravans for human habitation, and to explore the legal interpretations that arise. This text is supplemented by the legal and enforcement sub-sections found in topic section (24) which explores in detail the practice considerations arising from the control of all residential caravan and chalet development, including gypsy and traveller sites. Agricultural workers' caravans are specifically addressed at (9.31). Legal issues relating to non-residential uses in caravans are dealt with in the relevant topic sections.

Q & A    4.35/10

A householder regularly parks within his small front garden an old commercial coach which contains bunk beds, cooking facilities, a fridge, toilet, washing facilities, carpets and a TV. It also incorporates a small workshop and storage area for the repair and maintenance of go-karts whilst at track events. The householder claims that the coach is now a "caravan" as it has "been adapted for human habitation", as referred to at sec 13 of the Caravan Sites Act 1968, and has become a "recreational vehicle" "incidental to the enjoyment of the dwelling". This seems to be supported by Backer v SoS & Wealden DC [1983]. However, the coach materially harms neighbouring properties and the character of the estate. While my authority accepts that the coach might fall within the definition of a caravan, could it be argued that it is so large and it has such an impact that it is not 'incidental to the enjoyment of the dwelling' as a matter of fact and degree? If so, do case law or appeal decisions support this argument?

In view of the Backer case, I agree that the coach is now a "caravan". The siting of an empty caravan does not normally involve development provided a material change of use has not occurred to a use for the storage of caravans. However, as soon as a caravan is inhabited as a dwelling, permission will be required except where the extent of such residential occupation is de minimis or the use is within the curtilage of a dwellinghouse, as is the case here, and is incidental to its enjoyment. Although I can find no cases where the latter has been debated in relation a caravan’s size, scale has been a factor when determining whether other uses such as the keeping of dogs, or the construction of stables or fish tanks go beyond what could reasonably be considered ‘incidental’. As I think that this matter is arguable, the authority should take enforcement action and put the onus on the householder to show that there has been no breach of control.

Response

I fundamentally disagree with this advice. The suggested approach to enforcement would be to invite a costs award against the planning authority. It is a common misapprehension that land within the curtilage of a single private dwellinghouse can be used only for purposes strictly incidental to the enjoyment of the dwellinghouse as such. All land within the same planning unit can be used for all purposes, including both primary and ancillary uses, falling within the same use class - in this case C3, provided it does not amount to a separate dwelling. If used for any domestic purposes falling short of occupation as a separate dwelling, the stationing of the converted coach is undoubtedly a lawful use. If merely stored, the question to be determined is whether storage of such a vehicle within the domestic curtilage can reasonably be said to fall within the range of the domestic activities reasonably associated with a residential use.  If the vehicle can be said to be a caravan then its storage will almost certainly come within this definition and therefore be lawful.  There might, on the other hand, be an analogy with the storage of other large vehicles, which has in some cases been found not to be ancillary to the residential use and therefore a material change of use to a mixed domestic and storage use. Some large-scale hobby activities may similarly fall on the wrong side of the line. However, the planning authority should certainly not serve an enforcement notice on a purely speculative basis. A clear breach of planning control needs to be identified first.

I agree with much of what is being said. Section 55(2)(d) of the 1990 Act confers the right to use any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such. This includes incidental uses which do not amount to development, such as the storage of a touring caravan or a boat, but not commercial vehicles. However, whether such uses are incidental is always a question of fact and degree. In Wallington v SoS for Wales [1991] the courts ruled that this must include an element of "objective reasonableness". Thus in an appeal decision from Lancashire in 2000 (046-333-088) an inspector upheld enforcement action requiring the removal of a 9.5 m. long boat which took up most of a small front garden despite the owner’s claims that it was related to his hobby and was incidental to the enjoyment of the dwellinghouse as such. The inspector held that matters of scale were relevant and that while the keeping of a sailing dingy would be incidental, a boat almost 10m long which was out of scale with the garden within which it was sited and harmed the streetscene was not. I cannot see why the objective reasonableness test should not apply to the converted coach or why, given the serious harm apparently caused, the authority should be liable for costs on appeal.

Further response

Although I am a mere planning student, I was alarmed by this advice. The planning system that I am currently getting to know seems riddled with inconsistencies and ambiguities. While some may be the 'nature of the beast', to my mind others are clearly avoidable. It may well be unreasonable to park such a large vehicle in a front garden thereby harming the general amenity of neighbours. However, the approach described is not dissimilar to driving at 28mph along a very narrow lane where the speed limit is 30mph, yet giving a police officer the ability to charge an individual with speeding if in his opinion the speed was excessive in relation to the location, without having to prove that any other dangerous conditions existed. Surely such decisions create the conditions for a high degree of subjectivity? Would it not be possible to apply a set percentage ratio and therefore remove the subjective aspect?

Planning is a quasi-judicial process where material considerations are weighed in the balance. Some may be informed by objective criteria. However others, such as visual impact or the effect of a particular use on surrounding living conditions, inevitably rely largely on subjective assessments. Hence the use of the phrase "science and art of town planning" in the RTPI’s charter. In the case of householder developments, while building operations can be assessed by reference to physical criteria, this is not normally practicable for uses, including those for the storage of chattels. A judgement must therefore be based on questions of fact and degree, having regard to the scale, nature and effect of the use on its surroundings. While various rules of thumb have been established, such as for the keeping of a certain number of dogs and so forth, it is unreasonable to apply these without some form of critical analysis as circumstances can differ significantly.

My client has a lawful development certificate for a mobile home in the green belt and wishes to replace it with a larger one that still falls within the definition of a caravan given in the Caravan Sites and Control of Development Act 1960. However, during discussions with the planning authority, it has cited policies which relate to the extension of dwellings. I had always understood that a mobile home was predominantly a land use and not a building, so such policies do not apply. If the mobile home is a caravan then is permission needed for its replacement?

Where a mobile home has had its wheels removed, or has acquired a degree of permanence through becoming physically attached to the ground, and is connected to main services, it can be distinguished from a caravan. It will become a building operation and be treated as a dwellinghouse. If the existing mobile home has remained within the definition of a caravan set out in the 1960 Act, it will continue to amount to a use of the land on which it is stationed. In such circumstances, its replacement by another mobile home that also satisfies the legal tests for a caravan would not need permission. However, in an appeal decision from South Bedfordshire in 1999 (DCS No: 036-273-362) an inspector held that regardless of whether the statutory definition of a caravan had been transgressed or not, since there had been no material change of use involved when a smaller caravan was replaced by a larger one, there had been no development.

A caravan sited on agricultural land has a long history of enforcement proceedings against its residential use, culminating in a successful court action. However, the caravan has remained on site with the same level of equipment. This includes washing, eating and sleeping facilities such as a cooker, kitchen utensils, toilet, fridge, washing machine, TV, video, telephone and made-up bed. My authority continues to receive complaints that people are occupying the caravan and staying overnight. While it accepts that the caravan can be used as a day shelter for meal breaks in connection with the management of the holding, does that justify such a well-equipped caravan? Are there any precedents where the level of facilities has been debated and is it necessary for the caravan to be slept in for the authority to argue that it is a residential unit which needs permission?

I can find no case where this has been debated. There is nothing in Part 5 of Schedule 2 of the GPDO on the standard of a caravan or its amenities. However, for the purposes of sec 55 of the Town and Country Planning Act 1990, a caravan is a chattel and it is thus its actual use rather than the way in which it has been fitted out that determines whether there has been a material change in use of the land on which it is stationed. The presence of domestic items, may, however, form part of the "evidential matrix" to support allegations that the caravan has been lived in. In Wealden District Council v. Secretary of State for the Environment[1988] it was held that the use of a caravan for the storage of animal feed and for shelter may be incidental to the permitted use of agricultural land and therefore not represent a breach of planning control, despite the fact that the caravan was designed for human habitation. But if the caravan is actually used for residential purposes, then that will amount to a material change in the use of previously agricultural land, unless permission has already been granted by the Order.

I recently submitted an application for five timber-clad caravans or "lodges" in a caravan park that has pitches for both touring and static caravans. I sought permission for change of use, with the appropriate fee, because there are no static caravans on the land in question and all the applications I have ever been involved with or seen have taken this approach. However, the planning authority says the proposal involves the erection of buildings and insists on the application fee being calculated on that basis. Is it correct?

It depends on whether the lodges involve operational development. If they fall within the definition of a caravan in the Caravan Sites and Control of Development Act 1960, as supplemented by the Caravan Sites Act 1968, the application should be assessed as a change of use of the land on which the lodges would be sited. The definition refers to "any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by being towed or by being transported on a motor vehicle or trailer, and any other motor vehicle so designed or adapted", subject to certain exceptions. Units of not more than two sections, constructed or designed to be assembled on site by means of bolts, clamps or other devices and not exceeding 60 feet in length, 20 feet in width and 10 feet in height, are also included. So any structure falling outside these portability and dimensional criteria, or having a sufficient degree of permanence such as through adaptations to physically attach it to the ground or to connect it to main services, will involve operational development and the application fee should be calculated accordingly.

Response

The dimensions of a caravan have been extended to 20m by 6.8m by 3.05m as a result of an ODPM consultation paper issued last year and the subsequent response.

As far as I am aware, this remains a proposal that is still under consideration by the Government and therefore the dimensions set out in my reply will continue to apply for the time being. Any change will need to be the subject of a statutory instrument in due course. The reason for the proposed change is to enable external cladding to be fixed to caravans that are already the maximum size permissible, to provide greater insulation and energy efficiency.

Permission was refused for two residential caravans in a small yard because the planning authority feared that it would be difficult to stop further caravans using the site and these would cause traffic problems. Can an authority refuse permission for something that has not even been applied for on the basis that adverse effects might result from an intensification of a proposed use, even though no problems are caused by the actual development? Could it not have restricted the number of caravans by condition or considered the use of enforcement powers? Is there any case law that supports the authority's position?

Planning authorities are entitled to consider the precedent that would be set by granting permission but must also assess whether any unacceptable effects or intensification in use could be controlled by condition. In Lowrie v Secretary of State for Scotland [1988], the court upheld a reporter’s decision to refuse permission for a development because it would make it difficult to resist future harmful development even though it would in itself be innocuous. However, the courts have held that where such an approach is taken, mere fear and generalised concern is not enough. There must be evidence that permission would lead to an accumulation of harm. As you point out, in your case it might well have been possible to limit the effects of the development and the consequences for traffic generation by restricting the number of caravans to those for which permission had been sought.

My national park authority takes the view that motorhomes are caravans for the purposes of planning control. However, land that is subject to an extant enforcement notice preventing its use as a touring caravan site has been extensively used by motorhomes for the past two years. The operator has displayed a notice at the site entrance saying "only motorhomes with tents for sleeping". The site owner’s agents argue that if the motorhomes are used merely for transport, and their occupiers use the tents for human habitation, they cannot be regarded as caravans. We wish to prosecute the site owner for breach of the enforcement notice. What is your advice?

In Backer v Secretary of State for the Environment and Wealden District Council [1983], it was established that a motorhome falls within the definition of a caravan in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 as amended. The difficulty in this case lies in correctly identifying the nature of the breach. If the motorhomes are not used for human habitation but are merely stationed on the land, it may be that what has occurred merely amounts to their unauthorised parking. Irrespective of any conclusion on that issue, a material change of use to a camping site will have taken place. While these activities may amount to a breach of planning control, it is debatable whether they contravene the existing notice because that relates to use of the land as a touring caravan site. To be certain of a successful outcome, I would consider serving a temporary stop notice and a new enforcement notice attacking the camping use. Since tents are clearly critical to the continuation of the existing activities, any doubt over the lawfulness of the use of the motorhomes will be immaterial.

A 13m mobile home on wheels has been stationed in a garden more than 5m from the house. It includes a living room, bedroom, bathroom and kitchen and is connected to mains power and drains. The unit is occupied by the householder's mother. It is claimed that it is used as ancillary accommodation with the mother spending the day in the house. My authority considers the mobile home a self-contained unit of accommodation that requires permission. The householder disagrees, citing Whitehead v Secretary of State and Mole Valley District Council [1991]. What is your advice?

The mobile home appears to be a caravan that has not involved operational development. The use of a caravan in a residential curtilage for "purposes incidental to the enjoyment of the dwellinghouse as such" falls within the primary use of the dwelling, so it is excluded from the definition of development. The term "incidental" is not defined in planning law. But Whitehead intimated that semi-independent housekeeper’s accommodation in a barn within a dwelling's curtilage could be incidental to its enjoyment and thus permission was not required. In Uttlesford District Council v Secretary of State for the Environment and White [1992], it was held that the conversion of a garage in a residential curtilage to a granny annexe had not resulted in a material change of use, despite it including facilities that enabled the occupier to live independently. The general approach of the courts is that it is the actual use of a caravan that is determinative rather than its potential to be occupied as a self-contained residential unit. So permission may not be required for the mobile home.

My authority is currently dealing with an application for a Lawful Development Certificate for a use for the stationing of 30 static caravans, replacing 30 touring caravans. The applicant is claiming that the proposed statics would still fall under the definition of a caravan under the Caravan Sites Act 1968.

However, the proposed units would be attached to the ground and probably have plumbing and electricity connections. Furthermore, some lawful statics on another part of the site have items such as decking and steps attached to them. All this would suggest operational development rather than a change of use. What is your view on this matter? IA.

If the static caravans proposed have sufficient characteristics of permanency to be considered building operations, then there is no doubt that permission would be required for them. Cases where this, often difficult, exercise has been conducted are to be found in Development Control Practice 4.3531.

If the units are found to be sufficiently mobile not to be deemed building operations, it is then necessary to rationalize whether there has been a material change of use from a touring caravan site to a site for holiday static caravans. It is often argued, as does your applicant, that there will be no material difference in planning terms as both types of caravan fall within the compass of the Caravan Sites Act 1968 definition. However, some have averred quite cogently that the 1968 Act cannot pre-empt a planning judgment being made under the Town and Country Planning Act 1990 that substantially bulkier units located permanently on site would, as a matter of fact and degree, materially change the character of the land. This was the finding of an inspector in a 2007 case from Kent (DCS Number 100-049-388). GH.

I am dealing with an enforcement investigation into whether a new timber lodge 10m from the rear of a rural house requires planning permission. The accommodation is occupied by the owner’s parents who were previously housed in a caravan in the front garden, when the facilities of the house were used on a day-to-day basis. This was deemed to be ‘incidental to the enjoyment of the dwellinghouse’. The present lodge can be transported in two pieces and therefore complies with the definition in the Caravan Sites Act 1968. However, it is arguable whether the lodge is, in fact, within the residential curtilage of the main house. Additionally the lodge is separated from the house by a picket fence, it has its own council tax banding and, so far as I am aware, water and electricity supply are separately metered. There is only one access to the site and both buildings share it. Can you comment on whether the lodge is an independent unit which could be successfully enforced against? DU.

Enforcement cases of this kind raise a complexity of issues. The first of these is the need to establish whether the structure that has been placed on the land is a building operation or not. As has been debated in Forum before, the mere fact that a structure is termed a caravan using the criteria cited in the 1968 Act, may not necessarily mean that it is not a building operation for the purposes of the Town and Country Planning Act 1990. In the case of the ‘lodge’ type of accommodation you mention it may well be that its supports and service connections give it sufficient characteristics of permanency for permission to be required . For instance, in a 2007 appeal case from the West Midlands (DCS Number 100-050-239) an inspector found that rear garden parent’s accommodation was a ‘mobile home installed as a structure’, where specially constructed supports or foundations had been constructed and plumbing and sewerage systems installed.

The main matter to be resolved is, of course, whether a separate residence has been established on the land resulting in the creation of a new planning unit requiring planning permission. In the case you describe many of the indicators that the accommodation is separate, and does not rely on the main house, seem to be in place. Its curtilage has been defined and service connections are separate, even though access is shared. Such a ‘lodge’ building is certain to provide all the necessary domestic facilities enabling it used independently. The lifestyle question, namely how the accommodation is actually used, is also part of the matrix of considerations that may arise in evidence. For example, in the appeal case already cited, the inspector noted that the parents concerned always slept in the accommodation, used the bathroom and toilet, rested in the unit in the afternoons, and took some meals there. This led him to believe that a separate dwelling s not ancillary to the main house had been created.

The final consideration concerns the input of the Town and Country Planning (General Permitted Development) Order 1995.  If the lodge is deemed to be a building, and provided it is within the curtilage of the dwelling house, as a ‘incidental’ garden structure it is likely to fall within Part 1 Class E as permitted development. However, according to the government’s controversial interpretation of the Order this does not apply if the building is immediately used for primary living accommodation.
In summary, in order for your council’s potential enforcement to be successful and survive the likely appeal, it does need to assess very carefully whether it has sufficient hard evidence to justify an allegation of an unauthorized building and/or a material change of use. GH

In 1995 a council served an enforcement notice on a caravan. This was removed. However the owner then built a chalet which he occupied until his death in 2005. An application for a Certificate of Lawful Development was submitted by new owners in September 2005. This was refused in October 2007. As part of the appeal evidence three signed affidavits supporting the occupation were submitted and the council requested the appeal be put in abeyance while a fresh application was submitted which they would support. However they then changed their mind and requested the appeal proceed on the grounds that the enforcement notice on the caravan still applied as it was a "change of use from general agricultural use to private domestic use by the siting and residential use of a caravan". The LPA now wants the appeal withdrawn as they claim the notice relates to the site and is still extant. If it is not withdrawn they say they will claim for costs based on unreasonable behaviour. Is it unreasonable to invite the inspector to determine the matter and rule on the point of law? GK.

Under the provisions of s191(2) of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991, an enforcement notice "trumps" lawful development rights, i.e. one cannot gain four or ten year immunity if there is a valid enforcement notice against that development. Thus, had a further caravan been brought on the site after the removal of the original one, there would have been no question of the occupier gaining lawful development rights. In this instance, however, the erection and occupation of a chalet is a different breach of planning control from the siting of a caravan, so this issue does not arise. It might be that the council considers the chalet is actually a caravan bearing in mind the broad definition of one in the Caravan Sites and Control of Development Act 1960 as amended, so in preparing your appeal it would be advisable to produce evidence to counter that argument. JH.

A client wants to place a marble plate giving the name of the caravan park within a new wall at the entrance of his caravan park.  Permission has been given for the wall but the council asked my client to submit a separate advertisement application for the sign.  Having checked the Control of Advertisement Regulations 2007 (Advertisement Regulations), the sign does not qualify for deemed consent by virtue of size and illumination.  However, the site licence requires "a notice indicating the name of the site shall be prominently displayed at the site entrance".  Under part 5, class B of schedule 2 of the General Permitted Development Order, works required by the conditions of a site licence are permitted development and I wonder therefore if this overrides the Advertisement Regulations? SD.

The display of advertisements which require advertisement consent is covered by the Advertisement Regulations and this is a separate legislative code from the Town and Country Planning Act and associated provisions which covers development requiring planning permission. Thus, part 5 class B of the General Permitted Development Order cannot permit this advertisement.

The sign might in theory be permitted by class F of schedule 1 of the Advertisement Regulations which allows the display of advertisements required by law. From your question it seems to be too large for class 2A of schedule 3, however, the provision under which a caravan site entrance name sign could normally be displayed with deemed consent. As class F has the limitation that signs that do not meet schedule 3 size limitations are not permitted by this class, the council is correct in requesting an application.


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