C/2002/1383
Neutral Citation Number: [2002] EWCA Civ 1420
IN THE SUPREME COURT OF JUDICATURE                                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE FORBES)
Royal Courts of Justice
Strand
London WC2

Thursday, 19th September 2002

B e f o r e :

LORD JUSTICE SCHIEMANN

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ANTHONY ROBERT MASSINGHAM
Applicant
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SECRETARY OF STATE FOR TRANSPORT
LOCAL GOVERNMENT AND THE REGIONS

And

HAVANT BOROUGH COUNCIL
Defendants
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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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The Applicant appeared in person
The Defendant did not attend and was unrepresented

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J U D G M E N T
1.	LORD JUSTICE SCHIEMANN: Before me Mr Massingham appears asking for permission to appeal a judgment of Forbes J. Forbes J was dealing with an application by Mr Massingham under section 288 of the Town & Country Planning Act 1990 wherein Mr Massingham sought to quash the decision of the Secretary of State taken by an inspector on an application by Mr Massingham for a Lawful Development Certificate under section 191 of the Town & Country Planning Act 1990.
2.	The appeal decision of the Inspector sets out the background. Planning permission was granted in 1981 for the continued siting of three caravans at 43 Bosmere Road. Condition 2 of that permission stated, in effect, that the caravan could not be occupied for any purpose between 31st October and 1st March. It seems that Mr Massingham moved a mobile home on to part of the site, which is now known as 43B (which was his second home); so he has another home elsewhere. He of course finds this condition irritating because it inhibits his use of the home in winter.
3.	There was an earlier appeal to an inspector, which related to the validity of that condition, but the inspector found that the condition had a clear planning purpose and, moreover, the environmental agency has recently recommended that it should be applied to permissions for caravans because of problems of flooding in that area. The inspector in the present case said that unlike the permanent dwellings in the area, 43B Bosmere Road is a small site within a large area of holiday caravans. The inspector concluded that there was an objective and reasonable justification for the difference in treatment. The inspector pointed out that it is important to recognise that the refusal of a lawful development certificate would in itself involve no sanction against Mr Massingham, and that if Mr Massingham has, as he asserts, rights under the European Convention on Human Rights and section 31 of the Human Rights Act, he can assert them in due course. The problem in relation to any assertion of convention rights one suspects will be that so far as Article 8 is concerned not least Mr Massingham is faced with the problem that this is one of two dwelling places that he has; and secondly, there is, of course, the balancing exercise which always needs to be undertaken in Article 8(2) between the deprivation to the individual of something that he values and the public interest.
4.	The issue in the case before the inspector turned on the terms of section 191. The way it was argued apparently by Mr Massingham was that when he moved his mobile home to the site there was a material change of use from a caravan site to that of a single dwellinghouse, and that there had been operations resulting in the construction of a dwellinghouse and that in those circumstances two things followed: one is that the condition did not bite at all because it only related to a caravan; and second, that there would be a different time limit which would be applicable because he says that under section 171B(1) of the 1990 Act, where there has been a breach of planning control consisting in the carrying on of building operations no enforcement action may be taken after four years; whereas in the case of a breach of condition there is a ten-year period laid down in that section.
5.	The Inspector looked at Measor (Terence Charles) v Secretary of State for the Environment decided by Mr Robin Purchas QC sitting as a Deputy Judge of the Queen's Bench Division on 6th August 1998. That was a case in which the question of what was a dwelling house was considered at some length and Mr Purchas ruled that the appropriate approach was that it was a matter of fact and degree whether the particular caravan in question had that degree of permanence and attachment as to become a building. The inspector, having looked at that case, rejected what was then part of Mr Massingham's case, namely, that because section 29(1) of the Caravan Sites and Control of Development Act 1960 defined a caravan as a structure, it must be a building for the purposes of section 336(1) of the 1990 Act which, it will be remembered, states:
“In this Act, except in so far as the context otherwise require...
'building' includes any structure or erection...” 
6.	The inspector pointed out that Mr Purchas had accepted that each case must be looked at on its merits, and then stated: 
“In this case I am in no doubt that the mobile home fails the tests of permanence and attachment established by the courts.” 
7.	Mr Massingham I think accepts that that was a judgment which was open to the inspector applying the court's case law as it stood. In any event that appears to me to be the case. These are matters of fact and degree and that is a conclusion the inspector was entitled to come to. But Mr Massingham's argument now is somewhat different. He says that the case law may have been right when it was decided, but there has now been passed the Human Rights Act 1998 which, by section 3(1), states:
“So far as it is possible to do so, primary legislation... must be read and given effect in a way which is compatible with Convention rights.” 
8.	The judge below heard Mr Massingham in person and heard a Mr Litton, who appeared on behalf of the Secretary of State, and agreed with Mr Litton's submission that Articles 8, 14, and Article 1 of the First Protocol were not engaged because the issue of a certificate of lawful development neither creates nor removes rights. The certificate if granted is declaratory only of certain existing rights of the party in whose favour it is made. It is merely a refusal to grant the declaration sought.
9.	The judge in effect held, and indeed in terms held, that the inspector's reasoning could not be faulted. For my part I see nothing in section 3(10) of the Human Rights Act which permits a particular reading of “building”. In the circumstances of the present case if and when Mr Massingham's human rights become an issue he can no doubt seek to raise some points of this nature. At present I see no prospect of success in that and in those circumstances this application is refused.
(Application refused; no order for costs).