Schedule 1 CASES WHERE A CARAVAN SITE LICENCE IS NOT REQUIRED Use within curtilage of a dwellinghouse

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Schedule 1 CASES WHERE A CARAVAN SITE LICENCE IS NOT REQUIRED

Use within curtilage of a dwellinghouse

Caravan Sites and Control of Development Act 1960 c. 62
Schedule 1 CASES WHERE A CARAVAN SITE LICENCE IS NOT REQUIRED
Use within curtilage of a dwellinghouse
This version in force from: Date not available to present
(version 1 of 1)


1.
A site licence shall not be required for the use of land as a caravan site if the use is incidental to the enjoyment as such of a dwellinghouse within the curtilage of which the land is situated.

Caravan Sites and Control of Development Act 1960 c. 62
Schedule 1 CASES WHERE A CARAVAN SITE LICENCE IS NOT REQUIRED

Use within curtilage of a dwellinghouse


Legislation Analysis


Table of Amendments
Version    Provision    Amendment notes    Effective date
1        incorporates amendments made up to this date    February 1, 1991: represents law in force as at date shown

Commencement
Commencement information is not available for most pre-1990 Acts.


Extent
Sch. 1 para. 1    England, Wales, Scotland
Cases Citing


Sch. 1 para. 1
1.    Snowdonia National Park Authority v Porter
(2000) 97(5) L.S.G. 36 (DC)

Snowdonia National Park Authority v Porter
Divisional Court
21 January 2000
Case Analysis
Where Reported
(2000) 97(5) L.S.G. 36; Official Transcript

Case Digest

Keywords: Burden of proof; Caravan sites; Curtilage; Defences; Enforcement notices

Summary: P appealed against his conviction on a charge of having failed to comply with an enforcement notice requiring him to remove a caravan from his land. P's defence having been based on his assertion that a site licence was not required for the use of land as a caravan site if it could be shown that such use was incidental to the enjoyment of a dwelling house within the curtilage of which the relevant land was situated, he argued that the magistrates had erred by failing to find that the prosecution had negatived his defence or by failing to appreciate the precise nature of his defence. It was held that the magistrates had (1) paid proper regard to P's defence even though they had not specifically referred to the question of whether his caravan had been situated within the curtilage of his farmhouse, and (2) been aware that the prosecution had the burden of proving the offence with which P had been charged.


Abstract: P, who owned agricultural land which he used as a camping and caravan site, appealed by way of case stated against his conviction for failing to comply with an enforcement notice requiring him to remove all caravans and tents from the land. His conviction resulted from the failure to remove one particular caravan. P's defence had been based on the Caravan Sites and Control of Development Act 1960 Sch.1 para.1, which provided that a site licence was not required for the use of land as a caravan site if such use was incidental to the enjoyment of a dwelling house within the curtilage of which the relevant land was situated. P argued that his caravan had been located within the curtilage of his farmhouse. The magistrates held that the enforcement notice, when looked at in its entirety, required the removal of every caravan from the site. P contended that the magistrates had either failed to find that the prosecution had disproved his defence, or had failed to appreciate the exact nature of his defence.

Held, dismissing the appeal, that although the magistrates had not in the case stated referred specifically to the issue of whether P's caravan had been situated within the curtilage of his farmhouse, they must, when convicting him, have taken into account the provisions of Sch.1 para.1 and been aware that the curtilage of the farmhouse was a question of fact and degree, Dyer v Dorset CC [1989] Q.B. 346 considered. The magistrates had had before them sufficient evidence to justify P's conviction, and they could not have been unaware that the burden of proving that P had failed to comply with the enforcement notice lay with the prosecution.

Judge: Roch, L.J.; Gage, J.
Counsel: For SNPA: Peter Moss. For P: John Dowse.
Solicitor: For SNPA: Council Solicitor. For P: Martin & Nierada (Pwllheli).
Significant Cases Cited
Dyer v Dorset CC
[1989] Q.B. 346; [1988] 3 W.L.R. 213; (1988) 20 H.L.R. 490; 86 L.G.R. 686; [1989] R.V.R. 41; (1988) 152 L.G. Rev. 992; [1988] E.G. 75 (C.S.); (1988) 85(25) L.S.G. 43; (1988) 132 S.J. 934; CA (Civ Div)
All Cases Cited
Sort by:
Dyer v Dorset CC
[1989] Q.B. 346; [1988] 3 W.L.R. 213; (1988) 20 H.L.R. 490; 86 L.G.R. 686; [1989] R.V.R. 41; (1988) 152 L.G. Rev. 992; [1988] E.G. 75 (C.S.); (1988) 85(25) L.S.G. 43; (1988) 132 S.J. 934; CA (Civ Div)
Methuen-Campbell v Walters
[1979] Q.B. 525; [1979] 2 W.L.R. 113; [1979] 1 All E.R. 606; (1979) 38 P. & C.R. 693; (1978) 247 E.G. 899; (1978) 122 S.J. 610; CA (Civ Div)


Legislation Cited
Caravan Sites and Control of Development Act 1960 (c.62) para.1
General Permitted Development Order 1995 (SI 1995 ) Part 5
Planning and Compensation Act 1991 (c.34) s.8
Town and Country Planning Act 1990 (c.8) s.170(1)(a)
Town and Country Planning Act 1990 (c.8) s.179
Journal Articles
Enforcement.
Caravan sites; Change of use; Enforcement notices; Offences.
P.E.L.B. 2000, Feb, 10

CASE LAW IN FULL:

Snowdonia National Park Authority v Tony Johnson Porter
NO: CO/1327/99
High Court of Justice Queen's Bench Division Divisional Court
21 January 2000
2000 WL 415
Before: Lord Justice Roch and Mr Justice Gage
Friday, 21st January 2000
Representation
Mr John Dowse (instructed by Messrs Martin & Nierada, Bank Place, Pwllheli, Gwynedd) appeared on behalf of the Appellant.
Mr Peter Moss (instructed by Conwy County Borough Council, County Secretary, Bodlonder, Conwy, LL32 8DU) appeared on behalf of the Respondent.
JUDGMENT
LORD JUSTICE ROCH:
1. I will ask Gage J to give the first judgment.
MR JUSTICE GAGE:
2. The appellant in this case appeals by way of case stated against a conviction of him by the Gwynedd Magistrates of an offence of failure to comply in all respects with the requirement of a Planning Enforcement Notice, contrary to section 179 of the Town and Country Planning Act 1990, as substituted by section 8 of the Planning and Compensation Act 1991. On conviction he was fined £100 and ordered to pay £200 costs.
3. The prosecution related to the alleged use by the appellant of land at Cae Du, Beddgelert, in the Snowdonian National Park. It was alleged by the prosecution that on the date alleged in the information, namely 15th April 1998, the appellant was using the land as a camping site and caravan site and was thereby in breach of the Enforcement Notice served pursuant to section 170(1)(a) of the Town and Country Planning Act 1990 which had been issued as long ago as 9th July 1992.
4. The evidence before the magistrates was not substantially in dispute. The facts as found by them can be summarised as follows: the appellant controlled and owned the land at Cae Du; he accepted that the land, which was of an area greater than five acres, had been used by him as a caravan site for some 27 years; he ran this concern as a business. He further accepted that the site was signposted in the road as a caravan site. The Enforcement Notice was issued and served on 9th July 1992. It specified a breach of planning control, namely the unauthorised change of use from agricultural use to use for agriculture and as a camping and caravan site, and it required the removal of all caravans and tents from the land.
5. The appellant appealed against the Notice but his appeal was withdrawn on 19th September 1997. It was agreed before the magistrates that the Notice came into effect on 30th October 1997. There is no dispute that on 15th April 1998 there were four caravans on the land and seven individual single portaloo lavatory units. Two of the caravans were owned by paying clients; a third was a static caravan used as a reception point and for storage of tools for use on the caravan site; the fourth was situated on land in a separate enclosure on its own and across the road from the farmhouse.
6. At paragraph 7 of the case stated, the magistrates say:
“We found as facts that the photographs showed the land having been laid out as a caravan site with made up private roads traversing the land and a bridge having been constructed to cross the river which flows through the middle of the land which would be sufficient to carry the road traffic likely to use the site. Further, the said portaloo toilets were situated individually and separately some distances apart along the perimeter of a large enclosure within land.”
7. The magistrates then set out the defences which were raised by the appellant. Those related to defences arising under the General Permitted Development Order 1995. First, Schedule 2, Part 5, provides that planning permission for the use of land other than a building as a caravan site, in the circumstances specified in paragraph 3 of Schedule 1 to the Caravan Sites and Control of Development Act 1960, which on five acres holdings allows up to three caravans without a site licence for up to 28 days a year for the purpose of human habitation, covered three of the caravans. Secondly the fourth caravan situated across the road from the dwelling house was not caught by the enforcement notice because it had a lawful use.
8. The findings and the basis of the conviction appear to have been upon the basis of the fourth caravan, and it is around the use of the fourth caravan that this appeal has centred. Dealing with that the magistrates' further findings are set out at paragraph 11. They state:
“(i) The land on 15th April 1998 had four caravans situated on it which had not been removed in accordance with the terms of the enforcement notice and if the appellant could not present an argument to show that the said notice did not affect each and every one of the four caravans the charge was made out by the prosecution.”
9. I pause there to say that proposition is not in dispute in this appeal.
“(ii) The paying of rates and the use of the fourth caravan as contended was not claimed to be a ‘lawful use' by reference to any statutory provision or case law (we were not referred to any) and the argument was not developed any further.
(iii) The ‘lawful use’ argument failed and the fourth caravan should have been removed under the term of the enforcement notice and as it was not the offence was made out.
(iv) The static caravan situated on the land and used as a reception area was not removed at any time during the year and therefore would inevitably be situated for more than 28 days in any year which questioned the argument under [paragraph] 9(i) above since we had to look at the enforcement notice in its entirety as outlined above it was not necessary to consider this further.”
10. The questions for the opinion of this court were posed in the following way:
“(i) Were we correct in deciding that each and every caravan had to be removed and the enforcement notice had to be looked at in its entirety and if one caravan did not comply with the enforcement notice the offence was made out by the prosecution.
(ii) Was there evidence before the court to enable it to come to a decision that the appellant had thus failed to comply with the enforcement orders.”
11. The argument before this court, as it had been before the magistrates, is that the respondent had not proved its case. The principal submission made before us, and made before the magistrates, was that there were available to the appellant defences provided by Schedule 1 of the Caravan Sites and Control of Development Act 1960. It is submitted on behalf of the appellant that these defences having been raised they were not negatived by the prosecution and the magistrates either failed to find that they had been negatived or failed to appreciate the precise nature of the defences.
12. As I have said, the argument before this court has centred on the position relating to the fourth caravan. The simple point made by Mr Dowse, on behalf of the appellant, was that the defence under Schedule 1 of the 1960 Act provided in paragraph (a) that a site licence shall not be required for the use of land as a caravan site if the use is incidental to the enjoyment as such of a dwelling house within the curtilage of which the land is situated. His point is that in paragraph 11(ii) of the case stated the magistrates, as I have indicated, set out that they found that the contention was not claimed to be a lawful use by reference to any statutory provision or case law and the argument was not developed any further. So, submits Mr Dowse, the magistrates cannot have had in their minds the appropriate statutory provisions. Further, he submits, that the magistrates were, in effect, reversing the burden of proof. They are to be inferred, he submits, as saying that it was for the appellant to prove that he came within the statutory definition.
13. For the respondent Mr Moss contends that the findings by the magistrates, although not as clearly put as they might have been, are sufficient to found the conviction. He submits that when the magistrates set out, in paragraph 7 of the case stated, the facts relating to this situation of the caravan they can only have been addressing their minds to the question of whether it was within the curtilage of the dwelling house. He further submits that when they set out in paragraph 11(ii) that the paying of rates and the use of the fourth caravan was not contended to be claimed as a lawful use by reference to any statutory provision or case law they must be taken to be referring to the fact that no case law was referred to, to show that merely by paying rates in relation to the caravan, that was use which was incidental to the enjoyment of the dwelling house. Indeed, on the facts of this case, where the appellant had said that he used that caravan in order to be able to rent his farmhouse to holidaymakers, that was an understandable finding.
14. In the end the matter comes down to that narrow dispute between the parties. The magistrates were not referred to, as we have been, to the case of Dyer v Dorset County Council [1988] 3 WLR 213. That is a decision which deals with the definition of curtilage. In that case Lord Donaldson, the Master of the Rolls, at page 219 referring to a decision of Trim v Sturminster Rural District Council 1938 2 KB 543, cites a passage in the judgment of Buckley LJ. In that passage it is stated:
“In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter.”
15. Later in the judgment Lord Donaldson stated at page 220E:
“‘Curtilage’ seems always to involve some small and necessary extension to that which the word is attached.”
16. Finally, in the same case, at page 221 Mann LJ stated:
“The word ‘curtilage’ is a term of art and, in employing it, the draftsman and Parliament must have had regard to its meaning as such a term. Its meaning as a term was dicussed in Methuen-Campbell v Walters [1979] QB 525. It appears from that decision that the meaning of the word ‘curtilage’ is constrained to a small area about a building. The size of the area appears to be a question of fact and degree.”
17. Mr Moss submitted to this court that on the findings set out by the magistrates it would not have been possible for them to have reached any other conclusion than that the fourth caravan did not come within the curtilage of the dwelling house, in this case the farmhouse. For my part, I would not go that far.
18. In my judgment whether the caravan was within the curtilage of the farmhouse was a matter of fact or degree. It seems to me that in relation to this part of the case the magistrates have found that the caravan was outside the curtilage of the farmhouse. Mr Dowse submitted to this court that the magistrates cannot have had in their minds the proper matters to consider, but he accepted that his solicitor, who appeared on behalf of the appellant before the magistrates, had made the very point to the magistrates that to satisfy the requirement of paragraph 1 they would have to think that the caravan may have been within the curtilage.
19. I cannot see how that point cannot have been before the magistrates. It seems to me they must have had the provisions of paragraph 1 firmly in their minds, albeit that they did not make any reference specifically to the curtilage point. The fact of the matter remains that at paragraph 11(iii), as I have set out, the magistrates said, in terms, that the lawful use argument failed, and the fourth caravan should have been removed under the terms of the Enforcement Notice and, as it has not, the offence has been made out. They cannot have been unaware that the burden of proof was upon the prosecution to prove it. The facts were available for them to make that finding and, in my judgment, it was a finding which they were quite entitled to make and one with which this court cannot interfere.
20. That is sufficient to dispose of this appeal. Argument was addressed to the court about the other defence available to the appellant, namely a defence under paragraph 3; that is the matter to which the magistrates refer in paragraph 11(iv) of the case stated. As I have set out earlier in this judgment, the magistrates found that it was not necessary to consider that argument.
21. For my part, I think that this defence raises points which I do not believe that it is necessary for this court to decide on this occasion. Accordingly, since I am satisfied that the finding of the magistrates in relation to the fourth caravan cannot be impugned and for that reason the conviction must stand, I would answer questions 1 and 2 in each case in the affirmative and dismiss this appeal.
22. LORD JUSTICE ROCH: I agree. The appeal will be dismissed and the questions will be answered in the way indicated by my Lord.
23. MR MOSS: In those circumstances I apply for my costs, my Lord.
24. LORD JUSTICE ROCH: Mr Dowse, you cannot resist that, can you?
25. MR DOWSE: It would be very difficult, my Lord, in the light of your Lordships' decision. I can only say that the case itself was not clear and proper points were raised as a result of what the justices stated by way of their case.
26. LORD JUSTICE ROCH: No. Mr Moss, you have your order.