Potter v Hillingdon LBC Upper Tribunal (Lands Chamber), 28 June 2010
Subject: Planning
Where Reported: [2010] UKUT 212 (LC); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…was granted on appeal in 1981 for the use of the western half of the subject property as a touring caravan and camping site for 60 units, subject to a condition that prevented its use for that purpose during the winter…
…residential development was similarly dismissed on appeal in 1987. An application to remove the seasonal restriction on the occupation touring caravans was dismissed on appeal in 1997. The proposal for which BA were granted outline planning permission on appeal in 1992 …
…offices, and most of the ten areas to the west of the reference land.(e) The agreement dealt separately with engineering and landscaping works. Engineering works were essentially works required to cap and make safe the old landfill sites. The agreement made specific provision for the engineering works required to prepare the central part of the proposed park, all of which was referred to as the “Phase 1 Engineering Works”. (f) The agreement had a separate concept of “Phase 1 Land”. This was the whole of the New Park …
…its expense and in accordance with the New Park Master Plan and the Programme, to carry out – The Phase 1 Engineering Works; Landscaping works on the Phase 1 Land; Engineering and landscaping works on Areas 2 and 9a; Landscaping works on LBH3 and 4 (clause 6.2). (h) Clause 6 …
…enhancement of the setting of the Tithe Barn and the conservation area, of preventing implementation of the proposal for the caravan site, and of achieving an improvement in access to parkland for residents of Harmondsworth, remain very significant … ” Then, having recorded …
…defines the area as part of a comprehensive rehabilitation area) and national guidance in PPG15 about the protection of historic buildings and the character of conservation areas, the protection of the setting of the historic buildings is an important interest. For the reasons given above he also agrees with the Inspector (IR 8.24) that non-implementation of the caravan site proposal is a material public benefit. 47. He considers that the other arguments put by Mr Potter do not …
…the proposed section 106 agreement. Section 6.18, Mr Potter said, was quite specific: “Not to make use of the Caravan Park permission.” It would be unreasonable for the developer to commit to a planning obligation that specifies extinguishing the benefit …
…the reference land became a “ransom strip” as BA were now obligated under the section 106 agreement to remove the caravans, and to provide a public park of a certain size — the land being essential to enable that obligation to be…
…offers had been received over the years for a 4 acre section of the land with the benefit of the caravan consent, and if those offers (which did not proceed due to the CPO threat) were rounded up to valuation date …
…there was no doubt that a replacement parcel of 10 acres of land within the M25, with permission for touring caravans, would cost very substantially more than £1 million to acquire.Acquiring authority’s case Mrs Lichfield is the senior partner of …
…She said she had acted as a consultant to BA in respect of the planning applications for their new headquarters building, including consideration of the requirement for additional land (including the subject property) to accommodate the park. Her instructions in respect …
…in an area of Environmental Opportunity within the Harmondsworth Conservation Area, an Archaeological Priority Area and its proximity to listed buildings and ancient monuments, there was little likelihood of proposals for commercially viable development obtaining consent. The immediately adjacent tithe barn …
…area and creates a definable boundary for it.” Thus, the only uses that would be immediately acceptable included the extant caravan site permission, open air recreational use (such as a golf course), cemeteries or agriculture. Whatever limited development might be considered …
…affected by the potential impact of the third runway as that prospect materialised. As far as the permission for touring caravans was concerned, Mrs Lichfield pointed out that whilst the Inspector in 1981 considered that the proposal could be regarded as …
…BA and BAA considered the site unsuitable for aircraft maintenance. It was too small and there would be restrictions on building heights (such as hangars) under their safeguarding provisions. In Mrs Lichfield’s opinion, the constraints of the site meant that the …
…figure, he had split the land into two elements: 1.6 ha (3.95 acres) with permission for a touring caravan site, and 2.78 ha (6.87 acres) agricultural. The value of the first element was arrived at on the …
…turnover of £101,544 less staff costs and rates. To this, he applied a multiplier of 10YP to give £574,714. Estimated building costs of £166,078 were then deducted to leave £398,637. Adding the value of the agricultural land at £7,000 per acre …
…land. The council had confirmed that all the obligations under that clause had been satisfied, and the offices upon which building works started in 1995 were first occupied in 1998. There was no question, therefore, Mr Asher said, of the owners …
…one most favourable to the claimants). From the figures that had been provided by BA, Mr Asher calculated the actual building cost on completion in 1998 at £139.5 million which ignored a number of figures for bespoke items such as furniture, fitting out and IT installations included within the information provided. That figure, factored by use of the RICS Building Cost Information Service (BCIS) index to 2007, became £208 million. However, in order to construct a fair appraisal that reflected …
…parking at £119.2 million. This was, Mr Asher said, dramatically favourable to the claimants in that the lower the building cost, the higher became the residual value of the land. After adding the cost of park works effected to date…
2.
Avon Estates Ltd v Welsh Ministers Queen’s Bench Division (Administrative Court), 17 June 2010
Subject: Planning
Keywords: Certificates of lawful development; Planning conditions; Planning permission; Time limits
Where Reported: [2010] EWHC 1759 (Admin); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…CLD”) and a separate application for a Certificate of Proposed Lawful Use or Development (“CPLD”).The site was originally a caravan park. Between 31 July 1964 and 30 July 1973 the planning authority, Ceredigion County Council’s predecessor, granted four planning permissions …
…after the specified dates is at the heart of the issues between the parties.The applicant continued to use the buildings during the seasonal occupancy period specified in the planning permission after the specified dates in 1985 and 1995 and did not restore the site to its former use. It is common ground that has not used the buildings otherwise than in accordance with the seasonal occupancy conditions. The bungalows thus remain on the site and have been used …
…the unit which was the subject of Appeal B internally and externally. He also made an external inspection of the buildings which were the subject of Appeal A and of various facilities outside the application site. The hearing of Appeal A …
…and Regions [1999] EWHC 225 (Admin) 12 March 1999 . It states: “The Effect of Conditions. 21 Bloomfield found that ‘a building does not cease to be a dwelling house because a condition was imposed limiting the terms to which it may …
…the meaning of section 191 of the Town and Country Planning Act 1990 (as amended), for the following reason: Each building comprises a dwelling house in that it contains the facilities required for day-to-day private domestic existence. The existence of each one is lawful in that it is immune from enforcement action.” The first Schedule identifies the buildings by reference to the plan annexed to the certificate. The numbers of the planning permissions referred to are not correct …
…and I do not set that part of the schedule out. But the schedule states that the use of the buildings “insofar as [the planning permissions] relate to each particular building, and subject to the conditions imposed in those permissions, with the exception of those conditions requiring each permission to expire …
…rule on it. This is the Council’s submission that the conditions in the planning permissions requiring the removal of the buildings at the expiry of the time limiting conditions were not lawful because they did not “fairly and reasonably” relate to …
…to restore the site to its former use. It is difficult to see that as constituting the “carrying out” of building, engineering, mining or other “operations” on the land. Mr Young submitted that, in the context of planning permissions expressed in the …
…use limited to time. He submitted that the Inspector erred in relying on Bloomfield’s case because in that case the building was authorised by a permanent planning permission, not one which was time limited. He relied on the fact that a …
…of the bungalows. Before the planning permissions there was no right at all to bungalows. Moreover, the permission for a caravan site was subject to seasonal occupancy conditions. The planning permissions authorised the bungalows for occupation only in the specified periods …
…impose conditions on the grant of planning permission. Section 72(1)(b) empowers conditions: “…for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of …
…do not fall within any ‘use class’ (that is, a ‘sui generis’ use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the…
3.
O’Donnell v Revenue and Customs Commissioners First-tier Tribunal (Tax Chamber), 21 May 2010
Subject: VAT
Where Reported: [2010] UKFTT 236 (TC); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…materials of £27,269.07 and labour of £22,000 with VAT of £8,622.16. The materials were not specified. (b) Lochshell Engineering for the supply of materials and the manufacture and installation of steelwork of £11,522.75 with VAT of £2,016.48. (c) Lochshell Engineering for the supply of materials and the manufacture of steelwork of £2,558.90 with VAT of £447.81. (d) Lochshell Engineering for the supply of materials and the manufacture of steelwork of £2,706.05 with VAT of £473.55. (e) Lochshell Engineering for the replacement of three brackets, including collection of equipment and crane hire £397.50 with VAT of £69.56 …
…Schedule 8, Group 5 includes the following items –2 The supply in the course of the construction of (a) a building designed as a dwelling or number of dwellings or intended for use solely for a relevant residential purpose or a relevant charitable purpose; or (b) any civil engineering work necessary for the development of a permanent park for residential caravans, of any services related to the construction other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity. 4. The supply of building materials to a person to whom the supplier is supplying services within item 2 or 3 of this Group which include the incorporation of the materials into the building (or its site) in question. Section 35, which is headed “Refund of VAT to persons constructing certain buildings” provides – 35 (1) Where (a) a person carries out works to which this section applies, (b) his carrying out of …
…amount of VAT so chargeable.35(1A) The works to which this section applies are (a) the construction of a building designed as a dwelling or number of dwellings; (b) the construction of a building for use solely for a relevant residential purpose or relevant charitable purpose; and (c) a residential conversion. 35(1B) For …
…works to which this section applies by the person carrying out the works in so far only as they are building materials which, in the course of the works, are incorporated in the building in question or its site.35(2) The Commissioners shall not be required to entertain a claim for a refund …
…to the Tribunal, Mr O’Donnell confined his appeal to the invoices from Gmack Construction and the three invoices from Lochshell Engineering referred to above.Mr O’Donnell contended as follows – He carried on business with his son involving woodworking machinery and video …
…a “green field” site. It was very well insulated with much glass and eco friendly to run. Prior to commencing building, he had contacted the VAT helpline, and was informed that he did not require to take any action at that …
…the majority of suppliers had refunded the VAT to him. However he had disputes with both Gmack Construction and Lochshell Engineering and neither of these companies was prepared to refund the VAT to him. Mr O’Donnell claimed that he had been …
…changed.In addressing the Tribunal, Ms Tilling explained that the claim form which Mr O’Donnell completed covered both new house building and the conversion of an existing building, and she pointed out that whereas a person who has converted an existing building may apply for a partial repayment of VAT in respect of services, there is no corresponding provision in respect of a new DIY building. There is now a separate form for new house building. Ms Tilling pointed out in regard to Gmack Construction and Lochshell Engineering that the claims related to both materials and services. The hire of a crane was not a “building material”. She was also critical of the Gmack Construction statement because it did not contain the word “invoice”, as is …
…had read Notice 719. This Notice contains a warning at paragraph 2.2 that “if you construct a new eligible building you can only claim for VAT on those ‘building materials’ incorporated in the building”; also “Take care to ensure that you are charged the correct amount of VAT, as you can only reclaim VAT …
…faith; and that he personally did not hire the crane which was referred to in the final invoice from Lochshell Engineering. He was now in a position that he was unable to recover the VAT back from Gmack Construction and Lochshell Engineering. Reasons It was accepted from Mr O’Donnell’s evidence that he telephoned the VAT helpline, that he had the continuing impression …
…that he should pay on such invoices that might be rendered upon him, and that at the conclusion of the building works, he would be able to reclaim VAT which he had paid. However, in the absence of any record of …
…information.Broadly, the legislation does confer on the DIY builder the same relief from VAT that is available on a building contract carried out by a registered builder, except that the DIY builder must distinguish between (1) the supply of materials …
…refusing Mr O’Donnell’s claim for a refund in respect of the services (and materials) supplied by Gmack Construction and Lochshell Engineering. It is therefore appropriate that the appeal should be dismissed. As noted above those suppliers should correct it. Nevertheless, the…
4.
Cartledge v Scottish Ministers Court of Session (Outer House), 1 April 2010
Subject: Planning
Keywords: Caravan sites; Planning; Planning permission; Scotland
Where Reported: 2010 G.W.D. 16-323; Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…M. SinclairJudgment Lady Dorrian The issue in this case is whether the number of vans allowed on the appellant’s caravan park is controlled by the planning permission for the site or by the caravan licence for the site. Background The appellant is the proprietor of a caravan park at Glenfinart, Ardentinny, Dunoon. Planning permission for the formation of such a caravan park had been granted by Argyll County Council on 4 October 1972. That planning permission states that the Council: “Hereby permit formation of a caravan park and conversion of building into office, laundry accommodation at Glenfinnart, Ardintinny in accordance with the plan(s) submitted to the Council and docquetted as …
…commenced before the expiration of a period of five years from the date hereof and (b) due compliance with the building regulations and general statutory provisions in force.” The plan which was docquetted relative to the permission bears the caption “Glenfinart Holiday Park proposed site layout”. The site is divided into four numbered sections 1 to 4. Buildings in areas 1 to 3 of the plan are marked with shaded hatching to which the plan gives the legend “buildings to be demolished”. In the areas marked 1, 2 and 3 are numerous boxes representing caravan stances. The legend attached to these states “caravans connected to water and drainage”. No caravans are shown on the area of the site marked number 4 which bears the legend “mixed trees and undergrowth”. A …
…the plan as follows: “Development of site 1 and 2 — 1972–3, 3 — 1973–4, 4 — 1974”. The number of caravan stances which appear in the areas 1 to 3 is 64. On the same day as the grant of planning permission a caravan licence under the Caravan Sites and Control of Development Act 1960 was granted in respect of the site. That authorised the use of the land at Glenfinart House, Ardentinny, extending to 8.75 acres or thereby, as a caravan site in terms of the Act subject to a number of conditions. Conditions are made for the distance between the caravans, the nature of the hard standing to be used, the supply of services and so on. Condition 2 states: “Not more than 30 static holiday caravans and 30 towing caravans shall be stationed on the site at any one time, and the caravans shall be used only during the period 1 March to 31 October in any year, for the purpose of human …
…The licence granted to the appellant is dated 18 May 2000 and Condition 2 now states: “Not more than 64 caravans shall be stationed on the site at any one time and the caravans shall be used at any time during the year, excluding the months of November and February of any year, for …
…proprietor in 1987. Planning permission was given on 16 March 1988 which stated that it was for “siting of residential caravan and various proposals as detailed in attached list” and the attached list reads as follows “Conditions relative to application 670/87 1. The residential caravan hereby permitted shall only be occupied by persons and their families employed in the management of the Glenfinart Caravan Site. 2. Any play or recreational facilities over four metres in height being approved by the planning authority prior to them being erected. 3. The use of the caravans proposed for use as reception point (item 3 in the submitted description) and laboratory (item 7 in the submitted description) being restricted to those uses only and not being used for general accommodation. Reasons:— 1 and 3. These caravans are considered to be supernumerary to the existing authorised caravans on the site. 2. In the interests of visual amenity.” The appellant approached the council in 2007 to apply for …
…the number of units on site. He was advised that he had no planning permission to increase the number of caravans on site from 64 and that a fresh planning permission was required. The appellant applied under Section 150 of the …
…Such a certificate was issued on 19 November 2008 in the following terms: “Use of the land as a holiday caravan park with site access, internal access road, converted laundry and toilet accommodation and limited to the siting of 64 caravan units in the position of the pitches, all shown on the proposed layout plan approved by Argyll County Council on 4 October 1972. Also the siting of a residential caravan … approved … on 16 March 1988.” The issuing of that certificate was appealed to the Scottish Ministers on 29 January 2009 …
…following: “(iv) Site 4 is simply annotated on the said plan as mixed trees and undergrowth with no reference to caravans being sited there; (v) the legend on the said plan refers to development of site 4, but it gives no …
…plan for the development of sites 1 to 3; (vii) the fact that planning permission for the formation of a caravan park was granted in October 1972 does not mean that development beyond that shown on the docquetted drawing is exempt…
…there is no evidence before me of planning permission having been granted for any other layout of pitches in the caravan park than that approved in October 1972, for any permitted increase in caravan numbers beyond 64, for the siting of caravans on site 4, or for the formation of access roads, the provision of services, the formation of hard standings or…
…corner of site 4 as shown on the said drawing is no more than indicative, it offers no indication of engineering works necessary to transcend the steep bank or the route which it might possibly take within site 4 itself; and…
…along the steep bank, and there is no evidence whatsoever that they were to be used in connection with locating caravans on site 4.” The reporter goes on to state: “Based on my findings I conclude that the evidence presented in …
…to accept on the balance of probabilities that the planning permission granted on 4 October 1972 allows the siting of caravans or for any form of operational development on site 4.” That decision is challenged on the basis that the reporter …
…was that planning permission for the whole site was approved on 4 October 1972 without restriction on the number of caravans to be placed on the site. The number and siting of caravans was dealt with separately by way of the caravan site licence and the certificate of lawful use should not contain a restriction as to the number of caravans on the site, which is a matter to be dealt with by way of a site licence. The reporter erred in construing the planning permission as one which restricted the use of the caravan park to those pitches depicted in the drawing and to a certain number of caravans whose use would not involve building, engineering or other operations elsewhere on the site. Counsel submitted that the legend on the plan showing development over the period …
…1974 including development of phase 4 indicated that permission had been granted in respect of the whole site. Under the Caravan Sites and Control of Development Act 1960 an authority may only issue a site licence if the applicant is entitled to the benefit of permission for the use of the land as a caravan site. The issuing of a licence may be subject to conditions, including conditionsrestricting the occasions when caravans are stationed on the site or the total number of caravans; controlling the type of caravan; regulating the position of the caravans; and taking steps to ensure the amenity of the site. Had the planning permission been intended to limit the number of caravans to stances actually shown on the plan (64) it was not logical for the licence to restrict the number of caravans to 60. This divergence of numbers indicates that the planning permission stood alone as permission for the development of a caravan park, while the actual number of caravans permitted was a matter to be dealt with by site licences from time to time. The planning permission granted was for the whole 8.75 acre site for the formation of a caravan park. It was not restricted only to development of areas 1, 2 and 3 with a limitation of 64 caravans. Had this been the intention the planning permission would have been in different terms and for a lesser area yet …
…on the plan which shows development of site 4 in 1974. The planning permission was for the formation of a caravan park in respect of the whole 8.75 acre site and included the development of site 4 which was to …
…of site 4. Accordingly the reporter erred in construing the planning permission as one which restricted the use of the caravan park only to those pitches specifically depicted on the plan. If the plan is considered to be set in concrete …
…to be obtained now. As to the planning and licensing history of the site, the 1988 planning consent was for caravans which would not normally be part of the formation and use of a caravan site including a residential caravan for management and a laboratory. These were not for people visiting the site. Counsel referred to Trustees of Walton-on …
…respondent was that the planning permission incorporated the plan and in doing so prescribed the number and location of the caravans permitted at the subjects. The caravan site licence was complimentary to, and did not supersede, the grant of planning permission. Subsequent planning history of the site …
…it is clear that permission allows a particular number of vans only and in particular locations. The plan showed that caravans were to be sited in areas 1, 2 and 3 but not in area 4. The appellant seeks to ignore…
5.
R. (on the application of Delaney) v Secretary of State for Communities and Local Government Queen’s Bench Division (Administrative Court), 24 February 2010
Subject: Planning
Where Reported: [2010] EWHC 1437 (Admin); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…a breach of planning control without planning permission, having changed the use of land from agriculture to stationing of residential caravans, other vehicles, static mobile homes and portable toilets, together with ancillary excavation, engineering and other building works for the alteration and construction of accesses, drives, roads and hardstandings and the provision of whole mounted external lighting…
…home without having obtained planning permission to change the use from agricultural to being used for the purpose of residential caravans. The claimant brought an appeal against the enforcement notice, which was dismissed by the inspector following an inquiry, and now …
…explosive range for the gas.Two substantive solutions to this problem were proposed by the claimant. One was that the caravans and mobile home on the site, would be located on concrete slabs which would include a gas-proof membrane. It …
…appeal that such a barrier could provide a satisfactory level of protection from methane emissions for the occupiers of any caravans or mobile homes and he recalls that the inspector could see no reason to disagree with the planned view. However …
…be attractive to visitors for the erection of temporary structures and visitors would be likely to be accommodated in adjoining caravans. Those might not be positioned on any concrete slab. In addition some portable toilets were relocated on the site, which are generally situated apart from caravans, and such temporary structures could easily provide enclosed spaces into which gases can collect, through a direct pathway from the …
…warning arrangements could be sufficiently robust to reduce the risks to an acceptable level, particularly with the regular movement of caravans on and off the site. Objection was taken, as I understood it, to that conclusion by the claimant as being…
6.
Sumner v Secretary of State for Communities and Local Government Queen’s Bench Division (Administrative Court), 11 February 2010
Subject: Planning
Keywords: Certificates of lawful use; Enforcement notices; Planning permission; Ten year immunity rule; Time limits
Where Reported: [2010] EWHC 372 (Admin); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…of an inspector given on 17 July 2008 in respect of an enforcement notice against the change of use of buildings at Southside Farm, Wooburn Manor. The change of use was to a use for vehicle repairs. It is not in …
…Suffice it to say as follows: the enforcement notice also alleged a breach in respect of the construction of the building, but the inspector decided as a matter of fact that the building was immune from enforcement. The building in question contained three separate units, which are described as units 1, 2 and 3. It is not entirely clear …
…follows: “(1) where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of …
…substantially completed.(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house no enforcement action may be taken after the end of the period four …
…relies essentially, as I have said, upon the contention that the change of use or the purpose for which the building was built was the carrying out of the vehicle repair activities. Those were therefore ancillary to the building operations, and accordingly it is right, and indeed it is as a matter of law correct, that they should carry …
…to any sensible application of planning legislation if the result of the inability to carry out any use of the building other than that which would be ancillary to the lawful purposes for which the land could be used the position will be that the building has to remain empty and presumably become derelict, and that can hardly be of any advantage whether in the green…
…Anr, [2010] EWCA, Civ, 26 , as it happens an appeal from a decision of mine. As I have said, the building is in the green belt. It is not, I am afraid, entirely clear from the inspector’s decision letter precisely what …
…entrance are a schooling ring and other structures used by the appellant lawfully for his own horses together with three buildings used for car valeting. Immediately to the east stands a range of buildings, extending across much of the depth of the site. These include a building used by the appellant and his firm as a builder’s yard with ancillary office together with a U shaped range …
…of structures, close to, but separated from the southern boundary of the land by a circulation roadway, stands a further building, termed building ‘B’ to which part of the allegation in the notice, now effectively withdrawn, had been directed; it is used by…
…land.” Paragraph 12: “The first and second limbs of allegation in the notice …are directed entirely to the L shaped building A which stands to the east of the aforementioned range of structures and south of the LDC land. Building A comprises four constituent ‘parts’…” And he then goes on to identify the three units in that building, that is the building, as I have said, to which the notice under appeal relates. In paragraph 53, when the inspector was dealing specifically with the issue of the material change of use of the building in question, he refers to evidence about repairs to vehicles and when they were carried out. He says: “Those vehicles …
…at the very least there was at the relevant time certainly on the part of the land which included this building under question, agricultural, keeping of horses, and the builder’s yard with ancillary office, so any use ancillary to those lawful activities would have been itself lawful. There was in addition apparently lawful use of some of the buildings for valeting of cars (not these buildings in question but other buildings on the Southside Farm site) and of course there was also what is described as the LDC land, that is …
…with green belt policies. However, as I said it was found by the inspector that the use to which the buildings are now being put is a use which is not in accordance with any lawful use which is permitted to be carried out in the buildings and has not been carried out for a period of 10 years, although it has been carried out — I think …
…following enactments, as if it were a grant of planning permission-” There are specific provisions in three Acts referred to: Caravan Sites and Control of Development Act 1960 Control of Pollution Act 1974 and the Environment Protection Act 1990 . I should …
…section so far as material provides in sub-section (2) “Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.” Sub-section (3) “If no purpose is so specified the permission shall be construed as including permission to use the building for the purpose for which it is designed.” Mr Stinchcombe submits that albeit it is not a planning permission it …
…wholly consistent, and indeed inconsistent with the purpose behind the lawfulness, if it did not include permission to use the building for the purpose for which it was designed. That purpose, incidentally, does not look to the narrow architectural or functional state of the building, it is concerned with the purpose for which the building was constructed; the use which was intended. So much, so much as it seems me, is clear from the approach …
…Court [1963] 2 Queen’s Bench Division 764 . Thus he submits that if the intention was at all times that the buildings should be used for the purposes of vehicle repair, then once the operational development in the form of their construction …
…use certificate to be obtained and that will indicate the extent to which any use of or presence of any building on the land is lawful.On the inspector’s findings, assuming they are correct, the lawful use certificate could be obtained to indicate that the building itself is lawfully there, but its use would be limited to any use ancillary to a lawful use permitted, and …
…indeed if there is an enforcement notice in existence in relation to any use or indeed the existence of any building, that would preclude the grant of a certificate of lawful use covering that use or that building: see section 191(2)(b) When this appeal was launched and when permission was granted, the argument was based upon the contention, as I say, that the lawfulness, or rather the immunity of the building, should carry with it the lawfulness of the intended use and the argument that such use was ancillary, alternatively that …
…is concerned, it seems to me that it is a misuse of language to regard the use for which the building was intended as a use ancillary to the construction of the building. I say that because the Act draws a distinction, and this is a distinction which one sees throughout, between operational …
…given case the one can truly be said to be ancillary to the other. Examples are the placing in a building of a spiral staircase in order to facilitate use as an office. Or the placing of hard core on land…
7.
Jennings v Revenue and Customs Commissioners First-Tier Tribunal (Tax Chamber), 28 January 2010
Subject: VAT
Keywords: Construction materials; Supplies; Tax refunds; Zero rating
Where Reported: [2010] UKFTT 49 (TC); [2010] S.T.I. 2154; Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…of construction services in constructing a dwelling; Item 3 certain services supplied to housing associations in the course of converting buildings into dwellings; and Item 4 the supply of building materials made along with construction services within items 2 or 3. As a result: (1) if a person buys a …
…bears no VAT (the developer will also be able to reclaim the VAT he suffered on inputs used for the building)(2) if a person has a plot of land and gets a contractor to build a dwelling on it he …
…3) if a person has a plot of land and gets a contractor to build a dwelling and also receives building materials supplied by that contractor he will bear no VAT on those materials (Item 4). But if a person arranging the construction of a dwelling pays a contractor for building services (zero rated within Item 2), but himself buys from someone else the materials which are supplied to him and …
…the absence of any relief he bears VAT on them.Section 35 VATA , “Refund of VAT to persons constructing certain buildings”, also known as the DIY builders provision, provides some relief. It permits the VAT on building materials for a dwelling to be recovered. As a result it puts a person who pays a contractor and also …
…these is Note (13) which removes the zero rating applicable to Item 1 — the sale by a developer — if the building is subject to certain restrictions on use including a restriction on use as a principal private residence or on use…
…throughout the year. The note does not affect the other items in Group 5. In this decision we term a building which is within note (13), a “Note 13 building”. The effect of note (13) gives rise to two categories of first consumer of a Note (13) building in relation to the VAT born on its construction costs: (1) Category I: those persons who purchase a Note (13) building from a developer. In this case the purchaser bears the VAT chargeable on the supplies to the developer which the developer will not have been able to recover because his supply of the building will have been exempted under Group1 of Schedule 9 VATA (2) Category II: those persons who get a contractor to construct the Note (13) building. In this case the construction costs are zero rated. The owner bears no VAT. In these circumstances the question arises …
…said that Note (13) must be read into section 35 so that no repayment of VAT was due if the building was subject to the Note (13) restrictions, and that it was clear that the restrictions applied. Mrs Jennings appealed. On …
…the amount of VAT so chargeable.(1A) The works to which this section applies are— (a) the construction of a building designed as a dwelling or number of dwellings; (b) the construction of a building for use solely for a relevant residential purpose or relevant charitable purpose; and (c) a residential conversion. (1B) For the …
…works to which this section applies by the person carrying out the works in so far only as they are building materials which, in the course of the works, are incorporated in the building in question or its site.(1C) Where— (a) a person ( “the relevant person”) carries out a residential conversion by arranging …
…this section works constitute a residential conversion to the extent that they consist in the conversion of a non-residential building, or a non-residential part of a building, into—(a) a building designed as a dwelling or a number of dwellings; (b) a building intended for use solely for a relevant residential purpose; or (c) anything which would fall within paragraph (a) or (b) above if different parts of a building were treated as separate buildings. (2) The Commissioners shall not be required to entertain a claim for a refund of VAT under this section unless …
…parts of it directly relevant to this appeal: “Item No: 1 The first grant by a person— (a) constructing a building— (i) designed as a dwelling or number of dwellings; or… of a major interest in, or in any part of, the building, dwelling or its site. 2 The supply in the course of the construction of— (a) a building designed as a dwelling or number of dwellings … of any services related to the construction other than the services of …
…a supervisory capacity.3 The supply to a [relevant housing association] in the course of conversion of a non-residential building or a non-residential part of a building into— (a) a building or part of a building designed as a dwelling or number of dwellings; or… of any services related to the conversion other than the services …
…of an architect, surveyor or any person acting as a consultant or in a supervisory capacity.4 The supply of building materials to a person to whom the supplier is supplying services within item 2 or 3 of this Group which include the incorporation of the materials into the building (or its site) in question. “Notes:… (13) The grant of an interest in, or in any part of— (a) a building designed as a dwelling or number of dwellings; or (b) the site of such a building, is not within item 1 if— (i) the interest granted is such that the grantee is not entitled to reside in the building or part, throughout the year; or (ii) residence there throughout the year, or the use of the building or part as the grantee’s principal private residence, is prevented by the terms of a covenant, statutory planning consent or …
…necessary only to summarise Blom-Cooper . In that case a claim under section 35 related to the conversion of a building which already contained a residential part into a single dwelling. Note (9) of group 5 provided that: (1) “the conversion …of a non-residential part of a building which already contains a residential part is not included within item 1 (b) or 3 unless the result is to …
…appears., … The stated object of note (7) is to give meaning to the phrase ‘non-residential’ in relation to a building or part of a building. And the only context in which that phrase needs to be given meaning it as part of the expression [which …
…a note to Group 5 of schedule 8, if it read: ‘The conversion …of a non-residential part of a building which already contains a residential part is not a conversion within this group unless …’ “[26] So understood it is, to …
…in this case restrictive rather than identifying.HMRC’s argument Mr Edwards said that, just as a developer’s sale of the building will not be zero rated if one of the conditions of note 13 are satisfied so also, by the operation …
…Mr Edwards referred us to paragraph 7 in Jacobs where Ward LJ says: “When the builder or developer sells the building in the course of his business, he can recover his input tax if he can bring himself within Group 5. The so-called do it yourself housebuilder who is not engaged in the building business would not ordinarily be entitled to deduct the input tax because he is treated as the ultimate consumer who …
…section 35However Mr Edwards agreed that Group 5 on its own places a DIY builder of a Note 13 building in a better position than the purchaser from a developer of such a building in circumstances in which the DIY builder gets a contractor to supply building services and all the relevant materials to him so that the supplies fall within item 2 and item 4. Discussion …
…the log cabin also fell foul of the provisions relating to the “grantee” not being entitled to reside in the building throughout the year in (13)(b)(i) or use as the “grantee’s” principal private residence in (13)(b)(ii). There…
8.
J v J Family Division, 21 January 2010
Subject: Family law
Keywords: Ancillary relief; Lump sum orders
Where Reported: [2009] EWHC 2654 (Fam); [2010] Fam. Law 329; Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…In my view, the product of this fairly standard path was that a number of the factual stepping stones or building blocks in the rival arguments were not constructively or adequately addressed. So, in my view, this case provides an example …
…inviting me to take into account as factors in the s. 25 exercise and the subsidiary facts (stepping stones or building blocks) they were inviting me to find to establish those findings. This is an essential part of the preparation and …
…payments made and applied in the purchase of her houses. For example, his case (and thus its stepping stones or building blocks) that notwithstanding her father’s will the payments came from funds to which she was entitled, was not put to …
…taken into account in the s. 25 exercise, and (b) the findings of fact he sought as stepping stones or building blocks in the establishment of such factors,iii) failures to seek and provide appropriate discovery and evidence, iv) the taking …
…the husband in the decisions that were made in respect of the company, the wife had directly contributed to the building of his business and value of the available assets. This was a proper and inevitable acceptance that her assertion in …
…are other assets which were obviously acquired for the use and benefit of the whole family, such as holiday homes, caravans, furniture, insurance policies and other family savings. To this list should clearly be added family businesses or joint ventures in …
…to its circumstances will be best demonstrated in, and by, the reasoning relating to the award. This will identify the building blocks of, or the magnetic factors in, the discretionary exercise. A consideration of the approach to be taken to post …
…not a clean break case (see paragraphs 122 and 124).In that approach Moylan J makes clear that “the relevant building blocks have to be assembled in a provisional structure” and a global assessment of fairness is then to be performed …
…why the rival positions of the parties did not produce a fair result. He also made the point that the building blocks have to be based on the evidence at paragraphs 8 and 29 (and following), I agree, and pause to …
…broad approach are; i) firstly directed to the task set by s. 25 and not to the establishment of the building blocks that have to be proved and taken into account, and that ii) in the context of establishing the building blocks they are directed to the nature, accuracy and usefulness of some types of evidence, the dangers or impracticality of …
…case, andii) the nature of aspects of the exercise is such that having established from the evidence the relevant building blocks and key points it is not practical or sensible to search for a mathematical or formulaic solution. Overlap between …
…and more generally in the performance of the s. 25 exercise, the parties should set out with appropriate particularity the building blocks and key aspects of their argument (and thus the facts and matters they seek to prove and their relevance…
…be exercised in that broad manner do not mean that the establishment by evidence of the facts and matters (the building blocks) that the court is invited to take into account in exercising its discretion should be approached with a broad…
…other financial help, and (b) the history of past provision is a guide to the future.The important findings or building blocks . As appears earlier in this judgment, these are: i) This is a nine and a half year marriage. The …
…and how they will set about proving them. So, they are an integral part of the process of establishing the building blocks of the case to be presented by the parties to the court as to how it should exercise its …
…of factors necessarily has to take a broad approach, do not support a conclusion that the nuts and bolts or building blocks of litigation should be approached broadly, or with a broad brush, leaving the court, for example: i) to weed …
…to carry out the basic tasks I have mentioned to identify the facts and matters relied on, and thus the building blocks for the rival arguments as to the assets that are the subject of the s. 25 exercise and how…
…brief terms, questionnaires and s. 25 affidavits does not readily lend itself to a clear and succinct identification of the building blocks of the rival contentions, particularly when there are disputes of fact to be resolved. No doubt this process provides …
…after a failed FDR it would be appropriate for directions to be given for an exchange of documents identifying the building blocks of each side’s case, particularly when there are disputes of fact and, even more so, if allegations of dishonesty…
…not set such matters out.To my mind, by the time of an FDR each side should have identified the building blocks of their respective cases. Indeed, the assessment of them and their product is at the heart of an FDR…
9.
Culverwell v Revenue and Customs Commissioners First-Tier Tribunal (Tax Chamber), 22 October 2009
Subject: VAT
Keywords: Builders; Houses; Supplies; Tax refunds; VAT; Zero rating
Where Reported: [2009] UKFTT 276 (TC); Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…claim form for VAT refunds for DIY builders and convertors. On that form he claimed in respect of a new building for his own occupation at 1A Ratby Meadow Lane, Enderby, Leicestershire, which he claimed was built between April 2006 and …
…the amount of VAT so chargeable.”“(1A) The works to which this section applies are – a) the construction of a building designed as a dwelling or a number of dwellings, b) the construction of a building for use solely for a relevant residential purpose or relevant charitable purpose; and c) a residential conversion.” “(1B) For the …
…works to which this section applies by the person carrying out the works in so far only as they are building materials which, in the course of the works, are incorporated in the building in question or its site.”“(4) The notes to Group 5 of Schedule 8 shall apply for construing this section …
…Schedule 8 of the Act states: “Item No 2 The supply in the course of the construction of – a) a building designed as a dwelling or a number of dwellings or intended for use solely for a relevant residential purpose or a relevant charitable purpose; or b) any civil engineering work necessary for the development of a permanent park for residential caravans, of any services related to the construction other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity.” “Item No 4 The supply of building materials to a person to whom the supplier is supplying services within item 2 or 3 of this Group which include the incorporation of materials into the building (or its site) in question.” “NOTE (22) “Building materials”, in relation to any description of building, means goods of a description ordinarily incorporated by builders in a building of that description, (or its site), but does not include – a) finished or prefabricated furniture, other than furniture designed to …
…furniture;c) electrical or gas appliances (23) For the purposes of Note (22) above the incorporation of goods in a building includes their installation as fittings.” Decision Section 35 of the VAT Act 1994 sets out provisions relating to the refund of VAT to persons constructing certain buildings. Section 35(1) permits HMRC to refund VAT that is chargeable on the supply of goods used by him for…
10.
Howells v Secretary of State for Communities and Local Government Queen’s Bench Division (Administrative Court), 12 October 2009
Subject: Planning; Local government
Keywords: Amendments; Enforcement notices; Material change of use; Planning inspectors; Plans
Where Reported: [2009] EWHC 2757 (Admin); [2010] J.P.L. 741; Official Transcript
Documents: Case Analysis Official Transcript
Terms in Context:
…material change of use of land on the appeal site to use for the importation of concrete and other inert building waste materials, together with the storage, crushing and exportation of the same.The appellant appealed against the enforcement notice to …
…Cotswolds AONB. The enforcement notice required the appellant to cease the importation, storage and crushing of concrete, stone and inert building waste on the enforcement notice land, to remove all of the slab concrete and other uncrushed inert material from the land, to remove all crushed concrete, stone and inert building waste and reinstate the land back to agricultural use. The appeal was lodged under section 174 (a), (b), (d) and …
…and therefore there was a material change of use to a mixed use for inert waste activities and a civil engineering contractors’ depot, including the parking of vehicles and the storage of materials, plant and equipment. (DL16) 4. From January 1996 …
…amounted to a material change of use to a mixed use for lorry parking, inert waste activities and a civil engineering contractors’ depot. (DL 17) 5. In January 2002, Preece Contracts ceased to park their lorries on site but that did …
…There was a material change of use from its former mixed use for agriculture, inert waste activities and a civil engineering contractors’ depot to a mixed use for inert waste activities and a civil engineering contractors’ depot (DL19).7. By mid 2005, the new planning unit was used solely for inert waste activities. That amounted …
…lean to annex. Bridge J could not accept that the minister had exceeded his jurisdiction. The case of Dunton Park Caravan Site Ltd v Secretary of State for the Environment and Basildon District Council [1981] JPL 511 concerned a reduction in …
…from arguing his case properly and so the amendment had not in fact been in the appellant’s favour. In TLG Building Materials v Secretary of State for the Environment [1980] 41 P&CR 243 , it was held that an error in …
…mixed or composite use by the appellant for the alleged inert waste activity and by Dunmore Construction as a civil engineering contractors’ depot, including the parking of vehicles. The Inspector went on to find that the material change of use alleged …
…parking use of the site by Dunmore Construction was ancillary to their primary use of the site as a civil engineering depot. When Preece Contracts arrived on the site in 1996, their sole use of the site was for lorry parking…