THE OWNER and occupier of the residence known as Pill Priory, in Lower Priory, Milford Haven was in court last week (May 9) to argue that a shed that he built without planning permission was not a building, but a movable object.
The argument is that by putting it on wheels, James Kershaw had created a chatel and not a property subject to planning rules.
At Haverfordwest Magistrates’ Court representatives from the Council said: “Pill Priory is a medieval priory. It is a highly sensitive. It is designated as a Grade 2* listed building and a Scheduled Ancient Monument. These designations denote that the property is nationally important.”
Kershaw, 39, who runs a gardening business, is accused of the offence of breaching the Enforcement Notice dated 26 September 2016 contrary to section 179 (2) of the Town and Country Planning Act 1990.
In court, both parties agree that in 2015 the defendant constructed a shed in the garden at Pill Priory without the benefit of planning permission.
When the Council became aware of the shed, they said, they asked him to remove it. He refused. In these circumstances, the Council had little choice, they say, but to serve the notice to require the removal of the shed.
The court heard that Kershaw then appealed the notice. He argued that the notice ought to be quashed as the shed is not a building and so the breach of planning control has been mis-described on the face of the notice; and that he ought to be granted planning permission retrospectively for it.
But the council said it suspects that the defendant made the adaptions to the shed after the first appearance in the Magistrates’ Court “when he realised the serious legal position in which he found himself.”
This is something that Kershaw denied in court, supported by a witness, Mr Dai Garland, who said that he assisted in the alterations long before the legal proceedings had commenced.
In its skeleton argument, barrister for the Council, Jack Smyth of No.5 chambers wrote: “The fact that the shed is lightweight (made of plywood and ship lap) and no larger than the average static caravan is neither here nor there. Not all buildings need be big. Lots of buildings are small (such as a modest greenhouse or wendy-house). It is denied that the adaptation of the shed transforms it from a building to a chattel.
He went on: “Even if the defendant is right that the shed is no longer a building, the fact that it was a building when the notice was served and scrutinised by the Inspector does not render the notice a nullity. Whatever label one attaches to it (“shed
“building”; “structure”; “hut”), we are talking about the same wooden “thing”.
“The label does not constitute a deficiency sufficiently serious to make a notice bad on its face.
“Even if the defendant is right that the shed is no longer a building, he could have demolished it as required by the notice. It is not accepted that this action was impossible.
The Council barrister went on in his report to say: “The Court may be impressed by the creativity and imagination displayed by the
defendant (and those acting on his behalf).
“But, in truth, the legal argument advanced by him is little more than semantic sophistry. It provides no defence to the summons. If he had simply removed the shed as he was required to do, we would not find ourselves here.
“Whatever the legal “gloss” placed on the defendant’s argument, it is contrived and unconvincing. The Court is invited to dismiss the argument and find the charge proven.”
THE DEFENCE
In his submissions, barrister for the defence Mr Matthew Graham Paul of Civitas Chambers wrote: “Where a unit is designed to be mobile, and in particular where it has its own wheels, the Courts have tended to find it lacks permanence. In Measor v. Secretary of State for the Environment, Transport and the Regions, Robin Purchas QC (a specialist in planning law) citing Barvis and Elitestone found there were ample grounds for his conclusion that the caravans which were the subject of the case did not constitute ‘buildings’ within [planning law].
“In the event that the Court disagrees that the adaptation of the shed so that it is not a building discharges the defendant’s obligations in complying with the notice (i.e. that it does not amount to ‘demolition’), it should nevertheless dismiss the charge because the Enforcement Notice is a nullity as it refers to a ‘building’.
“Secondly, if the shed was not a building on 12th February 2018 James Kershaw was in no position to demolish a building, as the Enforcement Notice purported to require. The action required by the EN was impossible, which has also been held to constitute a defence to failing to comply with the requirements of an Enforcement Notice by rendering it a nullity.”
Following lengthy legal submissions the judge decided to reserve judgement until next month.
The case was adjourned until 14th June 2019 for District Judge Chris James to deliver his judgement at Llanelli Magistrates’ Court.
