The ‘units’ had been designed and made in a marina boatyard from two rows of foam-filled concrete blocks held together by a metal framework covered by wooden decking, on top of which was attached a pre-assembled pod containing a shower room, kitchenette and living/bedroom area. With an outboard motor attached to the rear and steering and other controls at the front, the units had actually been certified for navigation….
Invoking the ‘Not everything that floats is a boat’ from Sussex Investments Ltd v SSE & Spelthorne BC , the inspector scrutinised the evidence to try and decide whether or not the units were buildings, having regard to the three primary factors of size, physical attachment and permanence identified in case law in Cardiff Rating Authority (endorsed by Skerritts).
In terms of permanence, the inspector was inclined towards the units being buildings. Whilst they had on occasion moved under their own propulsion during the four and a half years they had been in the water, the inspector found it significant that they had always returned to the same mooring. Also, being advertised as tourist accommodation demonstrated that the units were available and with that came permanence, the inspector reasoned.
However, turning to the features of size and physical attachment, he concluded that the units were not buildings. In contrast to a building, the units had been designed by a boat specialist, completed in the boatyard beside the marina and then lifted into the water in the same way as a boat. This would not bring them within the definition of building operations as defined by the Act. Quick release service couplings and rope attachments to the pontoon were similar to a boat.
On the balance of probabilities, the inspector decided that the units were not buildings and quashed the enforcement notice (400-043-924). He did, however, throw the council a lifeline by pointing out that it remained open to the council to investigate whether the units amounted to a material change of use of land, whilst reminding everyone that for planning purposes water is considered to be ‘land’.
Whether a water based structure amounts to a building operation has been considered in other cases examined in DCP 4.3113.