Barn used by sculptor as studio does not acquire the character for planning purposes of a ‘general industrial building’–This is so notwithstanding that the barn had been equipped by the sculptor with benches, an anvil etc, that lead, brass and other material had been worked on, and that some of the finished work had been sold–Secretary of State entitled to hold that studio use came within a use class of its own
This was an
application by Mr Frederick Arthur Leslie Tessier for an order of certiorari to
bring up and quash a decision of the first respondent, the Secretary of State
for the Environment, upholding with minor modifications an enforcement notice
served on the applicant by the second respondents, the New Forest District
Council, formerly the New Forest Rural District Council, requiring him to cease
using a barn at Pear Tree Farm, Emery Down, Lyndhurst, Hampshire, for the
purpose of vehicle maintenance and servicing.
Mr M S Rich
(instructed by Lovell, Son & Pitfield, agents for Williams, Thompson &
Co, of Christchurch) appeared for the applicant, and Mr H K Woolf (instructed
by the Treasury Solicitor) represented the first respondent. The second
respondents took no part in the proceedings.
Giving
judgment, LORD WIDGERY said that for some years prior to the appearance of the
applicant on the scene the barn had been used by a Mr Sven Berlin as a studio
for his work as a sculptor and painter. The applicant had eventually acquired
the premises and had begun to use the barn for the service and maintenance of
motor vehicles. The local planning authority’s enforcement notice required him
to discontinue such user on the ground that it constituted a material change of
use for which planning consent had not been granted and would not be granted if
an application were made. Against that notice the applicant appealed, there was
an inquiry, and the applicant now sought an order to quash the decision of the
Secretary of State confirming the notice. The point taken was that there had
been no material change of use, in that the previous use as a studio was a use
as a general industrial building under class IV of the use classes order of
1972. It was common ground that the present use of the building was as a
general industrial building, so that the issue was simply whether the previous
use was within class IV.
The inspector
who conducted the inquiry came to the conclusion on the evidence that the
earlier activities in the barn were such as to cause it to be used as a general
industrial building. The Secretary of State took the other view. He accepted
that the barn had been equipped with benches, an anvil and other equipment, and
that lead, brass and other material had been worked on, and that some of the
finished sculptures had been sold. But in his decision letter, he nevertheless
described the use of the barn as a studio as not being within class IV. He
decided that the use as a studio was a use with its own class, and that the
primary object was the carrying-on of artistic work. He (his Lordship) thought
that that decision should be upheld. The use of the barn as a studio could be
fairly described as the Secretary of State had described it, and the Secretary
of State had a wide discretion in deciding what was a proper use having regard
to all the facts. The application should accordingly be rejected.
O’CONNOR and
LAWSON JJ agreed, and the application was dismissed, no order being made as to
costs.
