Enforcement notice–Builder’s yard used mainly for storage of building materials with some sales from premises–Yard bought by demolition contractor and used essentially for the same purpose, storage of building materials, sale now being the primary object–No material change of use–‘Means of disposal of building materials when they leave the site of no importance in land-use terms’–No evidence before Secretary of State on which he could differ from his inspector and support the notice
This was an
appeal by Mr Frederick William Ivor Snook, demolition contractor, of Vallis
Road, Frome, Somerset, from a decision of the first respondent, the Secretary
of State for the Environment, dated December 11 1973, dismissing his appeal
from an enforcement notice served upon him by the second respondents, West
Wiltshire District Council, successors to Bradford & Melksham Rural
District Council, as agents for the third respondents, Wiltshire County
Council, requiring him to cease using a site in Trowbridge Road, Hilperton,
Wiltshire, for the purposes of his work.
Mr G Eyre QC
and Mr C S Rawlins (instructed by Hiscox & Co, of Trowbridge) appeared for
the appellant, and Mr H K Woolf (instructed by the Treasury Solicitor)
represented the first respondent. The second and third respondents took no part
in the appeal.
Giving the
first judgment, BRIDGE J said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 from a decision of the Secretary of State for the
Environment given by letter dated October 16 of last year, dismissing an appeal
by the present appellant against an enforcement notice dated December 11 1973
which had been served on him by the second respondents, the local planning
authority, alleging a material change in the use of land. The history of the
matter can be quite shortly related. The land the subject of the enforcement
notice is a small site with a frontage of 60 ft to the main road between
Trowbridge and Devizes, and a depth of some 80 ft. It is situated in a village
called Hilperton. This site was used from 1951 or 1952 to 1969 by a firm of
builders called Mattock & Wells as a builder’s yard. They stored on the
site building materials which they used in their own business, mostly new building
materials, but a proportion of them, said to have been about 25 per cent,
reclaimed building materials, arising no doubt from the demolition of old
buildings. They used the bulk of the materials stored on the site in their own
building operations elsewhere, but something like 25 per cent of the turnover
of material in Mattock & Wells’s time was eventually sold to third parties,
both to other builders and to members of the public to whom the yard in
question was open. In 1969 the present appellant came upon the scene and
acquired the site from Mattock & Wells. His business is not that of builder
but that of demolition contractor. He evidently did quite a lot to clear and
tidy the site, but nothing turns upon that. He has used the site without a
break since he acquired it for the storage of materials accruing from his
business as a demolition contractor. As he demolishes buildings else where he
burns what is combustible of the rubbish, disposes to scrap merchants what is
scrap, and transports to the site the subject of this appeal what is of value
for re-use in the building trade. Approximately 95 per cent of the materials
which, under the appellant’s control, find their way to the site in question,
when they leave the site are to be used by third parties, having been sold on
by the appellant. The appellant himself conducts his business, no doubt both in
relation to his demolition operations and in relation to these sales of
reclaimed goods to the trade, not from the site at all, but from his home at
Frome, and his business with other builders is carried on over a wide area,
having a radius of some 50 miles in three counties, Somerset, Wiltshire and
Dorset. At the site itself, no one is present except on Mondays, Wednesdays and
Fridays and for two hours on Saturdays. On those days, however, a gentleman,
who we are told is an old-age pensioner, is employed on the site, sorting and
stacking materials, and on those days the site in the appellant’s occupation,
as it was in the occupation of Mattock & Wells, is open to casual members
of the public who may be interested in purchasing any of the reclaimed building
materials stored there. There are in fact two small notices on the road
frontage to the site, one which indicates that salvaged building materials are
sold there, and the other which gives the appellant’s name and address in
Frome.
Against that
background of fact, the inspector who held the inquiry at which these facts
emerged came to the conclusion that there had been no material change of use.
In expressing his conclusions, the inspector said: ‘It seems to me that the
essential element of the present use of the land, the storage there of building
materials, is the same as that of its use during the period 1951-52 to 1969 as
a builder’s yard. I am not persuaded by the argument that there is a material
change of use because previously sale of building materials was merely an
incidental facet of the builder’s yard use, whereas it is a primary object of
the present use. The use of the land for ‘storage, sorting, treating and
burning’ of building materials is similar to its pre-1969 use, and the means of
subsequent disposal of materials when they leave the site seem to be of little
importance in land-use terms.’ When the
Secretary of State came to deal with the matter, in dissenting from that
conclusion, he expressed himself in paragraph 6 as follows: ‘The inspector
found as facts which are accepted that from 1951-52 until 1969 the appeal site
was occupied together with the adjacent land to the west as a builder’s yard by
Mattock & Wells, who stored building materials for their own use and for
sale to the public. About 25 per cent of the materials stored were reclaimed
secondhand goods. The evidence shows that your client, who is a demolition
contractor, has occupied the appeal site since about 1970. Large quantities of
building materials from the buildings he demolishes are sorted and stacked on
the site and sold from there, mainly to builders for re-use, but some sales are
made to the general public. A builder’s yard is considered to be a composite
use, containing many elements which may comprise amongst other
possibly some ancillary sales, but the primary use of the yard is the storage
and preparation of materials for use in various building projects. The view is
taken that your client’s use of the premises is primarily a sales use to which
end salvaged building materials are sorted and stored on the appeal site.’ Then after reference to his disagreement with
the inspector, the Secretary of State concludes: ‘It is considered that this
use is different in character from the former builder’s yard use and that, as a
matter of fact and degree, its introduction amounted to a material change of use
constituting development for which planning permission was required.’
Now in this
court Mr Eyre submits that that conclusion by the Secretary of State is
vitiated by an error of law on the footing that the Secretary of State, as the
tribunal of fact, if properly directing himself as to the relevant legal
considerations to be applied, could not upon the factual material which was
before him properly or reasonably reach such a conclusion. We tend to think
that we know the old authorities in this field very well, but we have, if I may
say so, been helpfully and usefully referred to one of the most familiar and to
two short passages from that very familiar authority. East Barnet Urban
District Council v British Transport Commission and another [1962] 2
QB 484, where Lord Parker CJ, adverting to the considerations of law which are
applicable to the determination of the question whether a material change of
use amounting to development has taken place, said this at p 491: ‘It seems
clear to me that . . . what is really to be considered is the character of the
use of the land, not the particular purpose of a particular occupier.’ On the previous page, at page 490, referring
to the use of the word ‘material’ in the relevant part of the definition of
development, he said: ‘The word ‘material’ came in for the first time in the
definition in the Act of 1947, but that must be referring to material as
material for planning purposes.’ We have
also been referred to a decision of this court in Lewis v Secretary
of State for the Environment and another (1971) 23 P & CR 125 in which
my Lord, Lord Widgery CJ, said: ‘The actual activity on the land so far as the
Secretary of State refers to it appears to be identical both before and after
and it is not my understanding of the law that, if the activity is exactly the
same throughout the relevant period, a material change of use can occur merely
because of a change in the identity of the person carrying out that activity.
Similarly, I am not prepared to accept that, if the use throughout the relevant
period is the repair of motor vehicles, a material change of use can occur
merely because the ownership or source of supply of those motor vehicles has
changed.’
Mr Eyre
submits that mutatis mutandis those passages and principles are applicable
in the present case. In Jones v Secretary of State for the
Environment (1974) 28 P & CR 362, to which Mr Woolf has drawn our
attention, my Lord, the Lord Chief Justice, at p 367, indicated the limitations
of the passage cited from Lewis’s case and pointed out that if an
activity formerly carried out as a use ancillary to another and primary use
itself reaches the level of a primary use, that may justify an allegation that
a material change of use has occurred. The question here is whether, upon a proper
analysis of the factual material, there was evidence of such a change in the
proportion of the relevant activities on the site one to another as to justify
the Secretary of State’s conclusion that there had been a material change of
use. I say ‘the relevant activities on the site,’ because in the circumstances
of this case I would draw a sharp distinction between sales being effected on
the site, either to members of the public visiting the site casually on the
days when it was open, or indeed to members of the trade going to the site to
look at, and if they liked to buy, some of the goods they found there, on the
one hand, and on the other hand sales being effected to his customers by the
appellant from his home and office at Frome. Once the appellant had sold a
lorry-load of building materials to a buyer and that buyer went to the appeal
site to collect it, I can see no planning significance whatever in the
circumstance that that load when it left the site was destined for use by a
purchaser and not for use in the business of a builder who occupied the site as
his own yard. It is that consideration, it seems to me, which underlies and
confirms the good sense of the inspector’s conclusion in paragraph 55 of his
report, to which reference has already been made, when he said, ‘The means of
subsequent disposal of materials when they leave the site seem to be of little
importance in land-use terms.’ I would
would have gone further, and said ‘of no importance in land-use terms.’
Now if the
element of what I will call off-site sales as opposed to on-site sales which
appeared in evidence here had been excluded from consideration, and if the
Secretary of of State had concentrated his attention upon on-site sales and had
come to the conclusion that on-site sales as a relevant and constituent
activity on the site itself had so far increased in proportion in relation to
their previous proportion since the arrival of the appellant, it might very
well be that he could have come, or if the matter should develop in future
could yet come, to the conclusion that there was a material change of use. But
I can see no material whatever anywhere in his inspector’s report, which was of
course the factual report before the Secretary of State, which leads to the
conclusion that the element of on-site sales had increased in the appellant’s
time as compared with Mattock & Wells’s time at all. For those reasons. I
have reached the conclusion that this was one of those very exceptional
cases–and they are exceptional–when this court is driven to say that there was
no material before the Secretary of State on which, directing himself properly
in law, he could reach the conclusion which he did. I would allow the appeal
and send the matter back to the Secretary of State for reconsideration in the
light of the judgment of this court.
EVELEIGH J: I
agree.
LORD WIDGERY:
I agree also.
The appellant
was awarded costs.
