Chas Storer Ltd v Secretary of State for Communities and Local Government and another

Waste-disposal site – Material change of use – Breach of planning control – Appellant introducing co-mingled waste to site – Council issuing enforcement notice for breach of planning control – Inspector imposing restrictions on vehicular movements and hours of operation on site – Whether incremental activities from co-mingled waste forming part of material change of use – Whether inspector erring in law – Appeal allowedThe appellant company owned and occupied a 0.6ha site on which it operated a business involving the collection and processing of waste. The site included portakabins, sheds, bunkers and open land. The houses in a nearby residential development stood approximately 95m from the site, their gardens being slightly nearer. In 2006, the second respondent council issued an enforcement notice. The notice alleged a breach of planning control following a material change in the use of the land, namely a change in, and intensification of, the type of materials brought onto the site. It imposed requirements that restricted the type of materials to be processed, the hours of operation of the works and the number of lorry movements into and out of the site. There were no pre-existing restrictions on the hours of operation or vehicular movements at the site, save in respect of works relating specifically to green waste, which had been the subject of planning permission in 2004.On appeal, an inspector appointed by the first respondent upheld the enforcement notice in a varied form on the basis that there had been a material change of use of the land. In particular, his decision letter placed limitations upon the permissible types of material, the hours of operation and vehicular movements, albeit in less restrictive terms than those contained in the original notice.The appellant appealed under section 289 of the Town and Country Planning Act 1990. Its principal contention was that the inspector was not entitled to impose restrictions regarding matters that did not constitute or form part of the material change of use, which in the instant case was the addition of co-mingled waste. It submitted that the increase in vehicular movements and hours of operation would, on their own, have amounted to lawful use that, pursuant to section 57(4) of the 1990 Act, could not be affected by an enforcement notice. The first respondent contended that the totality of the increased vehicular movements, hours of operation, noise and the addition of co-mingled waste constituted the material change of use.Held: The appeal was allowed.The inspector had clearly stated in his decision letter that the addition of co-mingled waste alone constituted or gave rise to the material change of use. On the basis of that finding, increases in vehicular movements and hours of operation did not constitute or form part of the material change of use and, therefore, did not amount to development. Consequently, it followed that such activities at those increased levels remained lawful use.The inspector was not entitled to impose requirements that went beyond what was necessary to confine relevant activities to lawful use. Accordingly, on the basis of his findings as to the nature of the material change of use, the inspector had erred in law by imposing requirements restricting vehicular movements and hours of operation at the site.Even if the inspector had intended to make a wider finding of material change of use, such a finding was not adequately stated in his decision letter; the court would, in any event, have remitted the decision on the grounds of inadequate reasoning amounting to an error of law. Brian Ash QC (instructed by Jameson & Hill, of Hertford) appeared for the appellant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondenst did not appear and were not represented.Eileen O’Grady, barrister