Enforcement notice – Change of use – Claimant contending use enforced against lawful by reason of having continued for 10 years before service of notice – Inspector upholding enforcement notice – Whether inspector erring in approach to evidence of use of site during relevant 10-year period – Claim dismissed save to extent agreed by defendants
In 2000, the claimant acquired a former RAF airfield. Although the RAF had ceased flying from the airfield in 1992, it had continued to be used for civilian flights, the flying of model aircraft and various motor cycle and motor vehicle activities. An understanding reached between the RAF and the second defendant council in 1980, at a time when the airfield was not subject to the planning laws, had agreed certain limits on noisy recreational civilian use of the airfield. The airfield was also the subject of a 1993 planning permission granted by the second defendants for use for advanced driver training, with conditions as to the level and duration of noise heard by local residents. The appellant continued the existing activities and also began to use the airfield for the testing of Formula 1 racing cars.
In 2008, the second defendants issued an enforcement notice, alleging a change of use, without planning permission, by reason of the intensification of the motor vehicle activity to a materially more noisy and more frequent level. The notice imposed requirements as to the maximum noise levels for motor vehicle and related activity.
On appeal to the first defendant’s inspector, the claimant contended that the matters complained of did not amount to a breach of planning control since they had become immune from enforcement by reason of the use of the airfield for noisy motor sports and aviation activities for a period of 10 years before the issue of the enforcement notice.
Dismissing the appeal, the inspector found that there had, since 2000, been an intensification in the use of the land in breach of the lawful levels of motor vehicle activity established by the 1980 agreement and the 1993 planning permission.
The claimant appealed. It was conceded that the terms of the enforcement notice should be remitted for reconsideration, to clarify that the activities permitted in 1993 could continue. The claimant further submitted that the inspector had: (i) misconstrued the 1980 agreement; (ii) erred in his approach to evidence of change of use; and (ii) failed to determine the use of the site in October 1998, 10 years before the service of the enforcement notice.
Held: The appeal was allowed to the extent agreed by the defendants, but dismissed in relation to the disputed issues.
(1) The inspector had not misunderstood the terms of the 1980 agreement. The terms of the agreement were not evidence of actual use of the land by 1998. They fixed the maximum permitted civilian use, rather than explaining what use was in fact being made of the airfield on weekdays or at all. At the time of the agreement, the RAF was in possession of the airfield and it was not in civilian use during the week. Further, it was immaterial that the 1980 agreement did not set the maximum noise level permitted by reference to decibels per hour. The noise limits set out in the enforcement notice were based on the second defendant’s unchallenged expert evidence as to the use of the land. The onus was on the appellant to demonstrate that noisier activities had regularly been taking place before it took over, by means of evidence of actual use rather than the “gentleman’s agreement” as to civilian use.
(2) Since the appellant had adduced no direct evidence of the actual level of motor vehicle use, all that was before the inspector was the second defendants’ best endeavour to reconstruct the use and the evidence of residents. The inspector had directed his mind to the issue and explained his conclusions in an intelligible way.
(3) The inspector had not been obliged to make factual findings about the actual level of motor vehicle activity by October 1998, setting the base level of permitted use, before considering whether the activity after 2000 was materially different in intensity and impact on residents. The inspector had identified the relevant question of whether there had been a breach of planning control by intensification of use in the 10-year period relied on by the claimant. He had answered that question positively, and had been entitled to do so on the undisputed factual evidence before him. Once there was a finding of a breach of planning control by material intensification of use after 2000, it had been lawful to take enforcement action against that unlawful activity, with the aim of requiring the appellant to return to the use of the land that was lawful before that date: Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 128 (Admin); [2001] JPL 1388 and [2001] EWCA Civ 226; [2002] JPL 1278 distinguished.
Richard Harwood (instructed the legal department of Elvington Park Ltd) appeared for the appellant; James Strachan (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
