Local planning authority issuing enforcement notice alleging change of use of claimant’s farm land – Claimant appealing against notice – Inspector finding activities in question had continued for 10-year period – Inspector finding mix of uses on site and other uses introduced – Material change of use – Appeal dismissed – Claimant seeking to quash inspector’s decision – Whether inspector erred – Claim dismissed
In September 1999 the local planning authority, Runnymede Borough Council, issued a number of enforcement notices in respect of farm land owned by the claimant. Notice E alleged a change of use of the land to the “storage of building and other materials and plant and equipment” without planning permission. The claimant appealed against notice E under a number of the grounds set out in section 174(2) of the Town and Country Planning Act 1990. To comply with ground (d) of section 174(2), the claimant was required to demonstrate that the alleged breach of planning control had continued for a period of 10 years prior to the date of the enforcement notice, in which case the use would have become lawful. An inquiry was held. In his decision letter, the inspector did not dispute that the activities enforced against in the notice had continued on the land for the requisite 10-year period. Further, there was no suggestion that the level of those uses had fluctuated in any way over that 10-year period. However, he noted that there had been a mix of uses on the site and that other uses had been introduced in the 1990s (the additional uses). The inspector relied upon Lynch v Secretary of State for the Environment, Transport and the Regions [1999] JPL 354 and concluded that “over the last 10 years there have been significant changes to the mix of uses on this site to the extent that a material change of use has taken place”. He therefore dismissed the claimant’s appeal.
The claimant sought to challenge the inspector’s decision pursuant to section 289 of the Town and Country Planning Act 1990, inter alia, on the ground that, in light of the inspector’s finding that the uses enforced against were immune from enforcement, the ground (d) appeal should have been allowed. The claimant submitted that as the uses had continued at the same level for the requisite period, the mere fact that additional uses may have sprung up alongside those uses was irrelevant. The claimant sought to distinguish Lynch. He contended that the inspector had erred in treating the fact that additional uses had developed alongside the pre-1990 uses as sufficient to mean that there was a material change of use. The claimant argued that the inspector should have asked whether there was a change of use and, if so, whether it was material.
Held: The claim was dismissed.
The inspector was bound to examine the effect of the additional uses on the uses existing at the start of the relevant period. He did not constrain his analysis of materiality of the additional uses to a comparison of their effect on just that part of the use set out in the enforcement notice. He compared what was happening at present with the whole of the uses subsisting at the start of the 10-year period. The inspector did not simply treat it as a simple consequence that new uses constituted a change of use. He did consider the question of materiality. Lynch applied.
Gregory Jones (instructed by Charles Coleman & Co, of Windsor) appeared for the claimant; the first defendant did not appear and was not represented; Michael Druce (instructed by the solicitor to Runnymede Borough Council) appeared for the second defendants.
Sarah Addenbrooke, barrister
