Claimant applying for lawful use certificate Local authority refusing certificate — Inspector finding that neither existing use nor proposed use falling within Class B2 — Whether uses sui generis — Whether material change of use — Claim dismissed
The claimant ran a business processing coal, supplying the end product to various customers. It applied to the second defendant planning authority, pursuant to section 192 of the Town and Country Planning Act 1990, for a certificate of lawfulness for use of the land as a recycling facility, which would involve the recovery of saleable materials from waste. The claimant maintained that both the existing use and the proposed use fell within Class B2, namely use for an “industrial process”, as defined in article 2 of the Town and Country Planning (Use Classes) Order 1987, so that, by virtue of article 3(1), the new use was not to be regarded as development. It also argued that, within the meaning of section 55 of the 1990 Act, there would be no material change of use amounting to development. The planning authority refused the application and the claimant appealed to the first defendant Secretary of State.
The inspector dismissed the appeal, taking the view that neither the existing use nor the proposed use amounted to an “industrial process”. He considered that the existing use involved major elements of storage and distribution and coal processing, and that neither activity could be said to be ancillary to the other, so that the use fell outside Class B2 or Class B8 (storage and distribution use). He concluded that both the existing and proposed use were sui generis. In reaching his decision, he took into account the Land Use Gazetteer and article 3(6)(g) of the 1987 Order, which excluded from the use classes any use as a yard for the storage and distribution of minerals. He further found that the proposed use would involve a material change of use, because the materials involved would be of a very different nature from those dealt with on the site. The claimant challenged the inspector’s decision under section 288 of the 1990 Act.
Held: The claim was dismissed.
The inspector had been entitled to take the view that, although all the existing activities on the site were part and parcel of a single enterprise, the elements of storage and distribution were major categories of the main activities on the site, not just ancillary to them. He had been entitled to conclude that the existing use was sui generis. Article 3(6)(g) and the categories of use set out in the Land Use Gazetteer were relevant, and the inspector had had proper regard to them. It followed that the claimant could not rely upon article 3(1), and it was unnecessary to decide whether the proposed use fell within Class B2. The question of whether the proposed use would involve a material change of use amounting to development, within the meaning of section 55 of the 1990 Act, was one of fact and degree for the inspector. It was reasonable for him to find that a material change would occur.
Vincent Fraser QC (instructed by Dickinson Dees, of Newcastle upon Tyne) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; Jeremy Cahill QC (instructed by the solicitor to Derbyshire County Council) appeared for the second defendants.
Sally Dobson, barrister
