Material change of use — Use in excess of four years prior to notice — Green belt considerations — Whether policy correctly applied — Whether further affidavit evidence to be submitted — Inspector’s refusal of appeal against enforcement notice upheld
The appeal site, concerned land at Greenacres, Upminister, Essex, and the breach of control alleged was material change of use to storage of scaffolding and construction plant and building materials and the parking and repair of motor vehicles. Enforcement notices were served with regard to use on which buildings were situated. It was accepted that those buildings existed on the site for four years prior to the service of the notice. It was submitted that the buildings were in effect redundant buildings. It would be unreasonable to require the present occupiers to vacate them in order to demonstrate a redundancy which could be pleaded in respect of future reuse. It was also stated that PPG2 para 16 applied, namely that where there were substantial buildings in the green belt which could last for many years and which were appropriate for other uses; reuse should not be refused for purposes of revivifying the rural economy — unless there were specific reasons which could not be overcome by planning conditions.
Held The application against the inspector’s dismissal of appeals against the enforcement notices was refused.
1. On the admissibility of further evidence, the applicant asked for leave out of time to file a reply to the inspector’s affidavit explaining his decision more fully on reliance of aerial photographs. The applicant’s reply concerned in particular the use of the buildings in the 1960s and 1970s. However, the matters were factual evidence forming the subject-matter of the inquiry. The proceedings were brought under section 289 of the Town and Country Planning Act 1990 which concerned points of law. The court’s jurisdiction was narrow and the relevant principles were set out in Clarke v Secretary of State for the Environment [1992] 3 PLR 146.
2. The court was not concerned with mistakes of fact unless they fell within the definition of an error of law in that there was no evidence for a certain finding or the inspector had reached a decision which no reasonable inspector, on the facts, could have reached.
3. On the substantive argument, there was no evidence that the applicant had requested that the inspector should not interpret the photographs without the assistance of an expert.
4. Concerning the original use of the buildings and whether they might have been agricultural, there was no need for the inspector to reach his decision by going through all the past history of the site. It was his task to evaluate the evidence; he was entitled to reach his conclusion that the buildings had a commercial origin.
5. The court was also bound to consider in the light of all the policies, and in particular PPG7 Annex D, the question of the lawfulness of the origin of the buildings, which might have been erected by abuse of development rights. To allow reuse of such buildings could become a means of using them in perpetuity.
6. Even if the court were wrong, the discretion would have been not to remit the matter as the refusal for reuse was for specific reasons such as traffic generation and the impact on the green belt.
Gregory Stone (instructed by Birkett Westhorp & Long, of Colchester) appeared for the applicant; Timothy Straker (instructed by the Treasury Solicitor) appeared for the first respondent; James Findlay (instructed by the solicitor to Havering London Borough Council) appeared for the local planning authority.
