Claimant applying for certificate of lawful use for use of builder’s yard for wholesale sales of materials – Second respondent council refusing certificate – Claimant appealing – Inspector finding evidence of retail sales at site – Claimant failing to demonstrate use of site for wholesale sales only, subsisting for 10 years before date of application – Inspector dismissing appeal – Whether inspector erred – Claim dismissed
In 1980 the second respondent council issued an enforcement notice to the claimant alleging a material change of use of the builder’s merchant’s yard that it operated. The enforcement notice claimed that the site had a mixed use, for the storage of building materials and the retail sale of building materials, and required the discontinuance of retail sales. The claimant appealed.
An inspector found that the notice omitted to mention wholesale sales, and recommended that it be quashed on the ground that this was misleading. The Secretary of State was of the view that the use of the site for the purpose of the sale of building materials was unlawful, but despite this, he decided to grant temporary planning permission for the mixed use, largely on the basis that the council accepted the use of the site for wholesale. This planning permission ceased in November 1986.
In 1987 and 1988, the council served further enforcement notices upon the claimant and the claimant appealed against each of them. In 1997 the claimant applied to the council for a certificate of lawfulness to use the site “for the storage of building materials, plant and equipment and the wholesale sale of building materials”. The council refused to grant a certificate and the claimant appealed. Considering the matter, the inspector identified the issues as, inter alia; (i) whether the use for the purposes stated in the application started on the appeal site at least 10 years prior to the application being made; (ii) whether that use had continued, uninterrupted, up until the date of the application. He concluded that the claimant had failed to satisfy these criteria because retail sales had taken place at the site after 1987. The inspector accordingly dismissed the appeal.
The claimant sought to quash this decision, pursuant to section 288 of the Town and Country Planning Act 1990, on two grounds: (i) the inspector erred in concluding that the retail use had continued into the 10-year period, as this use had ceased following the 1987 enforcement notice; and (ii) even if the retail use continued, that this did not prevent a certificate from being granted for wholesale use only, as a planning unit could contain two separate and distinct uses.
Held: The claim was dismissed.
1. While a single planning unit could contain two separate and distinct uses, the claimant had never suggested that retail and wholesale sales were separate and distinct and, in fact, the contrary had been contended in 1980, when the claimant had submitted that the two uses were virtually indistinguishable.
2. It was for the inspector to decide whether he accepted the claimant’s evidence that the retail sale use had ceased in 1987. It would have been an obvious defence to the 1987 and 1988 enforcement notices to say that retail sales had ceased at the site, but this was never raised by the claimant. The inspector was held to be correct in his conclusion that the use applied for had not subsisted for 10 years, and it was held that any other conclusion would have defied common sense.
Peter Goatley (instructed by Shoosmiths, of Nottingham) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Addenbrooke, barrister
