Enforcement notices — Land used for industrial purposes — Land then used for agriculture for 15 years — Appellants acquiring land and using it as ancillary to their own industrial purposes — Whether original use ensuing for benefit of land — Whether post-inquiry material vitiating inspector’s decision — High Court decision in favour of Secretary of State — Appellants’ appeal allowed on ground that inspector failed to explain that post-inquiry evidence made no difference to his decision — Case remitted for further consideration
The appeal site was land at Rixton, Warrington, Cheshire, and concerned material change of use from agricultural to industrial use. The land adjoined industrial premises and was used ancillary to it until 1972; in 1973 agricultural use commenced and continued until 1988 when the appellants acquired the land and used it for storage ancillary to their industrial purposes. They also erected hardstanding on the land.
Two enforcement notices were served and, at a local inquiry, the inspector found that there had been a new planning unit created in 1988 in that the agricultural user had in effect supplanted the former industrial use. He further found that the industrial use would have an undesirable effect on the open character of green belt land. The inspector had been informed after the close of the inquiry, but before the decision letter was issued, that a dormant 1948 planning permission on neighbouring land for clay workings had been recently registered as an interim development pursuant to the Planning and Compensation Act 1991. An application to the High Court to quash the decision was refused on: the change of use ground and the ground that the inspector’s decision had been vitiated by the post-inquiry evidence and his failure to take it into account: see [1993] EGCS 24.
Held The matter was remitted to the Secretary of State for reconsideration.
1. The appellants had argued that the change from industrial use to agriculture use was not a development and was not a material change of use despite the actual use of the site for farming in the intervening period.
2. The previous decision wholly in point on this issue was McKellen v Minister of Housing and Local Government (1966) 198 EG 683. That case concerned the question of whether the proposed renovation of a former farm labourer’s cottage constituted development after it had fallen into disrepair and had been used as a store. In effect it was asked: “If a change from A to B does not involve development how can a change from B to A do so?” In the court’s view it did not follow that a change back might not involve development and it was in fact decided that a change back from one use to a former use involved development.
3. In the present case, the appellants had also lost on the procedural issue. On the proforma form which the inspector filled in on receipt of the additional evidence, he ticked a box that the “letter contains new evidence but does not affect my decision”. But in his decision letter, he had placed heavy emphasis on the visual attractiveness of the landscape. The clay workings would be bound to affect its appearance, however, his conclusion was so surprising as to be unreasonable. The matter would be remitted on that ground to be considered in light of the facts as presently existed.
Gerald Moriarty QC and Robert Fookes (instructed by Farrer & Co, London agents for Albinson Napier & Co, of Warrington) appeared for the appellants; Stephen Richards (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents did not appear and were not represented.
