Application for certificate of lawful use – Inspector allowing appeal in part from council’s refusal – Secretary of State adopting inspector’s recommendation – Application for decision to be quashed – Whether different uses separate and distinct primary uses or whether one overall primary use embracing a number of “ancillary” uses – Application allowed
Between 1957 and 1978 a number of planning permissions were granted in relation to land extending over about 10.5 ha at Woodside, Old Henley Road, Ewelme, South Oxfordshire (the site). Since 1957 the site was used essentially for “scrap yard purposes”. There were also three houses on the site used for residential purposes. The applicant applied for a certificate of lawful use, under section 191(1)(a) of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1990), for what was described in essence as “a waste reclamation depot and transfer station”. The council refused the application. The applicant appealed.
The inspector held an inquiry and concluded that none of the additional uses had been shown, on the evidence available and on the balance of probabilities, to form separate uses in their own right distinct from the operation of the scrap yard, which had been certified as lawful by the council. Therefore, the inspector recommended that the certificate issued by the council be amended to reflect the overall use of the land as a scrap yard involving the dealing, storage and processing of scrap metal and the residential element of the site’s use. Accordingly he concluded that the appeal should be allowed to that extent. The Secretary of State adopted the inspector’s recommendation.
The applicant applied for the decision to be quashed contending: (1) that the inspector had failed to establish the correct planning unit in order to consider the applicant’s case; and (2) that he had failed to take any or adequate account of the advice contained in Circular 17/92, in particular paras 22 and 28, in failing to take any or adequate account of the intensity of the previous uses list and of the unchallenged evidence of the applicant that two separate companies operated at all material times from the site. The issue was whether the different uses of the site were separate and distinct primary uses or whether there was one overall primary use which embraced a number of “ancillary” uses.
Held The application was allowed.
It appeared that the inspector had put the haulage and skip businesses on to one side on the basis that they had been relatively small, and had thus concluded that they could not be part and parcel of the main scrap yard use. Therefore, the inspector misunderstood and misapplied the word “ancillary” by treating it as if it meant relatively small, which was an error of law. Upon proper reconsideration, the haulage and skip businesses might well be held to be independent primary uses forming part of the composite use of the site, and therefore should be mentioned expressly in the lawful development certificate . Accordingly, the matter was to be reconsidered, paying full and proper regard to the meaning of the word “ancillary”.
Harry Wolton QC (instructed by Cole & Cole, of Oxford) appeared for the applicant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondents, South Oxfordshire District Council, did not appear and were not represented.
