Respondent council issuing enforcement notice against appellant alleging breach of planning control – Inspector finding material change of use of land and dismissing appeal against enforcement notice – Whether lawful decision – Appeal allowed
Lancashire County Council (the second respondents) issued an enforcement notice against the appellant in respect of his premises at Blainscough Works, Lancashire. The alleged breach of planning control consisted of “the making of a material change of use of the land by the crushing and screening of inert wastes for the purpose of recovering and recycling materials for re-use, together with the associated deposition of waste materials”. The appellant appealed against the notice, on the ground that, at the date of issue of the notice, no enforcement action could be taken as more than 10 years had elapsed since the date of the alleged breach. The appellant contended that the current use of land was an industrial use, namely coal washing, and that there had been no material change of use since before his occupation in 1989.
By decision letter of 15 January 1998, the first respondent’s inspector concluded that: (1) no planning permission seemed to exist for the pre-1989 use, “nor has an established use certificate been granted”; (2) the pre-1989 use “could best be described as a coal yard” and that the “processing should be regarded as ancillary to the principal purpose the supply and distribution of coal”; and (3) the previous use was either sui generis or a B8 use. The inspector went on to conclude that the use enforced against was a Class B2 industrial use, which constituted a material change of use from the pre-1989 use and dismissed the appeal. On appeal, the appellant contended that, on the evidence, it was not open to the inspector to conclude that there had been a material change of use to an industrial use and that he had failed to consider and define the relevant planning unit.
Held: The appeal was allowed.
The inspector’s assessment of the current use was tainted by his initial erroneous approach in considering whether the pre-1989 use had established use rights and was itself lawful. The inspector failed to examine the precise nature of the current use with the care he would otherwise have exercised, had he not made that earlier misdirection. Further, the inspector failed to assess the extent of the planning unit. It could not be said that absent those two errors, the inspector would have reached the same conclusion. Therefore, the decision was to be remitted.
Christopher Katkowski (instructed by Hammond Suddards) appeared for the appellant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Addenbrooke, barrister
