Town and Country Planning Act 1971 — Appeal by landowners (after considerable previous litigation) from a decision of Woolf J dismissing complaints against a decision of the Secretary of State upholding enforcement notices served by the planning authority — Land originally used for extraction of sand and gravel was for a long period subject to
This was an
appeal by Philglow Ltd from a decision of Woolf J, upholding a decision of the
Secretary of State rejecting appeals against two enforcement notices served by
the London Borough of Hillingdon, requiring the demolition of buildings on a
site in the Colne Valley Regional Park.
Brian Knight
QC (instructed by Price Bieber & Co) appeared on behalf of the appellants;
Simon Brown (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; the second respondents, the London Borough
of Hillingdon were not represented and took no part in the proceedings.
Giving
judgment, STEPHENSON LJ said: This is the appellant company’s appeal at a good
many removes against two enforcement notices served by the council of the
London Borough of Hillingdon requiring them to demolish and remove two
buildings. In a decision letter dated November 14 1980 the inspector appointed
by the Secretary of State for the Environment dismissed the company’s appeals
and upheld both notices. But the Divisional Court (Hodgson J) on July 31 1981
ordered by consent that the appeal be remitted to the Secretary of State on the
ground that his decision was erroneous in law in that he failed to have regard
to the council’s Minerals Topics Study of September 1979 and the
policies which that document contained and the council had hitherto adopted.
That error was
not the fault of the Secretary of State or his inspector; it was the fault of
the council, which had not put the document before the inspector. On November
15 1982 the Secretary of State, in a decision letter dealing mostly with the Minerals
Topics Study point, dismissed the company’s appeals. From his
redetermination the company appealed again to the Divisional Court on that
point and on a point taken on the earlier appeal but not included in the remit.
On April 21 1983 Woolf J rejected both grounds and dismissed the appeal. The
company comes to this court to argue the second ground only; the minerals
topics policy point is not pursued.
The appeal
site occupies an area of 0.52 hectare (1.28 acres) in the Green Belt and the
Colne Valley Regional Park. It contains the two buildings with which the
company’s appeal is concerned, approximately 3,600 sq ft and 2,200 sq ft in
area, and a large disused gravel screening plant. Apart from those facts (which
I take from paras 6, 7 and 8 of the inspector’s decision letter) most of the
facts relating to the site and its user and relevant to this appeal are set out
in paras 24, 25 and 26 of the decision letter, which read:
24. From the
evidence I am satisfied that prior to 1940 the site formed part of a larger
area of land used for the extraction of sand and gravel, although apparently it
was not being used at all from some time prior to 1940 until 1943. In 1943 the
site was being used as a crane park and maintenance depot. In 1946 the site, in
conjunction with adjoining land, was being used for the extraction of sand and
gravel and a new screening plant was erected on the site. On July 1 1948 the
site was being used for the maintenance and servicing of vehicles and plant
used in connection with the extraction of sand and gravel, and for the
maintenance and servicing of other vehicles and plant. Hardcore was being
stored on the site and concrete posts were also being manufactured. In 1957 the
use of the site for general maintenance and servicing of plant was intensified
and the use of the site in connection with the extraction of sand and gravel
also was intensified about this time. A new screening plant and crusher was
erected on the site in 1960.
25. The site
with adjoining land was sold in 1975, but the appeal site was leased back to the
vendors who continued to use it. All gravel and sand extraction was finished by
1971-72; some subsequent extraction on nearby land did not involve the use of
the appeal site.
26. From
1971-72 the site has been used for the maintenance of plant and equipment.
To that should
be added the fact that the buildings were erected as maintenance buildings
under planning permission granted in 1957 subject to the condition that the use
of the site should be discontinued and the buildings removed on July 31 1977.
The inspector
then stated a number of opinions and conclusions, which the company have
challenged, in paras 27, 28 and 29.
27. On the
information before me I am unable to determine the lawful use of the land and
am not satisfied that the use of the land for industrial purposes has been
established. From the evidence it seems to me that for a long period the site
was used for 2 distinct purposes and that one of those uses, namely the use in
connection with the extraction of sand and gravel, came to an end in 1971-72.
In my view the continued use of the site thereafter for a single use,
unconnected with the extraction of sand and gravel, amounted to a material
change of use of the land.
28. In
connection with these appeals I am not required to determine either the lawful
or established use of the land, and I have come to the conclusion, that in
arriving at my decision, I would not be justified in taking into account any
claim to that effect.
Then I read
the first sentence of para 29:
In my opinion
there are insufficient reasons here to warrant a departure from the accepted
policy for the control of development in the Green Belt.
The Secretary
of State decided that the council were not disabled from changing the policy
contained in their minerals topics policy document or from reverting to control
of development in the Green Belt, and he upheld the inspector’s decision in
terms which are the basis of the present appeal.
Para 4 of his
decision letter is as follows:
The
inspector’s decision letter of November 14 1980 contained a description of the
appeal site and surroundings, a statement of the facts not in dispute, and a
summary of the submissions on the planning merits. The inspector also dealt
with the planning history of the site but stated that, in connection with the
appeals, he was not required to determine either the lawful or established use
of the land, and that in arriving at his decision he would not be justified in
taking account of any claim to that effect. It is accepted that the existence
of an established or lawful use of the site would be one material consideration
to be taken into account in considering whether, on planning merits, the appeal
buildings should be allowed to remain. However, the Secretary of State is not
satisfied, on the evidence in this case and for the reasons given by the
inspector in paras 24 to 27 of his decision letter (in the light of the
judgment in the case of Wipperman v Barking LBC (1965) 17
P&CR 225) that any such use rights exist to be taken into account in this
case.
In that
paragraph the Secretary of State (1) disagrees with the inspector’s opinion
that he was not required to determine either the lawful or the established use
of the land: the existence of either is material to deciding the question
whether the buildings should remain or be demolished and there was enough
material in his own findings to enable him to determine both uses; but (2) is
not satisfied that any rights of lawful or established use exist (a) on the
evidence in the case, and (b) for the reasons given by the inspector in the
paragraphs of his decision letter which I have quoted.
Mr Knight, for
the company, submitted to Woolf J, as the judge summarised his case (at p 10 E
of the transcript of his judgment):
that that
reasoning of the Secretary of State was not open to him on the material which
was before him and . . . that in adopting the reasons of the inspector . . .
the minister went wrong.
Those two
submissions he has elaborated before us, perhaps with a shift of emphasis from
the second to the first. The judge thought the Secretary of State made the
right approach, assumed, possibly wrongly, that the inspector had made it too.
and was,
therefore, not seeking to adopt any incorrect reasoning when he made his reference
to the inspector’s reasoning.
I do not myself
accept Mr Knight’s submission that the judge’s conclusion on this point was
wrong and that if the inspector was in error so also must be the Secretary of
State. I am of the opinion that the inspector was in error, and so also was the
Secretary of State;
being satisfied by the evidence set out in the paragraphs on, which the
inspector based his reasoning and conclusions that are inconsistent with that
evidence.
In my
judgment, the history of the site set out in para 24 shows a lawful use until
1957 and thereafter an established use for two distinct purposes, one of which,
the use of vehicles and plant in connection with the extraction of sand and
gravel, came to an end in 1971-72 leaving only the single use of vehicles and
plant, unconnected with the extraction of sand and gravel, as the inspector
himself said in para 27. The burden of proving that, that established use of
the land outside the buildings still existed, was discharged by the company.
But that change from dual use to single use did not by itself amount to a
material change of use; that was decided in the case of Wipperman, to
which the Secretary of State referred. If the inspector did decide that it
amounted to a material change of use, he was wrong.
In my opinion,
he plainly did so. Mr Simon Brown, for the Secretary of State, has submitted
that the inspector cannot have done so, because the decision in Wipperman’s
case, although not cited to the inspector, is trite planning law which stated
the obvious and is known to all concerned with planning. In that case the land
had been used for storage of materials and car-breaking. The car-breaking
ceased, the storage continued. The minister, reversing his inspector’s
decision, held:
that the
change from both uses to one of them exclusively could not have been effected
without causing a change in the character of the use of the land as a whole.
Widgery J,
giving the judgment of the Divisional Court, with which Lord Parker CJ and
Ashworth J agreed, said that was wrong. He said (at p 229):
It seems clear
to me that if nothing had occurred following the occupiers’ entry except the
suspension of the car-breaking use, the storage use being maintained at its
former intensity, no question of a material change of use could be said to have
arisen.
Merely to
cease one of the component activities in a composite use of the land would not
by itself, in my judgment, ever amount to a material change of use. But what
has happened here, according to the evidence, is not merely a cessation of the
car-breaking activity but the use of the land as a whole for storage, in other
words, as the minister has pointed out in his letter, one now has the entirety of
the land used for one of the two component uses to which the land was formerly
subjected.
In my
judgment, as a matter of law, there can be a material change of use if one
component is allowed to absorb the entire site to the exclusion of the other,
but whether or not there is a material change of use is a matter of fact and
degree. If the car-breaking business had been so trifling as to be almost de
minimis, I would have thought as a matter of fact and degree that for the area
formerly used for car-breaking to be taken over for storage could not amount to
a material change of the use of the land as a whole. But whether or not in the
circumstances of the particular case there was a material change of use would
be essentially a question of fact and degree.
Widgery LJ
indeed referred to what he had there said as obvious in Hartley v Minister
of Housing and Local Government [1970] 1 QB 413 at p 422:
it is quite
obvious that a mere cesser of one of the components of this business could not
by itself amount to a change of use.
What the Wipperman
case held must be proved in addition to the ‘mere cesser’ is, as Woolf J
pointed out, that ‘the component use which continues intensifies to a
sufficient extent to amount, as a matter of fact and degree, to a change of
use’, not necessarily amounting to an absorption of the entire site, as the
headnote suggests. In that case the inspector found that there had been an
increase in the intensity of the remaining use which on the evidence did extend
to the entire site. But there is no such finding and no evidence for it in the
inspector’s decision of which the company complains.
The inspector
wrongly excluded the question of established use from his consideration, but
found that on the evidence ‘for a long period the site was used for 2 distinct
purposes’, one coming to an end in 1971-72, the other continuing. He found that
both uses had been ‘intensified’ in or about 1957, well before 1964, but he did
not find that the single remaining use had been intensified after 1971-72. Mr Simon
Brown argues that because he must have known Wipperman’s case he must
have found an increase in intensity which he did not state. I do not feel
compelled, or entitled, to imply that finding from the wording of the last
sentence in para 27, however generously construed, nor to hold, as is also
submitted, that there is a presumption of more than minimal intensification
which arises from cessation and throws on the company the burden of rebutting
the presumption by proving that there was no intensification. That would be to
introduce from the back the approach which Wipperman’s case barred from
the front. I see no escape from the conclusion that the inspector found a
material change of use simply and solely because one of two component uses
ceased, and I am therefore of the opinion that the inspector’s approach was
wrong and the Secretary of State erred in adopting his reasons. Furthermore he
erred also, in my judgment, in not being satisfied on the evidence,
uncontradicted and compelling, that there was an established use. All the
evidence referred to by the inspector established a single use of the site for
the maintenance of vehicles and equipment continuing after the discontinuance
of the use for the extraction of gravel and sand, and there was no evidence
referred to either by the inspector or by the Secretary of State to prove that
the continuing use increased in volume or extent.
I have
hesitated before reaching this conclusion because it differs from that of the
learned judge, and because of the way in which he rejected Mr Knight’s second
submission. He said (at p 12 D of the transcript):
So far as his
reference to his not being satisfied on the evidence in this case is concerned,
if that stood alone it seems to me that no possible criticism could be made by
Mr Knight. The Secretary of State is entitled to look at the evidence and
whether or not the inspector has made any findings of fact or not, the
Secretary of State is entitled in a case of this sort to say, ‘The evidence put
before me by the appellants does not satisfy me that there is an established
use’. The onus is upon the appellants to satisfy the Secretary of State of that
matter and if the situation is one, as here, where it is a question of fact or
degree as to whether or not, on the cessation of one use, there has been an
increasing intensity of the remaining use, that is very much a matter for the
Secretary of State to consider on the evidence.
I respectfully
agree that the question whether in fact there has been a sufficient degree of
increasing intensity of the remaining use is a matter for the Secretary of
State to consider on the evidence. But there must be evidence of such an
increase for him to decide that it amounts to a material change of use, and I
cannot find any such evidence here; and if all the evidence put before him and
the inspector points a reasonable tribunal to the conclusion that there is an
established use, he must be satisfied that there is. For all that the material
which the Secretary of State has been able to put before us discloses, there
may have been no evidence of such an increase because there was no such
increase. At least it was never part of the case for the council that there was
such an increase of intensity; and if there was no such increase, there was an
established use.
I would
accordingly allow the appeal and once more remit the matter to the Secretary of
State with the opinion of the court for rehearing and determination by him.
Agreeing, SIR
ROGER ORMROD said: This case has had a most unfortunate history but I can see
no escape from the conclusion that the inspector misdirected himself in two
respects on the point which, at any rate in this court, is the crux of the
appellants’ case. It may not have played quite so prominent a part in the
appellants’ case as it was developed before the inspector. The two errors are
in paras 27 and 28 of his decision letter.
In para 28 the
inspector said that he was not required to determine either the lawful or the
established use of the land in arriving at his decision. The Secretary of
State, in his decision letter, para 4, conceded that the inspector had erred in
this respect and accepted that the existence of a lawful or established use
would be a material consideration on the issue of planning merits and went on
to consider the matter as best he could on the material available to him.
In the other
paragraph, the inspector stated that he was unable to determine the legal use
of the land and was not satisfied that the use for industrial purposes had been
established. He continued thus:
From the
evidence it seems to me that for a long period the site was used for two
distinct purposes and that one of those uses, namely, the use in connection
with the extraction of sand and gravel, came to an end in 1971-72. In my view,
the continued use of the site thereafter for a single use, unconnected with the
extraction of sand and gravel, amounted to a material change of use of the
land.
Mr Brown
agreed that this passage must be read as though it were preceded by the word
‘because’; that is, as the explanation for the inspector’s not being satisfied
that an established use of the land
cannot be supported because it is inconsistent with Widgery J’s ruling in the
case of Wipperman v Barking LBC. In that case it was laid down
that the cessation of one use of land which was being used for more than one
activity was not and could not be, by itself, a material change of user. The
reasons for this ruling are important. The phrase, a ‘material change of use’
is a term of art in planning law and means a change of use which would be in
breach of planning control if planning permission were not obtained. This would
mean that an occupier of land would have to obtain planning permission to
discontinue an activity on his own land — which is absurd.
Various
submissions have been made in an attempt to account for the inspector’s
apparent lapse; it was said that the Wipperman case is so familiar in
planning circles that he could not have overlooked it, that he must have had in
mind that whether or not there was a material change of use depended on the
extent or character of the continuing use after the cessation of the other use
or, perhaps, expressed himself ambiguously. I am unable to accept these
submissions, partly because para 27 seems to me unambiguous and partly because
there is no trace in the evidence of any consideration of the precise nature of
the continuing use after the cessation in 1971-72, which leads to the inference
that this aspect of the case was not investigated.
Turning now to
the Secretary of State’s decision letter and in particular to para 4, he states
that he had arrived at the conclusion that he was
not satisfied
on the evidence in this case and for the reasons given by the inspector in
paras 24 to 27 of his decision letter that any such use rights exist to be
taken into account in this case.
It was
submitted by Mr Knight that the Secretary of State’s decision was inevitably
vitiated by the same fallacy which underlay the inspector’s decision, but Mr
Brown argued that the Secretary of State was entitled to review the evidence
for himself and had done so expressly in the light of the Wipperman
case.
I accept that
the Secretary of State could and did review the evidence for himself and had in
mind the Wipperman ruling, but I can find nothing in the evidence as to
the continuing user after 1971-72 which could support the view that there was
or might have been a material change of use since that date. Consequently, I do
not think, with respect, that his decision in this case can be supported.
In a last
attempt to defend this decision Mr Brown submitted that the onus was on the
appellants throughout to show an established use and that it was for them to
prove that there had been no material change of use. I cannot accede to this
proposition, for this reason. On the evidence contained in the inspector’s
decision letter the appellants proved that the appeal site had been used for
servicing and maintaining vehicles, not connected with the gravel operation,
from an early date, certainly before January 1 1964, and that such use has
continued up to the present. So they made out a prima facie case for an
established user which could only be defeated by a material change of use, but
no change was suggested other than the cessation of the user connected with the
gravel operation which was not, on Wipperman’s case, a material change
of use.
Towards the
end of his judgment Woolf J said that the Secretary of State had reconsidered
the matter ‘in the light of the evidence’, and that if he satisfied himself on
the correct approach, his reasoning on the point was satisfactory. With
respect, the learned judge does not seem to have asked himself whether there
was in fact any evidence on the point for the Secretary of State to reconsider.
For these
reasons I would allow the appeal.
STEPHENSON LJ
said: Kerr LJ, who is unable to be present, has read in draft the two judgments
that have just been delivered, and has asked me to state that he agrees with
both of them.
The appeal
was allowed with costs in the Court of Appeal and below, including costs of the
application for leave to appeal. The case was remitted to the Secretary of
State for further consideration in the light of the judgments.
