Appellants appealing against enforcement notice alleging material change of use of land for parking or storage of motor vehicles – Appellants appealing against refusal of local planning authority to grant lawful use certificate – Inspector finding material change of use occurred and dismissing appeals – Whether inspector’s decision unlawful – Appeal dismissed
The appellants traded as “Marlow Motors” and used a former chapel building, with its curtilage land, in the London Borough of Sutton. In 1998 the second respondents served an enforcement notice upon the appellants alleging change of use of the chapel’s curtilage to use for parking or storage of motor vehicles. The appellants appealed against the notice and also applied to the second respondents for a lawful development certificate regarding the “general parking of motor vehicles” in the former chapel’s curtilage. Following the second respondents’ refusal to grant such a certificate, the appellants appealed to the first respondent. The issues on the lawful use certificate appeal were similar to those raised in the enforcement notice appeal.
The inspector concluded, inter alia, that the land surrounding the former chapel building had been used by the appellants for vehicle “parking”, whether by itself or together with vehicle “storage”. He also concluded that, prior to 1993, when the building was used as a chapel, the land was used for vehicle parking. However, the parking carried out before 1993 could not be counted in assessing whether parking had been a use subsisting for a period of over 10 years, because it was either ancillary to, or was one component of, a mixed use. The inspector found that, on either basis, the lawful use ceased with the cessation of the religious use in 1993. Therefore, post-1993 parking was a material change of use. Accordingly, both appeals were dismissed.
The appellants sought to quash the inspector’s decision regarding the enforcement notice, pursuant to section 289 of the Town and Country Planning Act 1990, and his decision regarding the lawful use certificate, under section 288 of the Act. They submitted that the inspector erred, primarily, in concluding that parking during the years during which the site was used as a chapel may have been an ancillary use, merely because it was carried on exclusively by members of the chapel.
Held: The appeal was dismissed.
The appellants correctly submitted that the test of whether one use was ancillary to another was whether it was subordinate or linked in a functional way to the primary use: Trio Thames Ltd v Secretary of State for the Environment [1984] JPL 183 applied. However, whether a use had lost its ancillary nature was a question of fact and degree. The evidence before the inspector was exiguous. He was right to conclude, on the material before him, that the appellants had failed to make out their case that parking was not an ancillary use.
Robert Lewis (instructed by Donne Mileham & Haddock, of Brighton) appeared for the appellants; David Forsdick (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Mills, barrister
