Change of use — Enforcement notice — Mixed use of site for manufacturing and retail sales — Allegation of material change of use without planning permission — Notice upheld by inspector — Whether claimant establishing previous lawful mixed use — Whether inspector determined issues fairly — Appeal allowed
Since December 2004, the claimant had owned premises from which he ran a business involving a mixed use for the manufacture and retail sale of furniture. In 2003, the second defendant local planning authority issued an enforcement notice alleging a material change of use of the site without planning permission. The notice required the cessation of the use of the site for retail sales.
The claimant, through his agent, appealed to the first defendant under section 174(2)(b) of the Town and Country Planning Act 1990, choosing to make the written representations to the inspector. His main ground of appeal was that the premises had been used for both manufacturing and retail sales for more than ten years. The claimant’s predecessor had occupied the premises for over 30 years, and had stated in writing: “We had manufacturing wholesaling and retailing [sic] to both trade and public, each amounting to similar percentages of turn over…”
However, the planning inspector concluded that the claimant had failed to advance any evidence of substance to establish that the nature of any retail use carried on by the predecessor constituted mixed use, rather than merely use ancillary to that of manufacturing. He therefore upheld the enforcement notice.
The claimant appealed to the High Court pursuant to section 289 of the 1990 Act. He contended, inter alia, that the inspector had been wrong to conclude that there was no substantial evidence as to the nature of the historic retailing operation and its relationship to the manufacturing activities. He further argued that, on the evidence, the only reasonable conclusion that could have been reached by the inspector was that the mixed use being undertaken by the claimant was not materially different from the use that had taken place previously.
Held: The appeal was allowed.
In the circumstances of the present case, the court was persuaded that, overall, the claimant had not had a fair determination of the issues. Thus, he was faced with an enforcement notice that might limit, to an unlawful extent, his ability to use the premises as he wished.
Although the burden of proving that his use was the same as that carried on by his predecessor lay with the claimant, the inspector should have appreciated that the crucial issue concerned the nature and extent of retail sales and whether it could properly be said that there was no difference in kind as from what had gone before: Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404 referred to.
The inspector was obliged to consider whether the requirements under the enforcement notice were excessive, and he should have undertaken a far more detailed examination of the precise nature of the premises’ past and current use.
Stephen Hockman QC (instructed by John Hughes Law Practice, of Birmingham) appeared for the claimant; Robert Palmer (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
