Town and country planning – Enforcement notice – Material change of use – Appellants owning land comprising four distinct areas – Second respondent local authority issuing enforcement notice in respect of one area – Appellants complying with notice – Second respondent later issuing enforcement notice over all areas of land – First respondent’s inspector upholding later notice on ground that deemed planning permission lost – Whether inspector correctly concluding planning permission lost – Whether inspector giving adequate reasons – Whether appellants entitled to rely on exception to requirement for planning permission – Appeal dismissed
The first appellant owned land near Redruth, Cornwall which comprised four distinct areas (A, B, C and D). Both appellants owned dwelling houses on the land in area D. In 2008, the second respondent local authority issued an enforcement notice in respect of area D, alleging that there had been a breach of planning control by reason of a change of use of the land without planning permission from domestic curtilage to mixed use. The notice required the removal of all scrap vehicles from the land. The appellants complied with the requirements of that notice. In 2012, the second respondents issued an enforcement notice in respect of all the appellants’ land, identifying areas A, B, C and D as a single planning unit, alleging that there had been a breach of planning control by the material change of use of areas A, C and D to a mixed use.
An inspector appointed by the first respondent secretary of state dismissed the appellants’ appeal, having exercised his power to correct and vary the notice. He concluded that, once the appellants had complied with the requirement of the 2008 notice, they had deemed planning permission to use area D for residential purposes and storage of non-scrap vehicles by virtue of sections 173(11) and 73(A) of the Town and Country Planning Act 1990. However, that permission had been lost when the appellants created two new planning units, which had materially changed the use of area D.
The appellants appealed to the High Court, contending that: (i) the inspector’s conclusion that the right to use area D in accordance with the planning permission had been lost had been erroneous and he had given no adequate reasons for that conclusion; and (ii) they were entitled to rely upon the exception from the requirement for planning permission to carry out any development of land in section 57(4) of the 1990 Act.
Held: The appeal was dismissed.
(1) There was no basis upon which to conclude that the inspector had fallen into error in his assessment of the position on the ground in respect of each area after the appellants had complied with the 2008 notice. An existing lawful use of an area of land which was authorised by planning permission was capable of being extinguished by the creation of a new planning unit in respect of the land in question. Whether or not an occupier of land which was the subject of an enforcement notice had created a new planning unit was essentially a question of fact and degree to be resolved by the primary decision maker. The inspector had been fully entitled to conclude that there had been two planning units within the land and that they had been new units when compared with what had existed previously. A careful reading of the decision letter, as a whole, clearly demonstrated why the inspector had reached the conclusion that the creation of new planning units involving area D had constituted a material change of use and that, as a consequence of that change of use, the right to use area D in accordance with the planning permission had been lost: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, Jennings Motors Ltd v Secretary of State for the Environment [1982] 1 EGLR 166, Young v Secretary of State for the Environment (1984) 47 P & CR 165 (CA); [1984] 1 EGLR 166 (HL), Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183; (1984) 272 EG 425 and Cynon Valley Borough Council v Secretary of State for Wales [1986] 2 EGLR 191 considered.
(2) Section 57(4) of the 1990 Act authorised “land” to be used in a manner which had been lawful immediately before the development which was the subject of an enforcement notice. The land to which the section was directed was the land which had been the subject of the enforcement notice. The area of land which had been the subject of the 2012 notice included areas A, B, C as well as part of area D. Those areas had not been the subject of the deemed planning permission. The area which had been the subject of the planning permission had been the whole of area D. The use of area D authorised by the planning permission had not been a use referable to the land which was the subject of the 2012 notice. Accordingly, the appellants were not entitled to rely upon section 57(4) so as to permit them to use part of area D for the storing of non scrap vehicles.
Neil Cameron QC (instructed by Michelmores Solicitors) appeared for the appellants; James Strachan QC (instructed by the Treasury Solicitor) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
