This case arises out of an application by Belmont Riding Centre (“Belmont”) for a lawful development certificate under s.192 of the Town and Country Planning Act 1990 in respect of a site forming part of the Belmont Estate in Mill Hill, London NW7. The basis of the application was that there was an existing riding centre use on the site and that a change to use as a health and fitness centre would not require planning permission since it would fall within the same class, Class D2, of the Town and Country Planning (Use Classes) Order 1987. The local planning authority, London Borough of Barnet, failed to determine the application within the time laid down and Belmont appealed to the First Secretary of State under s.195 of the 1990 Act. By a decision dated 26 February 2003 the Secretary of State’s inspector, Mr Currie, dismissed the appeal. Belmont now challenges that decision under s.288 of the 1990 Act.

Section 192 enables a person to apply for a certificate that a proposed use of land would be lawful. It provides in material part:

On an appeal under s.195 the Secretary of State enjoys the powers of the local planning authority under s.192.

Guidance on such applications is set out in Annex 8 of Circular 10/97, “Enforcing Planning Control: Legislative Provisions and Procedural Requirements”. Paragraph 8.26 provides:

Section 55(1) of the 1990 Act defines development as including “the making of any material change in the use of any buildings or other land”. Section 55(2), however, provides that certain uses of land shall not be taken to involve development. Such uses include at s.55(2)(f):

The relevant class in this case is Class D2 of the 1987 Order, which reads as follows:

Thus a change from one use to another use within Class D2 will not involve development, whereas any material change of use will otherwise do so.

The application for a lawful development certificate was made by application form dated 10 August 2001. It described the existing use as “Existing Class D2 Riding Centre” and the proposed use as “Change of use to uses within Class D2 of the Classes Order 1987”. The application was amended on 16 January 2002 to refer to “Change of use from Riding Centre to Health and Fitness Club (Class D2)”. Additional information provided on 12 February 2002 described the proposed use in this way:

Following the local planning authority’s failure to determine the application, an appeal was lodged on 5 July 2002. Belmont elected to have the appeal determined by way of written representations.

The supporting statements submitted with the appeal stated that “The existing use of the site is as a Riding Centre” and that that had been the use since planning permission was granted in 1963 for an indoor riding school. Following the dismissal of an appeal in 1998-1999 for improvement works, the Riding Centre had ceased trading for financial reasons but, it was said, no alternative use had operated from the site. Reference was made to various materials in support of the proposition that a riding school or riding centre fell within the “sports or recreations” limb of Class D2. They included a reference to Lilo Blum v. The Secretary of State for the Environment [1986] JPL 278, in which the court upheld an inspector’s decision that use as a riding school and livery stable was a material change from a former permitted use solely for livery stables. As part of his reasoning the inspector had stated that “Livery stables were hired to provide accommodation for horses owned privately and they gave a strictly limited range of service which required few staff. A riding school provided horses, staff and facilities in connection with the business of teaching horse-riding for payment”.

The local planning authority’s statement cited from evidence given by Belmont’s planning consultant, Mr Cooper, to a different inspector, Mr Baldock, at a public inquiry relating to a proposal to create a manège (a horse exercise area) on another part of the Belmont Estate. That inquiry led to a report by Mr Baldock dated 23 October 2002. The evidence given by Mr Cooper to Mr Baldock was that the whole of the Belmont Estate, including the site relevant to the present application, constituted “a single planning unit on which there is a composite use comprising: a residential use, an equestrian use and an agricultural use”. As part of its case to the present inspector, the local planning authority submitted that such a composite use did not fall within a use class at all and that s.55(2)(f) therefore did not apply. Among other points raised, the local planning authority also noted that Belmont Riding Centre Ltd effectively no longer existed and did not own the site.

In his comments on that statement, Mr Cooper stated:

Those were the written submissions before the inspector. In his decision he identified the main issue as whether the use of “the Riding Centre” (i.e. the relevant premises) on the application site as a health and fitness club constituted development requiring planning permission (paragraph 1). He next described the site, stating:

The inspector went on to refer to the decision of his colleague, Mr Baldock, on the separate appeal, indicating an acceptance of Mr Baldock’s findings:

In relation to his own findings on the present appeal the inspector stated as follows:

For the claimant, Mr Warren submits in broad terms that the inspector (1) adopted an erroneous and irrational approach to whether use of the appeal site as a riding centre had ceased and (2) in any event failed to carry out his duty to consider whether the proposed use would involve a material change of use.

The existing mixed use, it is submitted, included a riding centre use. Unchallenged evidence had been given at the public inquiry before Mr Baldock that the use of the indoor riding school for riding instruction and related equestrian activities had continued. Mr Baldock’s decision letter referred to the indoor riding school without any suggestion that its use had ceased. It also referred to evidence that, in addition to use for breeding race horses and training race horses and polo ponies, the facilities of the estate had been made available to a children’s charity for riding holidays and that there had been some day use. His conclusion, at paragraph 10.4 of his report, was that “Excluding any residential use and agriculture, the primary activity on the planning unit is now breeding racehorses and training racehorses and polo ponies. Other activities are the playing of field and arena polo and riding holidays and teaching. Whereas the latter are secondary in terms of scale, they are not ancillary or incidental to the primary mixed use.”

Mr Warren submits that the inspector was irrational to set aside such evidence of a riding centre use and to do so on the basis of a 1½ hour site view. I think it fair to summarise the submission as involving the following elements: (i) the inspector found that the principal use was now stabling. But the stabling of horses in the riding centre building in circumstances where, as the inspector knew, the separate stable block had collapsed was fully consistent with the continuation of the riding centre use. (ii) Riding holidays were not evident during his visit. But the fact that they were not evident during such a short period was not something on which he could reasonably place any weight. Indeed, it appears from paragraph 5 of the decision (“may or may not”) that he accepted the possibility that riding holidays might take place. (iii) The inspector relied on the fact that public access was restricted, in particular by the use of a complicated and sophisticated security system and by the lack of access for the public at large direct from the Ridgeway. Uncontrolled access, however, forms no part of the definitions in Class D2 and the existence of a security system was irrelevant. The inspector was led astray by the notion that a riding centre use needs to have features that he did not find on the site. He also erred in fact by failing to take into account the presence of a direct public access that had been temporarily blocked up.

In the context of those submissions I should mention that Mr Warren sought permission to rely on a late witness statement of Mr Andrew Reid, the owner of the Belmont Estate, in which he takes issue with the inspector’s conclusion that the riding centre use has ceased to exist and refers to various points of fact, such as the existence of a special riding surface and special lighting in the indoor arena, which he says the inspector seems to have missed or misunderstood. Although I looked at the witness statement de bene esse, I accept the submissions of Mr Strachan for the Secretary of State that it is strictly inadmissible and irrelevant and that permission to rely on it should be refused in any event as a matter of discretion since it was filed too late for Mr Strachan to have an opportunity to take instructions on it from the inspector. Nevertheless, in fairness to Mr Reid, I have noted the strength of the concerns expressed by him. The photographs exhibited to his witness statement are also of some broad assistance in understanding the issues raised in relation to the inspector’s report.

A further submission by Mr Warren is that the inspector erred in his alternative analysis in paragraph 6. Even if there was a mixed use across the planning unit, there would be no material change of use if that mixed use included a riding centre use (a Class D2 use) and another Class D2 use was substituted for the riding centre use. It therefore does not follow, as the inspector appears to have thought, that a change to use as a health and fitness club would necessarily constitute a material change of use. Mr Warren cites Beach v. The Secretary of State for the Environment, Transport and the Regions[2002] JPL 185, [2001] EWHC Admin 381, where Ouseley J was considering inter alia the affect of other uses developing alongside established uses:

Alternatively, even if the inspector was right to reject Belmont’s case about a substituted Class D2 use, Mr Warren submits he was under a duty to carry on to consider as a matter of general planning judgment whether the proposed use would involve a material change of use having regard to noise, the number of people coming on to the site and the range of other factors affecting the land use character of the site. In support he cites Secretary of State for Transport, Local Government and the Regions v. Waltham Forest London Borough Council[2002] JPL 1093, a case in which the inspector, having rejected a contention that a proposed use fell within the same use class as the existing use, had gone on to decide whether as a matter of fact and degree the character and nature of the proposed use would be materially different from the existing use.

For the Secretary of State, Mr. Strachan submits that the application for a certificate in this case was bound to fail. It was accepted that the existing use was a mixed use. A mixed use does not fall within the Use Classes Order and cannot therefore benefit from the exception in s.55(2)(f): in particular, the specific mixed use does not fall within Class D2 and Class D2 does not bite on the question whether a change in the activities comprised in the mixed use causes a material change of use. Further, if there is a change from the mixed use to a single use for a health and fitness club on the application site, it will necessarily create a new planning unit and will amount to a material change of use. The creation of a new planning unit is one of the ways in which an existing lawful use can be lost: see Panton and Farmer v. Secretary of State for the Environment, Transport and the Regions[1999] JPL 461 at 467-8. A change of the kind proposed by Belmont in this case involves a change from the second to the third of the categories described by Bridge J in Burdle v. Secretary of State for the Environment[1972] 3 All ER 240 at 244:

As to the actual way in which the inspector approached the matter in his report, Mr. Strachan submits first that the inspector’s rejection of the contention that there was an existing riding centre use was entirely rational. The inspector took into account Mr Baldock’s report, which was, however, concerned with the wider planning unit rather than the specific application area and which contained nothing to show that the application area was still in riding centre use. The inspector carried out his own site visit but took into account the limitations of that visit. He was entitled to conclude that the principal use or predominant activity was the stabling of horses. He dealt with the possibility that riding holidays might take place but found that that was not the principal use. He was entitled to look at public access as a material consideration in the context of Class D2 (“assembly and leisure”) and the extent and means of public access to the site were plainly material in considering whether the historic riding centre activities continued to take place.

As to the inspector’s alternative analysis in paragraph 6, his conclusion is plainly right if one accepts the Secretary of State’s argument that a mixed use cannot fall within a use class. Belmont did not seek to advance any wider case than one based on the Use Classes Order and in the circumstances the inspector did not have to go any further. But in any event it is obvious that a change to use as a health and fitness club will involve a material change of use. Although questions of material change of use are primarily questions of fact for the inspector, it is open to the court to find that there would be a material change of use if there is only one rational answer to the question: see Westminster City Council v. British Waterways Board[1985] AC 676 and, by way of example the approach of the court in Cynon Valley Borough Council v. Secretary of State for Wales[1986] JPL 760.

On the first main issue I reject Belmont’s challenge to the inspector’s finding that the former riding centre use was not the existing use of the application site.

First, the premise upon which the case is advanced, namely that the inspector was faced with unchallenged evidence of a continuing riding centre use on the application site, is in my judgment mistaken. The position was not nearly as straightforward as that. True it is that Mr. Cooper’s response to the local planning authority’s statement had referred to evidence before Mr Baldock that “the use of the indoor riding school for riding instruction and related equestrian activities” had continued after Belmont Riding Centre Limited had ceased trading. What Mr. Baldock had found, however, was a mixed use across the whole planning unit of the Belmont Estate, which included riding holidays and teaching among a number of other equestrian and non-equestrian activities. He did not find a specific riding centre use on the application site. The present Inspector had careful regard to Mr. Baldock’s report, as paragraph 3 of his decision letter shows. He said in terms that he saw nothing on his visit to contradict Mr. Baldock’s findings. Plainly he accepted those findings and saw no inconsistency between them and his own findings on the present application. Neither can I.

So it was not a matter of setting aside a body of evidence on the basis of a 1½ hour visit. The inspector had due regard to the material before him and recognised the limitations of his visit, but was entitled to place weight on that visit in forming an overall judgment on the existing use of the application site. As to the judgment he reached, I do not think that his conclusion can possibly be said to have been irrational.

His finding that the principal use of the riding centre building was now for the stabling of horses was reasonably open on the facts, including in particular the number of loose boxes in the building and the fact that the separate stables complex was disused. He was entitled to form that view even though the building could still be used for riding as well. He accepted the possibility that the stabling might be associated with riding holidays even though they were not evident during his visit; but he was entitled to find that such holiday activities, as well as being secondary to the principal use of the building for stabling, were not the same as the former commercial riding centre activities. There is a link between his comments about limitations on access to the public and his view that the horses were not now there for hiring out to a wide cross-section of the community. It is clear that in his view, whatever holiday and teaching activities still took place, they were secondary to the stabling of horses and in any event did not have the character of the former riding centre use. There was nothing in the evidence that compelled a different view.

The Inspector did not deal in terms with the submissions that had been made to him about the characteristics of a riding centre use, including the reference to the case of Lilo Blum. He did not need to do so, the issue before him being one of fact rather than legal definition; but in my judgment the conclusion he reached was entirely consistent with what was said about riding centres and riding schools in the materials before him.

What he said about limitations on public access seems to have been directed not only to the difference in character between the present activities on site and the former commercial riding centre activities but also to a more general point concerning the concept of “assembly” underlying Class D2. I would accept Mr. Warren’s submission that controls on public access are consistent with a Class D2 use and that it would have been wrong for the inspector to rely on the restrictions on public access as an independent reason for finding that there was no existing Class D2 use on the site. But I do not read the inspector’s report as going that far. It seems to me that his observations about public access were bound up in the end with his conclusion that the former riding centre use no longer existed, rather than forming the basis of a different and more difficult proposition concerning the exclusion of uses from Class D2 if public access is restricted. His reasoning on the issue, although not crystal clear, is adequate.

Even if the inspector was wrong to reject the contention that the former riding centre use still existed, his alternative basis for dismissing the appeal is in my judgment unassailable. If the riding centre activities existed, they existed as part of a mixed use across the whole planning unit including the application area – a mixed use consisting of residential, equestrian and agricultural uses or activities. That there was a mixed use was found by Mr. Baldock and was common ground before the present inspector. I accept Mr. Strachan’s submission that such a mixed use does not fall within the Use Classes Order and cannot therefore benefit from the exception in s.55(2)(f). Belmont’s argument that there is no material change if one component of the mixed use falls within Class D2 and is replaced by another use within Class D2 is unsustainable. In examining use classes the focus must be on the relevant use for the purposes of s.55, which in this case is the mixed use as a whole, rather than on individual components of a mixed use. A change in components will involve a change in the mixed use itself and, subject to the question of materiality, will amount to development. It is that line of reasoning, rather than the mere fact that a new planning unit was to be created, which leads inevitably in my judgment to the rejection of Belmont’s application. In truth the case advanced by Belmont in support of the application for a lawful development certificate was doomed from the outset.

As to Mr. Warren’s alternative contention that the inspector should have gone on to consider as a matter of general planning judgment whether the proposed use would involve a material change of use even if he rejected the case under Class D2, in my view he was under no such duty. Bearing in mind the burden of proof on the applicant for a certificate under s.192 and the detail required to be submitted in support of such an application, I do not think that an inspector can reasonably be expected to deal with issues that have not been raised on the application. The case advanced before him here was based squarely on Class D2. That was the case that he was required to consider and did consider. Having rejected it, he did not have to go any further. The Waltham Forest decision does not help Mr Warren since, although in that case the inspector in fact went on to consider the wider issue, the court did not consider the question whether and in what circumstances he was under a duty to do so.

In any event I accept Mr. Strachan’s submission that, if the inspector had gone on to consider as a matter of general planning judgment whether use of the application site as a health and fitness club would involve a material change of use from the existing mixed use of the site, or even from such activities within that mixed use as were in fact carried on on the site, then the answer in my view was obvious. Although there was only limited information before him, I cannot see how he could reasonably have reached any other conclusion than that the change would be material.

For all those reasons, I have reached the clear view that the challenge to the inspector’s decision fails and that the claim must be dismissed.