Flattery & Anor v Secretary of State for Communities and Local Government & Anor

The First Claimant, Mr Thomas Flattery, challenges, by an application under section 288 of the Town and Country Planning Act 1990, the decision of an Inspector appointed by the First Defendant, the Secretary of State for Communities and Local Government, in a letter dated 10 March 2009, to dismiss two appeals made by him under section 195 of the Town and County Act 1990 in respect of applications to the Second Defendant, the Nottinghamshire County Council, to grant certificates of lawful use or development for the use of land formerly known as Twitch Farm, Hollowdyke Lane, Balderton, Newark as a scrap yard and for various other development on that land, and, by an application for leave to appeal under section 289 of the 1990 Act, the Inspector’s decision to dismiss two appeals made by him and the Second Claimant, a company called Japanese Parts Centre Limited, (“the appellants”) under section 174 of the 1990 Act, against two enforcement notices issued by the County Council relating to that development. There is also a challenge to the Inspector’s decision, given in a separate letter of the same date, rejecting an application for costs which was made by the appellants against the County Council at the end of the inquiry she held into the appeals. The Second Claimant has played no active part in the present proceedings.

The Twitch Farm site has had a long and, at times, troubled planning history. It was acquired by Mr Flattery in 2005.

On 9 January 2006 Mr Flattery made an application to the County Council under section 191(1)(a) and (b) of the 1990 Act for a certificate of lawful use or development for development on the Twitch Farm site which was described in the application in this way:

“Existing scrap yard use for storage, sorting and retail of scrap and use for storage of portacabins and shelving and erected building.

1)

The use of the site as a scrap yard covers the whole site. It includes storage, sorting and retail elements.

2)

The use of the site for storage and use of portacabins.

3)

The erected building.”

The County Council did not determine that application within the statutory period, and Mr Flattery appealed, under section 195, in respect of that failure. This appeal was referred to by the Inspector in her decision letter as Appeal LDC 1.

On 3 August 2007 Mr Flattery applied again for a certificate of lawful use or development, in the same terms. That application was refused by the County Council on 22 October 2007. Mr Flattery then appealed against that refusal. This appeal was referred to by the Inspector as Appeal LDC 2.

On 10 December 2007 the County Council issued an enforcement notice in respect of the land alleging a breach of planning control by the making of a material change in the use of the land, without planning permission, to a use for the storage and dismantling of vehicles, including the retailing of parts salvaged from those vehicles, and the carrying out of operational development involving the erection on the land, without planning permission, of a building, portacabins and racking. The notice required the use to cease and the removal of items brought on to the land in connection with the use, together with the removal of the building, portacabins and racking. The period for compliance with the notice was set in stages over the course of five months. The appeals against this notice proceeded in the end on the statutory grounds provided in section 174(2), (c), (f) and (g) of the 1990 Act. This enforcement notice was referred to by the Inspector as Notice A.

A second enforcement notice was served by the County Council on 10 December 2007. This alleged a breach of planning control by the making of a material change in the use of the land, without planning permission, to a mixed use for the storage and dismantling of vehicles, including the retailing of parts salvaged from those vehicles, and for the storage and use of portacabins and, without planning permission, the carrying out of operational development involving the erection of a building. The notice required the cessation of the uses and the removal of items brought on to the land in connection with those uses together with the removal of the building. Again, the time for compliance with the notice was divided into stages over a period of five months. The appeals proceeded eventually on grounds (d), (f) and (g). This enforcement notice the Inspector referred to as Notice B.

On 23 September 2008 the Inspector held a pre-inquiry meeting, at which various procedural matters were discussed and dealt with. After that meeting correspondence took place between Mr Flattery and his solicitor and the Planning Inspectorate, in the course of which Mr Flattery made a formal complaint about the conduct of one of the Inspectorate’s officials. I shall come to that correspondence when I consider the submissions Mr Flattery has made about it.

The inquiry into the four appeals began on 6 January 2009. It continued for seven sitting days. Site visits were made on 5 and 15 January 2009.

In her decision letter the Inspector allowed Appeal LDC 1 (9 January 2006) and Appeal LDC 2 (3 August 2006) to the extent that she granted certificates confirming that the skeletal frame of a Dutch barn on the site was immune from enforcement and therefore lawful, because it had been on the site for more than four years. The Inspector rejected Mr Flattery’s argument that the uses to which the application for the certificate referred had become lawful by the date of the application. None of the grounds pursued in the appeals against the enforcement notices succeeded. Those appeals were dismissed, and each of the notices was upheld in a corrected and varied form.

At the start of the inquiry, as she had at the pre-inquiry meeting, the Inspector had raised her own concerns about the scope and wording both of the applications for the certificates and of the enforcement notices. These concerns were ultimately resolved at the inquiry. The outcome of the Inspector’s consideration of those matters is set out in paragraphs 4 to 9 of her decision letter. The Inspector’s approach to the variation of the enforcement notices is under attack in Mr Flattery’s challenge and I shall come to that in due course.

In dealing with Notice A the Inspector addressed the ground (c) appeal in paragraphs 11 to 16 of her decision letter, the ground (f) appeal in paragraphs 70 to 72 and the ground (g) appeal in paragraphs 73 and 74. The Inspector’s treatment of the ground (c) appeal is criticized in several respects by Mr Flattery, and I shall therefore return to that later.

In dealing with Notice B the Inspector addressed the ground (d) appeal in paragraphs 17 to 64 of the decision letter, the ground (f) appeal in paragraphs 70 to 72 and the ground (g) appeal in paragraphs 73 and 74. Mr Flattery seeks to impugn the Inspector’s conclusions on the ground (d) appeal and on the related aspects of the appeals relative to the certificate applications, which are addressed in paragraphs 65 to 69 of the Inspector’s letter. I shall therefore come back to that as well.

In paragraphs 75 to 84 of her decision letter the Inspector set out her conclusions on what she described as “Other matters”, namely “Legitimate expectation” (in paragraphs 75 to 80) and “Human rights” (in paragraphs 81 to 84). Those passages of the decision letter I shall consider when I come to deal with the submissions Mr Flattery has made about them.

At the end of the inquiry the appellants made an application for a full award of costs against the County Council in respect of all four appeals. The Inspector refused that application, and, as I have indicated, this decision too has been challenged.

Mr Flattery has submitted a large amount of material in support of his applications to the court: a document entitled “Grounds of Appeal and Statement of Case Submitted on behalf of the Appellant Pursuant to Section 288 of the Town and Country Planning Act 1990” for the section 288 challenge, and a corresponding document for the section 289 application; various other documents, including a 74 page “skeleton argument”, which, I was told had been prepared by the solicitor previously acting for Mr Flattery, a document entitled “Human Rights Statement issued under the Civil Procedure Rules”, Mr Flattery’s closing submissions to the inquiry, and a list of 174 authorities which it was indicated would be dealt with at the hearing. The court has before it written evidence in the form of the several witness statements produced by Mr Flattery himself and others provided by 13 additional witnesses for Mr Flattery; the witness statement of the Inspector; and, for the County Council, the statements of Mr Turner, the County Council’s Monitoring and Enforcement Manager, and Ms Kirsty Fitzgerald, a law student at Nottingham Trent University, who attended the inquiry in the course of her work experience with the Legal Services Department of the County Council. A copy of the Inspector’s handwritten notes of the inquiry has been produced. Several photographs, which appear not to have been before the Inspector at the inquiry, have also been produced.

In Mr Flattery’s “skeleton argument” six main issues for the court to determine are identified. At the beginning of the hearing I asked Mr Flattery whether he could confirm that those six issues encompass the whole of the grounds he wished to pursue. He made it plain that they did.

There is some overlap between the two applications in these issues, as Mr Flattery has acknowledged. It is, however, convenient to deal with the issues in the form in which they have been framed for Mr Flattery, without seeking to differentiate between the applications except where it is necessary to do so.

As they appear in Mr Flattery’s “skeleton argument” the six issues are these:

Mr Flattery made oral submissions on only some of the points raised in the written argument. However, I shall consider both the oral and the written submissions so far as I have been able to understand them.

As I have said, the Inspector dealt with the issue of “Legitimate expectation” in paragraphs 75 to 80 of her decision letter, as one of the “Other matters” she identified. In that part of her letter the Inspector said:

“75.

It is the Appellants’ case that they should be able to rely on the conduct of the District Council and specifically on the statements it made in writing from time to time over the years concerning the use of the land. Those documents indicated that a certain state of affairs existed and neither the District Council, nor the County Council as its successor, should be allowed to resile from the representations made. Thus the Appellants had a legitimate expectation that the site could be used as a scrap yard.

76.

There is certainly a history of documents originating from the District Council which express a view on the use of the site but these are not consistent in what they say. They vary as to whether the whole site, or a specified part, has an existing use, or an established use, as a scrap yard or for the storage of scrap. The picture is far from clear. Furthermore, the most recent of these dated 9 August 2005, and the only one addressed to Mr Flattery, was written just after he took possession of the site. That letter advises that the Authority had accepted an established use of the site for the storage of scrap in 1979 but it went on to say that no other activities associated with scrap such as breaking, stripping, processing or selling were authorised and that if such uses were intended planning permission would be necessary. It defined an area within which scrap storage might take place (although I have not been provided with a copy of the attached plan) and included a disclaimer at the end of the letter.

77.

Far from indicating acceptance of Mr Flattery’s intended use, therefore, as a scrap or breakers yard with, in addition to storage, the significant industrial activity of dismantling and stripping and the retail activity of selling salvaged parts, the letter specifically excludes those additional elements. Furthermore, as far as I am aware the Appellants did not approach the District Council, even on an informal basis, prior to purchasing the site to see whether their intended use could be carried out lawfully. There is also no clear evidence as to whether any of the historic documents from the District Council were relied on at the time of the purchase or indeed had even been seen at that time by the Appellants or their representatives. Mr Flattery’s early witness statement of 4 July 2006 says he proceeded with his purchase on the basis of assurances given by Mr Wilks (the then owner) and by his solicitors that the lawful use was as a scrap yard and that it was subsequent to his occupation of the site that he carried out his own investigation into the planning status of the site. Further, in giving evidence he conceded that some of the documents now brought to my attention might have come to light at a later date.

78.

It has long been held that planning law is contained in a comprehensive code. From 27 July 1992, when the provisions of the amended s191 and the new s171B of the 1990 Act came into force, there has been a statutory procedure in place to confirm the lawfulness of existing uses of land or of existing operations by applying an LDC. Even prior to that there was a statutory procedure available to confirm immunity from enforcement action by way of an application for an Established Use certificate. With such mechanisms in place there can be no reliance placed on informal views expressed, not least when these have not been consistent in their scope. A local planning authority cannot be expected to exercise its powers in a certain way or to exercise discretion when a formal decision on lawfulness or immunity from enforcement action must be rooted in law. The statutory procedure is the appropriate and conclusive means of resolving such issues and should have been known to the Appellants’ solicitors and indeed in evidence Mr Flattery confirmed that he was himself fully aware of the procedure having applied in person for an LDC for his existing breakers yard in Essex.

79.

My examination of the available evidence has lead me to conclude that there was never an established use of the appeal site for the single primary use as a scrap yard. But even if historically such a use had been established at some point in time for all or for a part of the site, whether or not confirmed by a Certificate, that in itself would not have been sufficient to act upon today as that use could subsequently have been lost through abandonment or the operation of law.

80.

Taking all these matters into account, I have seen and heard nothing which leads me to the conclusion that the actions of the District Council induced a legitimate expectation on the part of the Appellants that the site could lawfully be used as a scrap yard at the time of purchase or at any time subsequently. That being the case there is nothing of substance to indicate that the County Council could not exercise its discretion in the public interest and consider the expediency of issuing enforcement notices against development which it finds conflicts with the established planning policy including that aimed at the protection of the countryside.”

Mr Flattery submitted that the Inspector was wrong to say in paragraph 80 of her decision letter that she had seen and heard nothing which showed that the actions of the District Council had induced a legitimate expectation in the appellants that the site could lawfully be used as a scrap yard either at the time when it was purchased or at any time after that. He contended that there was material before the Inspector in evidence, including letters sent by the District Council, in which the existence of an established use of the appeal site as a scrap yard had been accepted. He submitted that the District Council’s assurances to this effect had been reinforced by its decision in 1980 to issue an enforcement notice which excluded the scrap yard use. Since the early 1970s the local planning authority had consistently acknowledged the existence of an established use of the site as a scrap yard and deliberately not interfered with that use. The District Council’s conduct, Mr Flattery argued, would have been regarded by any “reasonable bystander” as giving rise to a legitimate expectation in the then landowner and in its successors in title, including the appellants, that no enforcement action to bring an end to the scrap yard use would be taken, either by the District Council or by the County Council, which was aware of the position the District Council had taken. The appellants had done no more than make an application seeking formal approval to regularize that which the local planning authority had acknowledged for a very long time. So, said Mr Flattery, the County Council ought not to have enforced against the scrap yard use and ought rather to have certified its lawfulness; and the Secretary of State ought not to have upheld the enforcement notices and should now reconsider that decision.

I do not accept those submissions. In my judgment, the answer to them is that provided by Mr Stephen Whale for the Secretary of State and Mr Robert Walton for the County Council in the submissions they made on this issue.

The law relating to the concepts of legitimate expectation and estoppel in the sphere of land use planning is clear and does not need to be set out at length.

As to legitimate expectation, the Court of Appeal has, more than once, made its position completely clear. In Rastrum Limited v The Secretary of State for Communities and Local Government [2009] EWCA Civ 1340, Sullivan LJ (with whose judgment Ward and Etherton LJJ agreed) referred (in paragraph 31 of his judgment) to the Court of Appeal’s decision in Henry Boot Homes Limited v Bassetlaw District Council [2003] 1 P&CR 23, as demonstrating the principle that “there is only a very limited scope for any expectation that a waiver of the statutory requirements will be legitimate in the context of town and country planning”. In that case, as Sulllivan LJ recalled (in paragraph 32 of his judgment), Keene LJ had endorsed and emphasized the proposition that

“It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities.”

As to estoppel, which seems not to have been argued before the Inspector in the present case but was, in effect, argued by Mr Flattery before me, the law is equally plain. In R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348, Lord Hoffmann expressed his opinion (in paragraph 33 of his speech) that it was “unhelpful to introduce private law concepts into planning law” and went on (in paragraph 35) to observe that “in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet”.

In my judgment, neither the concept of legitimate expectation nor that of estoppel is capable of providing any assistance to Mr Flattery in the present case.

As Mr Whale and Mr Walton submitted, the issue which the Inspector as decision-maker in the appeals had to consider, on the evidence before her, was whether the use of the land for which Mr Flattery contended was lawful.

In my judgment, the Inspector made impeccable findings on all the matters bearing on that issue.

The task the Inspector had to undertake was to assess the evidence before her at the inquiry, and, having regard to the whole of that evidence, to decide whether the uses and operations in question were or were not lawful at the date of each of the applications for certificates. This was an exercise which the Inspector had to perform with the benefit of the testimony given on oath by the witnesses who were called to give evidence, explored and challenged to the extent that it was by cross-examination and elucidated in answers to questions which she herself asked, as well as the relevant documentary material provided to her, and with the benefit of her site inspections.

As is often so in cases such as this, the evidence before the Inspector on matters of fact was, at least in part, contentious. What she had to do was to consider it all and reach her own findings and conclusions upon it. I am satisfied that the she took great care in assessing the evidence and that she made no legal error when she did so. She plainly concluded that, with the exception of the part-built Dutch barn, the uses and development which had been undertaken on the land were not lawful. That basic conclusion of the Inspector does not seem to me to be capable of being criticized as irrational or otherwise unlawful.

This being so, the question raised by this part of Mr Flattery’s challenge is whether the findings the Inspector made and the conclusions she reached are defective because she did not regard them as being negated by the appellants’ evidence and submissions on legitimate expectation.

In my judgment, the idea that legitimate expectation was relevant in determining the lawfulness of the enforced against development is misconceived.

Even if the Inspector had found – which she did not – that there was clear evidence of either the District Council or the County Council representing informally to Mr Flattery or any of his predecessors in title that the appeals site could lawfully be used as a scrap yard, this would not have prevented the taking of enforcement action against that use. Nor would it have prevented the local planning authority or, on appeal, the Secretary of State from refusing a certificate of lawfulness in a particular form if the evidence did not justify its being granted in that form.

As the Inspector observed in paragraph 78 of her decision letter, a principle now well established is that the statutory planning regime is a complete code. In the amended section 191 and section 171B of the 1990 Act, there are statutory procedures for ascertaining and confirming the lawfulness of an existing use of land. Those procedures are entirely adequate for the resolution of a dispute of the kind which arose in the present case. Informal expressions of view as to the lawfulness of a particular use of land, such as are provided from time to time by officers of local planning authorities when requested to do so, do not represent a definitive and conclusive assessment of the status of such use. Only a formal decision made by the local planning authority in the proper exercise of the statutory powers it has available to it will have that effect.

Similarly, the fact that a local planning authority has in the past refrained from taking enforcement action against a particular use does not of itself preclude such action being taken in the future if the authority thinks it expedient to do so.

The present case seems to demonstrate well the danger in attributing to a particular piece of correspondence between a local planning authority’s officers and somebody who seeks to be informed or reassured about the lawfulness of an intended use of land a significance which such correspondence does not hold. Indeed, Mr Flattery himself seems to have been well aware of this at the time when he made his applications to the County Council for certificates under section 191 of the 1990 Act and when he later submitted his appeals. He did not question the County Council’s jurisdiction to entertain those applications, or the Secretary of State’s to entertain the appeals. Nor did he challenge the County Council’s decision to issue the enforcement notices as a decision made without statutory power.

In any event, as both Mr Whale and Mr Walton submitted, there were in this case no clear, unambiguous and unqualified representations in evidence before the Inspector upon which a legitimate expectation could have be based. The Inspector remarked in paragraph 76 of her decision letter that the documents that had been generated by officers of the District Council expressing views on the use of the site were “not consistent in what they say”, varying “as to whether the whole site, or a specified part, has an existing use, or an established use, as a scrap yard or for the storage of scrap”. As she said, the “picture is far from clear”. Having read the material myself, I agree.

The Inspector did not, however, ignore those documents. They were a part of the very large quantity of evidence of which she had to make sense. And they had to be viewed in the context of a very long history. That history, the Inspector found, involved several shifts in the use or uses of the site and in the planning unit to which such use or uses applied.

Most of the representations or comments upon which Mr Flattery sought to rely were made by officers of the District Council, and only one of them in a letter to him. No representation was ever made to him by the County Council or on its behalf, or by the Secretary of State. As the Inspector noted in paragraph 77 of her decision letter, even the District Council’s Senior Enforcement Officer’s letter of 25 August 2005 to Mr Flattery indicates that the lawful use of the site of which he had just taken possession did not extend beyond “the storage of scrap” to the processing of such material by the “breaking and stripping of vehicles, processing of scrap, selling of scrap or other activities associated with scrap”, so that planning permission would be required for anything other than the storage of scrap. The officer enclosed with the letter a “plan showing the boundaries of the site in which the storage of scrap can take place”. The letter concludes by disclaiming any significance for the views expressed in it as constituting the formal position of the District Council as opposed to the informal position of the officer who wrote it:

“The advice in this letter is given in good faith on the basis of information available at the present time. The advice may be subject to revision following further examination or consultation, or where additional information comes to light, and is therefore not binding on any future recommendation, which may be made to the Council, or any formal decision by the Council.”

By the time that Mr Flattery received that letter he had already acquired the appeals site. As the Inspector observed (in paragraph 77 of her decision letter), there was no clear evidence that any of the documents produced by officers of the District Council were relied upon by Mr Flattery when he bought the site, or that they had even been seen by him at that time.

In his submissions on this issue Mr Flattery also referred to the comments made by Mr White, the Chairman of the local Parish Council, about the history of the site, which, said Mr Flattery, was relied upon by the Inspector because he was in a position of authority. However, that evidence has nothing at all to do with the issues of legitimate expectation or estoppel.

Therefore, I can see no error of law in the Inspector’s treatment of the appellants’ case on legitimate expectation. This part of Mr Flattery’s challenge to the Inspector’s decisions therefore fails.

In paragraphs 81 to 84 of her decision letter, under the heading “Human Rights”, the Inspector said

“81.

The Appellants’ submissions in relation to human rights appear primarily concerned with the conduct of the County Council in the way it dealt with the LDC applications and the way it pursued the matter further by deciding to take enforcement action. Whilst these might be matters of concern to the Appellants which they might wish to pursue elsewhere, they cannot influence my decisions in relation to the current appeals. My remit is to determine the appeals as made and in so doing I need to ensure that my actions are not incompatible with the European Convention on Human Rights. But it is not for me to review the actions and decisions taken by the Council in terms of compliance or otherwise with Human Rights.

82.

In any event, in bringing these appeals the Appellants are able to have their case heard anew and have been provided with an opportunity to present that case in full. There was no submission made that there has been any element of discrimination or of an unfair hearing in the current appeals proceedings.

83.

Furthermore, in determining LDC appeals and legal grounds brought in respect of appeals against enforcement notices, the courts have held that the relevant Articles as set out in Schedule 1 to [the] Human Rights Act 1998 are not engaged because the decision neither creates nor removes rights but rather is declaratory on matters of law. There is no opportunity for the decision maker to exercise discretion in making such decisions.

84.

Nonetheless, in considering the appeals on ground (g), the rights set out in Article 1 of Part II and Article 8 of Part 1 of Schedule 1 might be said to be engaged as there is interference with way in which the Appellants and the current occupier use the land. However, I have concluded that the compliance period achieves an appropriate balance between the two conflicting interests of private rights and matters of public interest and in so doing find the interference to be proportionate so that there is no violation of those rights.”

Mr Flattery submitted that the Inspector had adopted an “erroneous approach” to his human rights. She had, he argued, misunderstood the contentions put forward by the appellants. The Inspector had committed a “fundamental error” in paragraph 82 of her decision letter. She was wrong to say that it had not been submitted to her that there had been any element of discrimination or that there had been an unfair hearing in the current appeal proceedings. In fact, said Mr Flattery, it was quite clear that he had asserted both before the inquiry and during it that he was the victim of discriminatory conduct “given his background as an Irish man”. Thus, he submitted, Article 14 of the Convention was breached. He also submitted that Article 6 had been violated by the Inspector in the “bias” she had displayed at the pre-inquiry meeting and subsequently in correspondence and at the opening of the inquiry. A fair hearing had not been afforded to him. The Inspector had asked him to withdraw his allegations of bias and unfairness but he had declined to do so. The Inspector had adopted a “blinkered approach”, which reflected her “inbuilt and blatant bias”. She had also failed to take into account the fact that Article 8 and Article 1 of the First Protocol were engaged. Article 8 had been breached, as Mr Flattery put it, “in that the process embarked upon by the … County Council being the second respondent in the proceedings inevitably contravened the terms of the said convention right and infringed the privacy and associated rights of the Appellants”. Article 1 of the First Protocol was breached because “the actions of the public authority directly and adversely affected the rights of the land owner to the quiet enjoyment of the land” and “[t]here was no reciprocal public benefit arising from this process”. In support of those contentions reliance was placed on numerous decisions of the European Court of Human Rights.

I do not accept any of those submissions. In my judgment, they lack a foundation either in the law or in the particular facts of this case.

The submissions Mr Flattery made on Article 6 and Article 14 seem largely to merge with the argument he advanced on the issue of “bias”. I shall therefore deal with the substance of those submissions when I come to that issue. Here I shall concentrate on Mr Flattery’s submissions on Article 8 and Article 1 of the First Protocol.

In my judgment, the law provides no support for the submissions Mr Flattery has made. Such submissions simply cannot be reconciled with the European and domestic jurisprudence.

When dealing with an Article 8 claim, the court is concerned with substance, not procedure (see, for example, R (SB) v Denbigh High School [2007] 1 AC 100, per Lord Bingham of Cornhill, at paragraphs 29-31, and per Lord Hoffmann at paragraph 68; and Belfast City Council v Miss Behavin’ Ltd (Northern Ireland) [2007] 1 WLR 1420, per Lord Hoffmann at paragraphs 13-15). The question is whether there has actually been a violation of the individual’s Convention rights and not whether the decision-maker has properly considered the question of whether that person’s rights would be violated or not. In the land use planning context it has been held that the fundamental question is whether, looking at the decision as a whole, Article 8 rights have been addressed appropriately (see Jordan v Secretary of State for Communities and Local Government [2009] JPL 1010, per HHJ Gilbart QC, sitting as a deputy judge of the High Court). Whilst Article 8 should normally be considered as an integral part of the decision-maker’s analysis of material considerations, the fact that Article 8 rights are considered as a discrete issue does not of itself invalidate the decision, provided that the conclusion reached is within the margin of appreciation provided by Article 8 (see Lough v Secretary of State for Communities and Local Government [2004] 1 WLR 2557, per Pill LJ at paragraph 48). The striking of a fair balance lies at the heart of proportionality. What is required is a proper balancing exercise (see per Pill LJ in Lough, at paragraphs 50 and 55).

The service of an enforcement notice by a local planning authority and a decision made by the Secretary of State, on appeal, to uphold that notice do not, at least normally, represent an unjustified interference with the Convention rights of the person or persons upon whom the notice is served when such rights are engaged. The same may be said of the determination by a local planning authority or, on appeal, the Secretary of State of an application for a certificate of lawfulness made under section 191 of the 1990 Act. When making a determination on an application for a certificate under section 191 local planning authority is obliged to decide on the available evidence, on the balance of probabilities, whether the certificate applied for should be granted. If it is so satisfied it must grant the certificate. In so far as these processes entail the determination of the right of the owner or occupier of land to use that land for a particular purpose or in a particular way, and in so far as they involve any interference with that person’s Convention rights under Article 8 and Article 1 of the First Protocol, what is done will generally be regarded as being a proportionate interference with such rights.

With those principles in mind, I cannot see any basis for arguing that the Inspector’s decision in the present case was flawed in her treatment of the submissions made to her on human rights. The analysis she set out in paragraphs 81 to 84 of her decision letter I consider to be entirely sound.

In the first place, I cannot see any force in the submissions made to the Inspector as a challenge primarily directed, as the Inspector noted (in paragraph 81 of her letter), to the conduct of the County Council in its handling of the applications for certificates. As the Inspector concluded, the County Council’s enforcement action was justifiable as an exercise of statutory powers by a public body charged with the role of securing and maintaining, in the public interest, compliance with lawful planning control and the removal of development which flouted such control. It was thus, I conclude, both a reasonable and a proportionate interference with the Convention rights engaged.

Nor, in my judgment, was the decision of the Inspector herself on the appeals made incompatibly with Mr Flattery’s, or anybody else’s, Convention rights. In considering ground (g) of the enforcement notice appeals, the Inspector was plainly alert to the need for her to consider whether the period stipulated for compliance with the notices struck an appropriate balance between the conflicting interests of private rights and the public interest. She undertook this balance explicitly in paragraph 84 of her decision letter and, as she put it, found “the interference proportionate so that there is no violation of those rights”. I cannot fault that conclusion. It seems to me to be both entirely reasonable and right. Indeed, in view of the fact that, as the Inspector noted in paragraph 74 of her letter, it had emerged during the course of the inquiry that the appellants had ceased using the appeals site themselves, and in the absence of any information about the present occupier, his business or his circumstances, it is hard to see what other conclusion she could sensibly have reached.

This part of Mr Flattery’s challenge therefore fails.

Mr Flattery submitted that the Inspector had “acted with extreme bias”. First of all, he argued, the Inspector had shown her bias and prejudice against the appellants in the way she had conducted the pre-inquiry meeting, and in pre-judging the substantive issues in the appeals by forming views which she subsequently confirmed in writing before the inquiry began. She should therefore have recused herself from the determination of the appeals. Secondly, said Mr Flattery, the Inspector demonstrated bias against him by authorizing what he described as “critical and hostile correspondence” to him from the Planning Inspectorate. For this reason too the Inspector ought to have recused herself. Thirdly, the Inspector wrongly dismissed his complaints about her “bias and misconduct” and continued with her conduct of the inquiry. Fourthly, the Inspector conducted the inquiry “in a biased and one-sided fashion” to the detriment of the appellants, unfairly favouring the County Council in her procedural decisions, adjourning the inquiry on its first day with the consequence that some of the appellants’ witnesses were unable to give their evidence, imposing a “guillotine” on the presentation by the appellants of their case, curtailing the appellants’ opportunity to contest the County Council’s evidence, acceding to the County Council’s advocate’s request that the inquiry be brought to an early conclusion to suit him, and adopting “a hostile and intimidating approach” to the 14 witnesses who did give evidence for the appellants. Fifthly, Mr Flattery made wide-ranging criticisms of the Inspector’s treatment of numerous aspects of the appeals, including the human rights issues, the appellants’ legal submissions on legitimate expectation and the evidence of 49 people which, it was said, supported the appellants’ claim that the enforced against use of the land was lawful. Mr Flattery also maintained that the Inspector had committed many errors in the conclusions to which she came on the evidence. Those submissions to a large degree overlap with the submissions Mr Flattery made on Articles 6 and Article 14 of the Human Rights Convention and, as I have indicated, it is convenient to tackle them at this stage.

Mr Flattery’s argument on what he has referred to as “bias” plainly extended beyond his allegations of prejudice and predetermination. It embraced criticism of the Inspector’s findings of fact and of the conclusions she drew from those findings. I shall come to those matters when dealing with what Mr Flattery has submitted in attacking the Inspector’s conclusions on the evidence.

Some of the facts on which Mr Flattery’s allegations are based are contentious. Mr Whale submitted that, where the court does not have the benefit of cross-examination, it is obliged to approach such matters of fact as are in dispute by accepting the account given in the defendant’s evidence. Mr Whale referred to the decision in R v Hull Prison Board of Visitors, ex p St Germain and others (No 2) [1979] 3 All ER 545, in which Geoffrey Lane LJ said (at p 554):

“… Generally speaking, where there is a conflict of evidence as to a point in which the dispute turns, the court will decline to interfere (see R v Fulham, Hammersmith and Kensington Rent Tribunal, ex p Zerek). Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the board of visitors. …”

A recent example of this principle being accepted and adopted in the public law context, albeit a different one from the present, is to be seen in the judgment of Burnett J in R(A) v The Secretary of State for Justice [2010] EWHC 1250 (Admin) (at paragraph 2). I accept its applicability in the circumstances of the present case, there being several conflicts in the written evidence before the court, no live evidence having been given and there having been no cross-examination of any witness by either side, nor indeed any request to the court to allow such cross-examination to take place.

In any event, where there are conflicts in the evidence I have preferred the very clear and consistent account of events which has been deposed to by the Inspector, Mr Turner and Ms Fitzgerald to that of the witnesses for Mr Flattery.

In view of all the relevant evidence before the court, I cannot see substance in any of the accusations of bias which Mr Flattery has made against the Inspector.

As Mr Whale and Mr Walton have submitted, there is no objective support for the notion that by the time of the pre-inquiry meeting the Inspector had pre-determined the outcome of the case. At least in part, the purpose of a pre-inquiry meeting is to enable an Inspector to share with the parties his or her thinking on the procedural matters involved. In an enforcement notice appeal an Inspector can use this opportunity to bring to the parties’ attention any misgivings or queries he or she has about the terms of the enforcement notice and its requirements. Nowadays this is rightly regarded as good practice. It does not expose an inspector to the charge of having prematurely formed a view about the outcome of the appeal itself. In this case, as the Inspector’s notes of the pre-inquiry meeting show, she used that meeting to good effect. Her notes do not, in my judgment, signal a mind made up on any of the issues in the case, but rather, as she herself put it (in paragraph 22 of the notes), “preliminary thoughts” on some of those issues, which, she stressed, “should not be taken as her having made up her mind one way or another”. To identify matters of concern to her and to indicate how those matters could usefully be tackled in advance of the inquiry was, in my view, a perfectly normal and a perfectly proper thing for the Inspector to do. She did not stray beyond that essential task into any discussion of the merits of the appeals. In fact, it is quite clear that she was at pains to avoid doing that.

The Inspector’s notes yield no support for Mr Flattery’s version of events. And in her witness statement the Inspector has directly contradicted that account. So too has Mr Turner for the County Council (in paragraphs 6.1 and 7.2 of his witness statement). In her witness statement the Inspector says this:

“2.

On 23 September … I held a PIM in connection with the appeals … It was called to discuss procedural and administrative arrangements for the forthcoming inquiry so that best use would be made of inquiry time and to ensure that the inquiry ran as efficiently and smoothly as possible. Preparation for the PIM involved reading through the appeal documentation and preparing an agenda. I prepared the Agenda in advance of the PIM … I circulated this Agenda prior to the PIM and used it at the PIM as the basis for the discussion.

3.

Mr Flattery attended the PIM in person. He explained that, because of a lack of funds, his solicitor had declined to attend. …

4.

Given that Mr Flattery was an unrepresented appellant, unfamiliar with planning, I explained the purpose of the meeting and invited him to stop me at any time during the proceedings if he was not following what was going on. Mr Flattery took an active part in the meeting and at no time gave any indication that he was not following what was going on. Indeed, he made positive suggestions such as that typed versions of some of the less legible documents should be produced. I told him that I would be preparing a full note of the meeting in any event so that his solicitor would be able to see what matters had been addressed.

5.

At the PIM, I discussed with those present a number of procedural and administrative matters …

6.

I also raised a number of other issues for consideration by the parties. This was because, as I indicated at the PIM, I had had a number of initial thoughts from a preliminary reading of the submitted documents which I wished to raise so that the parties might have a full and proper opportunity to address them. These concerned the drafting of the enforcement notices, the description of development in the certificate of lawful use or development applications, the relevance of any unilateral undertaking to be offered (under section 106 of the Town and Country Planning Act 1990), the relevance of human rights concerns expressed by the appellants, the relevance of estoppel and legitimate expectation and the relevance of gaps in the use of the appeal site. These matters needed to be raised ahead of the inquiry if it was to have proper focus and to avoid either party from being taken by surprise. I raised all these matters so as to assist the parties, by giving them advance notice of areas that might need to be addressed further at the inquiry so that they would have time to consider them properly before the inquiry and be in a position to respond at the inquiry. I did not pre-judge any of these other issues or reach any conclusions on them, whether prior to the PIM or prior to the inquiry.

7.

Before raising these other issues for consideration by the parties, I had told Mr Flattery what I was going to do. I said that I understood that he might not be able to follow all the points that I was going to make fully, but that it was an opportunity for me to table some issues of concern so that they might be considered and addressed by both parties and not come as a surprise later as they might have done if raised by me in the subsequent proceedings or indeed in my decisions. I assured Mr Flattery that I was not going to invite or allow any discussion of these matters at the PIM and that I would set them out in detail in my note of the PIM so that his solicitor would be able to pick them up. For the record, I did not invite or allow any discussions of these matters at the PIM.

8.

Following the conclusion of the PIM, I drew up notes of the PIM. These were sent to the parties. …

…

10.

The inquiry opened on 6 January 2009. … I returned to some of the concerns raised at the PIM when I formally opened the inquiry. … Neither Mr Flattery nor his solicitor said it was inappropriate of me to raise these matters, nor did they contend that I was displaying bias …”.

I accept that account of what occurred at the pre-inquiry meeting and on the first day of the inquiry. It seems to me to be entirely consistent with the Inspector’s notes of the meeting.

Mr Flattery’s contention that the Inspector authorized the sending of hostile letters to his solicitor is also, in my judgment, entirely unfounded.

It is not necessary to quote at length from that correspondence. The consistent tone of it on the Inspectorate’s side is to be seen in Mr Chong’s letter of 9 December 2008 to Mr Flattery’s solicitor. Mr Chong’s letter states:

“…I refer to your numerous letters dated between 1 and 8 December regarding the above appeals.

First of all, the Inspector did not “impose a deadline” for the submission of evidence. The date of 1 December was agreed at the PIM by all parties to take account of the Christmas and New Year Public Holidays … That agreed timetable should, therefore, be adhered to. Nonetheless, the Inspector has confirmed that she would not unreasonably resist any late submission of evidence from either party, provided there was a very good reason for that lateness and that the evidence could be shown to be essential to their case.

The Council was quite clear in its intention at the PIM that it would call Mr Turner and possibly one or two witnesses of fact at the inquiry … There does not appear to be any departure from this intention…

… It is most unfortunate that no progress appears likely towards agreeing a mutually acceptable Statement of Common Ground …

With regard to the County Council advising members of the public that the public inquiry is to take place I can see no cause for complaint in that action. The inquiry is open to the public and if any person wished to attend and to make their views known then I see no reason why they should not do so…

… Matters discussed, clarified and agreed at the PIM … and intended to ensure the smooth and efficient running of the inquiry appear to have been largely disregarded. As such, time and resources have been expended to little effect.

I hope that I have covered the various items raised in all your letters. Whilst there are still some matters as recorded in the PIM notes to be addressed by you and the Council, I would ask that any other issues are raised at the inquiry. As the PIM has now been completed I can now only deal with minor points of procedure. So please, consider carefully whether it is really necessary before writing again… ”

The tone on the other side of the correspondence may be seen in Mr Flattery’s letter, dated simply 9 December 2008, in which he complained about Mr Chong’s letter of 9 December 2008, alleging that it was “extremely unhelpful” and had displayed an “inherent bias against my interests”. Mr Flattery’s solicitor wrote to the Inspectorate dated 12 December 2008. That letter refers to Mr Chong’s letter as “an appalling piece of correspondence in which he claims that recommendations put forward by the Inspector in previous correspondence were ‘largely disregarded’” and asserting that Mr Chong “went out of his way not only to write to us but to our client containing wholly unjustified and ill-considered representations”. The Planning Inspectorate’s response to that letter, in a letter of 23 December 2008, rejected the suggestion that Mr Chong’s letter had contained any inaccuracies and confirmed that that letter had been approved by the Inspector. Mr Flattery’s solicitor responded to that letter on 29 December 2008 in a letter to the Complaints Officer at the Planning Inspectorate, expressing Mr Flattery’s “utter dismay over what he considers to be the alleged bias exhibited against him in the correspondence issued by Mr Chong” and complaining also about the Inspector having “already expressed her initial view in writing on the issue as to whether to exercise her powers of variation relating to the Defective Enforcement Notices issued by the council by declaring that there would in her initial view be no prejudice caused to the appellant”. Mr Wharton, the Assistant Director responsible for all Enforcement and Costs casework at the Planning Inspectorate, replied to Mr Flattery’s solicitor in a letter dated 7 January 2009, stating:

“… I set out below my understanding of the sequence of events relating to correspondence on this case.

1.

Following numerous letters from you, dated between 1 and 8 December 2008, Mr Chong wrote to you on 9 December 2008. This letter was cleared by the appointed Inspector who has since confirmed, that it is her understanding that all the matters raised by you had been covered.

2.

You replied on 12 December 2008 and Mr Rogers replied to you on 23 December 2008. He referred to our letter of 9 December 2008 and in the light of the Inspector’s comments did not see a need to respond further to your numerous letters.

3.

I have now received a copy of Mr Flattery’s letter and will reply to that separately.

If you can be specific about which of the points in your previous correspondence have not been adequately dealt with, I will be pleased to investigate further.

However, in the meantime, I have nothing to add to the points covered in the letter issued by Mr Chong on 9 December 2008. Nor am I able to comment on the merits of the case or on the Inspector’s initial views with regard to the Notices as issued. These are matters for the Inspector…”.

The Inspector’s response to Mr Flattery’s allegations of bias in the Inspectorate’s correspondence is given in the following passage of her witness statement:

“9.

The Appellants’ solicitor expressed a number of concerns in correspondence ahead of the inquiry. A letter from the Planning Inspectorate was drafted to respond comprehensively to these concerns. That letter, signed by Mr F Chong (Team manager for the procedures team which was dealing with the appeals) was cleared by the Assistant Director at the Planning Inspectorate, Mr A Wharton, before being sent to Mr Flattery. Mr Wharton subsequently wrote a letter to Mr Flattery in response to a written complaint by Mr Flattery with respect to Mr Chong’s letter…

10.

… The letter sent by Mr Chong was also raised [on the first day of the inquiry] … I said that to the best of my knowledge it contained no inaccuracies. Mr Jones did not pursue it further.

…

14.

Early in the inquiry … I read out a letter sent to the Planning Inspectorate on behalf of the appellants ... I specifically asked the appellants if they were objecting to me conducting the inquiry and determining the appeals. The response from Mr Jones, the appellants’ solicitor, was that they were reserving their position. Neither he nor Mr Flattery ever mentioned the matter again.

15.

Mr Flattery asserts in his grounds of challenge that at the opening of the inquiry he maintained and expanded his complaints about bias and misconduct on my part, but that I dismissed these and continued with the conduct of the inquiry against his wishes. Quite simply this did not happen. There was no such maintaining and expansion of such complaints by Mr Flattery.”

This part of the Inspector’s evidence is supported by Mr Turner in his. Mr Turner describes the correspondence between Mr Flattery’s solicitor and the Planning Inspectorate in this way (in paragraph 6.2 of his witness statement):

“The Appellants’ Solicitor engaged in a lengthy series of correspondence with the Council and the Planning Inspectorate in the lead up to the Inquiry, which largely disregarded the agreements reached at the pre-inquiry meeting. To give a flavour of the Appellants’ approach, I provide … a copy of the letter from the Planning Inspectorate dated 9 December 2008 to the Appellants’ Solicitor. It will be readily seen that the Appellants’ criticisms of the Inspectorate’s correspondence are misconceived – the Inspectorate’s letters were necessarily firm in tone but they certainly cannot be read as suggesting that the Inspector was biased against the Appellants.”

I agree. When one reads the letters sent by the Planning Inspectorate to Mr Flattery and his solicitor it is, I believe, impossible to discern in them any hostility being shown to Mr Flattery or his solicitor. What one does see, in my view, is a patient and thorough consideration of the various grievances raised by Mr Flattery and on his behalf. “Hostile” is not an adjective one could fairly use to describe the tenor of those letters.

Turning next to the broad contention that Mr Flattery has somehow been deprived of a fair hearing, in violation of the right enshrined in Article 6 of the Convention, I find this untenable too.

Viewed as a whole, the procedures involved in the present case have been held by the House of Lords to be compatible with Article 6 of the Convention (see R (on the application of Alconbury Developments Ltd.) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929). Therefore it cannot be contended that the process itself by which Mr Flattery’s applications and appeals were determined was incompatible with Article 6. Mr Flattery did not seem to submit that it was.

I see no force in the suggestion that the Inspector failed to afford Mr Flattery a fair hearing. She gave him and his professional advocate (Mr Jones) at least a sufficient opportunity to present his case, to bring forward evidence, to contest the evidence of the County Council through cross-examination, and to present submissions both in opening and in closing. None of this was unfairly curtailed. Certainly, the Inspector found it necessary to case-manage the appeals both before the inquiry and as her hearing of the evidence at the inquiry progressed. In doing this she was, in my judgment, making sure that the inquiry was conducted efficiently and fairly for everyone involved, including Mr Flattery himself. She was able to ensure that the process was not unduly compressed but, equally, that it did not become unduly drawn out.

I do not accept that the Inspector’s decision to adjourn the inquiry on its first day demonstrates that she was biased against Mr Flattery. The Inspector explains the circumstances of that adjournment in paragraphs 11 to 13 of her witness statement:

“11.

I adjourned the inquiry on day 1. There was no mains electricity or heating on day 1 because the mains electricity cable had been severed by mistake by contractors. The inquiry room (which the County Council had hired) was being served by a single portable gas heater and one floodlight, which had been temporarily rigged up. This was during a very severe cold snap, and conditions in the inquiry room did not meet minimum health and safety standards. It was my decision to adjourn, which I did solely because of the conditions in the inquiry room. I do recall mention of a possible alternative room on site, but this was discounted by me. I do not now recall why it was discounted, although I think it was because I was told it would not be accessible to all given that it was served by a staircase but no lift.

12.

It was not put to me at the time that adjourning the inquiry would prejudice the appellants’ case. There was no representation that there were witnesses attending on day 1 who would not be able to attend on another day; nor was there any representation that the opportunity to present the evidence of those witnesses would be lost if the inquiry adjourned. If I had heard such an argument I most certainly would have made arrangements for those witnesses to be heard. I was not asked to provide another date when additional witnesses could be heard.

13.

The appellants’ witnesses arrived in dribs and drabs during the course of the inquiry. There were a number of adjournments whilst everyone waited for witnesses to arrive. This was despite the appellants presenting a new timetable for the presentation of their cases following the day 1 adjournment. Not all of this can be blamed on the unscheduled adjournment on day 1. In both their original timetable, and the one they prepared after the day 1 adjournment, the appellants indicated that they could present their cases in 3 days.”

I see no reason to doubt that account of what occurred on the first day of the inquiry and afterwards. It is confirmed by Mr Turner in his witness statement (in paragraphs 6.5 to 6.8 and 7.7). I accept it. The adjournment was, I was told, discussed in the inquiry. There was no private discussion of it outside. The adjournment was not “dictated” by Mr Walton, or contrived to suit him personally, or decided upon by the Inspector only after she had discussed what she should do with Mr Walton and ignoring Mr Flattery’s solicitor’s efforts to persuade her to carry on on that day. I was also told that all of the appellants’ witnesses who attended the inquiry were given the opportunity to present their evidence. It is clear to me, therefore, that the appellants suffered no prejudice from the adjournment.

I see nothing in any of the various complaints Mr Flattery has made about the way in which, he says, the Inspector approached the evidence given by witnesses called in support of the appeals. These complaints are elaborated in the witness statements of Mr Flattery and others. A comprehensive and, in my judgment, entirely dependable response to them is to be found in the Inspector’s own witness statement, corroborated by Mr Turner’s evidence in his (both generally and, in particular, in paragraphs 6.3, 6.4, 6.9, 7.10, 7.11, 8.2, and 9.1 to 23.3) and by Ms Fitzgerald in hers (in paragraphs 4 and 5). It is not necessary for me to quote extensively from those three witness statements. I accept their contents as correct. In my judgment, the evidence of the Inspector, Mr Turner and Ms Fitzgerald amply justifies the succinct conclusion stated by Mr Turner in paragraph 24.1 of his witness statement:

“In conclusion, I am in no doubt that the Inspector conducted the inquiry in a wholly professional manner. She did not pre-judge the issues, but instead gave all the witnesses a full and fair opportunity to present their evidence. The Inspector also was clear to the Appellants at all times that she wished to ensure that [they] had a full and proper hearing. Her conduct of the inquiry cannot in my view be sensibly criticised.”

Contrary to Mr Flattery’s submission, I do not accept that, during the inquiry, the Inspector acted as if she were a second advocate for the County Council by cross-examining witnesses who gave evidence for the appellants. The Inspector has (in paragraph 22 of her witness statement) expressly denied having adopted “a hostile and intimidating approach towards the appellants’ witnesses”.

Nor do I accept Mr Flattery’s contention that in her decision letter the Inspector stigmatized some of the appellants’ witnesses as liars. She did no such thing. She did (in paragraphs 41 and 42 of her decision letter) express her misgivings about some of the features of the appellants’ witnesses’ written evidence: the fact that many documents were unsigned, the fact that some turned out to have been drafted by the appellants’ agent, the fact that each proof of evidence included a number of matching paragraphs, the unexplained discrepancies between assertions in some of the witness statements with her “analysis of historical documents, records and photographs”. However, she made it clear (in paragraph 43 of her letter) that she had “read the many letters and statements submitted in support of the Appellants’ case and [had] carefully considered the oral evidence to the inquiry”. The fact that the witnesses gave their evidence on oath did not relieve the Inspector of the task of considering how much weight she should give to what each could recall of the use of the site. For her to find such evidence unreliable or less than wholly convincing was not the same thing as branding the witness who gave it a liar.

Mr Whale pointed to several passages in the decision letter in which the Inspector recorded her impressions of the evidence she had heard and which show how the Inspector gave less weight to some witnesses’ evidence than the appellants would no doubt have wished. They express a degree of scepticism about the evidence given to the inquiry on the appellants’ behalf. But none of them, in my judgment, betrays any partiality against, or any personal hostility towards, either the appellants or any of their witnesses. I do not propose to refer to each and every instance which has been expanded upon in evidence before the court. The conclusion I have just stated goes for them all. Four examples will suffice. The first relates to the evidence of Mr Burnham. In paragraph 56 of her decision letter the Inspector referred to “inconsistencies” in that evidence, noting that in his written statement for the inquiry Mr Burnham had said that he had known the yard since 1983 but that at the inquiry he had said in his evidence-in-chief that he had first become aware of the site in 1997. In his witness statement Mr Burnham states (in paragraph 8)

“One of the first questions put to me from the barrister for NCC, was “when did I first have dealings with the site”? My answer was only focussed to dealings and so I said “Quite a while ago, about 15 years ago”. However, I knew of the site going back much further than that but the inspector interrupted me and said “we will say 1997” but that was not the question I was asked. Why this woman would put words in my mouth and then accuse me of inconsistencies.”

Mr Turner’s version of what occurred is set out in his witness statement (in paragraph 14.2)

“Mr Burnham highlights one issue which arose from questioning and this was the time period of his involvement in the site in light of the conflict between his statement and answers under cross-examination. I recall Mr Burnham being given the opportunity to explain the discrepancies by the Council’s barrister but he could not. In light of this the Inspector interjected with a date which she felt Mr Burnham’s answers supported. I do not accept that this was an unreasonable interjection this allowed matters to move forward.”

I accept that evidence as accurate. The second example relates to the evidence of Mr Parthipan, another of the appellants’ witnesses. At the end of paragraph 56 of her decision letter the Inspector stated that Mr Parthipan “could not recall having seen the written “proof of evidence” attributed to him and was unable to say who had written it”. In my judgment, the Inspector was therefore entitled to treat that proof with caution. Thirdly, as to the evidence of Mr Glencross, in paragraph 49 of her letter the Inspector remarked that “his recollections of the site are far from clear and his oral evidence contradicted his written statement in a number of areas”. As one illustration of this, she mentioned that Mr Glencross had told the inquiry that he sometimes passed the site in the dark whereas his statement had said “I always passed during daylight hours and I could see the site clearly”. Mr Glencross refers to that evidence in paragraphs 4 and 5 of his witness statement, where he states:

“4.

The Inspector got it completely wrong, when I said I always passed in daylight hours I was referring to the period of time 1999-2006 as It states in my statement.

5.

When asked by Mr Jones “When did you do your travelling” it was a general answer to a general question “Morning, Early Afternoon, and I have also passed when it was dark. This one point was taken Exaggerated Twisted and tried to turn me into a liar by the inspector.”

I cannot see how this could be said to be a cogent criticism of the Inspector’s reservations about Mr Glencross’s evidence taken as a whole. In any event, she went on in paragraph 49 of her letter to note that when presented with the aerial photograph of 2004 Mr Glencross “recalled that the site had been vacant for a period of time after all when his statement says “At no stage was the site ever empty”.” The fourth example concerns the evidence of Mr Bainbridge. In paragraph 48 of the decision letter the Inspector noted that Mr Bainbridge had said that a particular incident (the front end of a car falling off a transporter) “took place in early 2001 but he did not say how it was that he was able to recall that as the specific date”. The Inspector then added that Mr Bainbridge’s evidence needs to be treated with some caution following his claim at the inquiry to have written the “proof of evidence himself when it is in large measure identical to those of other witnesses”. In his witness statement for these proceedings (in paragraph 4) Mr Bainbridge stated that he felt he had been

“unfairly attacked by the inspector, I remember the dates very well indeed as I calculated it on the time of the death of my brother, but I was not asked at the time as how I remembered it.”

But that evidence was not before the Inspector. So she can hardly be criticized for not recording it. In her witness statement (in paragraph 23) the Inspector rightly emphasizes the difference between Mr Bainbridge having not been able to remember the date of the incident – which is not what she noted in paragraph 48 of her letter – and his not having said how he was able to remember it – which is what she noted.

I turn finally to the specific allegation that the Inspector violated Mr Flattery’s right under Article 14 of the Convention, namely the right to enjoy all of his rights and freedoms under the Convention “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Mr Flattery argued that the Inspector discriminated against him because he is Irish. I do not accept that. To support the allegation there is nothing beyond assertion. And assertion is not evidence. Mr Flattery has not pointed to any specific instance of behaviour on the part of the Inspector which could reasonably be taken as indicating that she was treating him either unfairly or any differently from the way in which she would have treated him if he had not been Irish, or that she was discriminating against him for any other reason. There is therefore, in my judgment, no basis whatsoever upon which I could conclude that the Inspector breached Mr Flattery’s right under Article 14.

This part of the challenge I therefore reject.

Mr Flattery submitted that the Inspector’s decision letter betrayed many errors in her understanding of the concept of a “building” for the purposes of the 1990 Act.

On the ground (c) appeal in respect of Notice A the Inspector stated, in paragraphs 11 to 16 of her decision letter

“11.

The ground of appeal is that the 5 portacabins and the racking do not constitute a breach of planning control. …

12.

The Appellants argue that the structures do not amount to operational development requiring planning permission and, as they are used as an office and for storage in connection with the use of the site as a scrap yard, their installation has not involved a material change of use. The Council does not disagree with the second of these propositions. The single portacabin at the entrance to the site is used as an office and reception area for the scrap yard. It is provided with electricity, water and a phone line (which might currently be disconnected) and has a flushing toilet connected to a septic tank. Beyond that the two pairs of double stacked portacabins (one pair recently destroyed by fire) and the racking between them are used for storage in connection with the scrap yard use. Thus their introduction has not brought about any material change of use.

13.

With regard to whether the structures comprise operational development, s336 of the Act defines “building” as including any structure and erection and any part of a building as so defined but not plant or machinery comprised within a building. Case law has also established 3 primary factors as being relevant which are size, permanence and physical attachment. The 5 portacabins are each substantial in size albeit that they will have been deposited, rather than erected, on the site. The racking in contrast has been erected where it stands and comprises metal framework slotted together with timber slatted shelving. It too is a substantial structure rising above the roof of the neighbouring ground level portacabin and covering a significant area of ground. The group of structures are a prominent and major feature of the site.

14.

None of the structures are physically attached to the ground. However they would not be easily moved and remain securely in position by their own, not inconsiderable, weight. The portacabins have adjustable telescopic legs which enable them to be levelled and keep the bases off the ground and, in the case of the stacked cabins, maintain a vertical separation between the two. They could not be moved without the aid of lifting gear such as a crane. The racking would need to be dismantled before being moved elsewhere on the site. Whilst Mr Flattery said that the height of the shelves and the width of aisles could be adjusted according to need, it did not seem to me from my inspections of that structure that there had been any significant changes made to its overall form in recent times other than perhaps a small reduction in its original extent resulting from a part having been dismantled.

15.

At the inquiry, Mr Flattery confirmed that he had installed all 5 portacabins (2 of which, he said, were already present on the site) and the racking in their existing positions after he took possession of the site in 2005 so that they could be used for ancillary activities associated with the scrap yard use. They have all remained in the same position since then and have an air of permanence. There is no evidence that they are intended to be temporary in nature. On the facts before me and as a matter of fact and degree, I find that the portacabins and racking amount to buildings as defined by s336 and that their installation has involved operational development within the meaning of s55 of the Act for which planning permission is required. No such permission has been granted and thus a breach of planning control has occurred. The appeals on ground (c) fail.

16.

At this stage it should be noted that even if I were found to be wrong in my conclusion on this ground in relation to the portacabins and/or racking; case law indicates that even if these items in themselves did not amount to development requiring planning permission, their removal might still be required in the use notice, Notice B, if they were brought onto the land to facilitate the use under attack therein.”

Mr Flattery argued that the Inspector was wrong to find that the portacabins and racking were buildings within the definition of a “building” in section 336 of the 1990 Act, which defines a building as including “any structure or erection … but does not include plant or machinery comprised in a building”. The Inspector had not applied the correct test. She was wrong to regard size, permanence and physical attachment as being the only criteria by which one was to decide whether something was a “building”. She also both misunderstood and misapplied the concept of physical attachment. The portacabins were obviously not attached to the land. A portacabin, as its name implies, lacks the permanence one associates with a structure fixed to the ground. No building operation, as defined in section 336, had been carried out. The portacabins were, as Mr Flattery described them, “self-contained units brought on to the site”, not erected on foundations. It was equally absurd, he said, to regard a stacking unit as being a building, rather than merely plant or equipment.

I do not consider any of those submissions to be well founded.

What Mr Flattery’s argument comes down to is a straightforward disagreement with the Inspector’s judgment. Such disagreement does not equate to an arguable error of law. As the Inspector said (in paragraph 15 of her decision letter), the issue she had to resolve was “a matter of fact and degree”. And, as Mr Flattery acknowledged and as Mr Whale submitted, the Inspector asked herself the right questions. She recognized the need to apply the tests of size, permanence and physical attachment (see Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 102). The only remaining question, therefore, is whether the Inspector applied those tests within the scope of a reasonable judgment on the evidence she had before her. I believe she did.

Mr Flattery has not criticized the Inspectors’ description of what she saw on the appeals site. The Inspector found that none of the structures would easily be moved; that the positions in which the portacabins were sited could not be changed without the use of some form of lifting gear “such as a crane”; and that the racking too was substantial and could not readily be shifted from one place to another. She found that the portacabins had remained in the same position on the site since 2005 when Mr Flattery acquired the site, that they had “an air of permanence”, and that there was no evidence that they were intended to be temporary.

In the light of those findings the Inspector concluded that the portacabins and the racking amounted to buildings within the relevant statutory definition. I do not see any justification for impugning that conclusion as one which, on the evidence before her, the Inspector was not reasonably able to reach. And, in any event, as the Inspector noted, the portacabins and racking were a target of enforcement in Notice B, the notice relating to the material change of use, as well as in Notice A, which was directed at the operational development.

This part of the challenge does not succeed.

In paragraphs 5 to 9 of her decision letter, under the heading “The framing of the LDC applications and enforcement notices”, the Inspector stated

“5.

At the pre-inquiry meeting and again at the start of the inquiry, I raised some concerns that I had about the wording of the LDC applications and the enforcement notices. As a result of what appears to have been a disagreement between the parties as to whether the portacabins comprise operational development or not, the descriptions of development in the LDC applications include a use in addition to the scrap yard use for “storage and use of portacabins” suggesting an overall mixed use of the site. This was not intended nor does it reflect the use made of the site. Portacabins are not “stored” on the site and “use of portacabins” by itself has no sensible meaning in planning terms. The error seems to have been repeated in the wording of one of the enforcement notices as the notices have been framed in the alternative, Notice A addressing a single primary use of the portacabins and racking attacked as operational development and Notice B addressing a mixed use with similar wording in relation to the portacabins as that used on the LDC applications.

6.

As a result of discussions between the parties, it was agreed during the course of the inquiry that the description of development in the LDC applications should be as follows:

1)

Use of the land for the storage and dismantling of vehicles; including the retail of parts salvaged from those vehicles and including the installation of portacabins, shelving and fencing to facilitate the use (those 3 elements not amounting to operational development); and

2)

Operational development comprising the erection of the frame of a building.

7.

It was further agreed that corrections be made to the notices so that one attacks the use of the site for the storage and dismantling of vehicles including retail of parts salvaged from those vehicles (Notice B) and the other operational development comprising 5 portacabins and racking (Notice A). In addition to requiring the use to cease, the requirements of Notice B would include the removal of items erected or brought onto the land to facilitate that use including the portacabins, racking and fencing over 2m high. Whilst not included in the allegation, the removal of items introduced to facilitate a use (whether or not in themselves they comprise operational development) can be incorporated into the requirements of a notice (Murfitt). The requirements of Notice A would be confined to the removal of the 5 portacabins and racking.

8.

Whilst it was argued for the Appellants that the notices as corrected would be more onerous in requiring fencing to be removed, that it not right. Whilst not specified in the allegation, the requirements of notice A as originally drafted included the removal of fencing and gates in excess of 2m in height as a facilitating operation.

9.

The revisions and corrections as proposed would clarify the scope of the LDC applications and more precisely describe the development that the Council seeks to attack. In their entirety the two notices as corrected would do no more than attack the same development as identified in the original notices as drafted and the requirements would be no more onerous than the overall requirements of the two notices as originally drafted. I therefore find that no injustice would result for either party in determining the LDC appeals on the basis of the revised description or in correcting and varying the enforcement notices as discussed. ”

Mr Flattery submitted that in purporting to correct Notice A the Inspector exceeded her powers in section 176(1) of the 1990 Act. He said that the Inspector had effectively redrafted a major part of the enforcement notice, changing the basic allegation and widening its scope, thus causing a severe injustice to the appellants. The Inspector also erred, said Mr Flattery, in substantially redrafting Notice B, and this, he said, had three consequences: first, that the notice was unlawfully widened in its scope; secondly, that the existing storage use relating to the scrapped aircraft was left unprotected and the fencing of the compound accommodating the building in the centre of the site, whose retention was lawful, was required to be removed; and thirdly, the two enforcement notices became not only mutually inconsistent but contradictory in their terms, going beyond what was necessary to remedy the breach of planning control and offending the principle recognized by the court in Mansi v. Elstree RDC (1964) 16 P&CR 153.

I do not accept those submissions. In my judgment, Mr Flattery has failed to identify any error of law in the Inspector’s correction of the enforcement notices.

Section 176 (1) of the 1990 Act provides:

“On an appeal under section 174 the Secretary of State may –

(a)

correct any defect, error or misdescription in the enforcement notice; or

(b)

vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.”

The Secretary of State has a broad discretion to adapt an enforcement notice to overcome defects in it, provided always that in doing so he does not cause injustice. The relevant authorities embrace a wide range of examples of correction which have been held to be acceptable, even where the scope of the notice has been extended without causing injustice to the appellant (see Lynch v Secretary of State for the Environment [1999] JPL 354 and Howells v Secretary of State for Communities and Local Government [2009] EWHC (Admin) 2757.

Was that broad discretion exceeded in the present case? I do not believe it was.

But for one relatively minor matter, the appellants’ solicitor had agreed on their behalf to all of the Inspector’s corrections of the enforcement notices. The one matter of concern to the appellants, namely the requirement for fencing to be removed, was correctly dealt with in paragraph 8 of the decision letter.

Paragraph 9 of the decision letter shows that the Inspector was aware of the relevant test for the lawful correction of an enforcement notice: whether the correction of the notice would cause injustice. In my judgment, it cannot be argued that the Inspector applied the wrong test. She also applied the test appropriately.

As the Inspector has explained (in paragraph 20 of her witness statement), on the fifth day of the inquiry she was presented with correspondence between the parties which addressed possible revisions to the certificate applications and corrections to the enforcement notices. That correspondence included a letter from the appellants’ solicitor to Mr Turner, dated 12 January 2009, and a letter from Mr Turner to the Planning Inspectorate, dated 13 January 2009. The letter from the appellants’ solicitor to Mr Turner stated that the revised wording for the enforcement notice which had by then been put forward by the County Council “from a technical point of view … is a significant improvement on the previous terms of the draft [sic] notices”. The County Council’s letter set out the rewording of the enforcement notices which the parties had agreed.

The amendment to Notice A, which appears in the Ispector’s formal decision in paragraph 87 of her decision letter, changed the breach of planning control alleged in part 3 of the notice from

“Without planning permission making a material change in the use of the Land to a use for the storage and dismantling of vehicles; including retail of parts salvaged from those vehicles (“the unauthorised use”) and without planning permission the carrying out of operational development involving the erection of a building in the approximate position shown hatched green on the attached plan and the erection of portacabins and the erection of racking in the approximate position shown hatched blue on the attached plan, (“the unauthorised operations”).”

to

“Without planning permission the carrying out of operational development involving the erection of 5 portacabins and the erection of racking in the area hatched blue on the attached plan.”;

the deletion of all but one of the six steps required by part 5 of the notice (step 4 in the notice in its original form), including the deletion of the step (step 5) stating

“Remove from the Land all infrastructure associated with the storage and dismantling of vehicles including the removal of fencing and gates in excess of 2m in height. Time for compliance: Five months after this notice takes effect.”;

and the amendment of the sole remaining step from

“Dismantle and remove from the Land all portacabins and racking erected on the Land. Time for compliance: Five months after this notice takes effect.”

To

“Dismantle and remove from the Land the 5 portacabins and racking erected on the Land. Time for compliance: Five months after the notice takes effect.”

Thus the amendment to the scope and requirements of the notice included the deletion of the requirement to remove from the land the fencing and gates exceeding 2 metres in height. A corresponding change was made to enforcement notice B by the introduction into it of an equivalent requirement.

The amendment to enforcement Notice B, which appears in the Inspector’s formal decision in paragraph 88 of her decision letter, changed the breach of planning control alleged in part 3 of the notice from

“Without planning permission making a material change in the use of the Land to a mixed use for the storage and dismantling of vehicles; including retail of parts salvaged from those vehicles and the use for the storage and use of portacabins (“the unauthorised use”) and without planning permission the carrying out of operational development involving the erection of a building in the approximate position shown hatched green on the attached plan (“the unauthorised operations”)”

to

“Without planning permission the material change in the use of the Land to a use for the storage and dismantling of vehicles including the retail of parts salvaged from those vehicles.”;

the deletion of four of the seven steps originally required by the notice (steps 2, 5, 6 and 7); and the addition of a single further step (the new step 5), stating

“Remove from the land all portacabins and racking and all fencing and gates in excess of 2m in height brought onto or installed on the Land in order to facilitate the use. Time for compliance: Five months after the notice takes effect.”

This was described by Mr Whale, rightly in my view, as “tidying-up”. Mr Walton described the changes made to the notices as having not expanded their terms but rationalized them. This seems to me to be right. The scope of the enforcement action as a whole was not widened. No injustice arose. I agree with Mr Whale and Mr Walton in their submission that the changes made by the Inspector did not result in any unfairness to the appellants. Certainly it cannot properly be said that the appellants had prepared to meet a different case at the inquiry.

I conclude therefore that this ground of Mr Flattery’s challenge cannot be sustained.

On the ground (d) appeal in respect of Notice B the Inspector outlined the appellants’ argument in paragraph 17 of her decision letter:

“The ground of appeal is that at the date when the notice was issued, no enforcement action could be taken in respect of the use of the land for the storage and dismantling of vehicles’ including the retail of parts salvaged from those vehicles because the use has been lawful over the passage of time as is claimed in the LDC applications. The Appellants’ case is that the use of the appeal site as a scrap yard has taken place over a long period of time: that it commenced prior to the beginning of 1964 so as to have become an “established use” within the meaning set out in the original s191 of the Town and Country Planning Act 1990; that it continued without break until the use became “lawful” with the coming into force of the provisions of the amended s191; and that it has continued since without break until the use any material change or break so as to remain the lawful use of the site. The Council on the other hand says that a number of material changes have taken place over that time period so that the continuity of use needed to achieve lawfulness has not been demonstrated.”

After a lengthy consideration of those issues in her decision letter the Inspector found herself unconvinced by the appellants’ case. Her assessment of the evidence and submissions presented to her culminated in paragraph 64 of her letter with this conclusion:

“In a case such as this, it is not necessary for the Council to produce evidence or witnesses of its own. The onus is on the Appellants to make out their case on the balance of probability – they have failed to do so. A broad brush picture painted of a use which has continued unchanged since the end of 1963 simply ignores the contradictory documentary evidence. I find that at the date when the notice was issued, it was not too late for enforcement action to be taken in respect of the use of the land for the storage and dismantling of vehicles including the retail of parts salvaged from those vehicles. The appeals on ground (d) fail.”

Mr Flattery argued that the Inspector fell into error in her analysis of the use of the appeal site, which the appellants contended was in all respects lawful; that she was wrong not to recognize as an established use the use of the site prior to 27 July 1992 as a scrap yard; that her conclusion that even if the scrap yard use had once been established it could subsequently have been abandoned was misconceived, contrary to authority, and in any event unsupported on the evidence before her, even if it were accepted that for a part of the ten years during which the use would have had to subsist, the period between 1999 and 2004, it had been in abeyance or “dormant”. It was also argued (in paragraph 6.40 of Mr Flattery’s “skeleton argument”) that “a rather complex use on a historic site such as the appeal site … can involve a multiplicity or amalgam of uses which … can coexist on the site without constituting a material change of use even if there are variations from time to time in those uses”; that mere intensification of a use does not in itself constitute a material change of use; and that there was no evidence in the present case to support the County Council’s contention that a material change of use had occurred during the period of ten years leading up to the submission of the application for the certificates of lawfulness. This argument appeared to rest largely on the contention that the Inspector ought to have come to different findings from those to which she did come on the facts presented to her.

Again, in my judgment, Mr Flattery’s submissions cannot be accepted. As Mr Whale has submitted, they run counter to the principle that statutory challenges of this kind do not offer a claimant an opportunity to re-run his appeal on its merits (see R (Newsmith Stainless Ltd) v SSETR [2001] EWHC 74 (Admin)), and, so far as they complain of perversity in the Inspector’s decision, I consider them to be misconceived.

The Inspector had a large amount of evidence before her. She had to do her best to make sense of it all. In my judgment, she was meticulous in assembling a picture of the facts, and equally careful in the conclusions she drew.

The Inspector divided her coverage of the relevant history into three parts: the period between the 1960s and 1982 (which she covered in paragraphs 21 to 30 of her decision letter), the period from 1982 to 27 July 1992 (which she covered in paragraphs 31 to 34), and the period from 1992 onwards (which she covered in paragraphs 35 to 40).

As to the first of those three periods the Inspector found (in paragraph 21 of her letter) that in the 1960s, when a Mr Price owned the appeals site, which was then part of a larger agricultural holding, the area covered by scrap, as recalled by the neighbouring farmer, Mr White, was about the size of a tennis court. There was no indication that the scrap yard use was functionally or physically separate from the agricultural use. On an aerial photograph of 2 August 1974 the Inspector saw “no discernible delineation of the appeal site as it exists today” but “an area smaller than the appeal site containing an assortment of items scattered between and around farm buildings and spreading onto the surrounding field suggesting a mixed use of the holding as a single planning unit for agriculture and as a scrap yard”. Mr Flattery did not seem to criticize that finding. And I cannot see how he could.

In the early 1970s the holding had passed from Mr Price to Mr Warriner. Mr White later bought the major part of the holding from Mr Warriner, who retained the appeals site. The Inspector referred (in paragraph 22 of her decision letter) to a plan prepared by Edward Bailey & Sons, dated 26 January 1977, identifying the land sold to Mr White and that retained by Mr Warriner. The Inspector found that the retained area

“… roughly corresponds to the current appeal site and the plan divides that land between pasture and an area with buildings and used for scrap metal storage, the latter similar in extent to that seemingly used in the 1974 aerial photograph. From that evidence one might conclude that a smaller planning unit comprising the existing appeal site was formed around 1977 with a continued mixed agricultural and scrap yard use …”.

In paragraph 24 of her letter the Inspector referred to the enforcement notice which had been issued on 6 February 1980, which attacked the use of the land for the storage of vehicles other than scrap, together with fencing, lighting and illuminated advertisements. She mentioned the aerial photograph of 10 May 1980, which showed a white kite-shaped area, smaller than the present appeals site but similar to that shown with buildings and scrap storage on the plan produced by Edward Bailey & Sons in 1977, standing out “in stark contrast to its immediate surroundings suggesting a new surface”. The Inspector then went on to say this (ibid.):

“… Vehicles, most of which would appear to be of a commercial size, seem to be arranged in an orderly manner about the site which could well be a reflection of the use attacked by the notice. In its letter of 9 August 2005 the District Council said the notice had not been complied with (3 months had been given) until action was taken in the courts.”

In paragraph 25 of her letter the Inspector stated

“In the light of that history, it seems to me that an established use of the appeal site as a scrap yard could not be confirmed. The use that commenced before the end of 1963 was a mixed use for agriculture and scrap yard as part of a larger planning unit. …”

Referring to what had happened after a Mr Wilks bought the site in April 1979, the Inspector found (in paragraph 27) that he appeared to have fenced off a smaller area, thus creating “an even smaller planning unit which was used for the storage of vehicles other than scrap”, and that

“… a new use of materially different character had supplanted the previous use on that kite shaped area with the remaining land left vacant at that time. That brought about a material change of use of that smaller unit. There is no information as to whether a scrap yard use continued along with that new, but short lived, use but even if it did there would have been a material change from one mixed use to another – a change from scrap yard and agriculture to scrap yard and storage of vehicles (or parking in connection with haulage). That new mixed use would have brought about the end of any established mixed use for agriculture and scrap yard and started a new chapter in the planning history. …”

In paragraph 28 the Inspector found that even if the kite-shaped area had been used as a separate planning unit since the end of 1963 with a single primary use as a scrap yard

“… the introduction of the use for the storage or parking of vehicles other than scrap in 1979/80 would have brought about a material change in the use so that the established use would have been lost. A mixed use of a materially different character to a scrap yard would have been introduced. ..”

None of those passages of the Inspector’s decision letter betray any error of law.

In paragraph 29 of her letter the Inspector rejected both the suggestion that the use enforced against never occurred. She stated:

“I do not accept the suggestion that the use enforced against never happened. I can see no reason why a council would go to the trouble of taking enforcement action, including prosecution to secure compliance, if the use had never commenced and had not involved a material change of use against which action could be taken.”

That conclusion seems to me to be entirely sound. The Inspector also rejected the contention that the site had acquired deemed planning permission. She said (ibid.)

“… I do not agree that once the enforcement notice was complied with the scrap yard use had deemed planning permission. In this respect the Appellants make reference to s173(11) of the 1991 Act but I am not aware that an equivalent provision in respect of uses was in force at the time when the notice was issued. Even if there was, s173(11) only applies to uses which are alleged in the notice as a breach of planning control. If a use is not alleged to be in breach, then the notice could not require that use to cease, and deemed planning permission could not arise as a result of complying with the notice.”

In my judgment there is nothing inaccurate, either in law or in fact, in that conclusion. It accords with the decision of the Court of Appeal in Fidler v First Secretary of State [2004] EWCA Civ 1295.

In paragraph 30 the Inspector referred to a dispute over a rating assessment which had occurred in 1982. A letter from the District Valuer and Valuation Officer to Mr Wilks referred to the scrap yard having been extended to approximately 1.99 acres, the same area as the appeals site. A general rate demand of March 1983 described the property as a “breakers yard”. The Inspector found, in the light of the documentary material she had, that it was “highly likely that the current planning unit was formed and used as a scrap yard from about the end of 1981/beginning of 1982” and that this “formation of an extended planning unit” seemed “to be the start of a new chapter in the planning history of the site”. Thus, the Inspector concluded:

“ … Had the use continued for the next 10 years and up until 27 July 1992 when the provisions of the amended s191 and the new s171B of the 1990 Act came into force, the scrap yard use of the appeal site would have been lawful on that date.”

It is clear therefore that the Inspector found that there had been successive material changes of use and changes in the planning unit by 1982. I cannot regard the analysis that brought her to those conclusions as other than robust. I see no error of law there.

The Inspector went on to explore the history of the use of the appeals site between 1982 and the present day.

That much of the site’s history from 1982 to 27 July 1992 as she had been able to piece together from the evidence she set out in paragraphs 31 to 34 of her letter. She referred to the District Council’s letter of 19 June 1992 acknowledging that the contravention of the enforcement notice had ceased. And she concluded (in paragraph 34):

“… The change back from the mixed use to the single primary use for scrap purposes brought about a further material change of use. The 10 year clock began again. …”

Having considered the period from 1992 onwards (in paragraphs 35 to 40 of her letter), the Inspector found

“… insufficient evidence to indicate on the balance of probability that an active scrap yard use, with storage, dismantling and retail elements, was carried out on the site for any identifiable and continuous 10 year period between 1992 and the dates of the LDC applications/issue of the enforcement notices so as to render that use lawful. On the contrary, when taken as a whole the evidence suggests a largely vacant and neglected site, open to trespass and vandalism from the mid to late 1990s onwards, with no active use taking place. …”

Thus, in the light of the evidence the Inspector identified several distinct events which, she found, marked clear changes in the use of the site within that long span of time. In my judgment, her findings and the conclusions she drew from them are entirely free of legal error. Her overall conclusions in paragraphs 57 to 64 of her letter are also, I consider, rational, complete and plainly reasoned.

In paragraph 61 the Inspector found that there was before her “insufficient precise, unambiguous and uncontradicted evidence [for her] to be able to draw the conclusion on the balance of probability that a scrap yard use comprising the storage and dismantling of vehicles and including retail of parts salvaged from those vehicles has continued on the site for any demonstrated period of 10 years from 1992 onwards so that the time for taking enforcement action passes.” She came (in paragraph 62) to the appellants’ argument that continued presence of the scrapped aeroplane (a Lightning jet aircraft) and trailers on the site had kept the use alive. She rejected that argument. She found that the evidence pointed to the aeroplane and trailers

“… being left and vandalised on a neglected and unused site rather than being part of any on-going use even for the lesser activity of an active storage use. Thus there is no saving to be made even in relation to a lawful storage use of the site”.

Earlier in her letter (in paragraph 39) the Inspector had referred to evidence given about the aeroplane, including an article published in a journal in 2002, which had described it as standing alone on a piece of empty waste ground. Far from ignoring the evidence about the aeroplane, she referred to it in several places (for example, in paragraphs 31, 35, 36, 45, 58 and 62 of the letter).

The Inspector went on in paragraph 62 to deal with the significance of breaks in the use of the site, noting that she differed from the appellants’ agent in her interpretation of the law. She stated:

“… My reading of case law is that a use cannot become dormant and the concept of abandonment is irrelevant unless historically the use had become immune from enforcement action as in the case of former established uses or latterly has become lawful (s191(2)). Gaps in the use within any 10 year period being looked at to establish lawfulness have to be considered in terms of their materiality with the relevant test being whether at this case any established use of the site was lost with the material change that occurred in 1980. The first 10 year period that might have contributed towards lawfulness was between 1982 and 1992 but in 1991 and 1992 there were further material changes so that the clock started again. Thereafter no continuous use as a scrap yard over any 10 year period has been demonstrated with gaps in the use being no more than de-minimis; rather the evidence points to significant periods of inactivity during the late 1990s and early this century where there seems to have been no active use against which the Council could have enforced.”

Neither in the understanding of the law which informed that assessment nor in the assessment itself can I see any basis for quashing the Inspector’s decision.

Having looked at this aspect of Mr Flattery’s challenge, both as whole and in all of its detail, I find it impossible to conclude that the Inspector fell into any legal error in her findings of fact or in her conclusions.

As the Inspector rightly pointed out in paragraph 64 of her decision letter, the burden lay on the appellants to make good their case on the balance of probabilities, and this they failed to do. What the Inspector referred to as a “broad brush picture painted of a use which has continued unchanged since the end of 1963” she found contradicted by the documentary evidence. Planning control had been breached, and the County Council’s enforcement action was not too late to bite upon the use of the appeals site for the breaches of planning control alleged.

The Inspector’s conclusions on the lawful development certificates (in paragraphs 65 to 69 of her decision letter) reflected her analysis of the issues arising on the ground (c) appeal on Notice A and the ground (d) appeal on Notice B. In paragraphs 65 to 69 of her letter the Inspector stated:

“66.

With regard to the first part of the applications and taking into account my conclusions in relation to the enforcement appeals on ground (c) (Notice A) and ground (d) (Notice B), it follows that this part of the LDC appeals must also fail. At the time of the applications s191(2)(a) was not satisfied. Enforcement action could have been taken in respect of the use as any established use had been lost as a result of material changes and no subsequent ten year period of continuous use has been demonstrated. Enforcement action could also have been taken in respect of the portacabins and racking which I have found comprise operational development and which, it is agreed, had not been in position for more than 4 years.

67.

The erection of fencing also comprises operational development requiring planning permission and that too had not been in situ for 4 years at the dates of the applications. … The Appellants’ claim that the replacement of a pre-existing fence is not development is incorrect.

68.

Moreover, whether or not the portacabins, racking and fencing amount to operational development their removal could still be required as works that have been undertaken to facilitate the unlawful use … and so once again s191(2)(a) would not be satisfied.

69.

For the reasons given above I conclude that the Council’s refusal to grant a certificate of lawful use or development in respect that part of application LDC2 for the use of the land for the storage and dismantling of vehicles; including the retail of parts salvaged from those vehicles and including the installation of portacabins, shelving and fencing to facilitate the use was well-founded. Similarly had the Council refused the corresponding part of application LDC1 that too would have been well-founded. The appeals should fail in respect of this part. I will exercise accordingly the powers transferred to me in section 195(3) of the 1990 Act as amended”.

I can see no legal error in those paragraphs. The analysis they contain seems to be unimpeachable, consistent as it is with the Inspector’s conclusions to which the Inspector had already come on the corresponding parts of the enforcement notice appeals.

Mr Flattery complained in a number of ways about the weight the Inspector attributed to some of the evidence she received. He argued, for example, that the Inspector relied more heavily than she ought to have done on rating records despite no rating officer having come to the inquiry to give evidence and be cross-examined on it. He argued that the Inspector generally placed too much reliance on the hearsay evidence, preferring it to the direct evidence given by the witnesses who had appeared for the appellants. He argued that the Inspector saw too much significance in the evidence of Mr Turner, who had only known the appeal site since 2005. He argued that what Mr White had said ought not to have carried as much weight with the Inspector as apparently it did. Such complaints are not well founded. I reject them all. At least in part, they seemed to depend on evidence which was not before the Inspector, which, as Mr Whale submitted, is inadmissible in these proceedings. And, in effect, they invite the court to re-take the decision which it was the responsibility of the Inspector to take. That is something the court will not do. It was for the Inspector to decide how much weight she should give to each element of the evidence she received. In the absence of irrationality – and, in my judgment, there is none in the present case – the court will not interfere (see Tesco Stores Ltd. v Secretary of State for the Environment [1995] UKHL 22).

Mr Flattery does not, therefore, succeed on this ground.

In his submissions to the court Mr Flattery did not elaborate on his challenge to the Inspector’s decision not to award the appellants their costs of the inquiry. He did not, however, abandon that challenge. I must therefore deal with it. In my judgment, there is no merit in at all. In the letter in which she determined those applications the Inspector concluded (in paragraph 7) that “the careful analysis of the available evidence relating to the history of the appeal site undertaken by the [County] Council clearly demonstrates why [it] considered that there were insufficient grounds to conclude that the use of the site had become lawful or that the time for taking enforcement action had passed.” She went on (in paragraph 8) to conclude that unreasonable behaviour resulting in unnecessary expense, as described in Circular 8/93, had not been demonstrated and that an award of costs was not justified. In my judgment, as Mr Whale submitted, the Inspector’s conclusion that the County Council had not acted in any way unreasonably in connection with the appeals was wholly rational, and the decision to refuse the appellants’ application for costs was properly reached.

None of the grounds of challenge Mr Flattery has advanced has been made good. For the reasons I have given I do not consider that the submissions he has made in oral argument demonstrate any legal flaw in the Inspector’s decision or in the appeals process itself. I have also considered all of the other points raised in his “skeleton argument” and I have concluded that none of them identifies any arguable error of law. It follows that the challenge to the Inspector’s decisions fails. I therefore dismiss the application under section 288 of the 1990 Act and refuse to grant leave to appeal under section 289.