In a decision letter dated 14 June 2010 Dr Jane Styles, an Inspector duly appointed by the First Respondent, quashed an enforcement notice issued by the Second Respondent on 13 July 2007 (notice A) but upheld eleven other enforcement notices which the Second Respondent issued on 3 November 2008 (notices B to L). In these proceedings, brought under section 289 Town and Country Planning Act 1990 (hereinafter referred to as “the 1990 Act”), the Appellant maintains that the decision to uphold the enforcement notices B to L was vitiated by errors of law; it asks this court to identify the errors and remit the decision to uphold the notices for further determination.

Section 289(6) of the 1990 Act provides that no proceedings shall be brought under section 289 except with the permission of the court. On 15 November 2010 Deputy Master Knapman directed that there should be a ‘rolled up’ hearing i.e. that the application for permission to appeal and the substantive appeal should be considered at the same hearing. That being so and to avoid a minute examination of each of the numerous grounds of appeal advanced by the Appellant (except where that is necessary for a proper resolution of the competing arguments) I propose to grant permission on all grounds save one which I identify specifically below. In so doing it should not be thought that each of the other individual grounds is properly arguable; many are not. The Appellant's Skeleton Argument for the hearing before me identified 51 separate grounds of appeal based upon approximately 60 individual alleged errors of law. As will become apparent, however, the success of the Appellant's proposed appeal depends upon my determination of far fewer but, nonetheless, crucial issues. That is why an individual assessment of whether permission should be granted on each ground would be unduly onerous, extremely time consuming and, ultimately, would achieve no particular purpose. Before turning to each of the crucial issues in this case, however, it is necessary to set the scene by setting out the relevant factual background.

The Appellant is the owner of an area of land which is known as Thameside Terminal (in her decision letter from time to time the Inspector refers to it as TT); it is also known as the former Conoco site. It is situated at Salt Lane, Cliffe near Rochester in the county of Kent. Henceforth in this judgment the land as a whole is referred to as “the appeal site.”

The history of the appeal site is as follows. At the start of the 20^th century it was in use as chalk quarry and cement works. A plan which came into existence in 1908 showed that there were large buildings upon the site along with a series of kilns and tramway sidings. A plan produced in 1939 showed that the tramway sidings and kilns had been removed. However, the buildings were still shown as existing. The plan contained the annotation “old quarry”.

During the Second World War and for some time thereafter the site lay derelict. However, in 1962 Jet Petroleum Limited obtained planning permission so that the site could be used for the storage and distribution of petroleum products. I will return to the precise terms of the planning permission later in this judgment. An aerial photograph dated 1967 shows eight fuel tanks, buildings and hard standings. Aerial photographs dated, respectively, 1985, 1990 and 1999 show nine fuel tanks together with buildings, other structures and hard surfacing.

It is common ground that over many years after 1962 petrochemicals were received on site from ships via a pipeline which had been specially constructed. The storage tanks on site existed to facilitate the handling of such products; the products were stored in the tanks pending their distribution in road tankers to filling stations and other depots.

By 1999 the ownership of the appeal site had passed to Conoco Ltd. That company had used the appeal site for the storage and distribution of petrochemicals for many years. However, in 1999 Conoco ceased its operations. Thereafter, it continued to keep the site secure in the sense that the site was kept under close surveillance by security personnel.

In February 2003 Conoco sold the appeal site to a firm known as Elridge and Jones. As of that date there were still nine fuel storage tanks on site together with buildings and hard standings. On the same day that Conoco sold the site to Elridge and Jones they sold it on to the Appellant. The controlling mind of the Appellant’s activities was and still is a Mr. Andrews.

Following the sale to the Appellant the fuel tanks were dismantled and removed. Further, most of the buildings on site were demolished. This activity took place in 2003 and perhaps in early 2004. Some time in 2003 a company known as D. Andrews Haulage Ltd began operating from the site. This company was also controlled by Mr Andrews, the controlling mind of the Appellant. In evidence to the Inspector Mr Andrews described the business of D. Andrews Haulage Ltd as being that of a haulage contractor. Lorries would depart from and return to the site empty; there was no storage and distribution of any of the materials which were transported by means of the lorries. Mr Andrews produced evidence to the Inspector to the effect that the vehicle operator’s licence issued to the company specified the appeal site as an operating centre for 30 vehicles as from December 2003.

An aerial photograph taken on 14 March 2005 shows that D. Andrews Haulage Ltd was making use of part of the site; the photograph also shows that a small area was being used as a compound for demolition equipment.

By the date that notice A was issued the site was laid out quite differently. Eight identifiable specific areas (plots 1 to 8) had been created; the Appellant had also constructed a section of road to facilitate the use of the plots. The Appellant's aim was to use the site as a small trading estate; the plan was that there would be individual occupiers of the plots which had been created on site each conducting his/its own business.

Notice A was served on a total of 10 persons/companies. For the purposes of this judgment it is sufficient to record that those persons included the Appellant and the then occupiers of the 8 plots.

All of the persons served with the notice appealed to the First Respondent. An appeal commenced by way of public local inquiry on 24 June 2008. There was a debate at the commencement of the inquiry about whether or not notice A was a nullity. The inquiry sat for 4 days and was then adjourned. Following the adjournment a decision was issued to the effect that notice A was not a nullity. The Appellant sought permission to apply for judicial review of that decision but permission was refused. However, it was not until 26 January 2010 that the inquiry resumed. In the interim period the Second Respondent issued notices B to L.

The Inspector quashed notice A because she considered it was a duplicate of Notice B. She upheld notices B to L although she exercised her power to correct and vary each of the notices which she upheld.

Notice B relates to the whole of the site. It alleges the following breaches of planning control:-

I next turn to the grounds of challenge. As I have said there are a number of issues which are crucial to whether this appeal succeeds or fails and I propose to deal with each of these issues in the next ensuing sections of this judgment.

Section 172(1) of the 1990 Act provides as follows:-

that there has been a breach of planning control; and

that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.”

Mr Horton QC, on behalf of the Appellant, submits that the Second Respondent acted unlawfully when it issued all the notices in this case since it failed to have regard to a number of material considerations when determining that it was “expedient” that notices should be issued. He further submits that it is open to him to take this point in proceeding under section 289 of the 1990 Act.

Part VII of the 1990 Act contains a number of provisions relating to enforcement notices. It spans sections 171A to 196C. Section 174(1) confers upon the owner and/or occupier of the land to which an enforcement notice relates a right of appeal to the First Respondent against the notice. Section 174(2) provides that an appeal may be brought on seven specified and separate grounds. They are:-

Section 176 of the Act is headed “General provisions relating to determination of appeals”. The material parts of the section read:-

Section 285 of the 1990 Act provides that the validity of an enforcement notice shall not be questioned in any proceedings on any of the grounds on which an appeal may be made to the Secretary of State except by way of an appeal under section 174 of the Act.

Section 289(1) of the act provides:-

In the light of the provisions contained within section 174 of the 1990 Act both Mr Philpott, for the First Respondent and Mr Cameron QC for the Second Respondent submit that it is not open to an Inspector appointed by the First Respondent who is conducting an appeal under section 174 to consider whether or not the local authority which has issued the notice considered it expedient to do so “having regard to the provisions of the development plan and to any other material considerations.” They submit that an Inspector is constrained by the statutory language simply to consider whether any of the grounds of appeal specified in section 174 of the Act are made out.

They submit, further, that this court’s jurisdiction on an appeal under section 289 of the Act is confined to investigating whether or not an Inspector's decision – to uphold or refuse an appeal – is vitiated by an error of law; if it is the court is bound to remit the matter to the First Respondent for re-determination in the light of the court’s conclusions.

Both Mr Philpott and Mr Cameron QC submit, further, that if a person aggrieved by the issue of an enforcement notice wishes to challenge the notice on the grounds that the local planning authority concerned has failed to act in accordance with section 172 of the Act that person should challenge the legality of the notice in judicial review proceedings. Such proceedings would have to be issued promptly and in any event within 3 months of the date of the issue of the notice unless a court was persuaded to grant an extension of time.

In my judgment, the statutory language supports the stance adopted by Mr Philpott and Mr Cameron QC. However, Mr Horton submits that the statutory language is not interpreted in this way in practice. He submits that it is commonly the case that points about the validity of an enforcement notice are taken before an Inspector on an appeal under section 174 of the Act even though such points do not fit within the language of section 174. He points out that in this case, for example, a point was taken on behalf of the Appellant that notice A was a nullity. The Inspector determined that point even though there is no ground of appeal under section 174 of the Act which suggests that an Inspector can be asked to determine whether or not an enforcement notice is a nullity. Mr. Horton submits that I should be slow to decide the point in issue in this ground of challenge in such a way that undermines a practice which is settled and can be justified by reference to sound practical considerations.

I was shown a number of authorities which bear upon the point. An important case, without doubt, is the decision of the House of Lords in R v Wicks [1998] A.C. 92. In Wicks the issue before the court was whether or not it was open to a Defendant charged with the offence of failing to comply with an enforcement notice to raise the defence that the enforcement notice was invalid. Mr Wicks wished to present a defence to the charge of failing to comply with an enforcement notice to the effect that the decision of the local planning authority to issue it had been improper; it had not been genuinely considered, in accordance with section 172(1)(b) of the Act, whether the issue of the notice was “expedient”. According to Mr Wicks the local planning authority had acted in bad faith and had been motivated by immaterial considerations when it had decided to issue the notice.

The House of Lords upheld earlier decisions to the effect that such a defence was not available in the criminal proceedings. The important passages in the speech of Lord Hoffman (which was the leading speech in the House) are these:-

Section 179(1) of the Act (read in conjunction with sub-section 2) is the means by which the offence of failing to comply with an enforcement notice is created. In my judgment, however, the term “enforcement notice” must bear the same meaning whenever it appears in Part VII of the 1990 Act. Thus, in section 174(1) the “enforcement notice” against which an appeal can be made must be interpreted to mean a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed by way of judicial review.

In the light of the analysis in Wicks an enforcement notice which is a nullity on the grounds that its terms are uncertain or that it fails to comply with the requirements of the Act is not an enforcement notice at all. Inevitably, therefore, from time to time an Inspector has to grapple with the issue of whether a notice is a nullity since, if it is, it has no legal existence and an Inspector has no jurisdiction to consider the merits of the appeal against the notice.

Section 176 of the Act is also important in this context. There may be circumstances in which an Inspector has to consider the use of the power conferred upon him to correct or vary the terms of the enforcement notice under appeal. Inevitably, cases will arise in which the argument is presented on behalf of the Appellant is that the notice cannot be corrected or varied because, in reality, it is a nullity.

For my part, therefore, I can see good reasons why there will be cases from time to time in which an Inspector is bound to consider whether an enforcement notice is a nullity as a means of determining the extent of his jurisdiction.

However, in my judgment once an Inspector determines that the notice is not a nullity (if that point is raised) his jurisdiction thereafter is governed by the terms of section 174 read in conjunction with section 176 of the Act. This conclusion is consistent with the recent decision in Gazelle Properties Ltd & Another v Bath & North East Somerset Council [2010] EWHC 3127 (Admin). At paragraph 55 of his judgment Lindblom J said this:-

In my judgment the Inspector in this case had no jurisdiction to determine whether or not the Second Respondent had complied with its obligation under section 172 of the Act.

In fact the Inspector was invited to consider whether the Second Respondent had complied with its duty under section 172. The Inspector's decision letter dealt with this issue in the following three paragraphs:-

It seems to me to be clear that the Inspector has determined that the Second Respondent acted in accordance with section 172 of the Act. I appreciate that the Inspector has expressed that view “for the sake of completeness” but, in my judgment, the Inspector has accepted that she had jurisdiction to deal with the issue. As I have said, I do not consider that she did.

Does this court have jurisdiction to deal with the point in an appeal under section 289 of the Act? In a sense, it must have jurisdiction. The Inspector erred in law when she decided that she had jurisdiction to determine whether the Second Respondent had acted in accordance with section 172 of the Act. All that this court can do, however, is to remit the case to the First Respondent so that the Inspector can determine that she had no jurisdiction to deal with the issue. That would achieve nothing.

No doubt that is why Mr Horton QC submits that even if it was not open to the Inspector to consider whether the Second Respondent had complied with section 172 of the Act it is open to me to proceed as if the Appellant had taken the point by way of judicial review. If I were to adopt that course I would be in a position to quash the Inspector’s decision if I took the view that the Second Respondent had acted unlawfully when it issued the notices. Further, presumably I would be invited to declare that the Second Respondent had acted unlawfully and quash the enforcement notices themselves.

At the forefront of Mr. Horton’s submission is the decision in Rhymney Valley DC v the Secretary of State for Wales [1985] JPL 27. In that case Rhymney Valley DC served an enforcement notice on a Mr Isaac alleging unauthorised tipping on land. Mr Isaac appealed against the notice and an Inspector was appointed to hear the appeal. Although the point was not argued at the appeal, the Inspector concluded that one of the remedial steps specified in the notice was ambiguous and uncertain thus rendering the enforcement notice a nullity. The Council appealed to the High Court under section 246 of the Town and Country Planning Act 1971 (the predecessor to section 289 of the 1990 Act).

Nolan J concluded that the Inspector had fallen into error by treating the enforcement notice as a nullity. However, he was troubled by the fact that the Council had appealed to the Secretary of State in reliance upon section 246 of the 1971 Act. The report of his observations upon this issue read as follows:-

There are a number of important differences between the Rhymney Valley case and the instant one. First, the issue of whether or not the enforcement notice was a nullity arose, for the first time, when the Inspector issued his decision letter. Until that time there had been no suggestion of any kind that the notice was a nullity. Second, the time for bringing proceedings to challenge the conclusion of the Inspector began with the decision letter. Consequently the time for bringing judicial review proceedings to challenge the Inspector's decision began at exactly the same time as was allowed for bringing an appeal under the 1971 Act. Third, the proceedings under the 1971 Act were brought within the time allowed for bringing judicial review proceedings. Fourth, the nullity issue was the only point in the case. No conceivable injustice could have arisen by the court proceeding on the basis that judicial review proceedings had been commenced as opposed to an appeal under the 1971 Act.

In the instant case the Appellant has been asserting that the Second Respondent did not comply with its duty under section 172 of the 1990 Act from the time that it was served with notice A. The time for bringing a challenge by way of judicial review to notice A and notices B to L had long since expired by the time proceedings under section 289 of the 1990 Act had been commenced. No proper reasons have ever been advanced which would justify the grant of an extension of time to bring judicial review proceedings.

There is also the difficulty that every point taken by the Appellant in support of his appeal (other than the point now under consideration) is properly brought under section 289 and, indeed, could only be brought under section 289 of the Act. I know of no basis whereby proceedings can be treated both as brought under section 289 of the 1990 Act and, in relation to a discrete point raised in the proceedings, as if the proceedings had commenced by way of an application for judicial review.

I have reached the clear conclusion that no reliance can be placed upon the Rhymney Valley District Council case to clothe this court with jurisdiction to determine whether the Second Respondent complied with its duty under section 172 of the Act. In my judgment the challenge to the issue of the enforcement notices ought to have been made by way of judicial review at the latest within three months of the issue date of each notice.

All that said, I agree with both Mr Philpott and Mr Cameron QC that on the basis of the information available in these proceedings the Appellant cannot not establish that the Second Respondent failed to act in accordance with section 172 of the Act so that the Inspector was entitled to conclude that the Second Respondent had complied with its statutory duty. I deal with this matter quite shortly since, essentially, I adopt the reasons contained in the Skeleton Arguments of both counsel for reaching that conclusion. The complaints made by Mr Horton QC were that the reports produced by an officer or officers of the Second Respondent which preceded the decisions to issue enforcement notices did not refer to every consideration which was material to the decision about whether notices should be issued. That is true. In my judgment, however, it would be highly surprising if reports of that nature did refer to each and every relevant matter. The obligation upon the person making a decision whether to issue an enforcement notice is to consider whether it is expedient to do so having regard to the provisions of the development plan and to any other material considerations. In this case the person making the decision was a senior planning officer in the employment of the Second Respondent. Reports were prepared by another officer or officers to assist the decision-maker but the writer or writers of the report were obviously entitled to proceed on the basis that a senior planning officer would know the material parts of the development plan and the other factors which were relevant to his decision. The authors of the reports were entitled to highlight those points which they considered most germane. They could reasonably assume that the decision maker would familiarise himself with all relevant considerations before making a decision. There is no evidence before me which suggests that the decision maker failed to proceed in the manner which the authors of the reports might reasonably assume. Further, there is no sound basis to conclude that the reports deflected the decision maker, in any way, from a proper appraisal of that which was material.

Section 174(2)(c) of the 1990 Act permits an appeal to be brought on the ground that the matters stated in the notice (if they have occurred) do not constitute a breach of planning control. As it seems to me, during the course of his oral submissions Mr Horton QC was forced to accept that many, if not all, of the matters specified in notices B to L did constitute a breach of planning control. However, he submits that it is important to analyse, with care, the Inspector's conclusions on this topic for this reason. Even if the Inspector was correct to conclude that the matters (or most of them) contained within notices B to L constituted a breach of planning control nonetheless she was wrong to conclude, as she did, that in effect no use could be made of the appeal site without planning permission. Mr Horton QC submits that is not right; he submits that the Appellant has the right to use the site in ways which will be identified, shortly. That is important, submits Mr Horton QC, because account must necessarily be taken of this “fall-back” position when considering the appeal under ground (a); the Inspector was bound to take account of this “fallback position” when consideration whether or not planning permission should be granted for the development specified in the notices has having occurred without planning permission.

The starting point in relation to ground (c) is the planning permission granted by Kent County Council on 15 August 1962. On that date the Council granted planning permission to Jet Petroleum Ltd in the following terms:-

Mr Horton QC submits that, properly interpreted, the planning permission permits the use of the site for storage and distribution of products other than “petroleum products.” He submits, that the use permitted falls squarely within what is now class B8 of the Town and Country Planning Act (Use Classes) Order 1987, namely “use for storage or as a distribution centre”. That being so, submits Mr Horton QC, use of the site for any use falling within class B8 would not involve development and, consequently, planning permission would not be required for such use.

In my judgment, and as a matter of first principles, it cannot be correct to seek to interpret a planning permission granted in 1962 by reference to a statutory instrument which came into force on June 1 1987. The Town and Country Planning (Use Classes) Order 1987 revoked the Town and Country Planning (Use Classes) Order 1972. The 1972 Order, in turn, revoked the Town and Country Planning (Use Classes) Order 1963 and amendments made thereto in 1965. The very first Order of this type was made in 1948 and it was the 1948 Order which was in force at the time this planning permission was granted.

In my judgment this is no technical, sterile point. Although it is reasonable to suppose that the 1948 Order contained some use class which was in some degree similar to B8 of the 1987 Order it is by no means clear to me that its terms would have been more than that. For example, the 1972 Order contains no use class in identical terms to B8; as it seems to me the nearest class is class X – “use as a wholesale warehouse or repository for any purpose.”

In her decision letter the Inspector categorised the planning permission as permitting a use which was sui generis. That Latin phrase is a term of art in planning law. In essence in the current context it means that the specific use permitted by virtue of the planning permission is the only use which is permitted.

The Inspector provides cogent reasons why she takes the view that the planning permission created a permitted use which was sui generis (see her decision letter at paragraphs 111 to 122). In my judgment there is nothing in these paragraphs which even hints that she has erred in law in concluding that the use permitted by the planning permission was sui generis.

In any event, to repeat, whether any use was permitted by the planning permission which was wider in its scope than use for the storage and distribution of petroleum products had to be judged by the Use Class Order in existence in 1961, namely the Order of 1948, not an order which came into effect in 1987. So far as I am aware the 1948 Order was not placed before the Inspector and no point was ever argued before her in relation to that Order. Obviously, it is far too late now to raise any argument based upon the terms of that Order.

At paragraph 122 of her decision letter the Inspector advances an additional reason why the planning permission granted in 1962 could not have authorised a B8 use. She points to the fact that by virtue of Article 3(6)(g) of the 1987 Order no class specified within the Order includes use as “a yard for the storage or distribution of minerals…” In the view of the Inspector that which was authorised by the 1962 planning permission was the use of the appeal site for the storage and distribution of a mineral.

In light of my conclusion that the 1987 Order has no relevance in this case the Inspector's finding on this point is academic. However, as a matter of impression it seems to me to be clear that the planning permission did authorise the use of the site for the storage or distribution of a mineral. The planning permission permitted the storage and distribution of petroleum products. Obviously, crude oil would be regarded as a mineral for the purposes of the Use Class Order and, in my judgment, the products of crude oil also fall into that category. Like the Inspector, however, I do not base my decision on the interpretation of Article 3(6)(g). My primary conclusion is that the Inspector made no error of law when she categorised the use permitted by the planning permission as sui generis. I can see no basis upon which it would have been open to her to conclude that at the time of the issue of the enforcement notices the appeal site could be used for any B8 use without the need for planning permission.

On 14 April 1972 Conoco Ltd applied for planning permission to “grade site and surface with macadam provide additional lorry parking space.” The plan which accompanied the application demonstrated, quite clearly, that the application related to a defined area within the appeal site as a whole. On 17 April 1973 Kent County Council granted planning permission in terms which precisely mirrored the description of the development contained within the application.

The Inspector's observations about the relevance of this permission are contained within paragraph 123 of her decision letter. I quote:-

The probability is that the Inspector was entitled to interpret the planning permission both by reference to the permission itself but also by reference to the application which preceded it. I say that since the terms of the permission properly incorporate the terms of the application. Even looked at alone, however, it seems to me to be clear that the planning permission authorised the provision of an “additional” lorry parking area. The use of the word additional, to my mind, clearly conveys that the lorry parking area to be provided was inextricably linked to the existing lorry park which, in turn, served the use then being made of the site namely the storage and distribution of petroleum products.

Before me, Mr Horton QC also sought to rely upon a third planning permission in respect of the site. It is now common ground that a planning permission was granted in respect of the site in 1966. However, Mr Horton QC was frank enough to acknowledge that he could not prove that the documents relating to this permission were ever placed before the Inspector at the public inquiry. That being so I am satisfied that it is not open to me to take account of this documentation.

Conoco Ltd implemented each of the planning permissions which it obtained. Petroleum products were stored on site and then distributed to other outlets from the site over many years. As is common ground, however, the use had ceased by 1999.

The next uses of the appeal site were those instigated by Mr. Andrews acting through companies which he controlled. Given my conclusions to date, all the uses instigated by Mr. Andrews must have constituted a material change of use. Far from continuing the use of the appeal site for the storage and distribution of petroleum products, he set about dismantling all the structures on site which had been used in conjunction with that use while at the same time and thereafter uses were commenced which had no connection with the storage and distribution of petroleum products. Inevitably, therefore, in my judgment, all the matters referred to in the notices B to L constituted material changes of use and, inevitably, the Inspector was correct to dismiss the appeal under section 174(2)(c).

However, the Inspector also concluded that the right to use the site as for the storage and distribution of petroleum products had been abandoned and extinguished. Mr Horton QC submits that in so finding the Inspector fell into error. It is to this issue which I next turn.

It is now well established and, indeed, common ground, that a particular use of land which is lawful can, nonetheless, be abandoned. That proposition was established, authoritatively, in Hartley v Minister of Housing and Local Government & Another [1970] 1 QB 413. Since Hartley there have been a number of decisions in which the criteria necessary to establish abandonment have been discussed and elucidated. The most recent statement of law on the test of abandonment is to be found in Hughes v Secretary of State for the Environment, Transport & Regions [2000] 80 P. & C.R. 397. Whether or not a lawful use has been abandoned is to be judged by reference to the view objectively to be taken by a reasonable man with knowledge of all the relevant circumstances. In seeking to ascertain the view of the reasonable man there are usually four factors which fall for consideration; they are a) the physical condition of the site, b) the length of time over which the site has not been used, c) whether the land has been used for any other purpose following the cessation of the use and d) the intentions of the owner of the site. It is also important to note that the intention of the owner is to be judged objectively. In a given case an Inspector or court is entitled to find that the use has been abandoned notwithstanding that the owner asserts that he has never intended to abandon the use.

In this case no one made use of the appeal site for the purpose of storing and distributing petroleum products over a period of some years. As soon as the Appellant bought the site it set about dismantling and removing the means by which that use could take place i.e. the storage tanks were dismantled and removed, the associated pipe work was removed and other works were undertaken to the site which were wholly inconsistent with its use for storage and distribution of petroleum products. The Inspector specifically records in her decision letter that Mr Andrews told her in terms that he had no intention of using the site for the storage and distribution of petroleum products.

In the face of all this evidence there is no possible basis for concluding that the Inspector erred in law when she decided that the Appellant had abandoned the one lawful use of the site. Once the lawful use of the site had been abandoned it had no lawful use; any use of the site following abandonment would require planning permission.

Mr Horton QC also makes various submissions about the notices which were issued in relation to the individual plots. He seeks to argue that no material change of use took place on some of the individual plots since the uses instigated could properly be categorised as falling within class B8 of the 1987 Order. None of these points has validity given my conclusions as expressed above. For that reason it would be otiose, in a judgment of this length, to deal in detail with the points raised in relation to the individual notices.

I should mention one further point so far as it relates to the appeal under ground (c). Under the heading extinguishment the Inspector wrote as follows:-

In my judgment there is no basis for concluding that the Inspector's appraisal as set out in paragraph 127 of her decision letter contains any error of law. On the facts presented to her, her conclusions are obviously justifiable. She was also correct, in my judgment, when she concluded that by using the appeal site as a haulage depot (a use which was sui generis) any ability to revert to the previous lawful use of the site was lost – a conclusion which she had reached by an alternative route, in any event, namely that the previous lawful use had been abandoned. Given the facts as found by the Inspector it is unnecessary for me to consider the legal intricacies which might have arisen on facts found differently as in cases such as Burdell v Secretary of State for the Environment [1992] 2 P& CR 174 and Beach v Secretary of State for the Environment Transport & the Regions [2001] EWHC (Admin) 381.

At paragraph 185 of her decision letter the Inspector identifies all the main issues in relation to the appeals under ground (a). They are (i) the effect of the appeal development on adjacent sites of conservation interest, (ii) its effect on the character and appearance of the surrounding area, (iii) its effect upon the living conditions of local residents, (iv) its effect on highway safety and (v) whether the appeal development lies within a sustainable location. In the appeal grounds and in his Skeleton Argument Mr Horton QC takes a number of points in order to justify his submission that the Inspector fell into many errors of law when determining the ground (a) appeals. Essentially he submits that the Inspector fell into error when dealing with all the identified main issues. During the course of his oral submissions, however, Mr Horton QC acknowledged that if the Inspector was correct on one issue then she was bound to dismiss all the appeals on ground (a). For obvious reasons, I deal with this issue first. It was first issue identified by the Inspector and she categorised it in the following terms:-

The Inspector deals with this issue at paragraphs 186 to 258 in her decision letter. Obviously, it is not appropriate to set out the whole of that section of the letter in this judgment. I make it clear, however, that this section of the decision letter must be considered as a whole when determining whether or not it contains any error of law. That said, it is instructive to set out paragraphs 186 to 190 of the decision letter since those paragraphs identify the sites of nature conservation interest which are, potentially, under threat of harm as a consequence of the appeal development and, further, they identify the steps which the Inspector considered she was obliged to take in reaching a judgment about the effect of the appeal development upon the sites of nature conservation interest. The paragraphs read:-

The Inspector reached the following conclusions. The appeal proposal was not directly connected with or necessary to the management of a protected site. Second, the appeal proposal was likely to have a significant effect (either alone or in combination) on the interest features of a Natura 2000 site or, at least, such a risk could not be excluded on the basis of objective information. The interest features identified by the Inspector were “birds present in nationally or internationally important numbers.” Accordingly, third, “an appropriate assessment (AA)” was necessary to determine whether or not the development would have an adverse affect on the integrity of the site. The Inspector herself undertook the AA. Her AA is contained within paragraphs 216 to 254 of the decision letter. Paragraph 254 is in these terms:-

Paragraph 258 of the decision letter is as follows:-

In his oral submissions Mr Horton QC struggled to advance any persuasive reason why the Inspector had fallen into error when determining that planning permission should be refused on the basis of her conclusion that the continued use of the appeal site for the development already undertaken would have an adverse impact on the integrity of protected sites. In his reply he came very close to acknowledging that he could not identify an error of law on the part of the Inspector in relation to this issue. Indeed, he began his reply with what he described as a cri de coeur essentially arguing that it was simply unfair that the Appellant should be subject to enforcement action given the effect such action would likely have upon his own business and those of the other occupiers of the site. However, he did not formally concede that there was no error and it is necessary to consider the errors which were identified by Mr Horton QC in his written material.

In the original grounds of appeal Mr Horton QC identified a number of potential errors of law. First, it was suggested that the Inspector had wrongly assumed that if the enforcement notices were confirmed the Appellant would have no right to revert to any previous use of the site which would be capable of disturbing the birds. It is true that the Inspector made that assumption but for reasons which I have explained her assumption was correct. Second, the Inspector failed to take account of the disturbance which would arise from the works which would be undertaken in order to comply with the enforcement notices and she failed to consider whether such works would pose a greater threat in relation to the disturbance of the birds than permitting the Appellant's use of the site to continue. It is true that the Inspector did not ask herself that question. Both Mr Philpott and Mr Cameron QC submit that such a question was not relevant. I am not persuaded that is necessarily correct. However, I accept the submission of Mr. Philpot, in particular, that this point was not raised before the Inspector and she was provided with no evidence from which to make a meaningful comparision.

The third ground advanced by Mr Horton QC was that the Inspector considered the impact of the development upon the appeal site not by reference to the designated site as a whole but by reference to a small part of it. In my judgment, that criticism is not made out if consideration is given to the whole of the relevant section of the decision letter. On a fair and proper reading of her reasoning as a whole the Inspector was considering the whole of the protected site or sites.

The next ground relied upon by Mr Horton QC was that the Inspector had not correctly applied Article 6(3) of the Habitats Directive 92/43/EEC and Article 48(1) of the Conservation (Natural Habitats etc) Regulations 1994 which transposed the Directive into English law.

Article 6 of the Directive is in the following terms:-

Regulation 48 of the 1994 Regulations provides:-

The Directive was subject to scrutiny by the European Court of Justice in Waddenzee & Another v Staatssecretaris van Landbouw [2005] Env. L.R. 14. In particular, the first sentence of Article 6(3) was considered and interpreted as follows:-

Further, Regulation 48 of the 1994 Regulations has been the subject of analysis in R (Hart) DC v Secretary of State [2008] EWHC 1204. At paragraph 78 of his judgment Sullivan J (as he then was), considered the meaning of the word likely as it appears in Regulation 48(1). He said:-

The written grounds of appeal presented by Mr Horton QC suggest that the Inspector erred in her consideration of the expression “likely to have a significant effect” in the Directive and the Regulations. It is clear, in my judgment, that that is not correct. Far from straying into error, the Inspector followed the approached identified in Waddenzee and Hart. No other reading of her decision letter is tenable and, to be fair to Mr Horton, by the time of his oral submissions he recognised as much.

The other points taken in writing by Mr Horton QC about the nature conservation are answered, fully, in the written responses of Messrs Philpott and Cameron QC. They do not advance Mr Horton’s case in light of the conclusions previously expressed.

During the course of oral submissions I invited the parties to consider whether it was necessary for an Inspector to consider a “fall back” position when applying Article 6 of the Habitats Directive and/or Regulation 48 of the 1994 Regulations. At that stage, of course, I had not determined whether or not the Appellant's position, namely, that it was entitled to use the appeal site for uses falling within B8 of the 1987 Order was sustainable. Accordingly, I invited the parties to make written representations on this discrete point.

I should record that each party provided written representations well within the time limited for making those representations. Unfortunately, however, the representations did not reach me until about 9 June. I make it clear that I intend no criticism in recording that fact. To a small extent however, it helps to explain the substantial period of time which has elapsed between the hearing of the case and the production of this judgment.

In the light of my conclusions earlier in this judgment, the issue of whether a “fall back” position should be taken into account when the Directive/Regulations are applied does not arise for consideration. What follows, therefore, is a tentative expression of view which I make only because the parties were good enough to provide written representations.

The position of Messrs Philpott and Cameron QC are encapsulated in paragraphs 23 and 24 of Mr Philpott’s further submissions. He argues that the Directive and Regulations leave no room for doubt as to the subject of the “appropriate assessment” under Article 6(3) which is the plan or project that the authority is being asked to approve. The authority is not being asked to approve alternative projects or current activities which already enjoy planning permission and which would be replaced by the proposed project in question. Alternative projects would be subject to assessment under Article 6(3) when they came forward. The consequence, submits Mr Philpott, is that it is not correct as a matter of law to take account of a “fall back” position in assessing whether a plan or project would be likely to have significant affects or in assessing whether the plan or project would adversely effect the integrity of a protected site. Mr Philpott’s skeleton is supported by reference to Waddenzee, Hart and the decision of the European Court in Stadt Pappenburg v Bundes Republic Deutschland.

Mr Horton disagrees. He submits that the assessment under the Directive/Regulations falls to be made by reference to the integrity of the site in the “actual real world” prior to the initiation of the plan or project and in the “plan or project world” subsequent to such initiation. He submits that it is unreasonable to proceed on the basis that such a comparison is not allowed when a retrospective assessment is being undertaken as is the case here.

I am inclined to think that Mr Horton QC is correct on this issue. In my judgment it would be strange, to say the least, if a proposal were refused planning permission on the grounds of its impact upon a protected site even though the reality might be that an existing lawful use might have a much greater impact upon nature conservation interests upon the protected site. In this case, for example, if the reality was that the Appellant could revert to using this site for the storage and distribution of petroleum products or for other kinds of storage and distribution falling within B8 and it could be demonstrated that the trading estate use now in existence had significantly less effect upon the birds upon the protected site it would be an odd result, indeed, if the Directive/Regulations required that planning permission be refused.

As was to be expected, Mr Horton QC prepared a detailed Skeleton Argument in advance of the hearing before me. In that Skeleton he suggested that the Inspector's decision on the nature conservation issue could be challenged on an additional ground, namely a lack of proportionality. Mr Horton’s Skeleton reads as follows:-

This point was not taken at any time, as I understand it, before the inspector; it was hinted at but not developed in the original grounds of appeal. It appeared in greater detail in the Skeleton Argument prepared by Mr. Horton QC in readiness for any hearing scheduled to consider the issue of whether permission to appeal should be granted and as I have said it appeared as part of a detailed argument in the Skeleton prepared for this hearing.

Section 289 of the Act permits this court to intervene if an Inspector has made an error of law. At first blush, it is difficult to see how an Inspector has erred in law in relation to a concept which is “of uncertain application in English law” and which was never drawn to her attention.

I am prepared to accept that there may be instances where it would be open to this court to determine that an Inspector has erred in law by failing to have regard to a settled legal principle even if that settled legal principle was not drawn specifically to the Inspector's attention by the parties. An Inspector is a specialist tribunal and is taken to be familiar with the legislation and settled legal principles which are relevant to his specialist jurisdiction. On any view, however, Mr Horton's point about proportionality does not fall into such a category.

For that reason, alone, I would not entertain this aspect of Mr Horton's case. However, the plain fact is that proportionality is a settled feature of the jurisprudence of the European Court. It is inconceivable, in my judgment, that the European Court did not take account of the principle of proportionality in Waddenzee when interpreting the Directive. Despite that principle, the Court interpreted the Directive in the way it did and, of course, Sullivan J interpreted the Regulations in the way that he did on the basis of the approach which derives from Waddenzee.

I have reached the conclusion that there was no legal error in the Inspector's reasoning as it relates to the impact of the development upon the appeal site upon nature conservation interests on protected sites. She was entitled to conclude that on this ground alone the ground (a) appeals must fail.

In the light of this conclusion and the significant length of this judgment, even to this point, no useful purpose would be served by any kind of detailed discussion of the Appellant's other grounds for submitting that the Inspector fell into legal error when considering the ground (a) appeals. It is acknowledged that the Inspector considered all the issues which were important to whether or not planning permission should be granted (identified at paragraph 69 above). Essentially, all the grounds of challenge related to these issues allege irrationality, unreasonableness or a lack of adequate reasons. Challenges of this type are notoriously difficult at the best of times; they are the more difficult when, as in this case, many of the alleged grounds depend upon impugning what is, in reality, an exercise of planning judgment on the part of the Inspector. I content myself by saying that I reject all the grounds advanced by Mr Horton QC as to why the Inspector erred in law when rejecting the ground (a) appeals for the reasons which are contained in the Skeleton Arguments of Messrs Philpot and Cameron QC.

It is right that I should record that Mr Horton QC sought to introduce the concept of proportionality not just as it impacted upon the ground of challenge discussed in detail above but also in relation to all aspects of his challenge to the Inspector's decision on the ground (a) appeals. I have already explained why it is not appropriate for me to entertain a challenge based upon the concept of proportionality. In those circumstances it would not be right for me to offer a view of the concept of proportionality; the plain fact is that my views would be strictly obiter. This point, if it is to be taken and determined, is much better taken in a case where a decision upon the point is likely to have some impact on the result of the case.

I propose to address the issues arising very shortly. I say that for this reason. Ground (b) requires the Inspector to consider the evidence and reach conclusions of fact. The circumstances in which this court will elevate an erroneous factual finding to an error of law are strictly defined. I quote verbatim, from Mr Philpott’s Skeleton Argument. In order to establish that a decision is lawful on the basis of an error of fact, four conditions must be satisfied. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the Appellant (or his advisors), must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Inspector's reasoning. Those propositions are justified by the decision of the Court of Appeal in E v Secretary of State for the Home Department [2004] 2WLR 1351.

None of the alleged mistakes of fact in this case fall into that category. The Inspector heard the evidence and reached conclusions upon it. Mr Horton's complaints about the Inspector's findings of fact pale into insignificance compared with the other issues raised in this appeal. They relate to areas of hard standing, a section of road and the like. I do not wish to trivialise these complaints; it is sufficient, however, that I indicate that I reject the allegations of error of law for the reasons set out in the skeleton argument of Mr Philpot and Mr Cameron QC.

The grounds of appeal submitted by Mr Horton QC alleged that the Inspector was biased. In the Skeleton prepared in advance of a permission hearing Mr Horton QC wrote:-

In the Skeleton produced for this hearing Mr Horton QC reproduced the paragraph set out above except that he added this sentence:-

Not surprisingly, the First Respondent takes exception to an allegation that the Inspector was biased. He submits that the articulated complaint amounts to no more than a submission that the Inspector must have been biased because she rejected the Appellant's case. Mr Philpott submits that it is not acceptable to make such a serious allegation without proper particulars. In any event he submits that there is no properly arguable basis for advancing an allegation of bias in this case. Even adopting the less onerous test of apparent bias, he submits that it is inconceivable that a fair-minded and informed observer, having considered the Inspector's decision letter in full, would conclude that there was a real possibility that the Inspector was biased.

In Sager House (Chelsea) Ltd v First Secretary of State [2006] EWHC 1251 Sir Michael Harrison commented as follows:-

In this case there was no allegation of bias specified in the grounds of appeal. The allegation of bias made in the first Skeleton Argument was unparticularised. The only particularisation of the allegation came very late in the day and, in truth, the particularisation amounts to asserting that since there are a number of individual grounds of challenge, cumulatively, they amount to sufficient to establish bias on the part of the Inspector.

It is true that in his most recent Skeleton Mr Horton QC “waters down” the allegation of bias by suggesting that it may be seen as a failure on the part of the Inspector to act proportionately. Further, in his oral submissions Mr Horton QC was at pains to submit that the point he was raising was novel; the reality was that he was striving to find a legal description for his complaint.

I make due allowance for the fact that Mr Horton QC and his client feel strongly that the Inspector's decision was wrong. It may very well be that they take strong exception to the Inspector's conclusions upon the planning merits. Mr Horton QC clearly feels strongly that his client has been “let down” by the way this case has unfolded. That said, in my judgment there was never a proper basis for an allegation of bias in whatever sense that word is used. A glance at the particulars belatedly provided show that each and every one was an individual ground of challenge. In reality, many of them are comparatively hopeless. Those which are genuinely arguable do not begin to support the notion that the Inspector is to be categorised as producing a decision which is lacking in objectivity and fairness. I refuse permission to appeal on this ground.

Mr. Horton advanced complaints about the Inspector’s resort to section 176 of the Act. Without exception, in my judgment, the Inspector used her powers to correct or vary notices B to L in a manner which was within the ambit of the discretion conferred upon her. She made no error of law in her use of section 176 of the Act. The appeal in reliance upon ground (f) is inextricably linked to the ground (b) appeal. In the light of my conclusions on the ground (b) appeal the Inspector made no error of law under when considering the ground (f) appeal.

I have reached the clear conclusion that although some of the grounds raised on behalf of the Applicant are arguable, i.e. they would satisfy the test for the grant of permission to appeal, in the result this appeal fails. I propose to dismiss it.

I am unable to hand down this judgment before the end of term but I understand that it will be handed down on my behalf. No one need attend at the handing down since the judge who hands down this judgment cannot adjudicate upon the issues that remain. They are the challenge to the costs decision and such issue as there may be in relation to costs and/or permission to appeal against my judgment. I will next sit in the Administrative Court for 2 weeks beginning 15 August 2011. I appreciate that Counsel may be on holiday during this period and I do not suggest that any kind of hearing should take place during that time. However an order will be made at the hand down which will provide a timetable for dealing with all outstanding issues.