Turner v Secretary of State for Communities And Local Government & Anor

This is an appeal under section 289 of The Town and Country Planning Act 1990 against a planning inspector’s decision, dated 10 October 2014, dismissing an appeal against an enforcement notice issued by the second respondent on 23 May 2013. Permission was granted, by myself as it happens, at a hearing at which neither respondent was represented. In relation to the substantive hearing, the second respondent has indicated that it proposes to take no active part.

Gladwin’s Wood is a 2.8 hectare site off Pinstone Way, Denham in Buckinghamshire. It is in the Metropolitan Green Belt and the Colne Valley Park. It is close to the M25 Motorway. It has the benefit of a Certificate of Lawfulness of Existing Use dated 19 October 2009. The use to which the certificate applies is that of a small area edged yellow on the plan annexed to the certificate, for storage of up to four vehicles, and use of the land edged in green on the plan for container storage for two containers. The two areas are near the entrance to the site from a track off Pinstone Way. They form a very small part of the site as a whole. It is accepted between the parties that the site falls to be considered as a single planning unit.

The Certificate of Lawfulness of Existing Use was the subject of an appeal by the present appellant, on the basis that the lawful use was for unrestricted storage use. The appeal was dismissed in 2010. There have been other unsuccessful applications for development of the site. The breach alleged in the notice under appeal is as follows:

“Without planning permission, the intensification of more than four vehicles on part of the land shown [with that lawful use] on the plan and the intensification of more than two storage containers on part of the land [with that lawful use] on the plan along with the use of the land as a whole for the storage of vehicles and containers, the hire of containers for self-storage and the storage of builders/building materials, waste and equipment and other non-horticultural/forestry materials on the land.” [The substituted words reflect a different colouring convention for the plan attached to the notice.]

The appellant’s appeal was on the grounds set out in section 174(2)(b),(c) and (d): that is to say that the matters alleged in the enforcement notice have not occurred, or, that if they occurred they do not constitute a breach of planning control, or that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control constituted by the matters asserted in the Enforcement Notice. The hearing, before a planning inspector, Mr A U Ghafoor, took place on three days, 18-19 March and 2 May 2014. The appellant gave oral evidence and called a number of witnesses of fact; the Local Planning Authority’s original intended witness became ill and the authority’s evidence was therefore given by a replacement witness. There was substantial documentary evidence.

The Inspector dismissed the appeal under grounds (b) and (c) because he considered that there had been intensification, amounting to a material change in the definable character of the use of the land (the test set out in Hertfordshire CC v SSCLG and Metal & Waste Recycling Limited [2012] EWCA Civ 1473), which required planning permission. He dismissed the appeal under ground (d), because, on the evidence, he was not persuaded that the existing use was one which had continued for ten years prior to the issue of the Enforcement Notice.

The challenge in this Court is brought on four grounds. The first is that the Inspector took into account the off-site impact of the existing use, whereas that matter was specifically said not to be a concern to the Local Planning Authority, was agreed in the statement of common ground not to be a matter being raised by the parties, was not in fact raised at the hearing, and was not the subject of any indication by the Inspector that he proposed to take it into account. The second ground is that the Inspector’s conclusions in relation to intensification were not open to him on the evidence. The third ground is that the Inspector’s conclusions as to the history of the use of the site and, in particular, the history of the existing use, were based on a flawed appreciation of the witness evidence. The fourth ground is that the decision is bad for failure to consider whether to issue a further Certificate of Lawfulness of Existing Use, modifying that of 2009, and because, by endorsing the enforcement requirements of the notice, the Inspector breached the Mansi v Elstree RDC (1965) 16 P&CR 153 doctrine that an enforcement notice cannot lawfully remove existing lawful uses.

In his decision letter, the Inspector began his treatment of grounds (b) and (c) by setting out briefly the meaning of the concept of a material change of use and summarising the appellant’s argument as:

“A very simple one, namely, that the alleged MCU has not occurred, because the site can lawfully be used for the storage of motor vehicles, containers, builders/building materials, waste and equipment and other non-horticultural/forestry materials in an unrestricted manner.”

None of that raises any complaint from the appellant. The Inspector went on to note that the appellant’s argument before him included an assertion that the Inspector’s conclusions in the appeal in 2010 were incorrect. Those conclusions had been based in part on a period of inactivity in or about 2003, which stopped the clock running for the purposes of ten years use. The Inspector rejected the appellant’s assertion. At the beginning of the ten-year period prior to the Certificate of Lawfulness of Existing Use, the existing use of the site was described as a “nursery” and horticultural or forestry use was confirmed by the aerial photographs of about that time. Whatever may have happened immediately thereafter, the Inspector’s findings of fact in 2010 included a finding that there was, in 2003, “a phase of almost total inactivity, in terms of vehicle and container storage on this site”.

In his paragraph 10, Mr Ghafoor sets out a lengthy extract from the 2010 appeal decision. In paragraphs 11 to 13 he considers further material and submissions before him, by which the appellant attempted to show ten years of the existing use before the date of the present Enforcement Notice. The Inspector rejects those arguments, on the basis that the aerial photographs taken before 2005 do not support it, and that the documentary evidence does not clearly show what was going on at the site at around 2003. He concludes that the evidence “points to the probability that the previous use of the site was characterised as a nursery and/or horticultural with a low key and passive storage use”, and that the Certificate of Lawfulness of Existing Use in 2009 correctly reflected that use. At paragraph 14 the Inspector reminds himself that a mere increase in activity beyond that in the certificate would not necessarily amount to a material change of use. In paragraph 15 the Inspector summarises the appellant’s own evidence about the increase. The Inspector refers to it for his summary of that evidence in his dealing with ground (d). Five vehicles were sold from the site in 2005, seventy-one in 2006, sixty-one in 2007, nineteen in 2008, twenty-eight in 2009, seventy-three in 2010, fifty-two in 2011, fifty-one in 2012 and twenty-two in the first five months of 2013. On 28 October 2009 there were eighteen containers and fifty-two motor vehicles on the site. The 2010 aerial photographs show substantial storage operations on the site, including twenty containers scattered around various parts of the site. The Inspector said that to his mind there had been a “gradual increase” in the number of vehicles and the amount of non-horticultural or forestry use. In paragraph 16 the Inspector sets out physical changes to the land, including “large sections of hard surfacing” and “extensive networks of unmade tracks”. His conclusion is that those features, and the distribution of construction materials, waste, plant and machinery in various parts of the site “gives a built-up developed and urban appearance as opposed to the site’s rural quality”. The site’s physical appearance has changed; and that can be seen from outside the site.

I must set out paragraphs 17 and 18 in full:

“17.

The increase in the scale of the storage activities has some off-site impacts which are likely to have planning consequences. For example, some of the storage containers are hired to customers on and off the site which is accessed via a residential street. In my view, more comings and goings associated with these storage activities is likely to be noticeable. In turn, the increase in the nature, level and frequency of traffic to and from the site would potentially have some affects upon residential amenities in terms of vehicle movements, noise and general disturbance.

18.

Drawing all of the above threads together, as a matter of fact and degree, I find that the storage of more than four motor vehicles and two containers along with the use of the land as a whole for the storage of motor vehicles and containers, the hire of containers, the storage of building materials, waste and equipment and other non-horticultural and forestry materials has significantly changed the definable character of the use of the site as a nursery with a low-key and passive storage use due to the scale of the storage operations. The evidence presented points to the probability that the type of storage activities taking place at the time of the notice’s issue had reached a point where a MCU had occurred through intensification, because of materially different planning consequences both on and of[f] the site.”

The Inspector’s conclusion that a material change of use has occurred by intensification is then the subject of ancillary considerations, including a small amendment to the Enforcement Notice.

In considering Ground (d), the Inspector notes the appellant’s contention that if there has been an unauthorised development, it commenced in 1996. He records oral evidence, including that of a number of witnesses dealing with the period from 1 April 2011 to 31 May 2013, and that of a number of witnesses who gave recollections of use at more than the permitted level at odd dates going back to 1996. At paragraphs 35 to 36 the Inspector gives his conclusion on this evidence:

“35.

I find that the presented evidence by these witnesses about the nature of the site’s use prior to the relevant date is insufficient to show that the unauthorised development started on or before the relevant date. This is because it lacks in detail as to when it started.

36.

Additionally, this information relates to 2009, 2011 and 2013. While the witnesses give details about the number of motor vehicles and containers and other items stored on the site during these periods, their testimony does not assist Mr Jonathan Turner’s case. This is because it relates to periods after the relevant date.”

The Inspector then goes on to deal with the aerial photographs and the documentary evidence relating to accounts and receipts. He notes a number of contradictions and inconsistencies, including assertions by the appellant in 2000 that the use of the site was as a “nursery” or an “agricultural unit”. Looking at the matter as a whole, the Inspector concludes, on the evidence, that he is not satisfied that the existing use began in 1996 as claimed, or at any time before the relevant date in 2003, ten years before the enforcement notice under appeal.

The Inspector thus dismissed the appeal.

I turn therefore to Mr Whale’s grounds, of which the first depends on an assertion that the Inspector was unfair in taking into account off-site effects of the current use. It seems to me clear, that for the reasons given in the grounds, and mentioned earlier in this judgment, the position was that, in the circumstances of this case, the Inspector should not have taken off-site effects into account in his written decision. Both the Local Planning Authority’s initial stance on them, and the Statement of Common Ground, must have led the parties to the view that nothing need be said on the matter at the appeal. The Inspector was not bound to accept that; but if the matter appeared important to him, he needed to draw the parties’ attention to that fact, so that they could address him on it. In the circumstances, reaching a decision against the appellant influenced by an issue that the appellant had every reason to consider did not need to be addressed, shows, if nothing else, a defect of natural justice.

In the context of a planning appeal, there is the additional problem that an Inspector who strays into an area covered by the Statement of Common Ground, without any indication to the parties that he proposes to do so, deviates from the requirements of the procedure rules. Rule 16 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 makes the Statement of Common Ground compulsory, with the clear intention that, in normal circumstances, the Inspector will not have to inquire into matters on which the parties are agreed.

The authorities to which I was taken, R (Pool) v SSCLG [2008] JPL 1774 and Hopkins Developments Limited v SSCLG [2014] PTSR 1145, confirm the conclusions that would be reached by an application of common law and common sense. The crucial question, as set out in Hopkins at [49], is whether there has been procedural unfairness which materially prejudiced the applicant.

It is never an easy task to determine whether a decision with a procedural defect ought to be allowed to survive a public law challenge on the ground that the defect can have made no difference to the eventual conclusion. At the one extreme, this is clearly not a case where there is such a defect that, without more, justice requires the matter to be re-determined. The question is whether, as Mr Lewis argues, the issue of off-site effects, taken as it was at the end of the discussion, was of no material importance to the decision made. The decision has to be analysed, not in a pedantic way or with the precision appropriate to interpreting a statute: on the other hand, however, a judge needs to try and understand the working of the decision-maker’s mind in order to see whether the latter was materially influenced by the factor in question; and the parties are entitled to know, by reading the decision, what the reasons for it were.

It seems to me that, in this case, the crucial thing is to consider what it was that the Inspector was deciding. I find no difficulty in understanding that the factors mentioned in the paragraphs of his decision before paragraph 17 were sufficient to establish that there had been a change in the use of the land. The Inspector needed, however, to determine whether there had been a material change, that is to say, whether the change he had identified was a material change, that is to say a change material in planning terms. The question whether there had been a material change of use was, no doubt, a single, composite question: but the materiality of any change was, of all the aspects of that question, the most amenable to the expert planning judgment of the Inspector, and the one on which, therefore, the Court is least likely to impose its own views.

In that context, and even bearing in mind the proper approach to the reading of inspectors’ decision letters, there are two particular phrases in paragraphs 17 and 18 that cause concern. In paragraph 17 there is the reference to “off-site impacts which are likely to have planning consequences”. In paragraph 18 the conclusion is that the material change of use “had occurred through intensification, because of materially different planning consequences both on and off the site”. Those phrases, in my judgment, clearly indicate that, in determining the materiality in planning terms which the Inspector decided had occurred, he was taking into account the off-site effects. Those effects were matters which no doubt would be taken into consideration if an application for planning permission were made. For that reason they were potentially of importance in determining the materiality of the change of use. The Inspector having expressed himself in the way he did, it is in my judgment impossible to say that he would have reached the same decision on materiality if he had put out of his mind his concerns about off-site effects.

Mr Whale’s first ground therefore succeeds. Insofar as the decision under challenge concludes that there was an intensification amounting to a material change of use, it cannot stand.

In these circumstances I need to say nothing about Mr Whale’s second ground, and it is better that I say nothing: the issue will have to be re-determined. What factors (including off-site effects) a new Inspector takes into account, and what conclusions he draws, will be a matter for that Inspector.

I do, however, need to reach a conclusion on Mr Whale’s third and fourth grounds of appeal, because they may be raised again. The third ground was that the Inspector’s conclusion in relation to the commencement of the existing development was one not open to him on the evidence. The challenge is based solely on the Inspector’s paragraphs 35-36, which I have set out above. In my judgment there is nothing in that challenge. The Inspector was asked to find that the existing use had commenced before the relevant date, that is to say ten years before the Enforcement Notice. He had before him clear oral evidence relating to the years 2011 to 2013, but no clear evidence of what had happened before then. On the contrary there was clear evidence that there had been a “pause” in the use of the land in 2003, as confirmed by the 2010 appeal decision and his further investigation of that decision.

In paragraph 35 the Inspector concludes that the evidence before him, to which he has referred, is not sufficient to show that the current or existing use of the land commenced in 1996. That conclusion was, in the circumstances inevitable.

Paragraph 36 is not wholly easy to understand, but is clearly a commentary on the previous paragraph (“Additionally”): seems to me that what the Inspector is saying is that the detailed information in the statements of the witnesses that he is discussing refers only to the period after the relevant date. Thus, the only proper detailed continuous evidence does not cover the whole of the period from before the relevant date up to the date of the enforcement notice. It may be that, despite its opening words, paragraph 36 adds nothing at all: in any event, the Inspector’s conclusion as a whole on ground (d) appears to me to be entirely sound and should stand.

The final issue, Mr Whale’s fourth ground, relates to the form of the Inspector’s decision. Section 177(1)(c) gives a power to the Inspector (as the designated official of the Secretary of State) in the following terms:

“177(1) on the determination of an appeal under section 174, the Secretary of State may –

…

(c)

determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under section 191”.

Section 191 enables a Local Planning Authority to issue a Certificate of Lawfulness of Existing Use or Development; section 177(1A) makes the necessary modifications to sections 191ff for the purposes of section 177(1)(c), so that a Certificate issued by an Inspector on an appeal has the same contents, and the same effect as a certificate issued by the Local Planning Authority would have had. Mr Whale’s argument is that the Inspector was required to consider whether to exercise his powers under section 177(1)(c), and, as I understand the argument, was required to issue a Certificate: his failure to mention the matter was “unaccountable”.

I reject that argument for two reasons. The first reason is that the word in section 177(1) is “may”: the Inspector was not required to issue a Certificate: he had a discretion. The second reason is that a certificate could only be issued under section 177(1)(c) if (for present purposes) “any existing use of the land was lawful”. The Inspector had determined that the existing use of the land was not lawful. There is no provision in section 177 requiring or even allowing an Inspector to issue a certificate setting out a use which (although not the existing use) would be lawful.

Mr Whale, however, takes his argument further. Because of the section 191 Certificate that was in force in relation to the site, it is clear that an intensification of that lawful use that did not amount to a material change of use would have itself been a lawful use of the site. Such was accepted by the Local Planning Authority’s witness at the appeal. Specifically, it was accepted that the storage of five cars (rather than four) would not constitute a breach of planning control. Mr Whale’s argument is that, in those circumstances, the confirmation of the Enforcement Notice limiting the use of the land to that certified as lawful in the section 191 certificate is, in fact, a restriction on the lawful uses of the land. He refers to Mansi.

I cannot accept that argument. In Mansi the site was horticultural, a nursery with a long-established entirely subsidiary retail use. In recent years there had been a very considerable increase in the use of the land for retailing purposes, so that it had, as the Inspector found, now a wholly commercial aspect when viewed from the road. The Enforcement Notice required the cessation of retail use of the site. The Divisional Court held that the notice needed to be amended in order to reflect, and allow the continuance of, the established, subsidiary, retail use, because it would otherwise have the effect of removing an existing lawful use. Mr Whale seeks to apply that judgment to the present case by reasoning as follows: (1) There is a Certificate of Lawfulness of Existing Use, in the terms I have set out earlier in this judgment. (2) The law permits intensification of a lawful existing use, provided that the intensification does not amount to a material change of use. (3) Any definition of the lawful use of the land therefore would have to take into account the possibility of intensification. (4) The Enforcement Notice, which restricts the use of the land to the terms of the Certificate without any allowance for intensification, therefore restricts the lawful use of the land. (5) Therefore, the Enforcement Notice should be amended in order to prevent its having that effect.

Mr Whale could perhaps draw some comfort from the postscript which Widgery J added to his judgment at 161 in the following terms:

“Lest there be any doubt about it, I wish to make it clear that the appellant is entitled under the Planning Acts to continue the user as it was in 1959 and may also, of course, have a right under the Planning Acts to intensify that user provided he does not thereby occasion a material change in use, and the Minister, in making his amendment should also bear that factor in mind”.

One can easily see the way in which the amendment might have been drafted to meet the circumstances in Mansi itself. Extended in the way suggested by Mr Whale, however, the Mansi doctrine would prevent an Enforcement Notice ever being based on the terms of a section 191 Certificate itself. The Enforcement Notice, and any decision on appeal, would need to investigate precisely what level of intensification was permitted, and in what circumstances. Save where an actual existing use is held to be lawful, that investigation is impossible. Taking the facts of the present case as an example, it may be that a modest increase in the number of cars, or in the number of containers, would not amount to a material change of use, but it may be that even a modest increase in both would amount to a material change of use. It may be that a substantial increase in one (or perhaps both) would not amount to a material change of use if there was no perceptible visual impact. One simply does not know; and neither the Local Planning Authority nor an Inspector can be required to investigate the whole range of speculative hypotheses. The Certificate specifies the lawful use. It does that subject to the general law, including that relating to intensification. In a case where the actual intensification is found to be a material change of use, there is no good reason not to revert to the original Certificate, read, as it must be, subject to the general law. If an appellant claims that he is entitled to use the land more intensively than the Certificate permits, he can make an application for planning permission; or he can raise a specific objection to the terms of the Enforcement Notice, asserting that it is too wide, specifying by how much, and thus allowing his claim to be determined. If the use of the land continues at a modestly intensified level, he may be able to resist enforcement on the basis that the intensified use is lawful.

But that is not what happened here. The claim was that the lawful use of the land included unrestricted storage use. There is no specific degree of intensification that has been determined to be lawful; but, specifically, the level of intensification claimed by the appellant has been determined to be unlawful. The Local Planning Authority was, in these circumstances, entitled to issue an Enforcement Notice based on the section 191 certificate and a certificate so based and expressed is, despite Mansi, appropriate. It will survive challenge save in circumstances where the actual intensification that has occurred is lawful.

I have dealt with this issue because it is clearly of some general importance, and because the appellant might seek to raise it again before a new inspector. My conclusion on the appeal is that the Inspector’s determination of Ground (d) was made without error, but that of Grounds (b) and (c) cannot stand. I will hear Counsel on the appropriate form of the order.