A4 Metal Recycling v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2524 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/103/2014 |
| Date | 31 July 2014 |
[2014] EWHC 2524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/103/2014
Mr Alan Masters (instructed by Lester Morrill inc Davis Gore Lomax) for the Claimant
Ms Jaqcueline Lean (instructed by The Treasury Solicitor) for the First Defendant
Ms Megan Thomas (instructed by Berkshire County Council Legal Department) for the Second Defendant
Hearing date: 27 March 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
The claim
By this claim under s 288 of the Town and Country Planning Act 1990 the claimant challenges the decision of an inspector, dated 29 November 2013, dismissing the claimant's appeal against a decision of the West Berkshire Council as local planning authority refusing to grant (retrospective) planning permission. The claimant's application to the Council had been for permission allowing the use of its land at A4 Metals, Sevenacre Copse, Reading, RG7 5PT ("the site") for metal recycling and car breaking, allowing the erection of a facilities building there, and allowing the resurfacing of a bridleway leading to the site.
The Law
A considerable number of areas of law are raised by this claim. It is convenient to deal with all of them here, because there is otherwise a risk of allowing Mr Masters' discursive submissions to lead down routes that are not legally open to him.
The grounds on which proceedings under s 288 can succeed are the ordinary grounds for judicial review. I do not need to set out the development of that doctrine, beginning with Lord Denning MR's remarks in relation to a different statutory scheme in Ashbridge Investments Ltd v MHLG [1965] 1 WLR 1320, 1326, and their endorsement an application to challenges to planning decisions in Seddon Properties Ltd v Secretary of State for the Environment (1987) 56 P & CR 69. Its effect is that an inspector's decision can be challenged on the ground that he made a decision on no evidence, or made a decision that on the evidence no reasonable decision-maker could have made; or that he took into account matters that he should not have taken into account, or failed to take into account matters that he should have taken into account, or misunderstood or misapplied the law. In that context, as well as the law applying in general to decision-makers whose decisions may be challenged for error of law, certain specific duties are imposed on planning inspectors.
But s 288 does not provide an opportunity for an appeal against the inspector's attribution of relative weight or importance to the matters that he lawfully took into account; and provided that he committed no error of law in making his decision, matters of the assessment evidence, and of planning judgement are for him alone and the court will not interfere with them: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann.
Further, a challenge to an inspector's decision is not to be mounted by treating it as though it were an answer to an examination paper required to set out all facts and law from first principles, nor as a statute requiring interpretation. It is the considered judgment of an expert, after a review of the evidence and usually a visit to the site, and is addressed to parties who are themselves aware of the issues. The absence of specific mention of a matter does not mean that it has not been taken into account; and the inspector is entitled to make his decision on the basis of impressions formed in his review of the evidence and his site visit. So much is clear from R (Newsmith Stainless Ltd) v SSETR [2001] EWHC 74 (Admin).
Development or material change of use of land requires planning permission. What amounts to a development or a material change of use is a matter of planning judgment. Intensification of an existing use may amount to a material change of use if (but only if) the intensification amounts to a 'material change in the definable characteristics of the use of the land' (see most recently Herts CC v SSCLG and Metal Waste Recycling Limited [2012] EWHC 277 (Admin); [2012] EWCA Civ 1473). Merely adding 'more of the same' to an existing use is not a change of use unless it has this effect.
In considering whether planning permission should be granted, one material consideration is the use to which the land could lawfully be put if planning permission were refused, provided at any rate that there is a reasonable prospect that the land would in fact be used in that way. Thus the inspector will need to reach a view on the 'fallback' position, that is to say, on what are the current lawful uses.
The effect of the time limits in s 171B of the 1990 Act is that a development or change of use that has continued for at least the previous ten (or in some cases four) years becomes immune from enforcement. In order to test whether that situation has been reached a landowner can apply under s 191 for a Certificate of Existing Lawful Use or Development (CLUED) which, if granted, provides a conclusive presumption as to the matters mentioned in it. The process for obtaining a CLUED envisages a public inquiry, allowing all those with evidence to give to have their say on oath and be cross-examined. That process is quite different from a hearing or inquiry in relation to an application for planning permission, which is essentially a matter between the planning authority and the applicant. It follows that, even if he needs to determine what are the current lawful uses of the land, an inspector determining an appeal against a grant or refusal of planning permission is not undertaking the process of deciding what uses are lawful through having become unenforceable. To require him to do that would essentially avoid the CLUED process. Similarly, because an application for planning permission by a landowner is not the same as the process of enforcement by the planning authority, an inspector looking at an application is not primarily concerned with whether enforcement in relation to a particular use has become time-barred.
Rather, the answer to the question 'What are the current lawful uses of the land?' is again a matter of judgment for the inspector. He must no doubt take into account all relevant matters, including any granted CLUEDs. But in a planning appeal he is not examining whether any particular use for which no CLUED has been granted is a use that has become lawful through lapse of time; and he cannot be required to accept that a use for which no CLUED has been obtained is a use for which one would be obtained if applied for; nor is he required even to make that investigation, for that is not the role of the process he is undertaking. The point in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8, which Ms Thomas cited, was somewhat different: it was whether if a Planning Officer does make a statement in the course of an application to vary the conditions of planning permission, the statement has the effect of a CLEUD. But Pebsham does set out the differences in procedure, and makes it clear that a determination under s 191 requires an application under s 191.
Another material consideration is that found in s 38(6) of the Planning and Compulsory Purchase Act 2004, which requires an inspector to make his decision in accordance with the development plan unless material considerations indicate otherwise. As Lindblom J held in Bloor Homes East Midlands Ltd v SSCLG [2014] EWHC 745 (Admin), that duty remains following the introduction of the National Planning Policy Framework (NPPF), which does not displace it; and the weight to be given to any policy or development plan is a matter of the inspector's planning judgment. At the heart of the NPPF, however, is a 'presumption in favour of sustainable development' (para 14), which, according to that paragraph, means that where a proposed development is shown to be a sustainable development,
"For decision-taking this means:
— approving development proposals that accord with the development plan without delay, and
— where the development plan is absent, silent or relevant policies are out-of-date, granting planning permission unless:
— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
— specific policies in this Framework indicate development should be restricted." (A footnote specifically includes the policies relating to Areas of Outstanding Natural Beauty (AONBs) in this category.)
Because of the limited role of the court, the process leading up to the inspector's decision is the place and time for raising all matters of assessment or of planning judgment. So it is not appropriate for a claimant to raise such matters for the first time in proceedings under s 288; Humphris v SSCLG [2012] EWHC 1237 (Admin).
The last item in this review of the law is the Scrap Metal Dealers Act 2013, upon which Mr Masters relied: I need to say rather more about it than he did. The Act imposes a licensing regime and various other duties on scrap metal dealers;...
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