Beach v Secretary of State for Transport and the Regions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 04 May 2001 |
| Neutral Citation | [2001] EWHC 381 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3558/2000 |
| Date | 04 May 2001 |
[2001] EWHC 381 (Admin)
IN THE HIGH COURT OF JUSTICE
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand
London WC2
Mr Justice Ouseley
CO/3558/2000
MR G JONES (instructed by Charles Coleman and Company, Berkshire, SL4 1HY) appeared on behalf of the Claimant.
MR D FORSDICK (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant.
MR M DRUCE (instructed by the Legal Department of Runnymede Borough Council) appeared on behalf of the Second Respondent.
Mr Beach, the Claimant, is the owner of land known as Padd Farm, Hurst Lane, Egham in Surrey. On 24th September 1999 Runnymede Borough Council, the local planning authority, and Second Defendant, issued a number of Enforcement Notices in respect of various activities at Padd Farm. Mr Beach appealed against those to the Secretary of State for the Environment Transport and the Regions, the First Defendant. The Enforcement Notice appeals were all considered at a public inquiry held before an Inspector who set out his decision in a letter dated 1st September 2000.
The appeal to this Court, under section 289 of the Town and Country Planning Act 1990, concerns one of those notices, Notice E. The Inspector, having varied the Enforcement Notice so far as it concerned the allegation of breach of planning control, upheld it and dismissed the Claimant's appeal, although he granted an extension of time for compliance with the notice.
The appeal against Enforcement Notice E to the Secretary of State was brought on a variety of grounds. The appeal from the Inspector's decision to this Court arises in respect of his decision on the ground of appeal in section 174(2)(d) of the Town and Country Planning Act 1990, namely that the uses said to constitute the breach of planning control were now immune from enforcement control and could no longer be enforced against.
The Enforcement Notice, as it was originally issued by Runnymede Borough Council, stated:
“THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission, change of use of that part of the said land or premises shown hatched on the attached plan to the storage of building and other materials.”
The notice recited that it appeared to the Council that that breach of planning control had occurred within the last ten years. The notice required Mr Beach to cease using the land for the storage of building and other materials and to remove those building and other materials from the land.
An issue arose at the inquiry as to the scope of the allegation of the breach of planning control in Notice E. The Inspector considered the issue at paragraphs 2 to 5 of his decision letter. The way he dealt with it can be best understood by simply reading those paragraphs:
2. On the opening day of the inquiry the Council stated that they wished to make a number of alterations to Notice E and F. Firstly, they sought to add to the allegations in Notice E by including a reference to plant and equipment and extending the area of land affected so as to include the whole of Padd Farm. Secondly, they sought to add to the allegations in Notice F by including references to the residential use of caravans and portable accommodation units and again extend the area of land affected so as to include the whole of Padd Farm.
3. I am of course aware of the provisions of section 176 of the 1990 Act which indicate that I have the power to vary and/or correct an enforcement notice provided that in doing so no injustice is caused to either party. Indeed, I have a duty to get the notice in order if I can properly do so.
4. With regard to Notice E the proposed changes simply clarify the description of the alleged unathorised uses and although the whole of Padd Farm would be affected, the storage of plant and equipment are clearly part and parcel of the appellant's general trading business. I therefore do not consider that the appellant would be seriously prejudiced if I were to accept these changes. Indeed, I am reinforced in this conclusion by the fact that the appellant did not resist the proposed alterations but indicated that he would simply seek to include a ground (d) appeal in respect of this notice. I shall therefore consider the case on this basis.
5. However, in order to prepare for such an appeal the appellant sought an adjournment of the inquiry. Although the adjournment was resisted, I was conscious at the time that the Council had given only about three weeks notice of its intentions to alter the notices and I concluded that this was far too short a period for the appellant to prepare a ground (d) case. Consequently, I adjourned the inquiry until the 1 August 2000.
No complaint is made about the way in which the Inspector dealt with those variations. The notice was accordingly varied so that, first of all, it covered the whole of Padd Farm and secondly, so that the allegation of matters constituting a breach of planning control covered a change of use to:
“The storage of building and other materials and plant and equipment.”
Accordingly, it was required by the notice that those building and other materials and plant and equipment removed from the land and the appeal under Ground (d) of section 174(2) asserted that the amended allegation of breach of planning control had taken place more than 10 years before the notice was issued.
It is to be noted also that because the proposed changes were of significance in relation to Ground (d), the Appellant was given time in which to prepare his case to deal with those matters. Accordingly the inquiry was adjourned from April until August 2000.
The Inspector dealt with the appeal under Ground (d) in respect of Enforcement Notice E in paragraphs 50 to 60:
50. In respect of this appeal I am conscious of the advice in Circular 10/97 (Annex 8) which makes it clear that the onus of proof is firmly on the appellant and that the evidence presented must be precise and unambiguous. I accept that this particular advice applies to Lawful Development Certificates but bearing in mind the similarity between these types of appeals I can see no reason why this approach should not be followed in this case.
51. From the evidence presented at the inquiry I take the view that this development can only be regarded as a mixed use of a single site that comprises of the buildings and land known as Padd Farm. One of the features of this appeal is that whilst some individual buildings can be identified with a particular use, for the most part the nature of the use of the land and buildings is one of a shared use. In fact this fluidity of uses over time and the lack of a clear definition as to their location throughout the period in question poses additional problems in the case.
The Appellant's Claims
52. Nevertheless during the inquiry the appellant indicated as well as being involved with farming he was a general trader and when he first bought Padd Farm in 1985 he brought with him from his previous address a large quantity of building materials, plant and equipment. This material and equipment was stored in a rather haphazard fashion around the farm but the bulk was concentrated in the yard areas to the north and east of Buildings A and B and also in Fitzpatrick yard. As well as this storage use the appellant indicated that he dismantled and restored plant and machinery for eventual resale and he also sold building materials from the site. These trading activities continued for the rest of the 1980‘s and throughout the 1990‘s and they went hand in hand with the farming activities being undertaken at the holding. These included the breeding of chickens, pigs and goats and in 1993 planning permission was granted for an agricultural workers dwelling sited on the holding.
53. Furthermore, the appellant stated that during this 15 year period he let one of the buildings at the farm for a business operated by Mr J Street for welding, fabrication, commercial vehicle repairs and sales, together with sale of plant and machinery.
54. These claims were supported by compelling documentary and other evidence, together with statements from Mr Street, Mr Vassie, and Mr Axten who had all worked at the site during the 10-year period in question and gave evidence on oath confirming the appellant's claims about the uses present here. Indeed, at the inquiry the Council did not dispute that these uses and activities had taken place over this period.
55. The evidence produced at the inquiry also indicated that during the 1990‘s a large number of other uses had been introduced onto the site. Building A was used in 1993 for pet and equestrian supplies, in 1995 for paper storage and since 1998, for the restoration and refurbishment of refuse containers. In 1991 Building B was used for shot blasting and in 1997 for film storage. Building C was used in 1991 for the retail sale of crafts goods and Building E was used for manufacture of number plates and signs in 1995 and for the preparation and sale of body oils in 2000. Since 1998 Building G has been used for the manufacture of ceilings and finally in 1995 Building L was used for custom car repairs and as a workshop with welding equipment since 2000.
56. In addition, new land uses were brought onto the site during this period. These were, a soil screening business run by Southern Soils Ltd in 1990, a base for MCG Landfill Contractors in 1992, the Fitzpatrick Contractors Yard in 1995, caravan storage in 1997 and the stationing of residential caravans and ‘bunkabins’ in 1998.
Conclusions
57. It is of course necessary in this case for the appellant to show that the use in...
To continue reading
Request your trial
-
Britannia Assets (UK) Ltd v Secretary of State for Communities & Local Government and Another (First Respondent Second Respondent)
...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. Is the Inspector's conclusion that the appeals under ground (a) should be dismissed vitiated by any error of law? 69 At paragraph 185......
-
R (oao Alison Sellars) v Basingstoke & Deane Borough Council
...not become unenforceable. 38 As Ouseley J explained in D. Beach v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 381 (Admin) at [18]: "In my judgment, the law is as follows: where in respect of one planning unit a use comprising uses A, B, and C together is jo......
-
Laing Homes Ltd v Secretary of State for Transport, Local Government and the Regions and Another
...Environment, Transport and the Regions [2001] JPL 1110, Beach v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 381, [2002] JPL 185, Tower Hamlets v. Secretary of State for the Environment [1994] JPL 112 and R (Newsmith Stainless Ltd) v. Secretary of St......
-
Phillips v Secretary of State for Communities & Local Government
...32 The one other authority which I mention is the case of Beach v Secretary of State for Environment, Transport and the Regions [2001] EWHC 381 (Admin), a decision of Ouseley J. This decision was cited to the inspector at the public inquiry, along with an earlier case Lynch. The inspector e......