Britannia Assets (UK) Ltd v Secretary of State for Communities & Local Government and Another (First Respondent Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 22 July 2011 |
| Neutral Citation | [2011] EWHC 1908 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7555/2010 |
| Date | 22 July 2011 |
[2011] EWHC 1908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/7555/2010
Matthew Horton QC (instructed by Goldkorn Mathias Gentle Page LLP) for the Applicant
Hereward Philpott (instructed by Treasury Solicitor) for the First Respondent
Neil Cameron QC (instructed by Legal Services Medway Council) for the Second Respondent
Hearing dates: 5 April–7 April 2011
Further written representations received on or about 10 June 2011
Approved Judgment
Introduction
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.
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) Material change of use
Without the benefit of planning permission, change of use of the Site to use as a business/industrial estate, including plant hire, highways maintenance depot and manufacturing uses.
ii) Operational development
Without the benefit of planning permission,
a) the construction of a roadway, with block paved footways and lighting columns in the position shown hatched black on the Plan.
b) the erection of palisade fencing in the positions indicated by thick black lines on the Plan.
c) the erection of permanent buildings in the position shown coloured pink on the Plan and on plans TT03, TT04, TT05, TT06, TT07, TT08 attached hereto being a security building for the Site in the position shown coloured pink on the Plan and a workshop building on plot 3, a workshop building and an electricity sub-station on plot 4, a workshop building, a wash down area and a sewerage treatment plant on plot 5, a salt store and three other building on plot 6, a workshop building on plot 7 and two workshop buildings on plot 8.
d) the fixing of static portakabins on the Site in the position shown coloured green on plans TT02, TT03, TT04, TT05, TT06 and TT07 attached hereto
e) the construction of a septic tank on plot 2 of the Site (which plot is shown edged red on plan TT02 attached hereto)
f) the construction of a cesspit on plot 6 (which plot is shown edged red on plan TT06 attached hereto)
g) the construction of storage bays on Plot 6 in the position shown coloured blue on plan TT06 attached hereto
h) the laying of hardstanding on the Site other than in those areas shown crosshatched black on the plans TT02 and TT08 attached hereto."
Notices C to L are notices which are specific to the 8 plots which had been created on site, a section of the roadway and an area of hard standing. It is unnecessary to set out the breaches of...
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