Hertfordshire County Council v The Secretary of State for Communities and Local Government (First Respondent) Metal and Waste Recycling Ltd (Second Respondent)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Toulson,Lord Justice Munby
Judgment Date15 November 2012
Neutral Citation[2012] EWCA Civ 1473
Docket NumberCase No: C1/2012/0529
Date15 November 2012

[2012] EWCA Civ 1473

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

MR JUSTICE OUSELEY

[2012] EWHC 277 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Pill

Lord Justice Toulson

and

Lord Justice Munby

Case No: C1/2012/0529

Between:
Hertfordshire County Council
Appellant
and
The Secretary of State for Communities and Local Government
First Respondent

and

Metal and Waste Recycling Limited
Second Respondent

Mr Matthew Reed (instructed by Hertfordshire County Council Legal Services) for the Appellant

Mr Daniel Kolinsky (instructed by Treasury Solicitors) for the First Respondent

Mr Anthony Dinkin QC and Ms Clare Parry (instructed by Mullis and Peake) for the Second Respondent

Hearing date : 4 October 2012

Lord Justice Pill
1

This is an appeal by Hertfordshire County Council ("the Council") against a decision of Mr Justice Ouseley dated 1 February 2012 ( [2012] EWHC 277 (Admin)) whereby he dismissed an appeal by the Council from a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") given by an Inspector on 2 June 2010. The Secretary of State allowed appeals by Metal and Waste Recycling Limited ("M and WR") under section 174 of the Town and Country Planning Act 1990 ("the 1990 Act") against Enforcement Notices for breaches of planning control issued by the Council, finding that there had been no breach of planning control.

2

Development controlled by the 1990 Act is defined in section 55, which provides, in so far as is material:

"'development', means the carrying out of … any material change in the use of any buildings or other land."

The relevant breach of planning control complained of was a change of use of land at Wallace Way, Hitching, Herts.

3

Upon a breach of planning control, a local planning authority may take enforcement action under Part VII of the 1990 Act. Section 173(1) provides, in so far as is material:

"An enforcement notice shall state—

(a) the matters which appear to the local planning authority to constitute the breach of planning control; … "

4

There were two Enforcement Notices, dated 11 May 2009. They each referred to the relevant land. Enforcement Notice A alleged a material change of use: "without planning permission the material change of use of the land from a scrap-metal yard with an average yearly material throughput of 74,500 tonnes, to a scrap-yard, (including as part of this use an end of life vehicle recycling facility), with an average yearly material throughput of 181,000 tonnes, the totality of the new use having a different nature and character from the former use." The reasons for issuing the Notice included:

"While the land benefits from an extant planning permission, issued by North Herts Districts Council in 1972, for use as a scrap metal-yard, since 2004 the level of operations on the land has increased substantially."

The allegedly adverse impact of the increase is then set out and is related essentially to the increase in throughput; more noise, more dust, more vehicles.

5

Enforcement Notice B claimed that buildings had been erected without planning permission. The same reasons are given. The Inspector permitted a correction to the volumes of material stated in Notice A. The corrected Notice provided:

"… the material change of the use of the land from a scrap-metal yard with an average yearly material throughput of 121,174 tonnes, to a scrap yard, (including as part of this use an end of life vehicle recycling facility), with an average yearly material throughput of 231,716 tonnes, the totality of the new use having a different nature and character from the former use".

Thus the throughput had almost doubled.

6

It is common ground that the Notices stand or fall together. If a change of use is established, planning permission, which had not been obtained, was required (section 57(1)) of the 1990 Act) and there was a breach of planning control (section 171A). If the change of use allegation fails, Notice B fails with it.

7

The Inspector gave her decision following an 8-day public local inquiry. By virtue of section 174(1) of the 1990 Act, M and WR had a right of appeal against the Notices. Having corrected the Notices, the Inspector allowed the appeal on ground (c) in section 174(2) of the 1990 Act, holding that "the material change of use alleged by the corrected Notice has not taken place." There was no "breach of planning control" within the meaning of section 174(2)(c) of the Act.

8

The Council contend that there was a material change of use ("an MCU") of the land which justified the enforcement action taken. In demonstrating an error of law by the Inspector (and by the judge), it seeks to establish four propositions, first, that there can be an MCU merely by intensification of the use, secondly, that an MCU can be established merely by reference to the effect of the use on neighbouring properties, thirdly, that in considering an MCU, it is necessary to look at what is actually carried on and not at what potentially could have been carried on under the existing permission and, fourthly, that, in assessing the effect of operations on site on neighbouring land, it is immaterial whether the impact results from decisions of the operator or as a result of the actions of third parties, such as government requirements.

9

It is not disputed that intensification of a use is capable of constituting an MCU. That was accepted in Guildford Rural District Council v Fortescue [1959] QBD 112, Lord Evershed at page 124, in Lilo Blum v Secretary of State and Anr [1987] JPL 278, by Simon Brown J, and in R v Thanet District Council [2001] 81 P & CR 37 by Sullivan J. What is necessary, however, and accepted by the parties to the present appeal, is that the test for deciding whether there has been an MCU is whether there has been a change in the character of the use. In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484 at 491, Lord Parker CJ stated:

"It seems clear to me that under both Acts [Town and Country Planning Acts, 1932 and 1947] what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier."

10

In Lilo Blum, Simon Brown J stated, at page 280:

"It was well recognised law that the issue whether or not there had been a material change in use fell to be considered by reference to the character of the use of the land. It was equally well recognised that intensification was capable of being of such a nature and degree as itself to affect the definable character of the land and its use and thus give rise to a material change of use. Mere intensification, if it fell short of changing the character of the use, would not constitute material change of use."

In Thanet District Council, Sullivan J stated, at paragraph 54:

"The question left open might well be a vexed question, for the reasons advanced by the respondents. It is easy to state the principle that intensification may be of such a degree or on such a scale as to make a material change in the character of a use; it is far more difficult to apply it in practice. There are very few cases of 'mere intensification'. Usually the increase in activity will have led to some other change: from hobby to business, from part to full-time employment, or an increase in one use at the expense of other uses in a previously mixed use."

11

The general test applied by the Inspector, at paragraph 68, is, in my view, in accordance with authority:

"In the light of judicial pronouncements, and after considering the approaches of the parties, it seems to me that what must be determined is whether the increase in the scale of the use has reached the point where it gives rise to such materially different planning circumstances that, as a matter of fact and degree, it has resulted in such a change in the definable character of the use that it amounts to a material change of use. It is necessary to first look at the effects of what has been done at the site."

Ouseley J, at paragraph 46, correctly referred to:

"… the need to identify a material change in the definable character of the use of the land."

12

The Council's attack is focussed on the findings of the judge rather than on those of the Inspector and it must be kept in mind that it is the lawfulness of the Inspector's decision which needs to be assessed. M and WR accepted, before the Inspector, that off-site effects were a material factor in considering MCU. At paragraph 11, the Inspector summarised M and WR's submissions:

"The question to be asked is whether the effects of that increase in throughput, including effects off-site, are such that there has been a definable change in the character of the use of the land. If off-site effects are being relied upon they must be such as to have caused some fundamental change in the character of the use...

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