Hertfordshire County Council v the Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,MR KOLINSKY |
| Judgment Date | 01 February 2012 |
| Neutral Citation | [2012] EWHC 277 (Admin) |
| Date | 01 February 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7181/2010 |
[2012] EWHC 277 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/7181/2010
Mr Matthew Reed (instructed by Solicitor to Hertfordshire County Council) appeared on behalf of the Appellant
Mr Daniel Kolinsky (instructed by Treasury Solicitors) appeared on behalf of the First Respondent
Mr Anthony Dinkin QC and Ms Clare Parry (instructed by Mullis and Peake) appeared on behalf of the Second Respondent
Hertfordshire County Council challenges the decision of the Secretary of State for Communities and Local Government given by an Inspector on 7 June 2010, dismissing appeals made by Metal and Waste Recycling Limited against two enforcement notices served by the County Council in respect of an alleged material change of use and operational development made without planning permission on a scrapyard in Wallace Way in Hitchin.
Metal and Waste Recycling Limited has operated a scrapyard at the site since the 1970s with the benefit of a planning permission which was not subject to any conditions relevant to the issues here. It replaced an old fragmentiser used for dealing with scrap metal with a new one in 2006, and around that time its throughput increased notably. Lorries arrived at unsocial hours. Dust was created.
The County Council served Enforcement Notice A alleging a material change of use without planning permission caused by an increase in throughput and its effect. It was arguing that the material change of use had been caused by an intensification in the use. It required the use to return to operations as they had been conducted before 2006, with various controls imposed, rather resembling conditions, through the medium of steps required to be undertaken to remedy that breach of planning control.
Enforcement Notice B alleged that a number of buildings, including the replacement fragmentiser, had been erected without the planning permission they required and should be removed.
After an 8-day inquiry and considering the evidence, the Inspector rejected the County Council's argument on the material change of use essentially because most of the significant effects of which residents and local businesses complained were not caused by the increase in throughput. She rejected the County Council's arguments on operational development because the buildings were permitted development, not requiring specific planning permission, and she also concluded, in the light of her decision on Enforcement Notice A, that the scrapyard use was not unlawful.
Hertfordshire County Council, with permission, challenges those decisions. Mr Matthew Reed, appearing for the County Council, contends that the Inspector wrongly excluded from her judgment as to whether a material change of use had taken place by way of intensification those effects attributable to changes related to the scrapyard use other than the increase in throughput. The argument on behalf of the second respondent, Metal and Waste Recycling Limited, has involved some consideration of the concept of material change of use by intensification.
The County Council contended that the buildings were not permitted development because the scrapyard use should be regarded as falling outside the scope of an industrial process within the meaning of the Town and Country Planning (General Permitted Development) Order 1990, S1 No 418, and the scrapyard use was not lawful.
The terms of Enforcement Notice A are important. The breach of planning control as amended alleged:
"… without planning permission 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."
The reasons for the issue of the Enforcement Notice refer to the impact which that breach of planning control has had: new buildings were built, including the new fragmentiser "to service this substantial increase in throughput". The steps which Enforcement Notice A required Metal and Waste Recycling Limited to take to remedy the breach of planning control read like the imposition of a series of conditions. These were intended to limit the monthly throughput, the days and hours of operation, and the number and hours of heavy goods vehicle use. They required the buildings which were said to be required to service the increased throughput to be demolished. Those buildings were also the subject of Enforcement Notice B.
Mr Reed, for the County Council, agreed that paragraph 10 of the Inspector's decision letter accurately summarised his submissions. In view of the arguments, I set them out:
"10. The increase in throughput at the time of the installation of the fragmentiser has been used by the Council to describe the extent of the material change of use. However, it accepts that the significant increase in throughput, itself does not amount to a material change of use. The Council has had regard to the planning consequences of that increased throughput in reaching its conclusion that there has been a material change of use. The essence of the council's case on this ground is that there has been an intensification of use which has had significant effects on the locality. It contends that the proper question to consider is not whether the description of the use remains the same but whether the character of the use falling under that description remains the same. The Council relies upon case law to support its contention that in deciding whether the current use is materially different from the previous use, it is appropriate to have regard to the impacts of the current use in comparison to the former use. The Council's position is that there can be a material change of use by reference only to changes in impacts."
Metal and Waste Recycling's submissions in contrast were:
"11. The appellant strongly rejects the Council's submission that there can be a material change of use by reference only to changes in impacts. He accepts that a comparative exercise is necessary based on the effects of the increase in throughput, but submits that the fact that there are more HGVs, general activity, explosions, noise or dust is not sufficient to constitute a material change of use. 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 of the land. Mere intensification, even with adverse side effects, is not enough."
Fundamental to the County Council's case is the contention that although the significant increase in throughput was by itself insufficient to constitute a material change of use, the planning consequences of that increase demonstrated a material change of use. Metal and Waste Recycling contended that the adverse impacts from the increase in throughput were not sufficient to demonstrate a material change of use by intensification. A definable change in the character of the use of the land was required.
The Inspector's decision letter then considers in sequence the particular impacts relied on by the County Council. In paragraph 68 and following, she set out accurately the effect of a number of authorities cited to her on the scope of intensification. She said:
"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 a 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."
She then drew together her unchallenged conclusions of fact and degree, and her conclusions as to the cause of the impacts relied on, in paragraphs 69 to 71. So far as dust was concerned, she said:
"There is no evidence to indicate that any dust created by the site would cause a risk to human health. I have concluded there has been a material increase in dust experienced by local businesses which has emanated from the site since the increase in throughput occurred. However, there is no substantial evidence that the increase in dust identified by local residents at their homes derives specifically from the appeal site or can be directly attributable to the increase in throughput."
She then turned to the explosions caused by the quantity of gas bottles in the waste handled at the site. She said:
"The evidence also does not support the conclusion that the increase in throughput has materially changed the level of impact resulting from explosions at the site."
There had been a significant increase in the number and size of heavy goods vehicles going to the site. She said about that:
"Nevertheless, the size of vehicles and the use of containers to transport material from the site can be attributed to changes in export markets and...
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