Innes v Secretary of State for Communities and Local Government

There are two applications before the court today. They both relate to challenges to an appeal decision which was reached on 27 January 2016. Firstly, there is a statutory challenge brought under section 288 of the Town and Country Planning Act 1990 in relation to the dismissal of two appeals against the refusal of two applications for certificates of lawful use or development. The first of those was made by way of an application dated 7 November 2013 and refused on 21 February 2014. The Inspector's summary of that use or development which was sought is "the re-siting of an existing ready mixed mortar mill". The second certificate of lawful use or development was applied for again on 7 November 2013 and again refused on 21 February 2014. The Inspector's summary of the development involved was "the use of the land for the stationing of a mobile mortar plant".

The wider area of land with which this case is concerned was granted planning permission in 1949 for the winning and working of sand. Three pits were identified as part of that application, denoted as pits A, B and C. Pit C was subsequently expanded by the further grant of planning permission. Those mineral planning consents were the subject of an application under the Environment Act 1995 for a review of the old mineral planning permissions and consent was granted in January 2001 for a revised scheme of modern mineral planning conditions to apply to the consents and an end date was imposed for the working of 2033. As is rightly pointed out by Mr Jonathan Clay, who appears on behalf of the claimants, that process did not create any new planning permission.

Following that, in 1957, a further planning permission was granted. That was on the basis of an application which identified the development proposed as being "alternative site for an existing ready mixed mortar mill to be moved from site A in the interests of the restoration of the sand pit". The permission which was granted identified the development as being "re-siting of existing ready-mixed mortar mill". It was made subject of two conditions which are not pertinent to the matters before me.

It appears that that mortar mill continued in use until it was replaced in between August and October 2002. In around July 2002 a new lease had been granted in relation to the area of land on which the mortar mill was sited. They occupied the site and brought a new mortar mill onto it in order to undertake the production of mortar which remained there until 2010. Following that a third occupant moved onto the area of land concerned in order to continue to undertake production of mortar, they in their turn bringing onto the site yet another new mortar mill.

The local authority, in addition to refusing the certificates of lawful use in relation to the application which had been made before them, also issued an enforcement notice dated 30 September 2014. That identified as the breach of planning control the construction of a concrete surface and erection of fencing, storage bays and other fixed infrastructure (formerly used in connection with a mortar plant since removed) shown in a position which was identified on a plan attached to the notice. The requirements of that notice included the removal of the storage bays and fencing together with the removal of concrete surfacing and concrete walling from the land denoted on the plan attached to the notice. Alongside the appeal against the refusal of the lawful use and development certificates the claimant also launched an appeal against the enforcement notice which I have just described. All three of those appeals came before the Secretary of State's Inspector and were determined following a public inquiry in the decision letter published on 17 January 2016.

It is important to appreciate that the wider area of land which I have described as having the benefit of the 1949 and then 2001 permissions is far greater in its extent than that which was the subject of the application and the enforcement notice. The land which was the subject of the certificate applications and the enforcement notice, and which was therefore in effect the appeal site, is a far smaller triangular area. That area has been let out separately from the larger land holding. It has been let out regularly and used for the purpose of the production of mortar over the years in the manner which I have set out above. It is adjacent to land to the north which has the benefit of a lawful use certificate issued by Tandridge District Council for the use of that more northerly parcel of land as a tile manufacturing facility.

It is against that background that the Inspector came to form conclusions, firstly in relation to the lawful use certificates. It is important, of course, to appreciate that there is an interrelationship between the issuing of the certificates and the making of the enforcement notice and the respective appeals in relation to them. Clearly, the appeal under section 174 of the Town and Country Planning Act 1990 upon Ground (c) turned on the question of whether or not the development was lawful. That in turn engaged the same questions which the Inspector had to deal with in respect of the lawful use certificates. The Inspector, having set out the history of the matter in a little more detail than I have summarised above proceeded to analyse the submissions which he had received on both sides of the argument as to whether or not it was lawful for either of the activities proposed in the certificate to proceed. His conclusions in relation to those matters merits setting out at some length in order to understand both the conclusions themselves and also the arguments which I have heard ranged before me today. His conclusions were as follows:

"24. Looking at the submissions made by the appellant, and taking into account all the evidence presented at the Inquiry, there is no doubt that the 1957 permission was a full permanent permission but in my view it was for an operational development not a use of land. Nowhere in the application form or in the decision is there any mention of the words 'use of the land' be that for mortar production or anything else.

25. Whilst plant and equipment, even if it is comprised in a building, is not a building (by virtue of the definition in s336 of the Planning Act) and not a building operation, it can be an engineering or other operation that results in a structure being erected on a site which can then be used for the purpose for which it was designed (subject to any planning conditions). As cited by the Council and set out in Iddenden [1972] 3 All ER 883 by Buckley LJ, when a building is demolished any use rights are then lost. I agree with the Council that the same would apply to a structure and once the mortar mill had been removed in 2002 so did the use. There was no mortar mill there, so no mortar production activity could take place.

26. Whether an operation or a use of land was involved in setting up the mortar mill on site is a matter of fact and degree and could only be determined if details of the structure(s) comprising the mortar mill were provided but there was no evidence that could be examined put forward from either side on this point. The only evidence was a black and white 1981 aerial photograph from which it was impossible to determine anything about the nature of that original mortar mill.

27. The onus in a LDC appeal is firmly on the appellant to prove his case (albeit on the balance of probability) and in my view nothing was put forward to support the claim that in 1957 a use commenced on site rather than an operational development had taken place. The appellant referred to the most recent occupier of the site and argued that his mortar mill was a mobile piece of equipment that was brought to the site on a lorry and simply swung upright and used so no operational development was involved.

28. I will come back to this point later in considering the possibility that what took place in 1957 was a change of use rather than operational development but do not need to comment on that proposition at this point other than to say that what may have been put on the site in 2010 has no bearing in determining what might have transpired in 1957. There have been many and varied advances in technology since the 1950s and considerable changes in this type of apparatus/machinery.

29. Turning to the claim that the appeal site became a separate planning unit when the 1957 permission was implemented, I agree that a different activity took place to what was occurring on the remainder of the application site land in the ownership of the Titsey Estate Company. It was an industrial use and therefore functionally different but it was not physically separated from the rest of the land. It was only very recently that a fence and gates were erected and before that access into the site from the haul road was free and open. Vehicles transported sorted and washed sand directly to the site from elsewhere on the larger site although there was no connection between the companies involved.

30. Using the tests in Burdle v SSE [1972] 3 All ER 240, which were referred to by the appellant, it seems to me...