Matsons Ltd and Others v Leicester City Council
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 21 March 2016 |
| Neutral Citation | [2016] EWHC 642 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 March 2016 |
| Docket Number | Case No: CO/2484/2015 |
[2016] EWHC 642 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham B4 6DS
The Hon Mr Justice Coulson
Case No: CO/2484/2015
Mr Rory Clarke (instructed under Public Access) for the Appellants
Ms Sarah Allen (instructed by Leicester City Council Legal Department) for the Respondent
Hearing date: 21 March 2016
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
On 13 May 2013, the appellants were convicted of using their land at 39, Gwendolen Road, Leicester, as a Builder's Merchants with ancillary sales, in contravention of the terms of an enforcement notice. They appealed to the Crown Court.
On 18 October 2013, Mr Recorder Mason QC (sitting with two justices) heard and dismissed the appellants' appeal against that conviction. This followed a lengthy hearing at which the Crown Court had permitted the appellants to call expert evidence.
On 1 November 2013, the appellants required the Recorder to state a case. He declined. That decision was challenged by way of judicial review. On 4 March 2015, Cranston J ordered the Crown Court to state a case.
In consequence, a case was stated and four questions were identified by the Crown Court. They were:
(1) Whether the Crown Court was correct to admit the evidence of Mr Faqir contained in his statement of 11 October 2013 and to take the view that it was not expert evidence?
(2) Whether the Crown Court was correct to decide that the meaning of "use as a Builder's Merchants with ancillary sales" was a question of fact rather than a mixed question of fact and expert judgment?
(3) Whether there was sufficient evidence on which the Crown Court could reasonably conclude to the required standard that
(i) Trade sales had taken place at the premises during the period mentioned in the information;
(ii) Ancillary sales had taken place at the premises during the period mentioned in the information;
(iii) The amount of trade sales taking place at the material time was sufficient for the use to be as a Builder's Merchant with ancillary sales as distinguished from other uses such as storage or another use within the class prescribed by the Town and Country Planning (Use Classes) Order 1987 or a mixed use;
(iv) The amount of retail sales taking place at the material time was sufficient for the use to be as a Builder's Merchants with ancillary sales as distinguished from other uses such as storage or mixed use;
(v) That the land had been used as a Builder's Merchants with ancillary sales throughout the period alleged in the informations?
(4) Whether the Crown Court was correct to decide that the advertisement of the premises for sales to the trade was evidence that the land had been used for trade sales during the material period?
BACKGROUND FACTS
The site at Gwendolen Road was permitted for B8 use, that is to say storage and distribution. The respondent became concerned that it was being used as a Builder's Merchants, so they issued an enforcement notice dated 18 March 2010. I have not seen a copy of that notice. My understanding is that the relevant passage in the notice was that it prevented the premises at Gwendolen Road from being used as a "Builder's Merchants including ancillary sales without planning permission".
In April 2011, Mr Faqir, one of the respondent's inspectors, visited the site and noted that it was still being used in contravention of the notice. Warnings were given. When he visited again in July 2011, it had been stripped of all materials.
However, despite this, the respondent concluded that the site was continuing to be used as a Builder's Merchants because sales were still being transacted there. Accordingly, the appellants were prosecuted for breach of the enforcement notice. The relevant period of breach was said to have been between 6 December 2011 and 19 April 2012. This meant that, in effect, the respondent was saying that there had been an unauthorised change of use.
In the case stated, the evidence relied on by the Crown Court in concluding that the appeal against the original conviction should be dismissed is summarised at paragraphs 10 and 11 as follows:
"10. In summary the court came to its conclusion as a result of the following:
(a) Mr. Faqir (planning enforcement officer) visited the premises on 12 July 2011 and it was stripped of all materials.
(b) On two subsequent visits (16.12.11 and 19.4.12) there was a substantial amount of building materials. In addition there was a working cash register that was hidden on the second visit. There was a computer connected to the printer and a credit/debit card machine that was on and working.
(c) There was evidence that the premises and appellant companies had a website advertising that Matson's carried out both trade and retail sales.
(d) The court was satisfied to the requisite standard that the premises were being used as a Builder's Merchant.
11. On the question of whether "ancillary sales" had taken place between the relevant dates, the court took into account the following:
(a) A sale had taken place on 25 February 2012 when the premises was visited and a purchase of materials made by the witness Mr Singh.
(b) The computer was attached to the printer. The screen showed "point of sale" on it.
(c) There was a cash till present and obvious on visits to the premises. It was hidden below the counter of the second visit. There was cash within it.
(d) There was a working card machine which was turned on and had paper in it on the visit on 19 April 2012.
(e) Items in the premises were marked with barcodes.
(f) The evidence given by Mr Singh about the purchase on 25 February 2012 was that it was a normal transaction with cash being handed over and change being given. A receipt was printed off albeit it with a different address on it and the returns policy was explained by the member of staff.
(g) There was in addition to the evidence of Mr Materia evidence from a member of staff, a Mr Laher, who gave different evidence concerning the use of the Epson printer from that given by Mr Materia. Mr Laher said that the printer was no longer used. Mr Materia said that it was used for delivery notes and receipts."
In addition, the Crown Court also had regard to the content of the appellant's website which was available during the period covered by the informations. That advertisement referred expressly to the site at Gwendolen Road as the base for the appellant's operations as a Builder's Merchants and went on to identify that its tools and supplies were available "to both trade and DIY".
THE APPELLANTS' CASE
It is the appellants' case that use as a Builder's Merchants is sui generis; it does not fall into a Use Class defined by the Use Classes Order, so if the use of the site did fall within one of the established use classes, such as B8 (storage and distribution), or A1 (a shop), then it was not being used as a Builder's Merchants and the prosecution must fail. It was said that the prosecution had failed to show use as 'a Builder's Merchants with ancillary sales'.
One complaint made by the appellants during their oral submissions, which does not easily fit within the four questions for me, was Mr Clarke's point that the Crown Court did not define the meaning of "Builder's Merchants". In both the Crown Court and before me, he relied on the decision of Sullivan J (as he then was) in R (C W Young Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 141. In that case the following passages seem to be relevant:
"52. But this argument fails on the undisputed facts in the present case. The Claimant never suggested that retail and wholesale sales were separate and distinct. The reverse is the case. I have set out his arguments to the Inspector in 1980 (see paragraph 11 of the 1980 Inspector's report). In his conclusions the Inspector in 1980 noted that the appellant claimed that the two categories of sale "were virtually indistinguishable" (paragraph 35). The Inspector agreed "it is impossible to draw a clear line between one type of sale and another" (paragraph 36).
…
65. The argument that the 1981 planning permission was not implemented elevates the Secretary of State's omission to refer to wholesale trade in the 1981 decision letter to an undeserved importance. On the evidence as set out in the 1980 Inspector's report and the 1981 decision letter, there was but one use on this single planning unit. It would have been more appropriately described as "a builder's merchant's yard". It was not. But what matters is not the label that...
To continue reading
Request your trial