R C W Young Ltd v Secretary of State for the Environment, Transport and the Regions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 09 January 2001 |
| Neutral Citation | [2001] EWHC 141 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/1954/00 |
| Date | 09 January 2001 |
[2001] EWHC 141 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Sullivan
NO: CO/1954/00
MR PETER GOATLEY (instructed by Shoosmiths Solicitors, Lock House, Castle Meadow Rd, Nottingham NG2 1AG) appeared on behalf of the Claimant
MR DAVID FORSDICK (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Friday, 9th February 2001
INTRODUCTION
This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash an Inspector's decision contained in a decision letter dated 7th April 1999 dismissing the Claimant's appeal against the refusal of the Second Defendant ("the council") to grant a Lawful Development Certificate. The application under section 191(1)(a) of the Act, dated 2nd January 1997, sought a certificate for the use of the site "as a wholesale builder's merchant's yard supplying trade customers only" (paragraph 4 of the decision letter).
The site at Common Lane, Corley Moor, Warwickshire is an about 1ha in extent. It lies in rural surroundings some five miles to the northwest of Coventry city centre within the Green Belt and some three miles beyond the outer urban fringe of the conurbation.
There was no dispute before the Inspector "that the present use is as a builder's merchant's yard with sales to the trade only." There was no suggestion that planning permission had been granted for such a use. For the Claimant to establish that the use described in the application for the certificate was lawful he had to satisfy the Inspector that on the balance of probability: (1) it had subsisted for a period of ten years before the application for the certificate; and (2) it was not in contravention of the requirements of any enforcement notice (see section 191(2)(a) and (b)).
It might have been thought that determining those two issues in respect of a relatively commonplace use on this small parcel of land should not have posed any particular difficulty. Far from it. Such are the complexities of the planning system that this small site has a planning history extending back for more than 20 years.
THE PLANNING HISTORY
On 18th June 1980 an enforcement notice was served alleging "the making of a material change of use of the said property to a mixed use for the storage of building materials and builder's plant and equipment and the retail sale of building materials" and requiring "the discontinuance of the use of the said property for the retail sale of building materials."
There was an appeal. It was argued on behalf of the Claimant that:
"The Council did not dispute that a business of the nature of that which he operated from the site made wholesale sales of building materials but they were quite unrealistically attempting to prevent retail sales of the same materials without regard for the fact that there were no means available to anyone engaged in the trade which enabled them to positively identify and categorise their customers or one type of sale from another…it was common practice for builder's merchants to sell to both trade and the general public and there was no clear definition of wholesale and retail sales and no positive means of identifying the different types of transaction."
The Inspector found as a fact that:
"building materials are sold from the yard, to the building trade and to members of the general public on a wholesale and a retail basis: many builders are self-employed or part-time operators who purchase small quantities of materials for cash and no discounts or trade terms were given on these transactions;"
In paragraph 35 of his report the Inspector said:
"The omission from the allegations [in the enforcement notice] of any reference to the wholesale disposal of building material from Site A is misleading, in my opinion as it implies that the change of use is from the storage of building materials to the storage and retail sale of building materials but, in fact, the alleged change is from the storage and wholesale disposal of building materials to the storage wholesale and retail disposal of building materials. As one of the appellant's principal grounds of appeal rests upon his claim that the two categories of sale, one of which was not said by the Council to be unauthorised are virtually indistinguishable and as a proper and established function of a builders merchant's business I consider it is important that the allegations of the notice correctly describes the full use of the Site…"
The Inspector recommended that the enforcement notice should be quashed. In a decision letter dated 11th November 1981 the Secretary of State said at paragraph 5:
"Although it was accepted that the defect was not material, it was submitted on behalf of your client that the allegation of this notice was misleading in that it did not make it clear that the existing uses of the site included the wholesale disposal of building materials and, that the notice was not directed against this aspect of the business…The view is taken that the notice would have been more correct if the allegation had included all the existing uses. Accordingly, if it had been proposed to uphold the notice, it would have been corrected…to show that it related to a change of use to storage, wholesale and retail sales."
In paragraph 8 the Secretary of State said:
"The Inspector's findings of fact, which are accepted, show that building materials are sold from the appeal site to the building trade and to the general public on a wholesale and retail basis…"
In paragraph 9 the Secretary of State said:
"It is considered in the circumstances of the present case, that the question whether the alleged change from wholesale to retail sales amounted to a material change of use, is only of relevance, in the context of a ground (b) plea, if the wholesale use was itself a lawful use. In this connection the evidence shows that until about 1960 the appeal site was in agricultural use as part of a poultry farm and, that a timber shed construction business was then started on the site. The view is taken that the introduction of this use brought about a material change of use. It is also considered that the subsequent change of this use to a use involving the sale of building materials resulted in a second material change of use which, in the absence of planning permission, was in breach of planning control. Whether, from the outset, sales were made on a wholesale basis or on a retail basis and, whether, subsequently, there has been a change from the one to the other, is not clear from the evidence and, in any event, is considered of little importance. What is significant is that the use of the site for the purpose of the sale of building materials constituted an unlawful use and, this remains so irrespective of any variation, material or otherwise, between wholesale sales and retail sales."
On the planning merits the Secretary of State concluded in paragraph 13:
"In the circumstances of this particular case, however, the view is taken that retail sales are closely associated with other activities on the site which the Council do not appear to oppose and, in connection with which, planning permission was granted in June 1980 for the erection of aggregate bunkers and the layout of vehicle parking areas. Furthermore, there is no firm evidence to show that the introduction of retail sales has significantly worsened the environmental impact on the area of those other activities. For these reasons it is proposed, exceptionally, to grant planning permission for the continuation of the use enforced against. It is considered, however, that since this decision is based largely on the Council's acceptance of the use of the site for wholesale sales, it would be inappropriate to make this a permanent permission. In this connection the view is taken that, although in his conclusions on the ground (e) appeal, the Inspector confined his attention to retail sales, the evidence shows that those conclusions apply equally to wholesale sales. Clearly there can be no justification for imposing upon the Council, for all time, a situation which, but for their tolerance, would not otherwise have been allowed to arise. It is therefore considered appropriate that the Council should be able to review the environmental effect of the activities and accordingly it is proposed to attach a time limiting condition to the planning permission."
In paragraph 20 of the decision letter the Secretary of State allowed the appeal, quashed the enforcement notice and granted planning permission:
"…for continuation of the use enforced against subject to the following conditions [of which only the first is relevant for present purposes]
1. The use hereby permitted shall cease on or before 30th November 1986."
The 30th November 1986 came and went and the local planning authority took the view that unauthorised uses were still continuing on the site. So it issued a number of enforcement notices. Notice B is relevant for present purposes, it was dated 3rd August 1987 and alleged:
"The making of a material change of use to a mixed use as a builders' merchant's yard including the storage and sale, both wholesale and retail, of building materials and as a joinery business."
It required the discontinuance of those uses. On appeal that notice was quashed in a decision letter dated 10th May 1988.
It had been argued that another permission, granted in...
To continue reading
Request your trial
-
Matsons Ltd and Others v Leicester City Council
...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 fai......