Raymond John Main v The Secretary of State for the Environment and Another
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 22 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0522-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/4136/97 |
| Date | 22 May 1998 |
[1998] EWCA Civ J0522-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice Strand
London WC2
Mr M Spence QC
(Sitting as a Deputy of the Queens Bench Division)
CO/4136/97
and
MR H WOLTON QC (instructed by Kinglsey Smith and Company Solicitors, Kent ME4 4EE) appeared on behalf of the Applicants.
MR J MOULD (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
(as approved)
Friday, 22nd May 1998
For more than 40 years there has been a site of about 10.5 hectares near Ewelme in South Oxfordshire used for what I shall, for the moment, simply call scrap-yard purposes. There are also three houses on the site. There have been a series of planning permissions granted over the years. At the time when the inquiry concerning this site took place in May 1997 the Inspector described it as follows:
6. Materials and items of one sort or another have been deposited on almost all of the land in what appeared to me to be a haphazard manner. The stockpiling of scrap metal was more intensive on the central part of the site, to the south of Castle Main, closest to the machinery. In this area vehicles and other scrap were piled to a height of some 9 or 10 metres. Elsewhere, although materials were not stacked to this height, the site's surface was covered with an extensive variety of vehicles, materials and items. On many parts of the site, particularly towards the southern boundary, trees, bushes other vegetation was growing between deposited items and, together with the extent of corrosion present, suggested to me that they had lain there for many years.
7. Walking around the tracks within the site I was able to gain an impression as to the type of material present on the site. I noted a large number and wide range of vehicle parts and vehicles of one kind or another, including cars, motor cycles, lorries, busses, contractor's plant, fire engines, tractors and caravans and other trailers. In addition I saw an extensive assortment of other items, ranging from massive metal tanks, silos and industrial machinery to small domestic articles. Also on the site were a number of skips, some of which were filled with what appeared to be scrap metal, others were empty.
8. There were several buildings on the central part of the site, some in a dilapidated condition, others open sided and used for storage or scrap sorting. This building described as the workshop is constructed in brick and blocks with an asbestos sheeting roof. Inside I saw tools and equipment, including two ramps and welders. There were old Ford and Humber cars, one on the ramps and the other undergoing bodywork repairs. In addition there were several ex-WD jeep type vehicles. A weighbridge stands on the main roadway into the site, with an adjacent office building housing the scales. Towards the site's north-western boundary are two further weighbridges, only one having scales."
The Applicant wished to obtain a certificate of lawfulness of existing use or development in respect of what I have just set out, and so his agent made an application under section 191(1) of the Town and Country Planning Act 1990.
The certificate which the Second Respondent council granted was as follows: "the dealing, storage and processing of scrap metal plus 3 dwelling houses." The Applicant was dissatisfied with that certificate and appealed to the Secretary of State for the Environment. An inquiry was held. On the Inspector's recommendation the appeal was dismissed but there was substituted a new certificate as follows:
"The use of land as a scrap-yard, involving the dealing, storage and processing of scrap metal and the residential use of three dwelling-houses."
The Applicant is dissatisfied with this new certificate and applies to this Court to quash it. There are a variety of points set out in the Notice of Motion settled by Mr Wolton, who appears for him, but in essence two points arise, the first being "Are the different uses on this site separate and distinct primary uses or is there one overall primary use (ignoring the 3 houses) which embrace a number of ancillary or incidental uses?" It is worth mentioning that the 10 year rule does not play a part in the case because all these uses are old.
The Inspector made some useful findings of fact, which I shall not read, and he made a series of detailed conclusions about all these uses and they were accepted by the Secretary of State. I shall read paragraph 5 of the Secretary of State's decision letter:
"5. The Inspector's conclusions have been carefully considered and are accepted for the reasons he gives. It is agreed with him that for a certificate to be issued in the terms of the application it would be necessary for your client to show that the range of uses he has specified were being carried on on the site as separate and distinct uses from the operation of the scrap yard which has, although not using that term, been certified as lawful by the Council. The Inspector's analysis of the way in which the various aspects of the business are carried on has been carefully considered and it is agreed with him that none of those uses have been shown on the evidence available and on the balance of probability, to form separate uses of the site in their own right, and that it is appropriate to describe the use of the appeal site as a scrap yard involving the dealing, storage and processing of scrap metal, together with three dwellinghouses in residential use. The inspector recommends that the certificate issued by the Council be amended to take in the term 'scrap yard', but as the Secretary of State has no power to vary the terms of a certificate in these circumstances, a fresh certificate will be issued in the terms recommended by the Inspector."
Almost everyone of the Inspector's conclusions is relevant to this case, however, I shall do no more than cite some of them:
38. I now look in turn at each of the uses which the appellant claims are separate and distinct in terms of their character and which, it is maintained, have been carried on over the relevant 10 year period. I accept Mr Young's argument that there is a distinction between a scrap yard use and the breaking of motor vehicles in order to sell recovered parts. The appellant has submitted some 40 invoices for the sale of vehicle parts in the period from 1 February 1985 and 2 June 1995, and several of the interested persons who gave evidence stated that they had purchased parts for cars, lorries and military vehicles.
39. In my opinion and experience it is by no means uncommon to find this type of sales taking place at scrap yards, especially those as extensive as Woodside. I consider that, in order to represent a distinct and separate use, car breaking would have had to have taken place on an organised and systematic basis. This is not the case at the appeal site. There is no systematic dismantling of vehicles and no organised stocking of spare parts ready for sale. Essentially, potential customers visit the site seeking parts which may be of use to them. Generally parts are removed from vehicles by the customers themselves. This seems to me to be an indiscriminate, low key activity which is part and parcel of the operation of the scrap yard. Consequently, I consider that, as a matter of fact and degree, any car breaking activity which has taken place on the appeal site can be regarded as ancillary to the scrap yard use, and does not constitute a use in its own right.
40. In considering the claimed use as a general dealer in motorcars and other types of mechanically propelled vehicles it is apparent to me that Mr Main conducts his business in a somewhat idiosyncratic manner. Rather than process all vehicles and other items when they are brought to the site, he often retains them on for long periods. I heard evidence that certain vehicles have been left for 40 or 50 years, and my observations at the site were that many vehicles were engulfed by vegetation and heavily corroded. Mr Main's attitude appears to be that he stores items until he decides they should be scrapped and in the interim they are available for sale or as a source of spare parts. There does not seem to be any systematic method of deciding which vehicles are to be scrapped and which retained. The fact that many people who rebuild, restore and run all types of older vehicles such as military vehicles and vintage cars consider Woodside to be a valuable source of vehicle shells and spares is testimony to the length of time many items remain on the site.
41. The impression I gained during my visits to the site was that the vast majority of vehicles there had reached the end of their operational life. Consequently, I would consider them best described as scrap. There is evidence of the sale of vehicles from the site, but it seems to me that this relates predominantly to scrap vehicles. The submitted invoices (Doc 5 RJM14) include several references to ex-WD vehicles, old lorries, lorry bodies and trailers. I consider that to other than an enthusiast or restorer most of the vehicles sold from the site would be perceived as scrap. The sale of such vehicles from a scrap yard is not surprising and, bearing in mind the vast number present at Woodside, I do not consider the sale of 1, 2 or 3 per week to be out of the ordinary. Indeed, it would be unusual if a certain level of sales did not take place from a site of this size and nature. Therefore I conclude that the vehicle sales which have taken place fall within the general...
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