Eastleigh Borough Council, R (on the application of) v First Secretary of State & Anor [2004] EWHC 1408 (Admin)

Case No CO/1700/2004[2004] EWHC 1408 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28th May 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF EASTLEIGH BOROUGH COUNCILClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantASDA STORESDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS M MACPHERSON (instructed by Eastleigh Borough Council) appeared for CLAIMANTMR J AUBURN (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANTMR V FRASER (instructed by Halliwell Landau) appeared for SECOND DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an application made by the Eastleigh Borough Council against a decision by the Secretary of State, through an inspector, granting a lawful development certificate under the provisions of section 192 of the Town and Country Planning Act 1990. The certificate was granted on the application of Asda Stores, the Council having refused the application. The background is as follows and can be shortly described.[2]In 1972 the Secretary of State granted permission for the construction of a store with 4,645 square metres of selling space plus storage and office facilities and appropriate plant rooms, together with car park and petrol filling station. In those days it was 50,000 square feet, which is the equivalent of the area in metres. That was what was applied for and that was what was granted. There were no conditions imposed in respect of the floor space to be used for the purpose of sales.[3]Since that permission there have been a considerable number of further permissions granted, some of which have increased the amount of floor space permitted for sales. Others have related to extensions to the car park, various extensions to other parts of the building, and so on. It is not necessary to go into those in any detail. The result of those is that the current sales floor area is something in the order of 7,739 square metres or 83,000 odd square feet. None of the permissions imposed any conditions in relation to the extent of the selling space.[4]Asda intend, or so they have indicated, to construct a mezzanine floor in the building, there being ample space in it to enable that to be done, and to use that mezzanine floor for the purpose of sales. That would give them something in the order of an extra 50,000 square feet or another 4,645 square metres, a very substantial increase in the selling space. The precise percentage matters not for these purposes. The Council, understandably, was concerned that the effect of that increase would be to put yet more pressure on the town centre because there would obviously be a much greater attraction because of an extension of the number and the variety of items that were able to be sold in the store, and also an extension of choice for the customers who attended the store. That, of course, is no doubt why Asda themselves want to increase the space and it would, in addition, attract more customers. That would itself increase traffic and there would obviously be an implication in planning terms from that.[5]It would, in Eastleigh's view, have been contrary to the relevant planning policies, the approach having changed somewhat between 1972, when this permission was originally granted, and today. The focus is now less on out of town superstores and more on trying to ensure that town centres do not cease to retain any life, and certainly cease to retain any variety of shops.[6]The problem that the Council faced was the decision of the Court of Appeal in Brookes and Burton Ltd v Secretary of State for the Environment [1978] 1 AER 733. I will come to that in a moment. The relevant statutory provisions in sections 191 and 192 establish that a certificate ("an LDC") can be obtained if what is proposed to be done is something against which enforcement proceedings could not succeed. Thus, if it is unenforceable then it would be lawful to develop. One goes to consider section 55 of the 1990 Town and Country Planning Act which defines the meaning of development and new development. That provides by subsection (1):
"Subject to the following provisions of this section except where the context otherwise requires, development means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land."
What is submitted here is that the extension of the retail area in the building would clearly be a material change in the use, largely by reason of intensification of the use which it is said produces a material change because of the effect of that intensification in the way I have already indicated on the town centre and traffic.[7]Section 55(2), so far as material, provides by (2)(a):
"The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land: (a) the carrying out for the maintainance, improvement or other alteration of any building of works which -- (1) affect only the interior of the building; or (2) do not materially affect the external appearance of the building."
That means, and this is common ground, that the construction of the mezzanine floor would not amount to development because it falls quite clearly within section 55(2)(a). One then goes to (f) which provides:
"In the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or subject to the provisions of the order of any part of the buildings or the other land, for any other purpose of the same class."
It is under that provision, whose predecessor was section 22(2)(f) of the 1971 Act, which although not in precisely in the same language was, so far as material, in identical terms, that the Use Classes Orders have been made. The present Use Classes Order is that of 1987; SI 1987/764.

(f) and reads:

"Subject to the provisions of this order where a building or other land is used for the purpose of any class specified in the schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
[8]We then go to Class A1 which is in the schedule. It is for shops, and includes the use for all or any of the following purposes: "(a) For the retail sale of goods other than hot food" and (b) to (j) include various other activities that could be carried on which are to be regarded as shops which include, for example, a post office, a travel agency, sandwich bar, a hairdresser shop, funeral parlour and one or two others. I do not think I need to refer to them in any detail.[9]Miss MacPherson has submitted that what we have here is an intensification of the use as a shop, but it is use for the same purpose as previously existed and therefore does not fall either within the language of 55(2)(f), or that of 3(1) in the Use Classes Order. The reason is that the use which is intended is not a use for any other purpose of the same class. It is a use for the same purpose of that class. Accordingly, she submits, it does not fall within the permission granted by the Use Classes Order. That, undoubtedly, is capable of producing some very strange situations. For example, class B2 simply covers use for the carrying on of an industrial process, and industrial process is defined as meaning a process for or incidental to any of the following purposes, and they are 3(a),(b) and (c) the making of any article et cetera. It is said that since the class itself does not set out any other purposes then it is difficult to apply 3(1) directly if it is to be limited in the way that Miss MacPherson suggests it should be.[10]There are undoubtedly anomalies that can be pointed out whichever way one approaches this, but as it seems to me the matter is, as I have said, governed by the decision of the Court of Appeal in Brookes and Burton, so to that I should now go. The case itself concerned the use of land for the making of concrete blocks. The history, which one can obtain from the headnote, indicates that prior to 1948 a plot of land of about five acres was used for brick making. In January 1959 the owner was granted planning permission to use part of it for what was then within Class 3 of the 1972 Use Classes Order, light industrial use. He sold the land shortly afterwards and it remained unused until it was bought by a partnership in 1963, whereupon it was used for making concrete blocks. That was, it was accepted, in breach of planning control but no enforcement action was taken.[11]In December 1972 the appellants bought the land, believing that they did not require planning permission to carry on the block making business and, indeed, that business became immune from enforcement. The appellants began to expand the business. They installed various items of plant and machinery and stepped up production which resulted in more employees, increase in traffic, and complaints from local inhabitants to the planning authority. Various enforcement notices were, in due course, served; some of which were and some of which were not regarded as valid. It is not, I think, necessary to go into the details of that. Anyone who is interested can see for themselves by reading the headnote, or indeed the case.[12]The Secretary of State decided that there had been a material change of use because the processes carried on on the open land -- some processes were in buildings, some were in open land adjacent to the buildings -- were not, according to the Secretary of State, dependent on any use of the industrial building and therefore could not fall within the Use Class as a general industrial building. He also considered that the introduction of a materially different working procedure, together with intensification of the capacity in the barn, had led to a material change of use of the whole site. The Divisional Court adopted the dependent test and so dismissed the appeal. The Court of Appeal reversed that decision. On page 742d of the report, Lawton LJ, giving the judgment of the court, said this:
"The appellants challenge the Secretary of State's decision about there having been a material change in the use of the appeal site. In his decision letter he had given two reasons for saying that there had been such a change in use. The first was that the processes carried out on the open land are not dependent at all on any use of the industrial buildings. Accordingly, so far as such processes were new ones, the use could not be regarded as falling within Class IV of the Use Classes Order since they were not 'a use as a general industrial building'. The new processes were development within section 22(1) of the 1971 Act but as they were not dependent at all on any use of the industrial buildings, they did not attract the benefit of 22(2)(f) which excludes from the definition of development in section 22(1) any uses 'in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use for any other purpose of the same class'. New processes within Class IV carried on inside the buildings would have been permissible under section 22(2)(f) but new ones carried on outside were not. The second reason was that on the evidence there had been a material change of the use of the whole block making site by the introduction of a materially different working procedure together with the intensification of the potential and capacity of the plant."
It was thus claimed that the relevance of 22(2)(f), now 55(2)(f), to the question of intensification was material.[13]One then goes to 743h where this is said:
"When the construction which we have adjudged to be correct is applied to the inspector's findings of fact, the result must be that during the Sturtevant [that is the period when part of the processes were brought into operation] occupation of the appeal site, the part of the block making site in the open was used for the same purpose as the shed in which the concrete block making machinery was installed. The blocks produced in the shed were dried in the open on concrete strips set in hoggin. This is all part of the block making process. The whole block making site was a 'general industrial building' for the purposes of the Use Classes Order, and as long as the appellants confined their operations on their site to Class IV uses, they were entitled to the benefit of section 22(2)(f) even though any new processes and intensification of use amounted to a material change of use."
[14]It is perfectly plain from the facts of Brookes and Burton that the purpose for which the land was used was the production of these concrete blocks, and it was that purpose that remained constant. Thus, intensification and new processes were used for that same purpose. It is true that when one looks at the terms of the then Use Classes Order, which was the 1972 Order, one finds that use as a general industrial building fell within Class IV, and that was simply use as a general industrial building for any purpose. If one went back to the definition in 2(2) of industrial building, one found that it meant a building used for the carrying on of any process for or incidental to any of the following purposes. And those are in the same terms, effectively, as the relevant definition in the 1987 Order.[15]Accordingly, it is quite plain, in my view, that there was and could be no suggestion that there was a change in purpose and if Miss MacPherson's ingenious argument were correct, the decision in Brookes and Burton could not have been reached in the way that it was reached, because the assumption was made that once the use fell within a class in the Use Classes Order, then the carrying out of any developments which did not change that use in the sense that it remained within the same class, could not be regarded as development which was unlawful. Indeed, that is clearly what the Court of Appeal decided in the passage that I have just read at the bottom of page 743.[16]The court went on to consider whether an intensification in that case did amount to a material change of use, because one of the points argued was that in any event there was no material change of use which could lead to valid enforcement proceedings. What the court said about that at page 744e was: "We have no doubt the intensification of use can be a material change of use. Whether it is or not depends on the degree of intensification. Matters of degree are for the Secretary of State to decide. He did so in this case. There was ample evidence to support his decision on this point. It cannot be upset in this court. Counsel for the Secretary of State sought to uphold the Secretary of State's decision about change of use on another ground. He submitted that when the appellant started to make concrete blocks for general building use there began a new operation which was an unauthorised development within section 22(1). They were not, he argued, merely intensifying this use. I do not agree. The primary purpose for which the Sturtevants had used the site, and the appellants were using it, was for concrete block making. It is this primary purpose which determined the character of the use. (See Brazil Concrete Ltdv Amersham RDC (1967) 65 LGR 365). However much one may seek to break down the use in this particular case, the primary use is undoubtedly that of a shop in the A1 class. What the expansion on the mezzanine floor would achieve would be a greater amount or higher level of the same use.[17]My attention has been drawn to the summary of the law in this context in the Planning Encyclopaedia, volume 5, paragraph 3B-959/4:
"In the case of an use falling within the UCO [Use Classes Order], the doctrine of intensification is qualified by the wording of the order. Despite a process of intensification which could normally constitute development, there will be no development involved if the intensified use is still within the same class as the former use."
That is the general understanding of the effect of Brookes and Burton which has now been the leading authority in this field for some 27 years or so. Of course, if I were persuaded that that is not the true construction of Brookes and Burton, I would have no hesitation saying so. But I am not so persuaded. It seems to me that it was clearly the view of the court, and in my judgment an understandable and clearly correct view, that once one came within a Use Class, it was possible to use the relevant unit in any of the ways which fell within the purposes of that class. It would surely be strange if the use for the same purpose was not within, but the use for another purpose within the class specified in the relevant class was.[18]An obvious example in the case of shops is that A(1)(a) refers to use for the retail sale of goods other than hot food. Of course, any sorts of goods can be covered by that and an argument might be that a change from a shop selling toys to a shop selling clothing was not covered by the Use Classes exemption. Thus, given the circumstances -- for example I have not used a particularly good one but one can no doubt imagine different sorts of goods which could be so materially different as to have planning considerations -- then it would be surely, to say the least, curious that an argument could be raised that that change of the nature of the goods would not be covered by the Use Classes Order exemptions but a change, for example, to a funeral parlour would simply because the former was not specifically referred to in (a) to (j) and the latter was.[19]One can well understand, in those circumstances, why the Court of Appeal took the view that it did. It seems to me that is the only sensible construction which can be applied to these provisions. The effect is, of course, that intensification, as such, whether or not it amounts to a material change of use, can never be enforced against, provided it has not changed the use within the relevant class. One may wonder, therefore, what is the point of regarding the intensification as a change of use. The answer may be precious little, except of course in cases which are not covered by or within the Use Classes Order.[20]So far as planning control is concerned, the cure for this is clearly within the hands of the local planning authority because conditions can always be imposed. There is nothing to stop a planning authority imposing a condition in relation to retail sales from a store such as this which limits the area of sales to whatever may be considered to be appropriate. For example, in this case, in 1972 had the Secretary of State made it a condition that there should be no more than 50,000 square feet then this sort of problem would not have arisen. Equally, on any subsequent application that was made which included an increase in the retail area, a similar condition could have been imposed. This is not the first case in which the attention of planning authorities has been drawn to a need to consider imposing conditions where there is otherwise the danger that the Use Classes Order will permit what otherwise might be regarded as a material change of use to go unpunished, and so be regarded as lawful.[21]That, in my judgment, is the short conclusive answer to the claim made in this case and the gallant attempts by Miss MacPherson to distinguish Brookes and Burton simply do not succeed. Of course, there was more than intensification in that case but that is against her because it merely shows that it matters not what was the reason or the basis of the material change of use, whether intensification or anything else. Indeed, that particular point is equally emphasised by the decision of the Divisional Court in Emma Hotels v the Secretary of State for the Environment [1979] JPL 390.[22]It was submitted that the planning permission originally, and indeed subsequently, was limited to whatever the relevant square footage then permitted was, and that that limitation means that there is a material change. It seems to me that it is wholly unnecessary for me to deal with that particular argument in the light of Brookes and Burton. Suffice it to say that it seems to me that that argument simply cannot prevail. The fact is that limitations such as those do not amount to conditions -- indeed, the contrary is not and could not be argued -- and accordingly, they can have no effect when one is concerned with what otherwise would be a change of use, because change of use presupposes that there is a change between before and after, and the use of the building is plainly for the purposes of shop. That approach is consistent with a decision to which my attention has been drawn, I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 PSR 251.[23]The inspector, in addition, took the view that there was no material change of use in what Asda proposed. He deals with that in paragraphs 18 to 22 of his decision. In 18 he refers to Circular 10/97 which makes it plain that the matter to be addressed in determining the application is whether, on the facts of the case, relevant planning law specified matters as lawful. Paragraph 8.15 goes on to say:
"The planning merits of the operation . . . are not relevant to the consideration of purely legal issues which are involved."
He then goes through various authorities and concludes in paragraph 22:
"The Council, commenting that the amount of sale space is in fact unspecified, reasonably say that in theory it could be doubled and contend then such an increase would go directly to the character of the store. The contention as to the character of the store, however, is not substantiated and a number of significant concessions are made. The Council’s witness acknowledged, for example, that the premises with a mezzanine would remain a superstore/hypermarket and that the primary use of the planning unit, which would continue as a single unit, would also remain as a Class A1 shop. Further, this would be so whatever the actual split between sales and associated back up space. I do not disagree. In summary, and as a matter of fact and degree, I conclude that there would be no material change of use."
[24]Miss MacPherson submits that that fails to take into account matters which certainly Diplock LJ in Wilson v West Sussex County Council [1963] 2 QB 764, stated were material in deciding whether there was a material change of use. That case concerned planning permission for an agricultural cottage. The question was whether the change to a non-agricultural inhabitant of the cottage would be a material change of use. This is a reference to page 785 of the report where the learned

Lord Justice said this:

"Considerations which are relevant are planning considerations, and the persons concerned in determining whether there was a material change of use would have to consider such matters as the development plan for the area, the declared policy of the planning authority, the circumstances in which the permission was granted and the terms of the permission. I do not think it right on the material that we have got to express a concluded opinion on the matter, although I would agree with Danckwarts LJ on the material available at present to us, that if the occupation of this cottage, after it had been occupied by a bona fide agricultural worker changed to that of a commuter or other person not engaged in agriculture, that would be a material change of use. However, that is a matter which, as I say, I do not think I can properly decide."
[25]What Diplock LJ, I think, is there concerned with is that the development plan, policies and so on may be relevant in deciding whether a change of use is a material change of use. They are factors which ought, in that respect, to be taken into account. It is not a question of considering the planning merits as such, that clearly is irrelevant but it is necessary, in deciding whether there is a material change of use, to look at the effects of what has been done and to see whether those effects can be said to produce a materially different situation than previously existed. It is submitted with some force that on the face of it the inspector does not take into account those effects.[26]Mr Fraser has submitted that albeit paragraph 22 is somewhat sparse in reasons, it is clear that the inspector did have before him those factors and there is no reason to say that he did not properly take them into account when reaching his conclusion. If that were the only point, I would have some doubt that the inspector had had full regard to the effects of what was being done in planning terms, and in particular on traffic and on the town centre. But having referred to my findings on the main point, that is not material because it does not matter whether there was a material change in use or not. In either event, it cannot be enforced against, and thus was lawful within the meaning of section 192, and accordingly the Secretary of State was, in my judgment, correct in granting the certificate. This application must therefore fail.[27]MR AUBURN: My Lord, I have an application for costs. I believe the quantum has been agreed between the parties.

MR JUSTICE COLLINS: That is always helpful.

[29]MR AUBURN: £3,620 for the First Secretary of State.

MR JUSTICE COLLINS: Well, I imagine that you are not opposing one set of costs.

[31]MISS MACPHERSON: No, my Lord.

MR JUSTICE COLLINS: Can you get yourself outside Bolton, Mr Fraser?

[33]MR FRASER: If I had been instructed to I would have tried, but I have not.

MR JUSTICE COLLINS: I think your instructions were very sensible.

[35]MISS MACPHERSON: My Lord, in view of the great significance of this case and in view of the difficulty, I am instructed to ask your permission to appeal.[36]MR JUSTICE COLLINS: I do not think it is that complex, I am afraid. No, I think this is a matter you must persuade the Court of Appeal of. In my view the position is clear.[37]MISS MACPHERSON: Very well, my Lord.