James Hay Pension Trustees Ltd v First Secretary of State & Ors [2005] EWHC 2713 (Admin)

Case No CO/2732/2005[2005] EWHC 2713 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/11/2005
Before
MR JUSTICE WILKIE
Between
JAMES HAY PENSION TRUSTEES LTDClaimantFIRST SECRETARY OF STATE and OthersDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Peter WADSLEY (instructed by Cobbetts) for ClaimantPaul GREATOREX (instructed by Treasury Solicitor) for Defendant
JudgmentMr Justice WILKIE :
[1]This is an appeal brought with permission of the Single Judge by James Hay Pension Trustees Ltd against a decision of the Secretary of State acting by his Inspector dated 4 April 2005. That decision was to dismiss the Claimant’s appeal which it brought against an enforcement notice issued by the second Defendant, South Gloucestershire Council, on 26 May 2004.[2]The enforcement notice alleged as matters which appeared to constitute a breach of planning control: making a material change in the use of the land in question to a mixed use for vehicle servicing, as a base for motor vehicle business, as a builders yard and for the storage of caravans, containers and vehicles. The requirements of the notice were: 1. cease the use of the land for a mixed use for vehicle servicing, as a base for motor vehicle hire business, as a builders yard and for the storage of caravans, containers and vehicles and 2. permanently remove all vehicles, caravans and containers associated with these uses from the land. The period for compliance set out in the enforcement notice was 2 months.[3]The appeal to the First Secretary of State was on the grounds set out in section 174(2) (a)(c)(d) and (g) of the Town and Country Planning Act 1990 as amended. The appeal was dismissed by the duly appointed Inspector save that insofar as the appeal proceeded on the grounds set out in section 174(2)(g) it succeeded to the extent that the period for compliance with the requirement was extended from 2 months to 6 months.[4]The grounds of appeal against the decision of the Inspector raise three issues upon which the Inspector made findings and which it is sought to challenge. They are: 1. That a document issued by the South Gloucestershire Council on 19 November 2001 was not a certificate of lawful use of proposed development under section 192 of the Town and Country Planning Act 1990. 2. That a planning permission granted on 4 January 1965 (which was, inter alia, for a storage use) had been abandoned. This issue divides into two sub issues namely (a.) whether the planning permission could be abandoned as a matter of law and (b.) if so, whether it had been abandoned in fact and, in this connection, whether the Inspector erred in law by applying the wrong test when deciding the issue of abandonment by, it is said, failing to apply the criteria provided for in Hughes v SSETR 2000 JPL 826. 3. That in deciding the issue of whether he should grant planning permission, the ground of appeal under section 174(2)(a), whether the Inspector applied the correct test in deciding whether very special circumstances existed so as to permit development in the green belt and, in particular, whether he should have taken into account the resumption of the previous storage use authorised by the permission of 4 January 1965.[5]It is common ground that this third issue does not arise for determination separately from the first two. The first Defendant agrees that if the Inspector was wrong on either of the first two issues then ground 3 succeeds. Conversely, if the Inspector was right in respect of those first two issues, then the Claimant agrees that ground 3 has no separate force.[6]The planning history of the site in question is of significance to the determination of this appeal. The Inspector in his decision letter set out that history with which no quarrel is taken. It is contained in paragraphs 3 to 12 of the appeal decisdion. I now summarise it.[7]The appeal concerns a site of some 0.23 hectares comprising part of the former Winterbourne Station which was closed in 1955 and the adjoining station yard. The dwelling immediately to the south of the site, 58 Harcombe Hill, is occupied by the beneficiaries of James Hay Pension Trustees Ltd, Mr and Mrs Ingram.[8]The former station booking office at the eastern end of the site is now used by PM Autos to carry out mechanical repairs to, and servicing of, motor vehicles. Cars and vans awaiting repair, or servicing, and those of staff are parked in the yard. At the western end of the site is an area of planting. Within this area a walled enclosure has been constructed which contains two containers and building materials. This material relates to a company operated by Mr Ingram. In the central part of the site vans are parked in connection with a van hire business operated by Winterbourne Hire. This business is in the same ownership as PM Autos. In the past caravans were also stored on the site but these have been removed.[9]The planning history of the site since the closure of the station is somewhat complex. In January 1965 planning permission was granted for change of use of the railway booking office and yard to a garage and store for the Bristol Avon River Board subject to conditions:(a) The building shall not be used for any purpose within Class X of the Town and Country Planning (Use Classes) Order 1963 other than that now permitted without the prior consent of the local planning authority;(b) A scheme of screening shall be agreed by the local planning authority or in default of agreement be determined by the local planning authority.[10]The land was subsequently sold to the Bristol Avon River Board which later became the Wessex Water Authority. Evidence given by Mr James, who was employed by the water authority as the estates manager from 1980 to 1998, suggests that the site was not used for most of the period from 1987 to 2000. A local builder (Mr Main) used the property under licence for storage purposes for a period of about 18 months. He also apparently lived on the site for a brief period. In 1999 the site was acquired by Mr Appleby, the then occupier of 58 Harcombe Hill, who retained it for about 6 months. From October 1999 to March 2000 some 200 Christmas trees were stored at the site by a local shopkeeper. The remaining trees were planted on the land. In 2000 the site was acquired by James Hay Pension Trustees. The Claimant received incorrect information about the history of the site from the Council in a search made at the time of the purchase and this is the subject of separate legal proceedings.[11]Following complaints about the use of the site during late 2000 and early 2001 the Council served an enforcement notice in March 2001. The notice was similar to the one which is the subject of the present appeal but did not include a highway reason for its issue. That enforcement notice was withdrawn in 2001.[12]An application for a lawful development certificate (LDC) was submitted to the Council in June 2001. The Council’s response dated 19 November 2001 stated that:(a) The 1964 planning permission was not a personal consent to BARB; and(b) The Class X use referred to in the permission is now covered by reference to storage in use class B8. The status of this document is at the heart of the first issue on this appeal.[13]In November 2001 an application was submitted seeking planning permission for change of use of the station building to a vehicle repair workshop, use of the yard for parking vehicles including ones for hire, and stationing of two storage containers. This application was refused in April 2002.[14]In July 2002 a further application was made for an LDC for the use of the premises for storage and distribution (Class B8). This application was refused in April 2003. There is no information before me as to why this subsequent LDC application was made.[15]In September 2003 a further planning application was made for permission for the use of the station building as a vehicle repair workshop, use of the yard for parking vehicles including ones for hire, and the stationing of two storage containers. This application was refused in December 2003.[16]In May 2004 the Council issued the enforcement notice the subject of the appeal before the Inspector and this appeal before the Court today.[17]This appeal is brought under section 289 of the Town and Country Planning Act 1990 on a point of law (section 289(1)). If the appeal is allowed the proper course is to remit the matter to the Secretary of State for rehearing and redetermination in accordance with the opinion or direction of the Court (Section 289(5) TCPA). That is the relief sought in this appeal.[18]The first issue raised on the appeal concerns the status of the document of 19 November 2001 and whether it is a certificate of lawful use in respect of a proposed use. The statutory authority for the issuing of such a certificate is section 192 of the TCPA. Section 192(1) provides: “If any person wishes to ascertain whether –(a) any proposed use of buildings or other land…would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use…in question. (2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use…described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (3) A certificate under this section shall – (a) Specify the land to which it relates;(b) Describe the use…in question…;(c) Give the reasons for determining the use…to be lawful; and(d) Specify the date of the application for the certificate. (4) The lawfulness of any use…for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.” (a) Specify the land to which it relates; (b) Describe the use…in question…; (c) Give the reasons for determining the use…to be lawful; and (d) Specify the date of the application for the certificate.[19]The procedure for applying for and granting a certificate of lawful use or development is provided for by paragraph 24 of the General Development Procedure Order 1995. In particular sub-paragraph 11 of that paragraph provides as follows:
“A certificate under section 191 or 192 of the Act shall be in the form set out in Schedule 4, or in a form substantially to the like effect. Schedule 4 of the order is such a form. It provides as follows: “…the council hereby certify that on………..the use……..described in the first Schedule to this in respect of the land specified in the second Schedule to this certificate and edged/hatched/coloured…..on the plan attached to this certificate, …would have been lawful within the meaning section 191 of the Town and Country Planning Act 1990 (as amended), for the following reasons;…………”
There is then provision for a first and second Schedule. Schedule 4 of the order is such a form. It provides as follows:[20]The history of the application made by the appellant is somewhat confusing. I have been taken in some detail through it and I have come to the following conclusions. Initially the application was made on 11 June 2001 on a form which was referable to an application under section 191 of the 1990 Act in respect of existing use. However, that application form was itself confusing as it stated that “existing site uses are not relevant to this application”. There was attached to that application a letter dated 12 June which referred to “the present lawful use of the site by virtue of historic planning permission…” There was, in addition, a statement of justification which was couched in neutral terms as between existing or proposed use.[21]There was a phone call on 31 October 2001 in which the status of the application was discussed. It contains the following. Mr Cant (for the Claimant) “confirmed that what is sought is the answer to two questions: 1) Is the consent personal to the water board; 2) does the pp granted fall within use class B8”.[22]This was followed by a letter of 1November 2001 from Mr Cant to the Council. He says amongst other things as follows: “Notwithstanding the above and for the further avoidance of any doubt whatsoever, the application is to seek clarification in regard to lawfulness in respect of the use granted planning consent on 1 January 1965 under SG 7789. The issues to be addressed are as follows:a. Does the use granted now fall within use class B8?b. That the planning consent was not personal to the Bristol Avon River Board The application does not seek lawfulness for the use that is currently being carried out at the site by Mr Mainstone, which is a B2 use within the building and as I understand it a sui generis use of storing vehicles, including those for hire, in the yard. It may be that confusion is caused by the application having been submitted on the basis of an existing use. I followed this course of action because Mr Mainstone’s use is unauthorised at present and therefore the lawful use is the one granted permission in 1965. If you consider the application forms should be altered please let me know straightaway. I very much hope, therefore, that you will now be able to issue a certificate of lawfulness on the basis described above and set out in the application forms and accompanying documents without further delay. a. Does the use granted now fall within use class B8? b. That the planning consent was not personal to the Bristol Avon River Board The application does not seek lawfulness for the use that is currently being carried out at the site by Mr Mainstone, which is a B2 use within the building and as I understand it a sui generis use of storing vehicles, including those for hire, in the yard. It may be that confusion is caused by the application having been submitted on the basis of an existing use. I followed this course of action because Mr Mainstone’s use is unauthorised at present and therefore the lawful use is the one granted permission in 1965. If you consider the application forms should be altered please let me know straightaway. I very much hope, therefore, that you will now be able to issue a certificate of lawfulness on the basis described above and set out in the application forms and accompanying documents without further delay.[23]It appears that it may be that there was some response to the second last paragraph of this letter in that the Claimant submitted an application form under section 192, dated 11 June 2001, but stamped as having been received by the Council on 12 November 2001, to which may have been attached the same neutrally expressed statement of justification.[24]I find, that by the time the Council circulated the schedule on 9 November 2001, to which was attached the officer’s report, it well knew that it was dealing with an application for a certificate of lawfulness pursuant to section 192 of the 1990 Act and that this was why the report was couched in the terms in which it was. Further, by the time of the decision on 19November the Council was in receipt of the application form pursuant to section 192.[25]The document which was issued by the second defendant on 19 November 2001 is headed “Town and Country Planning Act 1990 Permission for Development South Gloucestershire.” It states as follows:
“South Gloucestershire Council in pursuance of powers under the above mentioned Act hereby permit the details included in the first Schedule on the 13th July 2001 in accordance with the application and accompanying plans.”
There is no statement of reasons in this document. It then sets out the following as the first Schedule:
“1. That the 1964 planning permission (SG7789) is not a personal consent to the Bristol Avon River Board; and that 2. That the store and class X use referred to in the planning permission SG7789 is now covered by the reference to storage in the use class B8”
The second Schedule to that document identifies the land in question, sufficiently, I find, for the purposes of the statutory scheme. In addition there is the document, already referred to, entitled “Circulated Schedule Number 45/01 – 9 November 2001”. This document identifies the application by a reference number, gives as the date of the application, 13 July 2001, and identifies the site and the proposal, the latter in the following terms:
“Use of station building and yard for a garage and storage yard within use Class B8(Certificate of Lawfulness) ”
It is part of a much larger document which appears to have contained material relevant to a number of different applications. It is page 38 of that larger document. Pages 39-41comprises an officer’s report which sets out the matter in some detail, including the outcome of a consultation, an evaluation of the application and a recommendation.[26]It introduces the matter on the basis that this was an application for a certificate of lawful use submitted under section 192 of the 1990 Act and Article 24 of the 1995 Order. It states that the application aims to establish the lawfulness of a proposed use or development relating to the application site. It then sets out the test as being, on the balance of probability, that the proposed use of the development is lawful, the burden being with the applicant. The report then sets out a description of the development. It describes, in terms, the 1964 consent namely for a “change of use of a railway booking office and yard to a garage and store for the Bristol Avon River Board”. It describes the condition attached to that permission. It describes the two issues which arise as follows: 1. Is the consent…personal to the Bristol Avon River Board 2. Do the uses permitted by use Class X referred to in the condition now fall with use Class B8? The report then describes the site location, the evidence submitted in support of the application, consultation responses, which include one on behalf of a local resident raising the issue that the consent was personal and another raising the issue of abandonment based on non use since 1987. It then sets out in a number of sub-paragraphs a detailed evaluation. That contains, amongst others, the following passages:
“It is the considered view therefore that the 1964 consent is not personal to the Bristol Avon River Board… The current B8 use class is entitled “Storage and Distribution”
. It is considered that the reference to a store in the 1964 consent is covered by the current B8 use class. However, the change of use of the application site for a distribution centre would require consent from the council. The 1964 permission also authorises the use of the site for a “garage” which is not covered by the B8 use class and would not fall within the remit of the determination of the two issues contained within this application. A number of issues have been raised by local residents in relation to the past use of the site. Members should be aware however that the determination of this application does not relate to the current use of the site but seeks to establish the remit of the 1964 consent. The current unauthorised use of the site is subject to an enforcement notice, an appeal against which is scheduled for January 2002.”[27]The final section of this document contains a recommendation in the following terms:
“That on the balance of probability, that a certificate should be issued establishing the following issues: 1. That the 1964 planning permission (SG7789) is not a personal consent to the Bristol Avon River Board; and that 2. The store and Class X use referred to in the planning permission SG7789 is now covered by the reference to storage in use Class B8”
[28]The Inspector dealt with this issue in paragraphs 13 to 15 of his decision letter. He says as follows: “13. An appeal on ground c) deals with the issue of whether there has been a breach of planning control. The appellant argues that some of the alleged breaches of planning control do not amount to a breach because planning permission has already been granted for that use. I understand this argument to relate to the storage of building materials. In considering this matter it is initially necessary to determine two issues:a. What is the status of the document issued by the council on 19 November 2001b. Has the planning permission granted on 4 January 1965 been abandoned? I deal with these matters in turn. 14. With regards to the first issue, two types of LDC can be issued, ie, (a) one relating to the lawfulness of an existing use (section 191(2)) and (b)) one relating to the lawfulness of a proposed use (section 192(2)). The appellant argues that the document is of the second type. The document is clearly confusing. For example it is entitled “Permission for Development” and uses the word permit. Neither of these features would normally be found within an LDC. Nevertheless, the council subsequently described the document as an LDC on various occasions, such as in the Committee report dated 11 April 2002. These occasions are listed in document 10 produced by the appellant. 15. I consider this matter by looking at the purpose of seeking such an LDC, ie to establish whether planning permission is required for a proposed use. It would not be appropriate to describe the document as an LDC if it failed to identify the nature of the proposed use. Paragraph 8.26 of Circular 10/97 makes clear that an applicant “will have to describe the proposal with sufficient clarity and precision to enable the LPA to understand exactly what is involved in the proposal. The appellant made clear to the council in his agents’ letter dated 12 June 2001 his view that the lawful use of the site was Class B8, and it seems to have been the basis of the application. However the document does not directly state whether if this is correct. (sic). The first Schedule responds to two questions which are related to that issue, but the nature of the proposed use does not appear on the document. It must be possible that other factors would need to be considered in determining whether a proposed use is lawful, such as the question of abandonment (I note that this issue is considered in the later refusal of an LDC in April 2003). I therefore conclude that the document is not an LDC under the terms of section 192(2) since it does not confirm that a proposed use would not require planning permission but merely responds to two specific questions.” a. What is the status of the document issued by the council on 19 November 2001 b. Has the planning permission granted on 4 January 1965 been abandoned? I deal with these matters in turn.[29]The Claimants case is succinctly put in its skeleton argument as follows:
“The application and the officer’s report made it clear that the application was made for a certificate under section 192. The officers recommended that such a certificate should be granted. A document was then issued in terms of the officers’ recommendation. The issue of the document was dealt with by officers under delegated powers. This is provided for by the Council’s consultation and its scheme for delegation to officers. The document followed directly from and is linked with the report. Given that fact and the terms of the application the only issue is whether the document as issued can be properly regarded as a certificate under section 192 TCPA with the consequences that flow from section 192(4). Given what was asked for in the application and given what was recommended to be permitted and given what appears in the document itself then that this is a document which is “substantially to the like effect” as a certificate under section 192 of the Act.”
[30]The first defendant contends that the officers’ report does not assist the claimant. It is submitted by the first defendant that the report makes clear that what the Council thought it was doing was not determining whether the use proposed in the application would be lawful but certifying the Council’s view on two aspects of the wording of the 1965 document. It is said that the fact that the Council appears to have used the term certificate of lawfulness or CLU in relation to this document and on future occasions cannot be determinative or carry any real weight.[31]I reject this contention. In my judgment it is perfectly clear from the circulated Schedule dated 9 November 2001 and the report which was annexed thereto that the Council was aware that it was dealing with an application for a certificate of lawful use. Its introduction indicated that the application aimed to establish the lawfulness of a proposed use or development relating to the application site. It identified the main test to be applied in such an application, on the balance of probability, that the proposed use for development is lawful. It stated that the burden of proof lay with the applicant. It identified that the development concerned was the consent granted in 1964 for a change of use of a railway booking office and yard to a garage and store for the Bristol Avon River Board. The first issue which had to be determined in order to deal with the application was whether the consent was personal to the Bristol Avon River Board. The view expressed in the report was that the 1964 consent was not personal to the Bristol Avon River Board. The second issue for the Council in order to deal with the application was to determine the remit of the 1964 consent. It recommended that, on the balance of probabilities, a certificate should be issued setting out in the first schedule first : That the 1964 planning permission (SG7789) is not a personal consent to the Bristol Avon River Board. In my judgment that is plainly a recommendation that a certificate of lawful use be issued in respect of the proposed use of the site in the terms granted to, but not personal to, the Bristol Avon River Board in 1964. That concerns a use of the site for a garage and store but subject to the condition which prohibited the use of the site for other uses falling with use Class X of the 1963 order unless consent was obtained from the Council. The second recommendation was that the certificate of lawful use should clarify that the condition referring to use Class X now applied to storage in the use Class B8.[32]That was what the Council, in my judgment, intended to do. The next question is whether the document issued on 19 November constituted a section 192 certificate. There can be no question but that the document issued on 19 November 2001 does not comply with the requirements of section 192(3) nor with the requirements of 24(11) of the General Development Procedure Order 1995. There is nothing on the face of the document which purports to make it a certificate issued under section 192. There is no doubt, however, that it is intended to be a significant planning document. It is intended to have legal effect by defining that which the applicant was to be permitted to do. Furthermore, it purports to set out what it is to be permitted to do in the first Schedule. The first Schedule refers specifically to the 1964 planning permission and, by implication, that the permission so referred to benefits those other than the Bristol Avon River Board and, in particular, the applicant. It further clarifies by updating one of the matters contained within that 1964 document by reference to the current use classes. Thus, in my judgment, it does satisfy the requirements of 192(3) (a) and (d). It attempts obliquely to satisfy (b) but it fails entirely to satisfy (c). As to paragraph 24(11) it is certainly not in the form set out in Schedule 4. The question arises whether it is any form substantially to the like effect.[33]I have been referred to a number of authorities on this issue. In particular, the case of York and Ross v Casey and Casey 1999 31HLR 209. This concerned the issue of a statutory notice pursuant to section 20(2) of the Housing Act 1988. Such a notice had been issued but it was, on its face, unclear as to its meaning or effect and accordingly it was argued was not valid. The Court of Appeal upheld the validity of the notice and in so doing it adopted the principles which the House of Lords had applied to contractual notices in Mannai Investment Company Ltd v Eagle Star Life Insurance Company Ltd 1997 AC 749. The test which was approved by the Court of Appeal was stated to be as follows:
“The Court must consider first whether the error in the notice is obvious or evident and, secondly, whether notwithstanding the error the notice read in its contest is sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice.”
[34]I have also been referred to an unreported case concerning a section 192 notice the case of Broads Authority v SSET and David Phillips Investments Ltd CO 3501/99. In that case before Mr Nigel McLeod QC sitting as a Deputy Judge of the Queens Bench Division it was intended that the certificate issued was intended to be issued pursuant to section 192. In fact the certificate which was issued was issued purportedly pursuant to section 191. In that case it was said that the certificate was issued “in a form substantially to the like effect” in that it communicated the essential point namely that the proposed uses or operations were lawful subject to compliance with conditions. I have also been referred to the case of R v Ashford Borough Council ex parte Shepway District Council 1998 JPL 1073 and in particular the passage in the judgment of Mr Justice Keene (as he then was) in which he said amongst other things as follows:
“The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings…the general rule is in that construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions if any on it and the express reasons for these conclusions…this rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference…If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity. (see amongst others Staffordshire Moorlands District Council v Cartwright 1992 JPL 138 at 139)…”
In that connection the relevant passage is the Staffordshire Moorlands District Council case in the judgment in the Court of Appeal of

Lord Justice Purchas where he said at page 139 as follows:

“The terms of the planning consent had to be construed in the factual context of the application as a result of which the permission was granted. Any exchange between the applicant and the planning authority might form part of the evidential matrix…In this case the relevant documents were the permission itself, which was to be construed where ambiguous in the context of the correspondence and plans submitted by Jackson and letters written by Cheadle in response…”
[35]In my judgment it is obvious and evident that the document as issued contains errors. Moreover, the terms of the first Schedule are opaque and require clarification. It is permissible to view such a document in its context which includes, for this purpose, the exchanges of correspondence and the terms of the officers’ report. From those documents, in my judgment, the notice as read in that context becomes sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice. It is, as I have found, plain that, by the time the notice had been issued and the report written, the application was for a certificate for lawful use in respect of proposed usages pursuant to section 192. The subject matter of the proposed usage was the change of use for which permission was granted to the BARB in 1965. The applicant proposed to use the premises in that way. The decision of the Council, as recommended by the officers, was that it should be able to do so because the 1965 permission was not personal to the BARB and, furthermore, the use classes referred to in the 1965 permission were parallel to the current use class B8. Viewed in that context, it is clear both what was applied for, what was intended to be granted, and its terms. In my judgment, therefore, taking that approach, the certificate issued was in a form substantially to the like effect to that set out in Schedule 4 of the General Development Procedure Order 1995. Furthermore, the failures to comply strictly with the terms of section 192(3) did not prevent the statutory notice having an effect as such.[36]In my judgment, therefore, the Inspector was wrong in law to fail to characterise the document of 19 November 2001 as a Certificate of Lawful use. That being so and having regard to section 192(4) of the TCPA 1990 the lawfulness of any use for which that certificate is in force should be conclusively presumed.[37]In my judgment, therefore, this appeal must succeed insofar as it raises the question addressed by issue number one. The parties are agreed that, in that event, the appeal must succeed and the matter must be remitted to the Secretary of State for further consideration. The abandonment point falls away[38]For the sake of completeness, I now turn, briefly, to that issue.[39]The first sub issue is whether there can, in law, be an abandonment of a use of land authorised by a planning permission by mere cessation.[40]The Claimant says the basic principle is set out in section 75(1) of the TCPA 1990 which states as follows:
“Without prejudice to the provisions of this part as to the duration or modification of planning permission, any grant of planning permission to develop land shall (except insofar as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it.”
[41]The Claimant relies, in particular, on certain passages in the speech of Lord Scarman in the House of Lords decision in the case of Pioneer Aggregates UK Ltd v SOSE 1985 AC 132. In particular, in dealing with abandonment, Lord Scarman is said to have set out the general principles in a series of passages. At 140F “on the question of abandonment I find myself in agreement with both courts below that there is no such general rule in planning law”. At 142 G-H. “Viewed as a question of principle therefore, the introduction into the planning of a doctrine of abandonment by election of the landowner (or occupier) cannot be justified”. At 146F-H. “A commercial decision to terminate operations upon land where there is a valid planning permission for such operations cannot by itself extinguish the planning permission unless the terms of the permission provide that such shall be the effect of the termination. To give such effect to a commercial decision in the absence of terms to that effect would to fly in the face of (section 75(a))”.[42]The Pioneer case concerned operational development where the development had still not been fully implemented because mining is a continuous operational development: every bite of the shovel is a fresh development. Lord Scarman is said by the appellant to have analysed the then existing cases to the effect that none of them were cases of abandonment of planning permission but, rather, were cases concerning existing uses or cases where existing uses were lost as a result of new development sanctioned by planning permission or related to two planning permissions concerning the same land.[43]The first defendant contends, however, that the Pioneer Aggregates case does not apply to the present situation. Attention is drawn to the commencement of Lord Scarman’s speech at page 136F to 137A in which, amongst other things, he says as follows:
“The first is a question of legal principle: whether a planning permission for the development of land can be abandoned by act of a party entitled to its benefit…If the question of principle should be answered in the negative, the appeal must be dismissed unless the House is prepared to accept the appellant’s alternative contention, which raised the second question: namely, has the development which was permitted by the relevant planning permission been completed. It is conceded correctly that if what was then permitted has been completed a resumption of the same type of operations would be not the resumption of the earlier development but a new development requiring a fresh planning permission.”
Lord Scarman’s holding in respect of that first question at 145G was as follows:
“For these reasons I would answer the first question in the appeal in the negative. There is no principle in the planning law that a valid permission capable of being implemented according to its terms can be abandoned.”
[44]The first defendant contends that the development in question in this case was, the “making of any material change in the use of any buildings or other land” being a “development” within the definition of that term in section 55(1) of the TCPA 1990. He contends that, by way of contrast to the type of operational development involved in Pioneer, the development in the present case was implemented, or completed, as soon as the change in use was made. Accordingly, this present case does not fall within the terms of the general principle as stated by Lord Scarman in Pioneer. In support of this proposition the first defendant relies on a passage in the judgment of

Lord Justice Watkins in the prior case of Young v SSFE 1983 81 LGR 389 at p.398 where he said:

“A lawful use becomes attached to the land, it enures for the benefit of it; see section 33(1) of the Act. It remains, contrary to the submission of counsel for the appellant, attached to that land only so long at it is not supplanted by the introduction of another use or is detached by some other process such as abandonment following interruption of use.”
The first Defendant says that this position, namely that a lawful use may be abandoned following interruption of use, was addressed by the Court of Appeal in the case of Cynon Valley BC v Secretary of State for Wales and Another 1986 2EGLR 191, a case which post dated Pioneer. In that case

Lord Justice Balcombe said as follows:

“We are persuaded that a careful consideration of the decision in the House of Lords in Young v Secretary of State for the Environment (Supra) does indeed involve an endorsement of the passage cited from the judgment of the Court of Appeal in that case…we appreciate that [the Court’s decision] involves giving a restricted construction to section 33(1) as well as making a significant qualification to Lord Scarman’s classification in the Pioneer Aggregates case, but this seems to us inescapable from the decision in Young, and we are encouraged in reaching this conclusion that it follows the express finding of the Court of Appeal in Youngs’ case.”
In particular the first defendant urges upon me the characterisation by the Court of Appeal in Cynon Valley that:
“the planning permission granted in 1969 for use as a light industrial building was spent as soon as the change was complete.”
In this way the first defendant says that the general principle stated in Pioneer Aggregates does not extend where the development is completed or spent. In the case of development in the form of making a change of use, the Court of Appeal in Cynon Valley has indicated that the development is completed, or spent, as soon as the change is made. Accordingly, the defendant argues that the concept of abandonment can, in law, apply to a change of use once the change of use has been made.[45]In my judgment this is the correct analysis of the statutory framework and the case law. Accordingly, had it been necessary for the disposal of this appeal, I would have rejected this ground of appeal.[46]The third ground of appeal concerns the application of the doctrine of abandonment to the facts of this case by the inspector. He deals with this issue in paras 16 to 18 of his decision. It is conceded by the Claimant that, in paragraph 16, he correctly identified the relevant leading authorities namely: Hartley v Minister of Housing and Local Government 1970 1QB 413 and Hughes v SSETR 2000 JPL 826. Furthermore he has correctly identified the proper approach as a matter of law which these cases, in combination, establish.[47]It is said by the Claimant that there is, in addition to the general approach highlighted by the Inspector in para 16, a requirement that four specific issues be addressed namely 1. the physical condition of the building, 2. the length of time for which the building had not been used for the permitted purposes, 3. whether it had been used for any other purposes and 4. the owners’ intentions. These are, in my judgment, correctly identified in para 16 as factors which he took into account. I reject, however, the contention that, though he identified those factors and had been referred to them, it is the case that they must apply in each and every case in which abandonment is an issue. The Claimants argument is effectively that, having correctly identified the test and having identified the factors to which the Claimant wished the Inspector to have regard, he then failed adequately to reflect that test or that approach in the subsequent two paragraphs which concluded with the following words “I therefore conclude that the evidence submitted to the Inquiry indicates that the storage use permitted in 1965 had been abandoned by the time Mr Appleby sold the site in 2000”.[48]In my judgment there is nothing of substance in this ground of appeal. The Inspector, having set out the four factors which he was going to consider, then did so. He plainly had in mind that the test was an objective one namely: what the reasonable man with all the information might have concluded and, in my judgment he applied it. There is a further argument as to whether the Inspector was perverse in concluding that the level of usage during a period from 1987 to 2000, involving two separate periods of different use of 18 and 6 months respectively, each apparently potentially consistent with the 1965 permission, could, as the inspector concluded, have been regarded by reasonable man as de minimis. In my judgment that was a matter entirely for the Inspector and his conclusion cannot be characterised as perverse. Further, it was not the only factor he had to have regard to and, in my judgment, the conclusion to which he came, as a matter of fact, on the question of abandonment on the material before him was correct in its approach and was open to him on the evidence.[49]Accordingly, had I been called upon to do so, I would not have acceded to this ground of appeal.[50]In the light of my conclusions, set out above, as to the proper effect of the document of 19 November 2001 my conclusion is that this appeal must succeed and the matter must be remitted to the Secretary of State for further consideration.

Cited in 3 later judgments