Mr. William Jeffrey Miles v The National Assembly for Wales [2007] EWHC 10 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2007] EWHC 10 (Admin)Case No Case No: CO/6334/2006Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
Mr. William Jeffrey MilesClaimantThe National Assembly for WalesFirstDefendantCaerphilly County Borough CouncilSecondDefendant
Before
MR. JUSTICE LLOYD JONESMr. Graham Walters (instructed by Everett, Tomlin, Lloyd and Pratt) for the Claimant Mr. Clive Lewis QC (instructed by the National Assembly for Wales) for the First DefendantThe Second Defendant did not appear.Date 22 January 2007
[1]MR. JUSTICE LLOYD JONES: This is an application pursuant to section 288, Town and Country Planning Act 1990 ("the 1990 Act"). The Claimant Mr. William Jeffrey Miles seeks to challenge a decision of the first defendant, the National Assembly for Wales ("the Assembly"), dated the 2 nd June 2006. By that decision a planning inspector acting on behalf of the Assembly, dismissed an appeal by the Claimant against a decision of the second defendant, Caerphilly County Borough Council ("Caerphilly CBC"), refusing an application for a certificate of lawful development.[2]On 26 th January 2005, the Claimant applied under section 191 of the 1990 Act for a certificate of lawfulness of existing use or development ("LDC") in respect of Penrhiwdarren Farm, Mynyddislwyn, the farm owned by the Claimant's father. The application described the use in respect of which the application was made as "use of land for recreational motorcycling activities and farming". The application was refused by Caerphilly CBC on the 13 th May 2005. The Claimant appealed against that refusal under section 195 of the 1990 Act to the Assembly. An inspector held a public inquiry. He gave his decision on the 2 nd June 2006, dismissing the appeal.[3]Section 191 makes provision for the issue of a certificate of lawfulness of existing use or development. It provides in relevant part:
"(1) If any person wishes to ascertain whether- a) any existing use of buildings or other land is lawful; b) any operations which have been carried out in, on, over or under land are lawful; or c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter. (2) For the purposes of this Act uses and operations are lawful at any time if- a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application."
Section 55 defines "development" as follows: "(1) Subject to the following provisions of this section, in this Act, 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.[4]Section 57(1) imposes a requirement for planning permission. "Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land." Enforcement of planning regulation is governed by Part VII of the 1990 Act. Section 171 A (1) provides:
"(1) For the purposes of this Act- a) carrying out development without the required planning permission, or b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control."
Time limits for enforcement action are governed by section 171 B which provides, in relevant part:
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
Provision for the issue of an enforcement notice is made by section 172(1). "(1) The local planning authority may issue a notice (in this Act referred to as an "enforcement notice") where it appears to them-a) that there has been a breach of planning control; and b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. …" Section 173 makes provision for the contents and effect of an enforcement notice: "(1) An enforcement notice shall state- a) the matters which appear to the local planning authority to constitute the breach of planning control; and b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls. … (3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes. (4) Those purpose are-a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or b) remedying any injury to amenity which has been caused by the breach. (5) An enforcement notice may, for example, require- (a) the alteration or removal of any buildings or works; (b) the carrying out of any building or other operations; (c) any activity on the land not to be carried on except to the extent specified in the notice; or (d) the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.[5]Article 3, General Permitted Development Order 1995 ("the GPDO") grants planning permission for certain classes of development. Article 3 (1) provides:
"-(1) Subject to the provisions of this Order and regulations 60 to 63 of the Conservation (Natural Habitats, &c.) Regulations 1994 (general development orders), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."
Schedule 2, Part 4 of the 1995 Order provides for temporary uses. Under Class B permitted development is defined in relevant part as follows:
"B. The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more that 14 days in total may be for the purposes referred to in paragraph B.2…"
It further provides in respect of the interpretation of Class B:
"B.2 The purposes mentioned in Class B above are – (b) motor car and motorcycle racing including trials of speed, and practising for these activities."
[6]In the present case the appeal to the Assembly was made under section 195 of the 1990 Act which provides:
"(1) Where an application is made to a local planning authority for a certificate under section 191 or 192 and-a) the application is refused or is refused in part, or b) the authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the applicant may by notice appeal to the Secretary of State. (2) On any such appeal, if and so far as the Secretary of State is satisfied- a) in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded, or b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded, he shall grant the appellant a certificate under section 191 or, as the case may be, 192 accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application. (3) If and so far as the Secretary of State is satisfied that the authority's refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal. …"
[7]The present application is made pursuant to section 288 of the 1990 Act which provides:
"(1) If any person- a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds- (i) that the order is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that order; or b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds- (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section."
[8]A change of use of land is development for which planning permission is required. Unless a change of use is permitted by an express grant of planning permission or is permitted as a temporary use pursuant to Article 3, General Permitted Development Order 1995, the change of use will constitute a breach of planning control.[9]The effect of section 171B is that where there has been a breach of planning control no enforcement action may be taken after the end of a stipulated period. In the present case the relevant breach of planning control would be governed by section 171B (3) which provides that no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach. The burden of proof lies on the party seeking to establish that a breach of planning control has given rise to immunity from enforcement action. The standard of proof is the balance of probabilities. In the circumstances of the present case the Claimant must establish both that the use was unlawful because it exceeded the permitted temporary use under Schedule 2, Part 4 of the General Permitted Development Order 1995 and that such unlawful use continued for a period of ten years.[10]On the 13 th May 2005 Caerphilly CBC refused the application of the Claimant for an LDC in respect of "use of land for recreational motorcycling activities and farming". The appeal to the National Assembly was considered by an inspector who held a public inquiry on the 28 th February, 1 st March, 6 th and 7 th April 2006.[11]The reasons provided by the inspector for his decision may be summarised as follows:(1) The use for which an LDC had been sought included farming and recreational motorcycling activities. The latter description included two sets of activities. (Decision, paragraph 5) a) Use by individuals of the land for pleasure riding, practice, development of skills and testing of motor bikes. (I shall refer to this category as "individual use".) b) More formal, event based use by groups for scrambling/motocross and other trials, hare and hound and enduro events and specifically related practice for such events. (I shall refer to this category as "event based use".) Within the first of these categories the inspector included occasions when individuals sometimes met others and joined together on occasions for informal competition. (Decision, paragraph 8.)(2) In order to succeed on an application for an LDC it had to be shown on the balance of probabilities that the change had become immune from enforcement due to its having been in continuous use for a period of more than ten years and, having achieved that status, such use had not been lost by abandonment, the formation of a new planning unit or by way of a further material change of use. (Decision, paragraphs 6, 9.)(3) In the present case there was no use of land for motorcycling activities for a period of about 18 months beginning in the autumn of 2000 due to the outbreak of foot and mouth disease. Unless there had been ten years use by that date, the cessation of use of land in breach of planning control for that period would stop the accrual of immunity. (Decision, paragraph 6.)(4) In the present case, the individual use did not, as a matter of fact and degree, fall within the ambit of "motorcycle racing including trials of speed and practising for those activities" permitted under Class B. It was, therefore not possible to aggregate the occasions of individual use with the occasions of event based use for the purpose of contending that the event based use exceeded the permitted 14 occasions a year and was therefore liable to enforcement for the necessary period. (Decision, paragraphs 8, 22.)(5) Consequently, it was necessary to consider whether the Claimant could prove on a balance of probabilities that the permitted number of events falling within Class B had, for a continuous period of ten years, prior to the use stopping in 2000, exceeded 14 occasions a year. If it had not, that use would be permitted under the GPDO and would not be in breach of planning control. (Decision, paragraph 9.)(6) On the evidence, the Claimant did not claim and could not establish that club events exceeded the limit prior to 1994. Consequently, use for scrambling/motocross events had not been carried on in breach of planning regulation for a period of ten years and no lawful use was established in that respect. (Decision paragraphs 23, 24.)[12]On the present application, the Claimant seeks to challenge that decision on the ground that the inspector exceeded his powers in the following respects. The Claimant contends that:(1) The inspector erred in law in failing to have regard to all the evidence of recreational motorcycling activities and/or his analysis of the evidence was unreasonable.(2) The inspector erred in law in concluding that the period when all motorcycling activities ceased on the land due to the prohibition during the foot and mouth outbreak did not count towards the period relied on establishing the immunity from enforcement action. Ground 1.[13]The inspector analysed the use of land stipulated in the application, namely "use of land for recreational motorcycling activities and farming" as follows. "5. It is agreed that farming activities continue on the appeal site and I clearly saw evidence of this on my accompanied site inspection. The recreational motorcycling activities included in the application, as I understand it, comprise a variety of motorcycling activities and events. These are the use by individuals of the land for pleasure riding or practice, development of skill and testing of motorbikes as well as more formal event based use by groups for scrambling/motocross … trials, hare and hound and enduro events and specifically related practice for such events."[14]The distinction drawn by the inspector between two categories of motorcycling activities was reflected in his analysis of the evidence. "8. Much of the evidence from the Inquiry and by way of written statements, letters and statutory declarations shows that individuals rode on the Appellant's land for their own pleasure, honing of their skills and practice and testing of bikes for the pursuits that they followed both at the appeal site and elsewhere. Although it can be seen from the evidence that individuals sometimes met others and joined together on occasions for informal competition, I distinguish this and individual use from more organised use of the land by clubs who held events on the land and I do not consider, as a matter of fact and degree, that these informal uses fall within the ambit of "motorcycle racing including trials of speed, and practising for these activities" permitted under Class B Part 4 of Schedule 2 of the Town and Country Planning (General Development Order) 1995 or its equivalent in the 1988 Order. They cannot therefore be aggregated with events that fall within that ambit to show that it has been exceeded and thus liable to enforcement for the necessary period. 9. In the light of the above, I consider that it is necessary initially for the Appellant to prove, on the balance of probabilities that the permitted number of events of the type defined in the Class B has been exceeded for a continuous period of ten years before the autumn of 2000. I propose, therefore, to analyse the evidence by the Appellant in the course of the appeal relating to the frequency and timing of the events." "22. The evidence given by the various participants satisfies me that there have been motorcycling activities on different areas of the farm since 1979. These include motorcycle racing including trials of speed, and practising for these activities, although the practicing which falls within this category must, in my judgement, be specifically related to a particular event and the only evidence of such practice is that given by Mr. Sheppard who confirmed that specific practice took place on the same day as the event to which it was related. These events were temporary in nature and, as long as they did not exceed 14 days in a year, enjoyed permitted development rights and could not be subject to enforcement action. They would not therefore contribute to an immunity period rolling for use of the appeal site that includes such activities."[15]Having analysed the evidence he concluded that the Appellant's evidence did not show, on the balance of probabilities, that the land was being used for event based activities, as opposed to individual activities, for more than 14 days in each year over the period of ten years up to the autumn of 2000. In particular he did not consider that the evidence showed that that limit was exceeded in 1991, 1992, and 1993. He also doubted that it was exceeded in 1994. In those circumstances, he concluded that he did not need to rehearse or analyse the evidence of the council or the persons who opposed the certificate because the Appellant had failed to show on the balance of probabilities that the use for which the certificate was sought had achieved immunity and consequent lawfulness.[16]The Claimant on this application places great emphasis on the fact that the application for an LDC was in respect of "recreational motorcycling activities." The Claimant submits that the inspector was required to consider the totality of the evidence of recreational motorcycling activities in order to ascertain whether the use stated to be lawful had exceeded 28 days a year for the relevant period. The Claimant complains that the inspector addressed the Class B.2 (b) use, which refers to racing, to the exclusion of the evidence of more general use.[17]To my mind this criticism is not well founded. The inspector correctly identified that the use specified in the application covered two activities apart from farming. He correctly distinguished between two categories of motorcycling activities. He was required to do so because that is the effect of Schedule 2, Part 4 Class B of the GPDO. In particular it imposes different limitations on permitted development comprising "motorcycle racing including trials of speed, and practising for these activities" and other motorcycle activities on the land.[18]The Claimant accepts that if such a distinction is to be drawn, the practising for activities referred to in "motorcycle racing including trial of speed and practicing for these activities" must be, as the inspector concluded, specifically related to a particular event.[19]The essential question therefore becomes whether, for the purpose of establishing an immunity from enforcement action, one can aggregate days on which individual use had taken place on the land with days of event based use in order to obtain an LDC in respect of a general motorcycling use which includes "motorcycle racing including trial of speed and practicing for these activities". I consider that this is not permissible. Class B distinguishes between these two categories of use. These have to be treated as separate uses because they are subject to different limitations for permitted temporary use. It is not, therefore, permissible to aggregate individual use to event based use for the purposes of establishing that the limitations on permitted temporary events use were exceeded so as to establish immunity.[20]If it were otherwise, it would be open to an individual to circumvent the scheme and the policy of the legislation. If it were possible to aggregate different categories of use in the way contended for by the Claimant, one could, by making an application for an LDC in respect of a wider use than the events based use identified in Class B, establish an immunity from enforcement action in respect of such events based use, even if the number of days of events based use in each year within the relevant period had never exceeded the 14 days permitted as temporary use.[21]To my mind, the Claimant's case on this first ground fails once it accepted that the inspector was correct in concluding that "use of land for recreational motorcycling activities" must be regarded as two uses. The use of Penrhiwdarren Farm for events prior to 1994 was lawful because it did not exceed the 14 days per annum permitted as temporary use. One cannot aggregate days on which activities constituting a different use took place in order to make unlawful that which was, in fact, lawful because it was permitted as temporary use.[22]So far as the inspector's analysis of the evidence is concerned, the following further matters arise.[23]First, it was conceded by Mr. Walters on behalf of the Claimant that the inspector was correct in his conclusion that the "practising" referred to in "motorcycle racing including trial of speed and practising for these activities" in Class B2 must be specifically related to a particular event. I consider that this concession was correctly made.[24]However, secondly, the Claimant seeks to challenge as unreasonable the inspector's conclusion that the only event related practices were on the same day as events. At paragraph 22 of his decision the inspector found that the only evidence of such practising specifically related to a particular event was that given by Mr. Sheppard who confirmed that specific practice took place on the same day as the event to which it was related. In the course of his submissions Mr. Walters accepted that that was Mr. Sheppard's evidence but contended that that was not the only relevant evidence. He submitted that the evidence of Mr. Alan Graham Leach, Mr. Alan William John Miles and the Claimant was inconsistent with this conclusion. However, an examination of the evidence of Mr. Leach, Mr. Alan Miles and the Claimant reveals that while they referred to practising, it is not apparent that they are referring to practising which is specifically related to events. In all the circumstances, the inspector, who heard oral evidence from these witnesses, was entitled to come to his conclusion on this point.[25]Thirdly, the Claimant criticises paragraph 25 of the decision, in which the inspector analyses the evidence, on the ground that it takes account of events only and not of event specific practices. However, in light of the inspector's conclusion, to which he was entitled to come, that event specific practices took place on the same day as events, the number of days devoted to event based use would not be increased.[26]The inspector examined the evidence in relation to the different activities on the land with great care. It was clearly open to the inspector to conclude that the use for motorcycle racing had not exceeded the permitted 14 days a year for a continuous ten year period. In particular, the Claimant did not claim that the motorcycle race club events exceeded the GPDO limits before 1994. His father specifically gave evidence that in 1992 there were only 10 to 12 such events. I consider that the inspector was clearly entitled to conclude that the number of days on which event based use took place in 1991, 1992 and 1993 did not exceed 14 days in each of those years. In all the circumstances he was entitled to conclude that this prevented the accrual of 10 years of events based use in excess of the limits allowed under permitted development rights. Ground 2.[27]The second ground of challenge relied on by Mr. Walters concerns the effect on the accrual of any immunity of the period of about 18 months beginning in the autumn of 2000 when no motorcycling activity took place on the land because of the outbreak of foot and mouth disease. The inspector found that the foot and mouth restrictions were an interruption and therefore that the ten year period for the purposes of section 171B was the period of ten years before the restrictions due to foot and mouth disease.[28]The inspector stated his approach to this issue as follows:
"6. In order to succeed in an application for an LDC for a material change of use, it has to be shown, on the balance of probabilities, that the change has become immune from enforcement due to it having been in continuous use for a period of more than 10 years and, having achieved this status, such use has not been lost by abandonment, the formation of a new planning unit or by way of a further material change of use. I note that due to the outbreak of foot and mouth disease no motorcycling activities took place on the land for a period of about 18 months beginning in the autumn of 2000 according to the Appellant. Although this break was out of the control of the Appellant and he intended to resume the use, I am certain that it was an interruption of such significance that it would have stopped the accrual of immunity from enforcement, if such immunity had not been attained by that time. There was some uncertainty over the actual date that the break started, but the period of non-use was clearly in excess of 12 months and enough to stop the accrual of immunity."
The inspector concluded:
"24. In the light of the above I do not consider that the Appellant's evidence has shown, on the balance of probabilities, that the land was being used for motorcycle racing in excess of the limits allowed under permitted development rights in the year 1990 and this would prevent the accrual of ten years of such use by the autumn of 2000 when the closure of the land "stopped the clock" for the accrual of immunity. For the avoidance of doubt and uncertainty, I would add that I do not consider that the evidence shows the limit was exceeded in 1991 to 1993 and I have some doubt that it was exceeded in 1994 because of the apparent misconception that GCTSC was using the land in that year."
[29]The Claimant maintains that the inspector's approach was wrong in law. He maintains that the inspector should first have determined was what the existing use at the date of the application and should then have asked if the use was immune because more than ten years had elapsed since the breach. He submits that there is no authority for the proposition that a use which started more than ten years before the application and which was existing at the date of the application cannot be a lawful use. He submits that the inspector appears to have confused the test under the GPDO in any one year with the statutory tests in section 191 and section 171B.[30]In this regard he relies upon the judgment of Mr. Christopher Lockhart-Mummery QC, sitting as a Deputy High Court Judge, in Panton and Farmer v Secretary of State for the Environment (1999) 78 P. & C.R. 186. Mr. Walters relies on the deputy judge's statement that an accrued planning use right may only be lost in one of three ways by operation of law; first, by abandonment; secondly, by the formation of a new planning unit; and thirdly, by way of a material change of use. Mr. Walters also relies on the statement of the deputy judge that "An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense." (at p. 195)[31]I consider that Panton and Farmer does not assist the Claimant. In that case the court was concerned with an accrued right and the question whether that right was subsequently lost. As Schiemann L.J. observed in Secretary of State for the Environment v Terry Holding and Thurrock Borough Council . [2001] EWCA Civ 226 . (at paragraph 26), the question in Panton and Farmer concerned circumstances where a landowner had a right under planning law to use his land in a particular way but either did not use it actively at all or started to use it in a different way. The issue was whether the landowner could thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date. (See also Chadwick L.J. in Thurrock at paragraph 56.) In the present case, by contrast, we are concerned with the question whether any immunity has accrued.[32]Subsection 171B (3) which imposes a time limit on enforcement action does not expressly require that the unlawful use should have been continuous. However, this is the clear intention of the provision as has been recognised in the decided cases. See, for example, Thurrock per Schiemann L.J. at paragraph 25; Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568 per Keene L.J. at paragraph 25. The new, unlawful use must continue throughout the period in order for the immunity to accrue.[33]The Claimant maintains that the critical question is whether enforcement action could have been taken during the period of the foot and mouth outbreak. He submits that it could and that it is immaterial for present purposes that there would have been no point in taking such action. Accordingly, he submits that the period of the foot and mouth outbreak should count towards the period necessary for the accrual of immunity, notwithstanding the fact that no motorcycling activities were taking place on the land during that period.[34]I am unable to accept this submission. During the period of the foot and mouth outbreak there could have been no question of enforcement action. Accordingly this period cannot count towards the stipulated period for the accrual of immunity. This emerges with great clarity from the decision of the Court of Appeal in Secretary of State for the Environment v Terry Holding and Thurrock Borough Council . [2001]EWCA Civ.226. There Schiemann L.J. explained the rationale of the immunity provisions in the following terms:
"25. I agree with the judge as to the rationale of the immunity provisions. If there is a planning objection to the erection of a building the LPA must take enforcement action within four years of completion or lose the chance of taking such action. If there is a planning objection to a use which has been instituted without the grant of planning permission then again the LPA must take enforcement action within the appropriate time limit, 10 years in the present case. If the new use continues throughout that period then the LPA have lost their chance. Their position is much the same as that of a landowner who lets the world regularly walk along the path over his land. There comes a time when he has lost his right to object."
[35]The question which arises for decision in the present case was expressly considered by the Court of Appeal in Thurrock . There Chadwick L.J. rejected a submission that there was some presumption of continuance in planning law in respect of a use which had commenced as a result of a material change of use but which had ceased to be an active use before any accrued planning right had arisen (at paragraph 56). Chadwick L.J. stated: 57. "The observation in the Panton and Farmer case which, for my part, I find more difficult to accept is that at [1999] JPL 461, 469:
"An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense." 58. The difficulty, as it seems to me, is that if by the phrase "dormant use" in that context the deputy judge meant an established use in relation to which there was an accrued planning right, then the breach of planning control at the time when that use had first commenced would not be one in respect of which an enforcement notice could be "properly served"
. If on the other hand, the deputy judge intended to suggest that an enforcement notice could and should be served in respect of a use which had commenced as a result of a material change of use in breach of planning control but which had ceased to be an active use before any accrued planning right had arisen, then I am unable to follow his reasoning; or to see how an enforcement notice could be appropriate in those circumstances. It is important to keep in mind that an enforcement notice might specify the steps which the local planning authority require to be taken, "or the activities which the authority require to cease", for the purpose of remedying the breach-see section 173(3) of the 1990 Act. There is, I think, force in the editorial comment at [1999] JPL 461, 471 that, if the deputy judge is to be taken to suggest that the notional continuation of use which had ceased to be an active use before any accrued planning right had arisen could be sufficient to establish its own lawfulness:
"…this would mean that a local planning authority might have to issue an enforcement notice to require the sleeping use to stop: this would surely be a nonsense." 59. The "nonsense" can be avoided by recognising that the deputy judge did not intend to suggest, in the Panton and Farmer case, that there was any need to serve an enforcement notice in respect of a use which had ceased to be an active use before any accrued planning right had accrued."
[36]Further support for the approach of Chadwick L.J. is provided by the Court of Appeal in Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568 . At paragraph 27 of his judgment Keene L.J. expressly followed and applied the passage in the judgment of Chadwick L.J. in Thurrock set out above.[37]Contrary to the submission of Mr. Walters, I am unable to accept that Schiemann L.J. in his judgment in Thurrock came to a different conclusion. The submission is based on the following passage in his judgment:
"I accept Mr. Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the week-end or the factory summer holiday for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr. Hockman's submission that enforcement action can be taken once the new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases where it is not clear whether the land is being used for the objectionable activity. These are matters of judgement for others."
[38]Mr. Walters contends, on the basis of the first sentence of this passage, that Schiemann L.J. disagreed with the approach of Chadwick L.J. However, the examples given by Schiemann L.J. demonstrate that he was considering very brief, temporary interruptions in a continuing use. Schiemann L.J. contrasted that with a situation where the new activity which resulted in the material change in the use of land has permanently ceased. Clearly there will be factual situations which will fall between these two extremes. The present case provides an example of such a situation. The inspector concluded that the Claimant intended to resume the use of the land for motorcycling activities after the foot and mouth epidemic had ceased. However, he also concluded and, in my judgement, was clearly entitled to conclude, that the interruption of motorcycling activities on the land for the duration of the restrictions due to the foot and mouth epidemic, a period of between 12 and 18 months, was an interruption of such significance to stop the accrual of immunity from enforcement if such immunity had not been attained by the date of the start of the epidemic in the autumn of 2000. While it is correct that the inspector did not expressly ask himself the question whether enforcement action could have been taken during that period of interruption, it is clear, for the reasons given by Chadwick L.J. in T hurrock , that in the particular circumstances which applied during the foot and mouth epidemic, no such enforcement action could have been taken. Furthermore, I consider it immaterial for present purposes that the interruption in the use was not the result of a freely made choice on the part of the Claimant. In the present context what matters is that the objectionable use actually ceased and there was no longer any need or opportunity for the local planning authority to take enforcement action. (See in this regard the observations of Keene L.J. in Swale Borough Council at paragraph 27.)[39]Accordingly the inspector was entitled to conclude that the period of time which the Claimant must prove in order to establish immunity ceased to run in the autumn of 2000 and was correct to address the question whether the prohibited use had been demonstrated over a continuous period of ten years prior to the autumn of 2000. Further Issue.[40]A further issue arose during the course of argument. I raised with counsel the question whether the inspector should nevertheless have issued an LDC in respect of individual motorcycling use.[41]Mr. Walters on behalf of the Claimant maintained that he should have done so. In this regard he relied upon Panton and Farmer . There the deputy judge held (at pp. 192-3) that there is a duty under section 191(4) on the planning authority and on the body hearing any appeal to issue a certificate in respect of the premises applied for where a lawful use is demonstrated and, if the facts and circumstances so require, to modify the description of the use from that described in the application. Mr. Walters now says that in the present case the inspector has failed to carry out this duty in relation to individual motorcycling use. He also submits that the Claimant would be prejudiced if he were now required to reapply because he would incur further costs and fees. Accordingly he invites the court to quash the decision on this basis and to remit it to the inspector.[42]While it might have been possible to grant an LDC in respect of the individual use, it is clear to me that the appeal before the inspector was not presented on that basis. The Claimant was clearly not entitled to an LDC in respect of "use of land for recreational motorcycling activities". The appeal was essentially concerned with whether immunity had been established in respect of the B2 (b) use of the land and the arguments were not addressed to the question of a more limited LDC in respect of the individual use. The inspector was not asked to issue an LDC in respect of the individual use. Furthermore, the complaint which is now advanced does not appear in the grounds of application to this court, nor has there been any application for permission to amend. In all the circumstances, I do not consider it appropriate to quash the decision on this ground. Conclusion.[43]For the reasons set out above I conclude that the inspector did not exceed his powers in refusing to grant an LDC in respect of the use claimed, namely "use of land for recreational motorcycling activities" in circumstances where that use included "motorcycle racing including trials of speed and practising for these activities" and where the Claimant had not established immunity from enforcement action in respect of the latter use.

Cited in 1 later judgment