Compton v Secretary of State for Communities and Local Government & Anor [2012] EWHC 351 (Admin)

Case No CO/10688/20112012] EWHC 351 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate 24th February 2012
M60 9DJ
Before
HIS HONOUR JUDGE GILBART QCHONORARY RECORDER OF MANCHESTER(sitting as a deputy High Court Judge)
Between
NICHOLAS COMPTONAppellantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTFirst RespondentWILTSHIRE COUNCILSecond Respondent
John Barrett (instructed by DLA Piper UK LLP) for AppellantJohn Hunter (instructed by the Treasury Solicitor) for First Respondent for The Second Respondent did not appear and was not representedHearing Hearing dates: 16 th February 2012

JUDGEMENT

[1]In this matter, the Appellant contends that a decision of 11th October 2011 by an Inspector appointed by the First Respondent (“SSCLG”) to uphold an Enforcement Notice, issued by the Second Respondent Council under section 172 of the Town and Country Planning Act 1990, (“TCPA 1990”) and relating to land at Fairfield Piggeries, Leigh Road, Bradford on Avon, Wiltshire should be quashed and the matter remitted to the SSCLG for redetermination. He was given permission to issue this claim by HH Judge Davies on 22nd December 2011.[2]The Notice alleged that there had been the material change of use of the site from agriculture to “ the mixed use of agriculture and the unconnected storage and distribution of animal by-products.” The Inspector varied it by adding the word “unprocessed” before the words “animal by-products.”[3]The appeal site forms part of an agricultural unit of about 25 hectares in open countryside. In 1998 that unit consisted of approximately 56 hectares. It was common ground at the inquiry that activities on the site over the years had included pig rearing, the import and processing of animal by products for use on site, and the storage and onward shipment of processed and unprocessed products. The holding had long been used as a piggery, and to that end material had been imported to feed the pigs. The site included a number of buildings.[4]In 1997 the Local Planning Authority issued an enforcement notice relating to a part of the site (which I shall call the “ 1998 appeal site” or the “ then appeal site”) alleging that there had been a breach of planning control, in that a material change of use had occurred in one part of the 56 hectare site. The breach alleged was “ without planning permission, change of use of the agricultural land and buildings within the area affected to uses for the industrial processing of waste food and animal matter; offsite distribution of the end product and collection and transfer of unprocessed waste food and animal matter; and the construction of extensions…….to facilitate the continuation of the proposed use.”[5]That 1998 appeal site consisted of a block of inter-connecting buildings together with some associated land used for pallet storage, the parking of vehicles and skips and a water cooling tank, humidifying tower, disused grain silo and a Portakabin mess room.[6]It is important to note that what was happening was that material (often waste matter) was being imported and processed in the buildings. Some would be fed to the pigs in the Appellant’s piggery, but large volumes of unprocessed and processed material would also be sold off site.[7]The grounds of appeal had included those under section 174(2)(b) and (c) of the TCPA 1990, i.e. “(b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control.” The Appellant argued that no new planning unit (a concept I address below) had been formed, and that any use taking place in the building on the then appeal site was ancillary to the primary agricultural use of the whole holding of 56 hectares. The inspector, when considering ground (b), concluded that the use alleged was being conducted on the then appeal site, albeit that it was properly described as a mixed use, given the fact that some agricultural use remained. However he expressly stated that that conclusion was subject to the question (raised by the Appellant under ground (c) ) of whether the planning unit was the larger whole, and whether the use of the area of the then appeal site was ancillary to agricultural user of the whole.[8]He then addressed that issue under ground (c), and properly so, because it went to the issue of whether the matters alleged constituted a breach of planning control. Given the significance of the planning unit issue in this case, it is helpful, before looking at his further conclusions, to refer to the three broad tests in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, which is the leading case on this topic. I refer to this well known passage in the judgement of Bridge J “What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use? Without presuming to propound exhaustive tests apt to cover every situation, it may be helpful to sketch out some broad categories of distinction. First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. That proposition emerges clearly from the case of G Percy Trentham Ltd v Gloucestershire County Council ([1966] 1 All ER 701 at 704, [1966] 1 WLR 506 at 513), where Diplock LJ said:
'What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a “material change in the use of any buildings or other land”? As I suggested in the course of the argument, I think that for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.'
But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit. To decide which of these three categories apply to the circumstances of any particular case at any given time may be difficult. Like the question of material change of use, it must be a question of fact and degree. There may indeed be an almost imperceptible change from one category to another. Thus, for example, activities initially incidental to the main use of an area of land may grow in scale to a point where they convert the single use to a composite use and produce a material change of use of the whole. Again, activities once properly regarded as incidental to another use or as part of a composite use may be so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit the use of which is materially changed. It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.” 'What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a “material change in the use of any buildings or other land”? As I suggested in the course of the argument, I think that for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.'[9]The 1998 Inspector considered the planning unit issue according to the three broad tests in Burdle. He concluded that the planning unit was the 56 hectare site, and that the activities within the then appeal site (which he called “industrial”) were ancillary to the agricultural use. In making that assessment he had regard toa. The fact that the importation of material was quite normal at a piggeryb. While substantial volumes of material were sold off site, the then appeal site was not physically separated from the rest of the unitc. The level of material produced on the unit (including that outside the then appeal site) was such that it fell within the scope of what would be regarded as incidental or ancillary to agricultural used. There was no functional separation of the then appeal site from the rest of the agricultural holding.[10]He therefore found that the use taking place in the then appeal site was ancillary to the primary agricultural use. In other words he held that it fell within the first category. It follows also that he had accepted the case put to him by the Appellant under ground (c). He allowed the appeal and quashed the then Enforcement Notice.[11]Some time after the 1998 inquiry (and the date of this occurring was not established before me) part of the larger unit was separated off, but the Appellant continued to operate a piggery on the retained land. He also continued to import material and process some of it, and to export processed material as well. However the scale of the pig rearing activities declined, falling away to nothing in 2006, and the scale of the importing, processing and export increased very substantially.[12]The current proceedings relate to an Enforcement Notice which relates to a part of the current holding, but is rather larger than the 1998 appeal site, which lies within it. The breach alleged was “without planning permission, the material change of use from agriculture to a mixed use of agriculture and the unconnected storage and distribution of animal by-products.”[13]Appeals were entered on, among other grounds, those in section174(2) (c ) (set out above) and also ground (d) , namely “that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters” which in the context of this matter required that the Appellant establish that the change of use alleged had occurred before 6th December 2000 (see TCPA 1990 s 171B(3) )[14]It was common ground before me (and is trite law) that a local planning authority may enforce against a use conducted on part only of the planning unit. However once the planning unit and its use is established after a Burdle assessment, then one must look to see in the enforcement context if there has been a material change of use in the area of it which is the subject of enforcement action..[15]The relevant parts of the Inspector’s Decision Letter read as follows “Procedural Matters[3]It was confirmed at the inquiry that the enforcement notice was directed specifically at unprocessed animal by-products. I consider that it is reasonable that the notice should be amended to that effect, and this would not prejudice either party. Decision[4]The enforcement notice is corrected by the addition, in Section 3 and 5a, of ‘unprocessed’ before ‘animal by-products’ and varied in Section 5 by the deletion of the whole of part (b) and, in Section 6, by deletion of 24 hours and substitution with one month as the period for compliance in respect of 5 (a). Also in Section 6 the time for compliance in respect of 5 (b) is deleted. Subject to these corrections and variations, the appeal is dismissed and the enforcement notice is upheld, and planning permission is refused on the Appeal application deemed to have been made under section 177(5) of the 1990 Act as amended. Reasons Ground (c)[5]The allegation is that there has been a change of use from agriculture to a mixed use of agriculture and the unconnected storage and distribution of unprocessed animal by-products; the fact that the use described is occurring has not been challenged under ground (b).[6]There is also no dispute that the site has been used historically for agricultural purposes, import and processing of animal by-products for use on site, and storage and onward shipment of processed and unprocessed products. This is evidenced by correspondence with the council from at least 1994. I also acknowledge that, at that time, it appeared to the council that this use was occurring separately from the agricultural use and subsequently an enforcement notice was issued, which was the subject of an appeal in 1998.[7]In my view, the appeal and decision from 1998 relating to the previous enforcement notice is pertinent to understanding the use that was occurring about 2 years before the 10 year period that is to be considered in relation to the current enforcement notice. The appellant argues that there has always been a mixed use, including the import and export of processed and unprocessed animal by-products, and this was a conclusion of the previous inspector, so there is no material change of use that requires planning permission. I accept that the council did consider that there had been a change of use prior to that appeal and presumably that was the reason for taking enforcement action at that time. However, the use and planning unit was then considered at that appeal. The inspector did not agree with the council and decided that the unit of occupation was the appropriate planning unit and determined the appeal on that basis.[8]The inspector found Plants 1 and 2 to be essential to the operation of the piggery and, under ground (b), came to a conclusion in relation to Plant 2 that there was an industrial process occurring, which was distinctly different from an agricultural use. He concluded under ground (b) that the allegation should refer to a mixed use and that the notice could be corrected in this respect. However, he also noted under ground (b), after identifying the industrial use, that he would go on to consider whether any industrial use is ancillary to a primary agricultural use, which was done under ground (c). Here he clearly came to the conclusion, while accepting some animal by-products brought to the site were moved elsewhere processed and unprocessed, that the industrial use occurring in both plants was, overall, ancillary to the primary agricultural use.[9]Therefore, he had no need to amend the allegation and it was not amended. I am satisfied that in 1998 the site use remained primarily agricultural. While the parties had agreed in common ground that the 1998 notice should have referred to a mixed use, I indicated at the start of the inquiry that my initial reading of the 1998 decision did not lead me to that conclusion, and for the above reasons I am still of that view, because the inspector found overall the industrial use that was occurring was an ancillary use, not part of a mixed use.[10]The animal by-products are obtained by the appellant from third parties who prefer to deal with one operator for removal of all the material excess to their operations. Depending on the quality of the products, the appellant pays for some and charges for others to be taken away. Evidence indicates that the appellant has to take all the material, so he is not fully in control of the quantity of the material that is collected (other than by the number of contracts arranged). It therefore seems inevitable that balancing what is brought in for processing and what is needed to feed the pigs on the unit would always be difficult, resulting in some excess and possibly the need to buy in feed if imported material is short.[11]This process of balance is clearly identified in the appellant’s answers to questions under the Police and Criminal Evidence Act 1984 in July of 2001, where the arrangement of collection was described as a ‘double whammy’ by the appellant. He notes that since there has been a cut back on the pigs, he has had to move towards the sell-on of raw products without going through the cookers, noting difficulty in getting pigs at the time of foot and mouth disease.[12]While the appellant notes that it is the ‘waste’ produced by factories that is the determining factor about how much is collected, he adds that he would like to say how much ‘waste’ he would like from week to week. He said that the amount moved on depended on the number of pigs being kept; the amount varied and transporting it on was an overflow. In my view, this makes it clear that, while the amount of material collected was up to the supplier, the purpose of collecting it was for feeding his pigs with excess moved on as an overflow, so that he did not get stuck with the ‘stuff’ he could not use. It was not the business at that time to collect the product and move it on, with some of it happening to be used for the pigs on the unit. To my mind this clearly shows that at this time or at least in the recent past the purpose of importing animal by-products was still ancillary to the rearing of pigs.[13]Plants 1 and 2 remain in the ownership of the appellant and his company, and there is no physical separation of Plant 1 from the remainder of the unit and it relies on other parts of the unit for access and servicing, with some shared facilities with Plant 2, 50 it would not be reasonable to divide the planning unit. It was common ground between the parties that the planning unit remains the whole of the appellant’s land that includes the agricultural land and Plants 1 and 2.[14]Currently there are no pigs on site and since at least 2006, with the removal of the major need on the agricultural unit of the animal by-product for the pigs, a large proportion of the animal by-product processing, collection and transfer would have been likely to have essentially commenced an independent use. However, some processed product from Plant 2 was spread as soil improver on the agricultural land up until about 2008. To my mind ft is clear that since about 2008 the import of animal by-products has not been related to agricultural use at the appeal site.[15]I accept that actual quantities of animal by-products brought to the site have varied over the years, but now 100% of the animal by-products brought to the site are bulked up in Plant 1 and transferred unprocessed off site. This strongly contrasts with about 12.8% of that brought on to site referred to in the 1998 appeal. There is no association of the animal by-product collection and transporting on with any agricultural use at the site. I therefore consider that this is now functionally separate from the agricultural element at the appeal site and that the planning unit has become a mixed use as alleged.[16]While the appellant argues that there has always been a considerable element of direct export of imported animal by-products, it was in the past directly associated with, and ancillary to, the primary agricultural use, as indicated in the 1998 appeal decision. The use is now clearly separate, and a primary agricultural use with ancillary industrial use is very different from functionally separate agricultural and industrial uses. There has been a change of use in the planning unit and while the process that is currently occurring is relatively small scale it could in the future expand considerably in Plant 1.[17]I accept that there are malodorous emissions that would be associated with pig farming, rendering of animal by-products and bulking up and transport of these products and that these would have all been present in the past. However, the appellant identified that there is a complex relationship between ‘competing’ odours and one odour might mask that of another. In this case the odours of stored product would be very distinct, as indicated by representations and by itself this has the potential to cause substantial harm to neighbouring occupiers.[18]In addition, agricultural odours are not unusual in the countryside and not unexpected. I consider that the change in the characteristics of the use and the separate, relatively alien, odour of rotting matter that has been experienced in the area is a material change in relation to the previous use. Overall I conclude on ground (c) that the use of the planning unit has materially changed as alleged at some time between the 1998 appeal and now and that the potential different effects of the functionally separate process are material. I consider when the change occurred under ground (d). Therefore, the change of use that has occurred is one that requires planning permission and the appeal on ground (c) fails. Ground (d)[19]The appellant argues that the change to a mixed use occurred soon after the 1998 appeal and that this is demonstrated by the accounts of the appellant that indicate that the income from livestock fell considerably after about 1999 leaving animal by-products as a major part of the income of the unit. While it was necessary for the previous inspector to analyse the extent of use associated with animal by-product in relation to the agricultural unit, there is no precise cut-off figure of a particular percentage of product taken away in relation to that used on the unit that makes it ancillary or not, it is a matter of fact and degree.[20]Clearly with an operation of this type there will be pigs coming and going, as well as varying amount of animal by-product collected. So fluctuation in the percentage would not in itself necessarily indicate that an independent use has subsequently occurred. To my mind what is also important is the purpose for collecting the material and this is made clear in the interview as set out above in 2001 and, in my opinion, even if it did not necessarily relate to what was happening on the date of the interview, it would have been likely to reasonably cover the very recent past.[21]In addition, early in the 2000s the farming and feed industries went through great turmoil with, amongst other things, foot and mouth disease and fluctuating market conditions. In this respect I have considerable sympathy for the appellant, because it must have been a very difficult time trying to keep up with changes in the way feed could be processed and fed to animals, while trying to maintain feed for the pigs. There were considerable fluctuations between the ratio of profit from livestock and animal by-products, but that does not mean that the by-product process was not being run with the intention of being ancillary to the pig rearing. It would not be reasonable to have taken enforcement action at that time even if the ratio of feed products taken off site rose to considerably more than was the case at the time of the 1998 appeal. The intention was to restock with pigs and this occurred later, although to a lesser extent than before.[22]In this respect it is important to understand what the appellant considered to be the situation at that time. As noted above, the appellant was interviewed about his business in 2001. It was clear from his answers to questions, and he would have been aware of the financial side of the business, that although the majority of animal by-product was being taken off site at that time, the basis of collection of by-product was for the feeding of pigs on site and the off site residue was a result of the difference between what had to be collected and what was needed. It was also clear at that time that the intention was to restock with pigs. However, I also accept that the appellant wanted to explore whether the animal by-product side could be separated from the agricultural use, as an application for planning permission was made for this at about the time of the interview.[23]The situation was also identified by the appellant’s agent when making the application for independent use of the processing operation. That agent was present at the time of the 1998 appeal and would have been likely to be aware of the operation of the unit. The agent identified the primary use of the unit as ‘agricultural use with ancillary industrial use’. The accompanying letter notes that ‘the use that has continued since the 1998 appeal has now had to cease’. In March 2002 the appellant notes pigs have been continually farmed and he had every intention of pursuing pigs in the future and that Plant 1 would continue to be allied to the agricultural pig production. This indicates on the balance of probability that the use around July 2001 remained primarily agricultural, with the industrial uses ancillary to it. July 2001 is well into the 10 year period where it is necessary for the appellant to show that the ancillary use had ceased and a mixed use had commenced and continued. This being the case it is not necessary in terms of this enforcement notice to decide exactly when the change did occur. It seems to me that the change, if it did not occur in 2006 when the pigs ceased to be kept, would have been in about 2008 when other products from the rendering ceased to be used for soil improving. The appeal on ground (d) fails.” Decision Reasons Ground (c) unprocessed animal by-products; the fact that the use described is occurring enforcement notice is pertinent to understanding the use that was occurring of use prior to that appeal and presumably that was the reason for taking enforcement action at that time. However, the use and planning unit was then considered at that appeal. The inspector did not agree with the council and decided that the unit of occupation was the appropriate planning unit and where the arrangement of collection was described as a ‘double whammy’ by Ground (d) use had ceased and a mixed use had commenced and continued. This being[16]It was the Appellant’s case at the inquiry, and before me, that there had been a major change in the relative scales of activity as between pig rearing (which he argued had declined to nothing) and processing, storage and export (which he argued had greatly increased). Counsel’s submissions at the inquiry were put before me. The Appellant’s case was that pig rearing continued on site until 2006, but had been declining after 1998, that the keeping of pigs had ceased in 2006, and that the last muck spreading had been in 2008.[17]He also argued to the Inspector (see paragraph 33 of his submissions) that the planning unit as at the time of the current Enforcement Notice (which, the Appellant had argued to the 2011 Inspector, was the whole site) had been used both in 1998 and now for a mixed use of “agriculture, the processing of animal by-products, storage and onwards transhipment of animal feed, and the storage and transhipment of unprocessed animal by-products.” It follows thata. the Appellant’s case to the 2011 Inspector was essentially that he should not have argued the case in 1998 that he had done so successfullyb. that the description of use in the 2011 Enforcement Notice, as varied and upheld by the 2011 Inspector, is very similar indeed to that which the Appellant was arguing.[18]Given the fact that at the inquiry it was common ground (and expressly so recorded by the Inspector at paragraph 13) that the relevant planning unit was still the whole agricultural unit, it follows that both the Appellant and the Local Planning Authority were arguing that the Burdle tests, when applied, produced the conclusion that the planning unit to be considered was neither the 1998 appeal site, nor the new appeal site, but the entire holding as it stood at the relevant time. The Inspector also assessed the issue for himself (see paragraph 13), and concluded that, given the lack of physical separation of the buildings on the now appeal site from the rest of the unit, the dependence of the buildings on the appeal site on other parts of the holding for access and servicing, and the sharing of facilities between the buildings on the appeal site and others, it would be unreasonable to divide the planning unit.[19]There was no suggestion before me that he had chosen the wrong planning unit, and I note from Counsel’s submissions at the inquiry that it was not suggested there either. It will also be noted from paragraph 9 of his decision letter that, having given notice of his preliminary view, he rejected the parties’ agreement that the 1998 Inspector should have found that the 1998 notice should have referred to a mixed use. Given the fact that the Appellant had won that inquiry by persuading the 1998 Inspector that there was not a mixed use, but a single agricultural use to which the waste processing etc activities were ancillary, the current Inspector was plainly right to do so.[20]Given his identification of the planning unit as the whole holding, he therefore had to consider whether, looking at the site he had identified as the planning unit, there had been “a material change of use from agriculture to a mixed use of agriculture and the unconnected storage and distribution of animal by-products.” Given the Appellant’s own vigorously argued case that what was happening on the site could not be regarded as ancillary to agricultural use, and was indeed a mixed use, there was in reality only one conclusion he could come to, which was that the use taking place on the planning unit involved a material change of use. Logically, the only issue the Appellant might realistically have argued was that the mixed use no longer contained an agricultural element. If true, all that that would have achieved (subject to ground (d)) would have been a variation of the Enforcement Notice, since no conceivable prejudice had been caused to the Appellant. However the fact is (as shown by the written submissions made at the inquiry at paragraph 32) that the Appellant had expressly argued at the inquiry that the agricultural element remained, so that argument is not now open to him.[21]Mr Barrett devoted several grounds, and a lengthy argument to the court, all predicated on the basis that the use being conducted within the now appeal site was the same use that was conducted within the 1998 appeal site, without reference to the wider planning unit, and that the Inspector should have accepted that as the relevant test; had he done so, says Mr Barrett, there was no material change of use. While I accept that the Inspector had to consider the facts of what was happening now, and had to consider the facts of the 1998 decision, his task was to ask whether the use taking place in what he had identified as the planning unit was the mixed use alleged, and whether it amounted to a material change of use. Given the Appellant’s own case (set out above) the Appellant cannot now argue that he was wrong to look at the whole area as the area in which that question was to be determined, nor that the relevant previous use was agricultural, with any activities within the 1998 appeal site being ancillary to it. In my judgement he reached a conclusion which was a perfectly proper one to draw.[22]Mr Barrett also sought to argue that one could separate out the 1998 Inspector’s conclusions on grounds (b) and (c) so as to argue that the first Inspector’s findings referred only to the smaller area of the 1998 appeal site. In that way, he argued, one could say that there had been no change of use, and he should therefore succeed on ground (b) or (c) in the 2011 appeal. Like the Inspector, I consider that it is impossible to so read the 1998 decision letter. The Appellant’s case in 2011, as put to the Inspector Decision Letter paragraph 7 , was that the mixed use alleged was in existence at the time of the 1998 inquiry. No doubt because that effectively involved an attack on the findings of the previous Inspector (to whom the Appellant had of course then successfully argued that the use within the then appeal site was that of the whole planning unit, i.e. not a mixed use but an agricultural use with ancillary activities), his client was driven to argue that one should direct one’s attention to the two appeal sites, so as to find an identity of use, and not at the larger planning units (i.e. the 1998 and 2011 versions). Of course had the Appellant accepted that the planning unit had been subdivided, so that the use of the appeal site was now to be regarded as separate, then that too would have created a difficulty, for the sub division could well have involved a material change of use from an agricultural use (or a mixed use including agriculture) over the appeal site. In my judgement this was all an attempt, mounted by the Appellant’s advisers, to avoid the problem that, in a context where the scale of processing activities since 1998 had been fundamentally altered upwards, and that of agricultural activities downwards, the argument he had successfully argued in 1998 about the primary use of the planning unit would make a finding that there had been the alleged change of use to a mixed use quite inevitable.[23]As it is, the Inspector considered the issue of whether there had been a material change of use by assessing the activities on site; see paragraphs 5-8 of his decision letter. In my judgement all of his conclusions are ones of fact and degree to which the Inspector was entitled to reach. Mr Barrett argued that his conclusions concerning the change in the perception of odours was unjustified and open to challenge. I fail to see why. It is reasoned, draws on the evidence called by the Appellant, and is undoubtedly not capable of being challenged as irrational.[24]Another difficulty Mr Barrett faced was that his case on ground (d), to which I shall turn presently, rested on the argument that the change of use alleged had occurred more than 10 years before the issue of the Enforcement Notice. Detailed evidence was adduced by the Appellant at the inquiry, using accounts and records of shipments of material going back to before 2000, all designed to show that the processing and distribution of material were not ancillary to the use of the land for agriculture, but had developed to a degree where it could not be argued that it was ancillary. The same point was taken before me. It was quite inconsistent with the case that the planning unit was still the larger whole, which of course carried with it the implication that the use within the appeal site did not fall within the second or third Burdle categories.[25]That illustrates the fact that the fundamental problem that arose here is that the Appellant and his advisers signally failed to address the significance of the Burdle tests. In 1998, if the Appellant had argued that the use of the then appeal site was separate, and thus fell into the third category of Bridge J, then the case could never have been argued in the way it was, which was to contend that it fell into the first Burdle category. (Of course had he argued otherwise, he would have been doomed to fail on ground (c) in 1998, which was the only ground of substance upon which he succeeded) At the 2011 inquiry, a case that the use carried on in the now appeal site was and always had been different from that carried on in the rest of the site, involved an argument that it fell into the third category, and was therefore a separate planning unit, or that it was a mixed use (second category). But it was also fundamental to the success of the Appellant in 1998 that he established that the use then was agricultural across the whole site (i.e. the first Burdle category). It follows that if the change from a use in the first category (agriculture) to the second category (mixed use) or the third (separate uses) had occurred after 2000, then his 2011 appeal on grounds (c) and (d) was bound to fail. Notwithstanding that, the Appellant’s case at the 2011 inquiry was essentially to argue that in 1998 the use was either mixed (second category) or that there was a separate use of the appeal site as defined then and now (third category). It was therefore impossible for him to succeed unless he succeeded on ground (d).[26]The Appellant’s case under ground (d) was that the change to the mixed use occurred before or soon after the 1998 appeal. As to the former, the current Inspector had made unchallengeable findings at paragraph 9 that the use in 1998 was primarily agricultural, which accorded with the Appellant’s then (1998) case. It follows that if a material change had occurred, it could only be immune from enforcement if the Appellant could show that it had occurred before the end of 2000. This was in truth the only real issue at the inquiry, and for the reasons given above the Appellant and his advisers had muddied the waters by the untenable arguments advanced under ground (c). The Inspector’s conclusions are at paragraphs 19-23.[27]Mr Barrett argues, looking at the detail of the accounts and other material before the Inspector, that the change took place before 2001. It is true that after 1998 the input and processing of material become more and more important in their contribution to turnover, but it is also quite clear that pig rearing was still under way to a substantial extent in 2001. His case was rather that the dealing in material had become a much more substantial operation. The Inspector has addressed this argument, and others, at his paragraphs 19 to 23. His conclusions are reasoned, and draw upon the evidence had had heard. His conclusion that the primary use in July 2001 remained primarily agricultural, and that the industrial uses were ancillary to it, is supported by reasons, and is a conclusion of fact and degree which he was entitled to reach.[28]Mr Barrett argues that the last sentence of paragraph 23 implies that the there was a change to a use not involving agriculture in 2006, or at the latest 2008, and therefore the change to the mixed use must have occurred earlier. I do not accept that the matter is as simple as that. The fact is that the planning unit still contains agricultural land. “Use” in planning terms does not require that in every case activities falling within the description are being carried on for that use to subsist, albeit that the presence of an activity is a matter to be considered when deciding what the use is in planning terms. Land being actively farmed until a few years ago, and falling within an agricultural unit, can still be regarded as being in agricultural use in planning terms. An empty shop still has a retail use in planning terms, even if empty for some time, and indeed it was Mr Barrett’s case to the Inspector (and accepted by him) that there was still an agricultural user of other parts of the whole unit. He could only succeed if he persuaded him that the change had occurred before 2000, and he had not done so. It follows that this challenge must also fail.[29]I therefore reject the challenges brought by the Appellant, which I regard as fundamentally misconceived. There will be judgement for the First Respondent, and the appeal is dismissed.