Stone & Anor v Secretary of State for Communities And Local Government & Anor [2014] EWHC 1456 (Admin)

[2014] EWHC 1456 (Admin)Case No CO/20/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2014
Before
MR JUSTICE WYN WILLIAMS
Between
John Emilyn Stone and James Emilyn StoneAppellants(1) Secretary of State for Communities andRespondentLocal GovernmentRespondent(2) Cornwall CouncilRespondent
Neil Cameron QC (instructed by Michelmores Solicitors) for AppellantsJames Strachan QC (instructed by Treasury Solicitor) for First Respondent for The Second Respondent did not appear and was not representedHearing Hearing date: 30 January 2014
Judgment
[1]The Second Respondent is the local planning authority for the county of Cornwall. On 27 April 2012 it issued an enforcement notice in respect of land at Brickworks Hill, St Day near Redruth (hereinafter referred to as “the 2012 notice”). The area of land which was the subject of the notice is referred to hereinafter as “the appeal site” but like others before me I shall refer to four distinct areas making up the appeal site as areas A, B, C and D.[2]The 2012 notice alleged that there had been a breach of planning control upon the appeal site as follows:
“Without planning permission, the material change of use of land to a mixed use consisting of: • the commercial storage and processing of vehicles for the repair/renovation and the breaking of vehicles for resale of parts; and • the non-commercial storage of vehicles and vehicle parts; and • the storage of caravans.” • the commercial storage and processing of vehicles for the repair/renovation and the breaking of vehicles for resale of parts; and • the non-commercial storage of vehicles and vehicle parts; and • the storage of caravans.”
[3]The appeal site was delineated in red upon a plan attached to the enforcement notice. Parts of the site were hatched in blue. Those were areas A, C and D. The notice required the following steps to be taken in respect of those areas of land. “(1) Permanently cease the use of the land hatched in blue on the attached plan for the commercial storage and processing of vehicles for repair/renovation and the breaking of vehicles for resale of parts; (2) Permanently cease the use of the land hatched in blue on the attached plan for the non-commercial storage of vehicles and vehicle parts; (3) Permanently cease the use of the land hatched in blue on the attached plan for the storage of caravans; (4) Permanently remove from the land hatched in blue on the attached plan all vehicles and vehicle parts and other ancillary items connected with the use described at(1) above; (5) Permanently remove from the land hatched in blue on the attached plan all vehicles and vehicle parts and other ancillary items connected with the use described at(2) above; (6) Permanently remove all caravans from the land.”[4]Most of the land comprising the appeal site was and is owned by the First Appellant. A dwelling house known as Cassita which is situated at the southern end of the appeal site and which lies within area D is jointly owned by both Appellants.[5]Following the issue of the 2012 notice the Appellants exercised their right of appeal. The appeal was heard by an inspector duly appointed by the First Respondent. By a decision letter dated 6 December 2012 the Inspector dismissed the appeal albeit he exercised his power to correct and vary the notice.[6]The Appellants now appeal to this court. They rely upon two grounds of appeal. Before considering those grounds, however, it is necessary to set out the planning history of the appeal site so far as is material.

Planning History

[7]On 12 November 2008 the Second Respondent issued an enforcement notice (“the 2008 notice”) in respect of an area of land described as “land at Cassita, Tolcarne, St Day, Redruth, Cornwall”. The land which was the subject of this notice was the same as area D. The 2008 notice alleged that there had been a breach of planning control upon area D by reason of a change of use of the land without planning permission “from domestic curtilage to a mixed use of(a) the storage of vehicles and(b) domestic curtilage”. The notice required that the Appellants (a) cease the use of the land for the storage of scrap vehicles and (b) remove all scrap vehicles from the land. It is common ground that the Appellants complied with the requirements of the notice within the time specified within the notice – as was confirmed by a letter dated 17 March 2009 sent by the Second Respondent to the First Appellant.[8]Almost immediately thereafter the First Appellant applied to the Second Respondent for a certificate of lawfulness for the mixed use of area D for the storage of vehicles (other than scrap vehicles) and as domestic curtilage. The Second Respondent’s response was threefold. First, on 16 December 2009 it purported to withdraw the 2008 notice. Second, on 21 December 2009 it issued a second enforcement notice in respect of area D (“the 2009 notice”). Third, on 15 March 2010 it refused the First Appellant’s application for a certificate of lawfulness.[9]The 2009 notice alleged that the First Appellant was in breach of planning control because:
“Without planning permission, there has been a change of use of part of the land from domestic curtilage to a mixed use of (a) the storage of vehicles and (b) domestic curtilage.”
The First Appellant appealed against this notice. His appeal was successful; an inspector duly appointed by the First Respondent quashed the notice. There has been no suggestion in these proceedings that the Inspector’s decision was erroneous. Of significance to the appeal before me, however, are the conclusions reached by the Inspector at paragraphs 6 to 10 of his decision letter dated 8 February 2011. They read as follows:- “6. Before proceeding to determine this appeal I have a number of concerns that were aired in post-visit correspondence. The first is identification of the correct planning unit. The second is my query whether the allegation correctly reflects the uses that have been going on at Cassita, at least since the previous notice was issued. 7. I saw no formal physical enclosure effectively dividing and separating the uses of Cassita’s rear garden from the adjoining commercial yard. On the contrary, from my observation and from the detailed evidence submitted by the neighbour at The Cottage, it seems clear that there is a functional link, as well as common occupation and no meaningful physical separation, between these two sites. Access ways have been cleared among trees and hedgerow to allow free movement between the adjoining sites. While some boundary clearance seems to have been carried out in 2004 I particularly note the neighbour’s evidence of clearance in May 2009 and 2010. 8. What seems to be going on in the Appeal Site is an integral part of the commercial business of storing and processing vehicles for repair or renovation or by breaking them for resale or parts whether or not they have extant road fund licences. The two adjoining sites have been combined in their use but I do not have details of the adjoining site and the enforcement notice does not include it. There are also some non-domestic materials being stored on the appeal site but, on the scant evidence I have, that aspect of the use of Cassita may be subsumed by the major use of making and breaking vehicles. 9. Looking through Cassita’s kitchen window and seeing the state of the approach to the house and the rear garden raise the question in my mind as to whether Cassita has been used residentially for some time. The photographs submitted in evidence by the neighbour show an oppressive degree of vehicles storage sufficient to overwhelm residential use of this property in the usual sense. I believe this to be the normal state of affairs. Mr Stone reports that Cassita is occupied by several tenants in three units of accommodation. Mr Hinds-Randle is under the impression that these tenants are employed by Mr Stone in his business in and around the appeal site. 10. In the light of the evidence before me I conclude the allegation in the enforcement notice is incorrect and is not capable of being corrected without injustice being caused. The correct planning unit has not been identified and is more extensive than described. I will therefore quash the notice……”[10]The Inspector’s reference to “the adjoining commercial yard” in paragraph 7 of his decision letter is probably a reference to area C; it is common ground that area C adjoins area D and did so at the time of the inspector’s decision. It is also very likely that the Inspector’s reference to the “2 adjoining sites” in paragraph 8 is a reference to areas B and C. Area B adjoins area C as it did at the time of the Inspector’s decision. Looked at sensibly and in the round paragraphs 6 to 10 of the decision letter appear to describe a situation as at 2011 in which areas B, C and D were being used together for the business of “storing and processing vehicles for repair or renovation or by breaking them for resale of parts whether or not they have extant road fund licences” – see in particular paragraph 8.[11]Area A adjoins area B and it is located at the northern most area of the appeal site. Originally it was an area of scrub and/or used for agricultural purposes. According to the Second Respondent its use was altered over time so that it, too, became used for the commercial purposes identified above. In 2007 an enforcement notice was issued in respect of area A and at the time of the Inspector’s decision which is under appeal in these proceedings that notice was still extant. At the time of the issue of the 2012 notice the Second Respondent maintained that area A was being used as an integral part of the Appellants’ business purposes.[12]It is common ground that area B has the benefit of a planning permission for use as a commercial yard. There is no dispute that as at 27 April 2012 it was being used for vehicle storage and repair, salvaging of parts from vehicles and the re-use and sale of those parts. I shall deal with the uses of areas C and D in 2012 in the next section of my judgement. I should record at this stage, however, that area C is also the subject of an enforcement notice which is extant (or was at the time of the Inspector’s decision).

The Appeal to the First Respondent

[13]The 2012 enforcement notice identified areas A, B, C and D as a single planning unit. The plan accompanying the notice showed areas A, C and D hatched in blue and it was these areas which were the subject of the requirements specified in the notice with which the Appellants were obliged to comply. The notice requirements did not relate to area B.[14]The Appellants appealed to the First Respondent pursuant to Section 174 Town and Country Planning Act 1990. Section 174(2) of the Act specifies the grounds upon which an appeal may be brought. The subsection reads:- “(2) An appeal may be brought on any of the following grounds-(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;(b) that those matters have not occurred;(c) that those matters (if they occurred) do not constitute a breach of planning control;(d) …………(e) ………….(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;(g) …………..” In their appeal to the First Respondent the Appellants relied upon grounds (b),(c) and (f). The appeal upon ground (c) was confined to area D.[15]The Inspector’s decision letter is carefully constructed. Paragraphs 9 to 29 deal with the appeal upon ground (b). Paragraphs 30 to 31 are concerned with the appeal upon ground (c) and paragraph 42 to 45 relate to the appeal upon ground (f).[16]The first issue of substance addressed by the Inspector was whether areas A, B, C and D constituted a single planning unit. His conclusion was that they did save for a part of area D – see paragraphs 16, 17, 28 and 29 of the decision letter. Paragraphs 28 and 29 read:- “28. I have found that there is a clear functional link between Areas A, B, C and D and that these form a single planning unit. Even though not all of the alleged uses were being carried out on all or any of the areas in question (Area A and combined Areas C/D) at the time of the inquiry, the appellants have not been able to demonstrate, on the balance of probabilities, that those matters alleged in the enforcement notice have not occurred on the land... 29. However, in view of my findings relating to the subdivision of Area D, I shall issue a corrected plan excluding the dwelling Cassita and the area at the front and sides still used for ancillary residential purposes (the residual residential curtilage) from the land shown edged red on the notice plan.”[17]In paragraphs 20 to 27 of the decision letter the Inspector set out a detailed assessment of the uses being undertaken on areas A, B, C and D. In summary area A was being used for storing many of the vehicles which the Appellants brought to the appeal site. Area B was being used as a commercial yard in accordance with the planning permission which was in existence in respect of that area. Area C was probably being used for the same purposes as had been identified by the Inspector in 2011 in the appeal against the 2009 notice. The Inspector’s assessment of the activities being undertaken upon area D and its physical relationship to areas A, B and C is to be found in paragraphs 25 to 27 of his decision letter. They read:
“25. At the time of my site visit the numerous vehicles stored on the land were all taxed and roadworthy; two caravans were also being stored on the land. Nevertheless, it remains the case that Cassita’s back garden area is open to the adjoining Area C allowing vehicles to be moved between areas and allowing the combined area to be used to store vehicles, as was the case when the previous inspector quashed the re-issued December 2009 notice. 26. Emlyn Stone stated that Area D has never been used to store scrap vehicles. However, if that were the case, it is unlikely that the Council would have written to him confirming that the requirements of the 2008 notice, to cease using the land for the storage of scrap vehicles and to remove all scrap vehicles from the land, had been complied with. 27. I also noted that the land at the area at rear of Cassita is fenced off from the dwelling, leaving only a narrow accessway between the two, a matter which is not referred to in the previous inspector’s decision. The fence effectively subdivides the former residential curtilage at Cassita in two, with the rear part being used solely for the storage of vehicles. This adds further weight to my finding that the land at the rear of Cassita does not form a separate planning unit.”
[18]Having found that areas A, B, C and part of area D were a single planning unit (as described above) the Inspector next concluded that there had been a breach of planning control as alleged in the enforcement notice. That conclusion was not controversial in respect of areas A and C. In relation to area D, however, the Appellants alleged that there had been no such breach. Alternatively, they asserted that even if a breach of planning control was established in relation to area D the Appellants had the right to “revert” to the lawful use of area D which existed immediately before the breach occurred.[19]The Inspector dealt with these contentions at paragraphs 30 to 41 of the decision letter. Since the reasoning and conclusions set out in those paragraphs are crucial to the grounds of appeal it is necessary to set them out in full. They read as follows:- “30. The Appellants have stated that the ground (c) appeals relate only to the land referred to as Cassita (Area D) and I have determined them on this basis. Appeals on ground (c) can only succeed where those matters which are the subject of the allegation do not constitute a breach of planning control, for example, because planning permission has already been granted. 31. The substance of the Appellants’ case is that the 2008 notice under-enforced by requiring only scrap vehicles to be removed from the land. As the Council wrote to Emlyn Stone confirming that the notice requirements had been complied with, it effectively granted deemed planning permission under s173(11) of the 1990 Act as amended for the storage of non-scrap vehicles on the land. 32. As I understand matters, it was only after seeking advice from Counsel, more than likely following continued complaints from Mr Hinds-Randle, that the Council realised it had under-enforced. It sought to remedy the situation by withdrawing the original notice and issuing a new one a few days later, on 21 December 2009, in the belief that once the original notice had been withdrawn it was effectively “dead” and any rights purportedly granted by it, or under it, would also “die”. However, the Council has not produced any case law to support this view and refused to share with the inquiry the advice received from Counsel which may have shed some light on the matter. 33. S173(11) says (11) Where-(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and(b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission should be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities. Section 73A deals with applications for development already carried out. It seems clear that, once granted, a s173(11) permission continues to exist regardless of what happens to the ‘parent’ enforcement notice. There is nothing in either s73A or s173(11) to suggest otherwise and the Appellants’ claim that their permission remains extant would, on the face of it, seem to be well-founded. 34. However, development authorised by any planning permission, including one treated as having been granted under s73A, is capable of being superseded by another development requiring a new planning permission, such as a material change of use. Whether that has occurred in any particular case is a question of fact and degree. 35. The previous inspector, when quashing the 2009 re-issued notice, considered that there had been a material change of use of Area D such that it had been subsumed within the use of the adjoining Area C so that, together, they formed a new planning unit. A similar situation exists today and, in my consideration of the ground (b) appeals I concluded that the Areas A, B, C and D (as corrected to exclude the dwelling Cassita) form a single planning unit, the primary use of which is vehicle storage and repair and salvaging of parts from vehicles for reuse and sale, as lawfully carried out within Area B only. 36. The Appellants’ argue that, even if there had been a material change in use, s57(4) of the Act allows them to revert to the previous committed use of the land at the rear of Cassita for the storage of non-scrap vehicles. They submit that the circumstances under which the loss of existing use rights may occur are very narrow but conceded that these could include a situation where there has been a material change of use of the land to which those use rights relate has taken place. 37. Following the previous inspector’s decision in 2009 the Appellants were advised only to store taxed vehicles, with valid MOT certificates where applicable, on the land at the rear of Cassita. This was so that any council officers subsequently inspecting the site could be in no doubt that no scrap vehicles were being stored there. One of the vehicles referred to as being evidence of storing scrap vehicles on the land (registration no. 153TCV) is, I note, actually taxed and has a valid MOT certificate. 38. It is likely that a number of vehicles, which some may consider to be scrap, have been stored on the land since 2009 but numbers would appear to be small and to fluctuate whereas the permission to store non-scrap vehicles on the land were not limited by number. So far, therefore, the evidence would appear to weigh in favour of the Appellants’ arguments that, firstly, there had been no material change of use of the land since 17 March 2009 and, secondly, even if there had been, the right remains to revert to the previous lawful use of the land for the storage of non-scrap vehicles. 39. However, what the deemed permission was actually for was the use of Area D as identified on the 2008 notice plan for a mixed use of (a) the storage of (non-scrap) vehicles and (b) domestic curtilage. As noted during my site visit, this area has been subdivided so that the land at the rear of the dwelling, where vehicles are currently being stored, is separate from the residential curtilage. To paraphrase the previous inspector, the residential use has been subsumed by the major use of vehicle storage to the extent that the residential use of Cassita is overwhelmed. 40. In effect, Area D has been subdivided in two. Cassita and its residual residential curtilage forms one planning [unit] and the area at the rear forms part of a much larger planning unit with Areas A, B and C. As I have already found, the single main purpose of this large planning unit is the permitted commercial uses taking place within Area B with the activities taking place within Area A and combined Area C/D being activities ancillary to that main purpose. 41. From the evidence before me, therefore, I am satisfied that there has been a material change of use of the land from the one permitted under the terms of s173(11) of the Act. Therefore, the use rights granted as a result of that permission have been lost and the appeals on ground(c) fail.” (11) Where- (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission should be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.[20]The inspector dealt with the appeal under section 174(2)(f) quite shortly. Since the appeal to this court is confined to the Inspector’s conclusions about area D I quote only that part of his decision letter which is pertinent to that area “44. With respect to Area D, correcting the notice plan to delete Cassita and its residual residential curtilage would have no effect on vehicles associated with the residential use of the dwelling being kept within the residential curtilage. Indeed, during my site visit I noted a number of vehicles parked there which, I was informed, belonged to the occupying tenants. 45. However, I have previously found that the land at the rear of the dwelling forms part of a different planning unit and is no longer associated with a residential use of Cassita. Therefore, the caravans stored there cannot be for purposes incidental to the residential use of that dwelling and it is appropriate and reasonable for the notice to seek their removal.”

Grounds of Appeal and Discussion

[21]The two grounds of appeal are linked inextricably. In his speaking note Mr Cameron QC formulated the grounds as follows:- “a. The inspector provided no adequate explanation as to how he arrived at the conclusion that the planning permission to use area D for the mixed use of storage of vehicles and residential was extinguished. b. The inspector failed to amend the notice so as to ensure that it did not remove the Appellant’s right to revert to the lawful use of area D, namely a mixed use for the storage of (non scrap) cars and residential purposes.”[22]In support of these grounds of appeal, Mr Cameron QC developed the following submissions. First, the Inspector was correct to conclude that once the Appellants had complied with the requirements of the 2008 notice planning permission came into existence which authorised the Appellants to use area D for residential purposes and storage of non scrap vehicles. The planning permission came into existence by virtue of the provisions of sections 173(11) and 73(A) of the 1990 Act. I need not set out those provisions since Mr Cameron QC and Mr Strachan QC are agreed as to their effect in this case. The Second Respondent’s letter of 17 March 2009, in effect, was confirmation of the existence of the planning permission.[23]Mr Cameron QC submitted, second, that the right to use area D in accordance with the planning permission had never been lost notwithstanding the Inspector’s finding that there had been a material change of use in respect of area D after the permission had come into existence. Mr Cameron QC submitted that the Inspector’s conclusion that the right to use area D in accordance with the planning permission had been lost was erroneous and, in any event, the Inspector gave no adequate reasons for that conclusion.[24]Mr Cameron QC submitted, third, that the Appellants were entitled to rely upon section 57(4) of the 1990 Act. Subsection 57(1) of the Act specifies that planning permission is required for the carrying out of any development of land. That general proposition, however, is made subject to a number of exceptions one of which is to be found in section 57(4). The sub-section reads:- “Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this part of this Act) it could lawfully have been used if that development had not been carried out.” This subsection, submitted Mr Cameron QC, applied in the instant case so that the Appellants were entitled, lawfully, to use area D for residential purposes and storing vehicles (other than scrap vehicles) and the Inspector should have amended the enforcement notice to make that clear.[25]Mr Strachan QC submitted that the Inspector was correct to conclude that the Appellants were not entitled to use area D for residential purposes and for storing vehicles notwithstanding the planning permission relied upon by Mr Cameron QC. That conclusion was justified, submitted Mr Strachan QC, essentially for the reasons given by the Inspector namely that the Appellant had divided area D so that one part – Cassita and the area immediately to the front and sides – formed one planning unit while the remaining part of area D was subsumed into a much larger planning unit which encompassed Areas A, B and C as well. The Inspector found that these changes constituted material changes of use of area D and as a consequence the rights granted by the planning permission were lost. Mr Strachan QC submitted, too, that the Inspector’s reasons for reaching these conclusions were clear from his decision letter. There had been no failure on the part of the Inspector to explain the basis of his conclusions. Finally, Mr Strachan QC submitted that section 57(4) of the 1990 Act did not apply in the circumstances prevailing in this case and, in any event, the argument now being advanced by Mr Cameron QC in relation to section 57(4) had not been advanced before the Inspector.[26]The first issue for my determination is whether the Inspector was correct to conclude that after March 2009 the Appellants had created two new planning units; one consisting of Cassita and its residual residential curtilage, the other consisting of areas A, B, C and part of area D. The phrase “new planning unit” does not appear in the Town and Country Planning Act 1990. However, the phrase does appear in a number of authorities in which the courts have sought to determine whether or not development has occurred on account of there having been a material change of use of the land in question. One of the earliest authoritative decisions is Burdle –v- Secretary of State for the Environment [1972] 1WLR 1207 which, of course, was relied upon by the Inspector in the instant case (see decision letter paragraph 17). At pages 1212 and 1213 Bridge J (with whom the other members of the Divisional Court agreed) said this:- “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 G Percy Trentham Ltd –v- Gloucestershire County Council [1966] 1WLR 506where Diplock LJ said, at P.513:
“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 ‘material change in the use of any buildings or other land’? As I suggested in the course of the argument, I think 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 a 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 physical 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 ‘material change in the use of any buildings or other land’? As I suggested in the course of the argument, I think 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.”[27]Although in the years which have elapsed since the decision in Burdle some judges have doubted the efficacyof the concept of a ‘planning unit’ or ‘new planning unit’ in determining whether or not there has been a material change of use – preferring instead to ask the question “has there been a new chapter in the planning history” the concept of the planning unit or new planning unit is now firmly entrenched in decisions which are binding upon me.[28]Whether or not an occupier of land which is the subject of an enforcement notice has created a new planning unit is essentially a question of fact and degree to be resolved by the primary decision maker. In this case I can see no basis upon which to conclude that the Inspector fell into error in his assessment of the position on the ground in respect of areas A, B, C and D after the Appellants had complied with the 2008 notice. On the facts put before him it seems to me that the Inspector was fully entitled to conclude as he did that there were two planning units within the appeal site as he described in detail and that these were “new units” when compared with what had existed previously.[29]What follows from that conclusion? If an inspector or court concludes that a new planning unit has been created in respect of an area of land (or for that matter a new chapter in its planning history has been created) how does that impact upon any use rights attaching to the land which existed immediately before the creation of the new unit? There are a number of authorities which touch upon this issue. Those which are most pertinent in the context of the instant case are Jennings Motors Ltd –v-Secretary of State for the Environment [1982] 1 QB 543, Young –v- Secretaryof State for the Environment(1984) 47 P.&C.R.165, in the Court of Appeal and [1983]2AC 662, in the House of LordsandCynon Valley BoroughCouncil –v- Secretary of State for Wales[1987] 53 P&CR 68.[30]In Jennings a site of about half an acre in an otherwise mainly residential area had been used for about 20 years for the repair and maintenance for vehicles and the sale and hire of cars. In 1975 a new single storey building was erected without planning permission on a small part of the site to replace previously existing buildings which had been used in connection with the site’s general use. The new building was used for vehicle repair and servicing. No enforcement proceedings were taken to require the removal of the building but on 12 August 1976 the local planning authority issued an enforcement notice alleging a breach of planning control in that the land had been developed by a material change in the use of the new building to a use for the purpose of workshops for the repair, servicing and maintenance of vehicles. Following an inquiry an inspector concluded that the planning unit was the site as a whole which had an established use which could be carried on anywhere within the site. The Inspector recommended that the appeal should be allowed. The Secretary of State disagreed and dismissed the appeal; he upheld the enforcement notice holding that when the new building was erected a new planning history was commenced in respect of it for which there had been “a material change of use from no use”. The Divisional Court upheld the Secretary of State’s decision.[31]In the Court of Appeal the occupiers’ appeal was upheld. The court held that the erection of the new building on part of the site did not by itself create or constitute a new planning unit or a new chapter in the planning history and that the Secretary of State had been wrong so to find. However, the court was also of the view that had it been established that a new planning unit had been constituted the enforcement notice would have been upheld. That emerges clearly from all three judgements; it suffices to quote a short passage in the judgment of Oliver LJ (see page 554 letter E). “…..where there has been a total change in the physical nature of the premises, it is easy to infer – indeed, the inference may be irresistible – that reliance upon any prior user is being abandoned and a new planning history is to begin. Such an inference may equally be drawn – and may equally be irresistible – where there is no change or a less radical change in the physical nature of the site but a change in what I may call its planning status which is inconsistent with the preservation of a prior existing use - for instance its subdivision into smaller units of occupation or its incorporation into a larger single unit. Whether the alteration is of such a character as to produce this result is, I think, in every case, a question of fact and degree.”[32]In Young premises were used as a laundry between 1912 and 1969. In 1969 the use of the premises was changed to food processing. That was a permitted change of use. In 1970 the premises reverted to use as a laundry but that change was not lawful since planning permission had not been obtained. From 1977 the premises were used for storing and processing materials in connection with the occupier’s business as an insulating contractor. In February 1980 the local planning authority served an enforcement notice alleging that the use of the premises for carrying on business as an insulating contractor was a material change of use without planning permission and required its discontinuance. The owner of the premises appealed to the Secretary of State but the appeal was dismissed as were the owner’s subsequent appeals to the High Court, Court of Appeal and House of Lords.[33]In the House of Lords the issue for determination was the proper interpretation of section 23(9) of the Town and Country Planning Act 1971. That provision is identical in its terms to section 57(4) of the 1990 Act. The House held that the effect of section 23(9) of the 1971 Act following upon the service of an enforcement notice was that the only use that could be made of the land without obtaining fresh planning permission was the use for which it could have been used immediately before the use complained of in the enforcement notice, provided that use was itself lawful. On the facts, the use immediately before the use complained of, namely use as a laundry, was unlawful with the consequence that section 23(9) of the 1971 Act did not apply.[34]In the Court of Appeal the arguments had been more wide ranging. During the course of his judgment Watkins LJ expressed himself thus:- “There is ample and powerful authority for the proposition ……that, when land ceases to be used for a lawful purpose for a period of time, it is a question of fact whether the right to use the land for that purpose has been abandoned so that resumption of that use amounts to development requiring planning permission……There is [no authority] to which we were referred or that which we have been able to find that allows the application of the concept of abandonment to a situation in which without interruption one use follows another. The use of the word “abandonment” in such a circumstance is inappropriate and potentially misleading. The position which has then arisen is simply that the later use, whether unlawful or rendered lawful by reason of the operation of article 3 the General Development Order 1977, has in fact supplanted the former which cannot be revised without an operation of law, for example section 23(9), or the grant of planning permission. 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 submissions of counsel for the Appellant, attached to that land only so long as it is not supplanted by the introduction of another use or is detached by some other process such as abandonment following interruption of use.”[35]The decision in Young (both in the Court of Appeal and in the House of Lords) pre-dates the decision of the House of Lords in Pioneer Aggregates(UK) Ltd –v- Secretary of State for the Environment [1985] 1AC 132. Mr Cameron QC relies upon this decision and I will return to it shortly. However both Pioneer Aggregates and Young were considered by the Court of Appeal in Cynon Valley Borough Council-v- The Secretary of State for Wales andAnother63 P&CR 68.[36]The facts in this case are worth recording in some detail. In 1958 planning permission was granted for the use of premises as a fish and chip shop. The permission was implemented. In 1978 the premises were acquired as a going concern but due to her ill health the proprietor was unable to carry on the business. Accordingly she let the premises temporarily for use as an antique shop. By 1983 the proprietor had recovered possession of the premises for intended use as a Chinese takeaway. However her application for planning permission was refused on amenity grounds by the local planning authority. On appeal the inspector held that no development requiring planning permission was involved, first because resumption of the sale of hot food use was permitted by section 23(8) of the Town and Country Planning Act 1971 and second, in the alternative, because the change of use to an antique shop did not mean that the premises had lost the benefit of the 1958 planning permission. The local planning authority appealed to the High Court but Mr David Widdicombe QC sitting as a Deputy High Court Judge dismissed the appeal. His judgment was that the Inspector had erred in concluding that resumption of the sale of hot food use was permitted by section 23(8) of the 1971 Act. However he concluded that the Inspector was correct when he found that the premises had not lost the benefit of the 1958 planning permission.[37]The appeal of the local authority to the Court of Appeal was also dismissed. Giving the judgment of the court Balcombe LJ held that section 23(8) of the 1971 Act was applicable. However the learned judge also considered, in detail, whether or not the premises had lost the benefit of the 1958 planning permission.[38]At the forefront of his argument in support of the proposition that the premises had lost the benefit of the planning permission Counsel for the local planning authority relied upon the passage from the judgment of Watkins LJ in the Court of Appeal in Young which I have set out at paragraph 33 above. Balcombe LJ accepted the validity of the approach of Watkins LJ and, further, concluded that the House of Lords had, by implication, approved it. The relevant parts of the judgment of Balcombe LJ are these:- “But in the end we are persuaded that a careful consideration of the decision of the House of Lords in Young –v- Secretary of State for the Environment does indeed involve an endorsement of the passage cited from the judgment of the Court of Appeal in that case. The facts in Young’s case were complex….. On these facts the owner contended that, by virtue of section 23(9) of the 1971 Act, it was permissible to revert to using the premises for light industrial use and that therefore the enforcement notice was ineffective. The leading speech was given by Lord Fraser of Tullybelton, with whose conclusions all their Lordships agreed. He dealt with the whole appeal as a question of the construction of section 23(9). He pointed out that the change in 1969 of the use of the premises from use as a laundry to use for food processing (i.e. as a light industrial building) was a change for which planning permission was given by article 3 of the 1977 General Development Order. The subsequent changes of use, in 1970 to use as a laundry (general industrial) and in 1977 to storage and processing (light industrial) were not lawful because they required planning permission. There is implicit in this reasoning a conclusion that the planning permission granted in 1969 for use as a light industrial building was spent once the change was complete and did not cover the further change to light industrial use in 1977. The rest of Lord Fraser’s speech dealing with the construction of section 23(9) follows on that implied assumption: indeed, there would have been no point in considering the effect of section 23(9) if the 1977 development – change from general industrial user (laundry) to light industrial (storage etc.) – was already covered by the 1969 permission. As we have already said, the Act does not draw any distinction between a specific planning permission and a permission granted by the General Development Order. Accordingly it seems to us that the decision in Young’s case is conclusive of the point before us. We appreciate that this involves giving a restricted construction to section 33(1) [of the 1971 Act] 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 Young’s case.”[39]The issue in Pioneer Aggregates was whether, and if so, in what circumstances, a planning permission could be extinguished by abandonment. Lord Scarman, with whose speech the other law lords agreed expressed the clear conclusion that there was no general principle to the effect that a planning permission could be extinguished by abandonment. That said he acknowledged that there were decided cases which could be regarded as an exception to that general principle. The salient parts of his speech which identified those exceptions were set out by Balcombe LJ in his judgment in Cynon Valley – see page 75. “Three classes of case can be identified. The first is concerned not with planning permission but with existing use …… The second class of case has been described as that of the ‘new planning unit’ …the cases are, without exception, cases where existing use rights were lost by reason of a new development sanctioned by a planning permission. There is no case, so far as I am aware in which a previous planning permission has been lost by reason of subsequent development save in circumstances giving rise to the third class of case, which I shall discuss in a moment. The third class of case …..These cases are concerned ….with two planning permissions in respect of the same land. It is, of course, trite law that any number of planning permissions can validly co-exist for the development of the same land, even though they may be mutually inconsistent. In this respect planning permission reveals its true nature – a permission that certain rights of ownership may be exercised but not a requirement that they must be. But, what happens where there are mutually inconsistent permissions (as there may well be) and one of them is taken up and developed? The answer is not to be found in the legislation.”[40]As the Court of Appeal recognised in Cynon Valley the approach it was taking and the approach taken in Young made “a significant qualification to Lord Scarman’s classification” in the Pioneer Aggregates case. That said, Cynon Valley is binding upon me. Further and in any event, there is no suggestion from Mr Cameron QC or, for that matter, Mr Strachan QC that the approach taken by the courts since the decision in Cynon Valley is, in anyway, inconsistent with either its result or its reasoning.[41]In the light of these authorities it is clear, as Mr Cameron QC frankly acknowledges at paragraph 10 of his speaking note, that an existing lawful use of an area of land which is authorised by planning permission is nonetheless capable of being extinguished by the creation of a new planning unit in respect of the land in question. In effect that is what the inspector concluded had occurred in the instant case see, in particular, paragraphs 34 and 41 of his decision letter (set out at paragraph 19 above).[42]The first ground of appeal as advanced by Mr Cameron QC is a complaint that the Inspector did not provide adequate reasons for reaching this conclusion. I do not propose to quote from the plethora of authorities which deal with the duty to provide reasons. It suffices for me to remind myself of and apply the oft-quoted passage from the speech of Lord Brown in South Bucks DC –v- Porter (No 2) [2004] 1 WLR 1953 which is set out in the skeleton argument of Mr Cameron QC. The relevant paragraph reads:- “36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues for the decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such an adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”[43]Mr Cameron QC was frank in his assessment of the prospects of success on this ground of appeal. He acknowledged that he had an uphill task. In my judgment a careful reading of the decision letter as a whole and, in particular, paragraphs 30 to 41, demonstrate clearly why the Inspector reached his conclusion that the creation of new planning units involving area D constituted a material change of use and that as a consequence of that change of use the right to use area D in accordance with the planning permission which had come into existence in 2009 had been lost. I simply do not accept that the Inspector did not explain why, for example, the storage of non scrap cars on part of area D as part of a larger planning unit constituted by areas A, B, C and part of area D constituted a material change of use from the use permitted by the planning permission which was for the storage of such cars together with a residential use on area D. As the Inspector explained in his decision letter the residential use of area D had become the subject of a separate and new planning unit.[44]I turn to section 57(4) of the 1990 Act. It seems probable that this section was argued before the Inspector in the context of the appeal under section 174(2) (c). The Inspector referred to section 57(4) at paragraph 36 i.e. when he is considering the appeal under ground c. The notes of the final submissions made on behalf of the Appellants before the Inspector appear to be consistent with the sub-section having been argued in the context of the appeal under ground c.[45]In this appeal Mr Cameron QC relies upon section 57(4) in relation to the appeal upon ground f. Mr Strachan QC responds by submitting that the Appellants should not be permitted to change their position in this way.[46]The scope, interpretation and effect of section 57(4) of the 1990 Act was fully considered in the arguments deployed before me. I have reached the clear conclusion that I should express my view on these matters regardless of whether, strictly, reliance was placed upon section 57(4) before the Inspector in relation to the appeal under ground c as opposed to the way in which Mr Cameron QC now relies upon the sub-section in this appeal.[47]In Young Watkins LJ expressly acknowledged the possibility that a use of land might survive by virtue of section 23(9) of the 1971 Act (see paragraph 33 above) notwithstanding a material change in the use of the land. Section 57(4) of the 1990 Act is in identical terms to section 23(9) of the 1971 Act. So far as I am aware, there has been no decision in which an authoritative exposition of the circumstances in which section 57(4) of the 1990 Act (or its predecessor section) should apply. That said, I do not consider that this is the case in which any such exposition should be attempted. I say that since, as it seems to me, Mr Strachan QC advances compelling reasons relating to the facts of this case as to why section 57(4) of the 1990 Act cannot avail the Appellants.[48]As Mr Strachan QC says the permission which came into existence in 2009 was a permission which related to an identified planning unit which then existed, namely area D. This planning unit was essential to the nature of the mixed use that was the subject of the consent namely a mixed residential use and storage of non scrap vehicles. Such a mixed use could exist only because there was a residence and residential curtilage forming part of the planning unit. Further the Inspector found, in a conclusion which is not challenged, that Cassita and its residual residential curtilage became a separate planning unit. This was as a consequence of changes on the ground; these changes were the subject of specific findings of fact by the Inspector. It was as a consequence of these factual conclusions that the Inspector decided to exclude Cassita and its residual residential curtilage from the ambit of the 2012 notice. Yet no complaint is made by Mr Cameron QC about the Inspector’s decision to remove Cassita and its residual residential curtilage from the ambit of the notice.[49]It seems to me, too, that careful consideration should be given to the words of section 57(4) of the 1990 Act. In my judgment the subsection authorises “land” to be used in a manner which was lawful immediately before the development which is the subject of an enforcement notice. The “land” to which the subsection is directed is the land which was the subject of the enforcement notice. In the instant case that includes Areas A, B and C as well as part of area D. These areas were not the subject of the planning permission which came into effect in 2009; the area which was the subject of that permission was the whole of area D. In my judgment, the use of area D authorised by the planning permission was not a use referable to the land which is the subject of the 2012 notice.[50]I have reached the clear conclusion that the Appellants are not entitled to rely upon section 57(4) of the 1990 Act so as to permit them to use part of area D for the storing of non scrap vehicles.[51]I add for completeness that had I reached the contrary view Mr Strachan QC is probably right when he says that the Appellants could rely upon section 57(4) of the 1990 Act without the need to change the terms of the enforcement notice as upheld by the Inspector. The 2012 notice would be interpreted as not interfering with such rights as may exist as a consequence of the operation of section 57(4) of the 1990 Act – see Mansi v Elstree Rural District Council (1965) 16 P&CR 153. However, to repeat, this point is academic since I have reached the clear conclusion that section 57(4) of the 1990 Act does not avail the Appellants in this case.[52]It follows that this appeal must be dismissed.

Cited in 2 later judgments