Gazelle Properties Ltd, R (on the application of) v Bath and North East Somerset Council & Ors [2014] EWHC 393 (Admin)

Case No CO/2741/2013

[2014] EWHC 393 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 February 2014

Before

Mr Justice Lindblom

Between

The Queen (on the application of Gazelle Properties Limited)Claimant

Secretary of State for Communities and Local GovernmentDefendant

(12) Mr Barry WilliamsInterested Parties

Mr Douglas Edwards Q.C. and Mr Satnam Choongh (instructed by Gazelle Properties Limited) for Claimant

Mr Hereward Phillpot (instructed by the Treasury Solicitor) for Defendant

Mr Richard Humphreys Q.C. and Ms Thea Osmund-Smith (instructed by the Principal Solicitor to Bath and North East Somerset Council) for First Interested Party

Hearing Hearing date: 18 December 2013

Judgment

Introduction

[1]For many years, beginning in the late 19th century, fuller’s earth was extracted from a large area of land at Combe Down to the south west of the city of Bath. The mineral was processed in buildings erected nearby. That activity came to an end long ago. But the buildings remain. The site on which they stand is owned by the claimant, Gazelle Properties Ltd. (“Gazelle”). It is on a ridge beside the A367, one of the main routes into the city. It is now in the Green Belt, within the setting of the World Heritage Site, and close to the Cotswold Area of Outstanding Natural Beauty. Its recent planning history has not been easy.

[2]This claim for judicial review concerns one aspect of that history. It requires the court to interpret several passages in a decision letter issued by the First Secretary of State on 1 August 2003, in which he refused Gazelle’s application for planning permission for the redevelopment of its site by adapting and extending the buildings for office use and “live/work” accommodation. In making that decision the First Secretary of State had to consider whether, if he turned the proposal away, Gazelle could resort, as a fallback, to general industrial use. These proceedings are concerned with the First Secretary of State’s conclusions on that matter.

[3]Three times since the First Secretary of State’s decision of 1 August 2003 the Bath and North East Somerset Council (“the Council”), the interested party in these proceedings, has sought to take enforcement action against alleged breaches of planning control on Gazelle’s site. The claim challenges a ruling made on 31 January 2013 by an inspector, Mr B. Cook, appointed by the defendant, the Secretary of State for Communities and Local Government (“the Secretary of State”) to determine the claimant’s appeal against three enforcement notices issued by the Council on 30 May 2012, in each of which it alleged an unauthorized change of use. In his ruling the inspector rejected Gazelle’s contention that in his decision the First Secretary of State had concluded that the fallback applied to the whole of its site. Gazelle say the inspector was wrong.

[4]Permission to apply for judicial review was granted by H.H.J. Jarman Q.C. on 20 August 2013.

The issue for the court

[5]The inspector determined two preliminary issues relating to what he described as “the B2 fallback”. He described those issues, in paragraph 7 of his ruling, in this way: “There are two issues to address. The first is the extent of the land considered by the [First Secretary of State] in August 2003 to be covered by Use Class B2 of the Town and Country Planning (Use Classes) Order 1987 (as amended) as a fallback position. The second is whether the principle of res judicata is applicable in these appeals. …”.

[6]The inspector’s conclusions on those two issues, in the summary he provided in paragraph 1 of his ruling, were these:

“… On the extent of the B2 fallback I agree with the Council and the Rule 6 parties that it is restricted to the buildings and hardstandings only. However, for the reasons I set out, although that will be a matter of fact, it is not a matter about which I am currently clear from the evidence. On the point of principle, I also agree with the Council and the Rule 6 parties that [Porter and another v Secretary of State for Transport [1996] 3 All E.R. 693] is fatal to [Gazelle’s] argument. I therefore conclude that the extent of the B2 fallback is not finally determined by the decision of the First Secretary of State … in 2003 although I also conclude that it will be a material consideration to which, subject to certain qualifications, substantial weight is likely to be given as it is so clear.”

[7]The claim originally invited the court to intervene on both of those conclusions. The relief it sought included a declaration “(a) that the 2003 [decision letter] determined that a [Class] B2 use right extended over the whole application site with which the 2003 [decision letter] was concerned”, and “(b) [that] res judicata or issue estoppel (or a similar principle) applies to that determination in 2003 so as to preclude the issue from being revisited in further enforcement action”. The claim also sought an order quashing the inspector’s ruling. However, the challenge to the inspector’s second conclusion, on the application of the principle of “res judicata” to the First Secretary of State’s findings and conclusion on the extent of the fallback, was abandoned before the hearing. The parties were therefore able to agree that there is now only one issue for the court to decide. This issue is described in paragraph 15 of the parties’ agreed statement of facts, issues and law as “the extent of the land considered by [the First Secretary of State] in August 2003 to be covered by Use Class B2 of the Town and Country Planning (Use Classes) Order 1987 (as amended) as a fallback position on a proper construction of the 2003 [decision letter].”

[8]It is perhaps sensible to say at this stage what the court is not doing in these proceedings. It is not considering the expediency of the Council’s enforcement action, or the planning merits of any proposal – past or present – for the use or development of Gazelle’s site. Nor is it judging the correctness of any findings of fact made by the First Secretary of State in his decision of 1 August 2003, or making any findings of fact of its own. It is not adjudicating on the existence or extent of any lawful use on Gazelle’s land. It is merely deciding the question of construction posed by the claim.

Background

[9]Gazelle owns the site freehold, and some of the interested parties – namely Svenska Handelsbanken, Maple Scaffolding Ltd., Stonecraft of Bath Ltd., Waste Recycling @ Bath Ltd., Bath Recycling Skips Ltd., Paul Derek, Simon Bishop and Susan Ridings – also have interests in it.

[10]The processing of fuller’s earth in the buildings on the site began in the 1890s. The mineral was extracted through adits on Combe Down. No working of mineral took place under the buildings. How close it came to the buildings may now be a matter of dispute. Until the 1960s all of the material processed in the buildings was extracted locally. It was carried to the buildings on a tramway. Later fuller’s earth extracted elsewhere in England and abroad was brought to the site by road. In about 1980 mineral extraction was suspended. In 1986 the use of the buildings for processing came to an end. The machinery was removed, but the buildings themselves remained.

[11]In November 2000 Gazelle applied to the Council for planning permission for the “partial demolition, refurbishment and extension of existing buildings with ancillary access and external works to form 3,186 metres of B1 floorspace and 19 “live/work” units”. The area of the application site was about 3.4 hectares. On 12 March 2002 the First Secretary of State called in the application for his own determination. A public inquiry was held by an inspector, Mr A.D. Robinson, in September and October 2002. In his report the inspector recommended to the First Secretary of State that planning permission be granted. As I have said, in his decision letter of 1 August 2003 the First Secretary of State rejected that recommendation and refused planning permission.

[12]In February 2009 the Council launched enforcement action against allegedly unlawful operational development and changes of use on the site. That enforcement action was challenged by a claim for judicial review, which I upheld in part on 3 December 2010 (Gazelle Properties Ltd. and Sustainable Environmental Services Ltd. v Bath and North East Somerset Council

[2010] EWHC 3127 (Admin)

[13]The first of the three enforcement notices issued by the Council on 30 May 2012 alleged this breach of planning control:

“Without planning permission the change of use of the Land from agriculture and general industrial use (B2), to the mixed use of the Land including the following activities: The mixed use of the areas described below for general industrial use (within use class B2), storage and distribution use within the areas shown on the attached plan ‘2012 Enforcement Notice 01 detail plan’): • Area ‘A’ coloured yellow, • part of Area ‘E’ coloured brown, • Area ‘D’ coloured green as well as • the car parking area in front of the dwellings known as Nos 1 and 2 the Firs, coloured blue.”

The Council maintained that only Area A, which comprised the buildings and hardstanding on the site, had a lawful Class B use. It therefore sought to restrict such use to that part of the site. • Area ‘A’ coloured yellow, • part of Area ‘E’ coloured brown, • Area ‘D’ coloured green as well as • the car parking area in front of the dwellings known as Nos 1 and 2 the Firs, coloured blue.”

[14]Gazelle appealed against all three enforcement notices under section 174 of the Town and Country Planning Act 1990 (“the 1990 Act”). In its rule 6 statement for the appeal it said: “The appellant’s central case [is] that the site that is being used for the processing of waste and the repair of scaffolding and the manufacture of stone items has a lawful use for B2 purposes based upon the historic use of this site. This use covers the entire site [apart from an area to the west identified as a car park] and all of the uses being undertaken within it. … ”.

[15]Gazelle raised the preliminary issues in a letter sent by its solicitor to the Planning Inspectorate on 18 January 2013. Its submissions on those issues took the form of a Joint Opinion prepared by Mr David Elvin Q.C. and Mr Alex Goodman, dated 7 January 2013. Those submissions were opposed by the Council in a Joint Rebuttal Opinion prepared by Mr Richard Humphreys Q.C. and Ms Thea Osmund-Smith, dated 23 January 2013. In the meantime, in a letter dated 20 January 2013, the inspector gave the parties his initial view on the preliminary issues. I shall refer to that letter again when I come to the inspector’s ruling. The inspector opened the inquiry on 29 January 2013 and heard oral submissions on the preliminary issues. He then adjourned the inquiry to consider his ruling. Though it is dated 31 January 2013, his ruling was sent to the parties and received by them on 6 February 2013. On 5 March 2013 Gazelle issued its claim for judicial review.

[16]On 21 February 2013 a further enforcement notice was served by the Council, stated to be “without prejudice, and in the alternative” to the three enforcement notices issued on 30 May 2012. This was purportedly a “second bite” to the enforcement notices served in 2009, under section 171B(4)(b) of the 1990 Act. Gazelle appealed against this enforcement notice. The inquiry into that appeal has been adjourned until after this claim for judicial review has been determined. On 8 April 2013, after correspondence in which the inspector in the appeal against the May 2012 notices told the parties what he believed could be the consequence of the Council’s under-enforcement in the first of those notices if Gazelle complied with it, Gazelle said it was going to comply with that notice and withdrew its appeal against it. On 10 April 2013 the Council withdrew the notice. The First Secretary of State’s decision on the called-in proposal The Statement of Common Ground

The First Secretary of State’s decision on the called-in proposal

[17]In preparation for the inquiry held by the inspector in September and October 2002 Gazelle and the Council prepared a Statement of Common Ground. Paragraph 1.1 of the Statement of Common Ground said that “[the] site is approximately 3.38 hectares (8.3 acres) in area and consists of a collection of mostly linked buildings in various states of disrepair, open land and a vehicular access off the A367 …”. Paragraph 6.1 said this:

“The applicant and the local planning authority are in agreement that the existing use of the site is industrial processing which falls within Class B2 (General Industrial) of The Town and Country Planning (Use Classes) Order 1987. The Rule 6 Parties and named objectors assert that there has never been a B2 General Industrial use …., because mining is a sui-generis use. In any event the Rule 6 Parties and named objectors contend that the sui-generis use, or any other use that might be proved, has been abandoned.”

Section 7 of the Statement of Common Ground dealt with the “Fallback Position”. Paragraph 7.1 said this:

“The applicant and the local planning authority agree that the existing buildings at the site could be re-used for another purpose, particularly Class B1 Business use, in accordance with the guidance set out in PPG2. Assessed against paragraph 3.8 of PPG2, such a re-use would not constitute inappropriate development because: such a use would not have a materially greater impact than the present use would not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it; the prevention of any extensions associated with re-use and the sensitive design of car parking and landscaping would avoid conflict with the openness of the Green Belt and the purposes of including land in it; the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction. The Rule 6 Parties and named objectors insist that any use has been abandoned and so the existing buildings would need planning permission to use for any purpose. The Rule 6 parties and named objectors deny the whole of 7.1”. such a use would not have a materially greater impact than the present use would not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it; the prevention of any extensions associated with re-use and the sensitive design of car parking and landscaping would avoid conflict with the openness of the Green Belt and the purposes of including land in it; the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction. The Rule 6 Parties and named objectors insist that any use has been abandoned and so the existing buildings would need planning permission to use for any purpose. The Rule 6 parties and named objectors deny the whole of 7.1”

The inspector’s report

[18]The inspector’s report is dated 13 February 2013. It is a very lengthy document, running to 519 paragraphs on 98 pages. In it the inspector considered the planning merits of the called-in proposal in depth.

[19]In paragraph 9 of the report the inspector described the site as being “roughly rectangular” and extending to about 3.38 hectares. He referred to the “substantial group of buildings and silos with associated hardstandings” in the south-western part of the application site. He later described the hardstanding more fully in paragraph 410, where he referred to Gazelle’s calculation that “around the existing buildings there are some 3,457 square metres of hardstanding”, including both “substantial areas of concrete to the front and sides of the group of buildings”, and “areas that apparently are formed from stone dust … so compacted by years of vehicles and plant moving over them that they are virtually indistinguishable from a properly constructed hardstanding”. Gazelle’s calculation was disputed by third parties, but the inspector accepted it. In paragraph 417 he referred to the “high security fencing that surrounds much of the hardstanding”.

[20]In paragraph 10 of the report the inspector said that “[the] buildings were erected to process Fullers Earth, a mineral that was extracted from underground workings in the immediate area”, that “all extraction of Fullers Earth in the locality had ceased and its processing on the application site had ceased” in the 1980s, and that since then “the buildings have remained unused and become increasingly dilapidated”. In paragraph 11 he said that “[the] rest of the site to the north and east of the buildings is open and covered in rough grass”. In paragraph 14 he said that “[most] of the buildings comprising the Fullers Earth works had been erected well before the coming into being of the modern system of planning control”, and that “[in] the late 1960s and early 1970s various extensions and alterations were carried out to the works.” In paragraph 15 he said this: “The extraction of Fullers Earth from beneath the area around the application site had led to uneven settlement at ground level. To reclaim land affected by settlement, a number of permissions were granted in 1970, 1976 and 1978 for the stripping of soils, the subsequent filling of any dips and hollows with clay and other excavated materials and the replacement of the soils. This mainly occurred on land to the north-east of the application site, particularly the area now occupied by the park and ride facility”.

[21]The inspector recorded Gazelle’s case in paragraphs 57 to 177 of his report. This included, as the inspector noted in paragraph 66, a comparison between the footprint and volumes of the buildings and structures that were on the site and the buildings proposed, and, as he noted in paragraphs 74 and 75, a comparison between the existing area of hard surface on the site and that proposed. The “existing footprint of permanent buildings and structures”, was said to be 2,805 square metres, and their volume “some 21,142 cubic metres”. The footprint of the buildings in the proposed development was “2.586 square metres” and their volume “21,053 cubic metres” (paragraph 66). The removal of vegetation covering the area around the buildings had revealed an “area of hardstanding, amounting to some 3,457 metres” (paragraph 74). If the main car park in the proposed development “were to be given a permeable surface then the area of hardstandings that would be associated with the scheme would amount to some 3,184 square metres” (paragraph 75).

[22]In paragraphs 98 to 107 the inspector summarized Gazelle’s case on the fallback position:

“98. When considering the benefits that would accrue if the proposal were to go ahead, it is also necessary to take into account what the consequences would be if the site was to continue to be used for its lawful use. In order to determine the lawful use of any land, it is necessary to have regard to what constitutes the planning unit. In making that assessment it is important to look as “the whole unit of occupation unless and until some smaller unit could be recognised as the site of activities which amount to a separate use both physically and functionally”

. This was so held in the judgement in the case of Burdle & Another v Secretary of State for the Environment … . … 101. What is clear from the above is that the application site has always been used for some form of industrial process and certainly since the early 1960s has formed a separate and distinct planning unit in its own right. In cross-examination, the main planning witness for the umbrella group of third parties accepted that the extraction operation at Under Sow Hill did not form part of the planning unit. This must be right given the physical separation from the application site and the clear statement provided by the former employee on the use of the site and the source of raw materials. The exchange of correspondence in the early 1980s between the planning authority at the time and the then owner of the site also indicates that they considered the site to be a separate planning unit. (The 1980s exchange of correspondence is included as item 6.8 of the core documents, document 11). 102. In these circumstances a fallback position can be relied upon if there is a real likelihood that the B2 (general industrial use) would continue. … It is the applicant’s firm intention to continue and intensify the use of the site for B2 purposes in the event that planning permission is refused. An aggregates re-processing operation occupies part of the site. A number of companies have expressed an interest in using the site for various industrial purposes, including a concrete batching plant. This is an indication of the continuing demand in the Bath area for sites for the dirtier type of industrial use. The significance of this is that there is a settled intention to continue the B2 use, a use that has continued since the applicant took possession of the site in 1999. … 103. If the buildings and associated hardstandings were to be more intensively used for B2 activities than is currently the case, and especially if much of the activity was to be generated by the dirtier type of industrial use, this would have an appreciably greater impact than the proposed development. … 104. In addition, without the investment generated by the proposed offices and residential units there would be little money available to improve the appearance of the buildings or the site, beyond a few basic repairs to the buildings. The outdoor storage of materials and the use of outside plant and machinery together with the unrestricted use of outdoor lighting could all stem from the continued B2 use of the site. These and the continued run down appearance of the buildings and the site in general would detract from the setting of the World Heritage Site and the character of the landscape. 105. The impact of the proposed development has to be seen in the context of the adverse impact that would arise from the continued and intensified use of the site for B2 purposes. Whereas the proposed redevelopment of the site would be carefully controlled … , the continuation of the B2 use would be largely uncontrolled. The implementation of a scheme for offices and residential units end the use of the site for general industry with its potential for adversely affecting the rural landscape, amenity of neighbours and highway safety. This is an important consideration that should be accorded significant weight. … 107. Interestingly enough, none of the third parties appear to have considered the possibility of the B2 fallback position in any detail. … In essence, the site has only been used for processing operations. This is an industrial process falling within Class B2.”

[23]Under the heading “Chronology”, in paragraph 184 of his report, the inspector recorded what the Council had told him about the history and the planning history of the site; “… 1970 permission granted to reclaim land to north east of site. 1974 submission under Class XIX of General Development Order 1973 for extension, roof alterations and 2 silos. 1976 permission granted to reclaim land to north east of site. 1978 permission granted to reclaim land to north east of site. … 1978 Material from Redhill in Surrey and from overseas processed at the site and finished products manufactured and sold. … C.1980 mineral extraction suspended and site mothballed. … 1982 mine was last entered. … 1982 the solicitor of the then local planning authority advises that the use of the site probably within Class V of the Use Classes Order 1972. … 1985 the planning officer of the local planning authority advises that existing use is Class V and proposal for a concrete batching plant would be within Class VII … 1986 plant closed and machinery removed. … 1986 application for relocation of concrete batching plant refused. … 1993 Avon Minerals Local Plan adopted with site shown as “planning permission fro mineral extraction/plant and as an “inactive” mine with workable reserves fro several years. … 1999 site bought by applicant and since used for the production of secondary aggregates and general storage. …”

C.1980 mineral extraction suspended and site mothballed. …

[24]The inspector recorded the Council’s “Analysis of the Planning Position” in paragraphs 185 to 187 of his report:

“185. The planning unit. A former employee, Mr Upshall, states that until the early 1960s mineral was mined from an adit above Combe Hay Lane, but this then closed. Thereafter, material was mined at Under Sow Hill approximately 1.6 kilometres away by road. … During his 38 years associated with the site, no operations were ever carried out from within or immediately around the works buildings. This is consistent with paragraph 92 of the site investigation and structural survey report, which shows that by the 1970s the workings were on the far side of Combe Hay Lane and were never adjacent to the works, at least after the 1950s. In the 1970s, the adjacent area of working was being reclaimed. 186. Thus, by … 1980 the application site was a separate unit of occupation from the mine workings; was not used for the winning of materials; was registered under the Alkali & Works Regulation Act 1906; and was used to process material from afar as well as locally won material and to manufacture “finished products”

. After 1980, it seems to have been used for a while to process stockpiled reserves. … 187. Both the applicant’s and the Council’s planning witnesses have correctly concluded that the site is now a separate planning unit from the previous mine, which has now been abandoned. In fact, it has been a separate planning unit for some considerable time as recognised by the planning officer of the then local planning authority in 1985. (See item 6.8 in the bundle of core documents, document 11).”

[25]The reference in paragraph 187 to what had been recognized by a planning officer in 1985, as I understood what was said to me about it, is to a letter of 30 August 1985 from the Chief Planning and Development Officer of Wansdyke District Council (“Wansdyke”) to the Estates Department of the Pioneer Group of Companies (“Pioneer”). Pioneer were negotiating with Laporte Industries Ltd., which then owned “the Fullers Earth Works site”, and had agreed with them that they could use part of the site for a concrete batching plant. The area in question was shown on a plan attached to Pioneer’s letter to Wansdyke dated 15 August 1985. In his letter the officer said that the site outlined in red on the plan “appears to extend outside the planning unit of the Fullers Earth Works”.

[26]The inspector recorded the Council’s case on “Use Class” in paragraphs 188 to 191:

“188. Use Class. In 1974, the then local planning authority treated the proposal [for the extension and alteration of one of the buildings and for the erection of two silos] as permitted development with Class X1X of the General Development Order 1973 … . 189. At that time the company was a mineral undertaker; the works were adjacent to a mine (a series of worked out adits to the north-east of the site); and the buildings and silos were required in connection with the treatment or disposal of minerals. 190. Thereafter various parts of the adjacent mine to the north-east (the only relevant adjacent land) were the subject of a series of permitted reclamation schemes. … . By 1982, the mineral extraction had been suspended for 2 years and the buildings had been used for the processing and manufacture of non-local minerals. … The solicitor considered that the proposed concrete batching plant might fall within Class VI as an alternative and this Class specifically excludes a “process ancillary to the getting, dressing or treatment of minerals which is carried on in or adjacent to a quarry or mine”, which reinforces the view that by 1982 activities at the site no longer constituted mining operations and that the works were a separate planning unit from the former mine. (See item 6.8 in the bundle of core documents, document 11). 191. In 1985 an applicant for planning permission was advised that the existing use was Class V. It is submitted that this conclusion is probably correct on the basis of the current available evidence.”

[27]In paragraphs 192 to 195 the inspector summarized the Council’s evidence and submissions on the fallback position:

“192. … Thus, the current uses are as follows: building A has a storage/warehouse permission (now B8), which may be used for the storage of any materials, not just minerals, without the need for further permission. The remaining buildings and their hardstandings have what is now a B2 use. Under the current General Permitted Development Order, the applicant may change up to 235 square metres of B2 to B8 and an unlimited amount of B2 to B1. 193. For example, the applicant could convert C, D and F to B8 (some 229 square metres), which would give a total of 360 metres of B8, and use, say, B, E, G, H, J, K and P as 1,605 square metres of B2 or B1. (Buildings M and Q could also be used in this way). Use could also be made of areas ancillary to these uses, such as adjacent areas of hardstanding, for external storage, parking[,] loading, unloading and the like. … 194. These two alternative fallbacks, building A to B8 and the remainder to B2, and then the taking up of permitted development rights for further changes of use have not been considered by the other parties. It is clear that up until the opening of the inquiry, the third parties had not considered the possibility of there being a fallback position. 195. In the alternative, planning permission could be granted in accordance with paragraphs 3.7 to 3.9 of PPG2 for the use of about 2,000 square metres of B1 with associated controlled areas of hardstanding. This applies even if the previous B2 use has been abandoned, since the PPG does not require an extant use, merely an extant building. A B8 use could remain in building A.”

[28]As the inspector noted in paragraph 207 of his report, the Council’s case on the “Fallback impact” was that the “impact on openness is potentially much greater under the B2/B8 fallback position because there would be no control over outside storage, operating hours or parking areas”.

[29]The “umbrella group” of third parties did not accept that Gazelle had a fallback position. The inspector referred to their view on this question in paragraphs 338 and 339 of his report: “338. The umbrella group’s view is that there is no permitted B2 use for the site and there never has been. The site was an integral part of the planning unit of which the mine was the dominant part. The use exercised by the previous owners up to 1980 was a sui generis mining use. This use had to be registered as an IDO permission under the Planning and Compensation Act 1991 by 25 March 1992 or the permission would cease to have effect. It was not registered and accordingly it ceased to have effect. … 339. Even if the umbrella group is wrong in it assertion and there had been a lawful B2 use of the site, that use was abandoned after the mine closed in 1980. …”.

[30]In his “Conclusions”, in paragraph 383, the inspector included the question of “[whether] a fallback position exists” and the question of “[whether] the previous use of the site for general industry has been abandoned” in his list of the “main considerations” in the case.

[31]The inspector considered the question of “Whether a Fallback Position Exists” in paragraphs 427 to 436 of his report. I must quote those ten paragraphs in full: “427. In assessing both the harm and benefits that would result if a proposed development were to go ahead, it is important to weigh these against what would happen if a site was to [continue] to be used for its lawful purpose. To decide what is the lawful use of a site, regard should be had to what constitutes the planning unit. In coming to this decision, the judgment in Burdle and Another v Secretary of State for the Environment is of assistance. It points to looking at the whole of the unit of occupation unless and until some smaller unit can be identified that amounts to a separate use both in physical and functional terms. (98, 178 and 344).428. Fundamental to the investigation of what constitutes the planning unit, and whether a smaller unit can be identified, is to look at the chronology of events relating to a site. Thus, the investigation of the planning unit is a matter of fact and degree. In this case, it seems to me that the history of what occurred on a site is a matter of what can be gathered from maps, photographs, records and the account of those who know or have known the site. (98 and 178).

429. To my mind, the chronology of events starts when the works on the site were established in the 1890s to process Fullers Earth extracted from one or other of two adits that were dug in the woodland immediately to the north of Combe Hay Lane. The area worked was under much of the area that is now the adjoining park and ride facility as well as land on the opposite side of the A367. However, no working of the mineral took place either under or in the immediate vicinity of the works. A photograph attached to the main planning witness for the third parties [sic] shows some sort of tramway system in use for conveying the Fullers Earth to the works. My understanding is that the tramway brought the material right inside the works. Fullers Earth was extracted from open cast mines on Duchy of Cornwall [sic] between Vernham Wood and Middle Wood, approximately 650 kilometres to the north of the works. (99, 100, 184 and 185).

430. This state of affairs continued until the early 1960s when, according to a former employee who had worked at the site since 1943, the adits north of Combe Hay Lane were closed and a new adit dug at Under Sow Hill, some 1.6 kilometres from the works. Fullers Earth from the new adit was brought to the site by road. During the late 1970s, the former employee says that local supplies of the mineral was augmented by Fullers Earth brought in from Redhill in Surrey and also from North Africa, via the docks at Avonmouth. (100, 184 and 185).

431. In about 1980 mineral extraction in the locality was suspended and the works were mothballed. In 1986 the works were closed and machinery removed. There may have been some processing of reserves of Fullers Earth in the intervening period, but the evidence on this point is not entirely clear. (184 and 185).

432. From this chronology it seems to me that up to the early 1960s the processing of Fullers Earth in the works was inextricably tied up with the extraction of the mineral from underneath nearby land and brought directly into the works. However, since then the works have formed a distinct planning unit in its own right processing the mineral brought in from the new adit at Under Sow Hill, which was at some distance from the works. This physical separation is important. The planning witness for the third parties accepted that the mining operation at Under Sow Hill did not form part of the same planning unit as the works. (101, 184 and 185).

433. In processing the mineral and manufacturing finished products, the works thus have a lawful use for general industry (B2). Further evidence for this position lies in the registration of the works under the Alkali & Works Regulation Act 1906. Mineral extraction is not registerable under the Act. There is also recognition given by the planning officer of the then local planning authority in 1985 that the works had formed a separate planning unit for some time. I also note that planning permission was forthcoming in 1969 for the erection of a new warehouse on the application site. Thus this building has a lawful use for warehousing and storage (B8). (190)

434. I note that the then local authority in 1974 treated the erection of 2 silos and an extension and the alteration of roofs as permitted development within Class XIX of the General Development Order 1973. Class XIX is concerned with development carried out by mineral undertakers for the treatment or disposal of minerals on land in or adjacent to and belonging to a mine. This decision was consistent with the circumstances appertaining at the time. At that time, the company running the works was a mineral undertaker. The works were adjacent to a mine, albeit that it consisted of a series of worked out adits to the north-east of the site. The buildings and silos were required in the treatment or disposal of minerals. However, the various adits and workings of the adjacent mine, the only relevant adjacent land, were the subject of a series of planning permissions in the 1970s for various reclamation schemes. These schemes have been implemented. Thus, not only had the adjacent mine closed by the early 1960s but by the end of the 1970s the land subject to subsidence following the cessation of mining operations had been restored. (184, 188 and 189).

435. I conclude, therefore, that the buildings and hardstandings on the site enjoy a B2 fallback, that is, they may be used for general industry without the need for further planning permission. In addition, building A enjoys a warehouse/storage (B8) fallback. Under the current General Permitted Development Order, the applicant may change without planning permission 235 square metres of B2 to B8 and an unlimited amount of B2 to a B1 use, which covers light industry, offices and research and development. This provides a second fallback scenario. There is also a third fallback scenario. Planning permission could be granted for the re-use of approximately 2,000 square metres of buildings for B1 with controlled use of areas of hardstanding in accordance with paragraphs 3.7 to 3.9 of PPG2. In my view, the worse case scenario in terms of visual, environmental and traffic impact is the B2/B8 fallback. I consider the implications of this scenario in more detail when looking at the very special circumstances being claimed by the applicant and the highway and landscape implications of the proposal. (192, 193 and 194).

436. The fallback position can be relied upon if there is a real likelihood that the B2 use would continue. The third parties make the point that the applicant is a developer not a manger of an industrial site, but an aggregate recycling business has set up on the site in the last year and a number of companies, including a concrete batching business, have expressed an interest in using the site. To my mind, this represents evidence of there being a realistic prospect of the B2 use continuing on the site. (102, 193 and 351).”.

[32]The inspector went on, in paragraphs 437 to 443 of his report, to consider the question of abandonment. In paragraph 439 he considered the period in which the buildings on the site had not been used:

“Period of non-use. The machinery within the buildings was not removed until 1986. Up until then the machinery and buildings had been mothballed with the suspension of mineral extraction in the locality. In 2002 an aggregates recycling business started up on the site. The period of non-use is thus a maximum of 16 years. There is nothing unusual about this period of time. …”

. In his conclusions on the “Owner’s intention” the inspector referred, in paragraph 441, to evidence that the previous owner of the site “had gone to considerable lengths to protect the site by erecting a perimeter fence and securing buildings against the weather and trespassers”. He went on to say that “there was no abandonment of the established use of the works, which long before [the coming into force of the Planning and Compensation Act 1991] were a separate planning unit” (ibid.). He concluded in paragraph 443 that “the use of the site for B2/B8 purposes has not been abandoned, unlike the abandonment of mineral extraction because of the failure to register under the Planning and Compensation Act 1991”.

[33]The inspector had to consider whether the proposed development, as inappropriate development in the Green Belt, could be justified by “very special circumstances”. He discussed, in paragraphs 445 to 450 of his report, the possible “improvement to the existing buildings and site”. In paragraph 447 he said the buildings had become “unsightly”, that “the hardstanding around the buildings is covered with piles of rubble and has been invaded with weeds”, that the “tall wire fencing around the buildings adds to the sense of dilapidation and neglect”, and that “[the] rest of the site has acquired a neglected air”. He said in paragraph 450 that he attached “great importance” to the “positive improvements to the buildings and site”.

[34]Another matter in the inspector’s conclusions on “very special circumstances” was the “Preclusion of the fallback position”. He tackled this in paragraphs 455 and 456 of his report:

“455. … I have already concluded that in the event [of] the proposal not proceeding, there is [a] real prospect that the B2 use of the site would continue. The companies that have shown most interest in moving onto the site are those at the dirtier end of the range of prospective general industry uses. They include aggregate reprocessing, concrete batching and vehicle body repair businesses. Such businesses are likely to be associated with the erection of outside plant and other structures, such as crushers and new silos, which are likely to be visually intrusive. They are likely to be associated with the outside storage of materials and vehicles. They are also likely to give rise to a requirement for floodlighting and other outside lighting. The activities carried out by such businesses often generate noise and dust and give rise to heavy goods vehicle movements. (102, 103 and 249). 456. As there is no requirement for planning permission to be sought for the continuation of the use of the site for general industry, there would be no control over external and internal activities. There would also be no requirement for the buildings to be renovated or for the site to be tidied. The continuation of the B2 use, in my assessment, would be highly damaging to the setting of the World Heritage Site and the visual amenities of the Green Belt. It would also adversely affect the setting of the adjoining AONB, a matter I discuss further when I deal with the landscape impact of the proposal. (102, 103 and 104).”

[35]When considering the likely impact of the proposed development on the landscape the inspector said, in paragraph 493: “Regard must be had to what would happen in the fallback position. There would be no requirement to remove the rusting silos or to carry out the wholesale renovation of the existing buildings. Some of the industrial uses that could come onto the site if there was a continuation of a general industrial use, such as aggregate recycling and concrete batching, could lead to the erection of new silos, the introduction of tall stockpiles of materials and the introduction of tall plant and equipment. There would also be no control over lighting. It is likely that some of the uses may require the erection of floodlights to allow them to operate early in the morning or late at night”.

[36]In his “Overall Conclusion”, in paragraph 518 of his report, the inspector said this:

“… Through neglect, the buildings have assumed a dilapidated air and the site generally looks unkempt. The site detracts from the setting of World Heritage Site, the visual amenities of the Green Belt and the appearance of the rural landscape. The redevelopment of the site in the manner proposed would not materially harm the openness of the Green Belt not prejudice the reasons for including land within the Green Belt. It would bring about a number of significant benefits, including an improvement in the appearance of the buildings and the site, the provision of jobs and the prevention of the continued use of the site for general industry with all the problems that this would cause. … Without the residential element, the proposed development would not go ahead and the general industrial use of the site would continue.”

[37]The inspector’s recommendation, in paragraph 519 of his report, was that conditional planning permission be granted.

The First Secretary of State’s decision letter of 1 August 2003

[38]In paragraph 8 of his decision letter the First Secretary of State identified the main issues in the case. These included, within a group of issues relating to the Green Belt, “the very special circumstances being claimed for the proposal; whether a fallback position exists; [and] whether the previous use of the site for general industry has been abandoned; …”.

[39]Under the heading “Fallback”, in paragraph 30 of his decision letter, the First Secretary of State said this:

“The Secretary of State agrees with the Inspector’s conclusions in paragraph 436 on whether a fall back position exists, for the reasons given in paragraphs 427-436 of his report.”

[40]On the issue of “Abandonment” the First Secretary of State said in paragraph 31 that he “[agreed] with the Inspector’s conclusion in paragraph 443 on whether the previous use has been abandoned for the reasons given in paragraphs 438-443 of his report”.

[41]The First Secretary of State considered “Very Special Circumstances” in paragraphs 32 to 34 of his letter. In paragraph 33, under the heading “Positive improvement to the existing buildings and site”, he agreed with the inspector “that the site has become an eyesore and that the buildings have become unsightly (IR 445-448)”. He said that the proposal’s “potential improvement to the building [sic] and the site is a matter to which he attaches some weight”.

[42]In paragraphs 35 to 37 of his decision letter the First Secretary of State dealt with the “Preclusion of the fallback positions”:

“35. … The Inspector identifies three fallback positions (IR 435) and the Secretary of State agrees that these are theoretically available. As to the first (B2) use, the Secretary of State accepts that there is a real prospect of the B2 use of the site continuing (IR 455-6), though he has insufficient evidence to assess the likely extent or type of B2 use. He agrees with the Inspector that a continuing B2 use could cause some damage to the setting of the World Heritage Site and the visual amenities of the Green Belt. The extent of this damage is dependent on the extent and type of use. The Secretary of State is not satisfied on the basis of the evidence before him that it is likely that the entire site will be used for B2 use under the fallback position. He is not satisfied that the potential damage to the setting of the World Heritage Site and visual amenities of the Green Belt, or the effect on traffic, is likely to be significantly greater than at present. Whilst continued B2 use of part of the site would cause some continuing damage to the visual amenity and the World Heritage Site, the effect of this is mitigated from a number of viewpoints, though not by any means all, by screening. The Secretary of State gives some weight to the prevention of the first fallback position. The Secretary of State gives some weight to the prevention of the first fallback position. The Secretary of State notes that under the General Permitted Development Order 235 square metres of B2 floorspace may be changed to B8 use and that building A has an existing permission for B8 use. The Secretary of State does not consider, on the basis of the evidence before him that there is a real likelihood of significant B8 use of the site and attaches little weight to this prospect. 36. The Secretary of State has considered the Inspector’s second theoretical fallback B1 use. Again he does not identify any additional harm to the Green Belt from such use – there may be some small benefit, as it would require some renovation of existing buildings. He attaches little weight to this fallback as the assertion made by parties at inquiry was that such B1 development would be unviable without other, enabling development, which would not be possible under the permitted development rights. In addition there may be difficulty in converting the existing buildings for office use without planning permission. 37. The Inspector also identifies another fallback position for B1 use (IR 435). As a further planning permission would be required for this, the Secretary of State does not consider its preclusion to be a matter to be weighed in favour of this proposal.”

[43]In paragraph 51 the First Secretary of State “[agreed] with the Inspector that compared with the existing situation and the fallback position the proposed development would make an improvement to both the setting of the AONB and to the immediate landscape (IR 515)”.

[44]In paragraph 56, in his “Overall conclusion”, the First Secretary of State agreed with the inspector’s observation in paragraph 518 of his report that “the buildings have assumed a dilapidated air and that the site generally looks unkempt”. In paragraph 59 he said he had “considered whether the special circumstances put forward by the applicant and the local authority amount to the very special circumstances necessary to outweigh the harm to the Green Belt that has been identified”. He said he gave “some weight to the visual improvement of the site – the tidying up of the site and removal of the silos”. And he went on to say this:

“The Secretary of State has considered the preclusion of the fallback position – continuing B2 use but does not accord this much weight as he does not think the site’s full return to B2 use is likely, and he does not identify the same degree of harm from such use as the Inspector. He has also considered the other fallback positions and for the reasons given in paragraphs 34, 35 and 36 [sic] gives them little if any weight. …”

. In paragraph 60 the First Secretary of State said that in his view “the special circumstances put forward and the other benefits do not amount to the very special circumstances necessary to clearly outweigh the identified harm to the Green Belt”. In paragraph 62 he said he “[did] not consider there to be considerations of sufficient weight to determine the application other than in accordance with the development plan and Green Belt policy”.

[45]In his “Formal Decision” in paragraph 63 of his decision letter the First Secretary of State rejected the inspector’s recommendation and refused planning permission.

[46]The First Secretary of State’s decision was not challenged by an application to the court.

The inspector’s ruling of 31 January 2013

[47]In his letter of 20 January 2013, responding to a letter from Gazelle’s solicitor dated 18 January 2013, the enforcement appeal inspector gave his preliminary view on the proper interpretation of the First Secretary of State’s decision letter. He said: “... Turning first to question 1, there is in my view no need for the Secretary of State to seek an opinion from the court about the meaning of a decision he himself has taken. Moreover, I do not find any ambiguity at all in the Secretary of State’s decision. At DL35 he very clearly contemplated the likelihood of the entire application site (in context, the only reasonable construction of the word ‘site’ throughout his decision) being used for B2 use under the fallback position. The use of the work ‘likely’ must imply some element of possibility. If he had concluded that only part of the site had a fallback use for B2 he could not have rationally considered the possibility of that use over the entire site since such use on parts would not be a fallback position. It is in my view certainly arguable that this is not a conclusion that flows naturally from what Mr Robinson’s report says. However, that does not matter. First, Mr Robinson is, by way of his report, simply providing further information to enable the Secretary of State to make a decision. That decision stands on its own and in any event does not follow Mr Robinson’s recommendation. Second, if anyone felt the Secretary of State had misdirected himself that could have been pursued elsewhere within the appropriate time limits. …”.

[48]In paragraph 11 of his ruling the inspector said that in his view when the First Secretary of State referred to “the site” in the decision letter he could “only mean the application site”. He found support for that view in paragraph 33 of the decision letter.

[49]In paragraphs 18 to 25 of his ruling he said:

“18. The main reason the extent of the fallback is in contention is because of the sentence midway through DL35 which says ‘The (FSS) is not satisfied on the basis of the evidence before him that it is likely that the entire site will be used for B2 use under the fallback position’. … In my first response I expressed what could only be an initial view given that no submissions (other than the appellant’s JO) or evidence had at that point been heard and tested, that this paragraph was unambiguous. On its face and in the context of the way the FSS has used the words ‘the site’ …, I do not consider that initial view to have been unreasonable and it remains the view of the appellant. 19. However, it was put by the Council and the Rule 6 parties … that the DL had not been challenged on any point and was therefore a lawful decision attracting a presumption of regularity. To now interpret it as inconsistent with the IR would be wrong as a matter of law. … I can see the force of that argument if what I consider to be the proper interpretation of DL35 could only be explained by concluding that the FSS had misunderstood the IR. 20. DL35 begins by recording the agreement of the FSS that the three fallback positions identified by Mr Robinson are theoretically available. In doing so the FSS refers to IR435 which is where the unequivocal conclusion about the B2 fallback quoted above … appears. That does appear to set the context for DL35. … Mr Humphreys … invited me to construe ‘the site’ in DL 35 as being the site of the first fallback when reading that part of it. 21. The use of the phrase ‘of the site’ in DL35 is drawn from IR455-6 where it appears more than once and differs from the phrase in IR436 where the phrase in the exact same context is ‘on the site’. I raised this distinction in my second response but none of the advocates addressed this. To do so will probably stray into the realm of forensic analysis and the better view is most likely to be that Mr Robinson simply used a different word within what is a very lengthy report. 22. Having said that, to agree with Mr Humphreys’ interpretation would mean accepting that in this one paragraph of the DL ‘the site’ had a meaning ascribed to it different to that throughout the rest of the DL. However, given that the conclusion in IR435 and incorporated by the FSS in DL30 is so clear, on balance, I accept that is the correct interpretation. 23. I therefore conclude that there is no inconsistency between DL30 and DL35 and find therefore that the B2 fallback relates only to the buildings and hardstandings on the site. 24. Unfortunately, for the purposes of the appeals before me this only takes us so far at present since the actual extent of the fallback area remains unknown on the evidence before this Inquiry. The IR defines these areas by description, not by a plan. … 25. Nevertheless, what did comprise the buildings and hardstandings at the time of the DL must be a matter of fact that should be known to most, if not all, of the parties to these appeals since they also took part in the 2002 Inquiry. This is therefore something that will need to be agreed upon and included in the Statement of Common Ground.”

Submissions

[50]The parties agree that the proper interpretation of the First Secretary of State’s decision letter of 1 August 2003 is a matter of law for the court (see Barnett v Secretary of State for Communities and Local Government

[2009] EWCA Civ 476

). An inspector’s report may be used in construing a decision letter of the Secretary of State when the letter refers to it. If it is appropriate to do so, other documents to which an inspector has referred in his report may be looked at as an aid to construction (see R. v Ashford Borough Council, ex p. Shepway District Council [1999] P. & C.R. 12). Decision letters and inspectors’ reports must be read fairly as a whole, with common sense and bearing in mind that the parties in the case know what the issues are. What is required of the court is “a straightforward down-to-earth reading of [the] decision letter without excessive legalism or exegetical sophistication” (see the judgment of Sir Thomas Bingham M.R. in Clarke Homes v Secretary of State (1993) 66 P. & C.R. 263, at pp. 271 and 272).

[51]For Gazelle Mr Douglas Edwards Q.C. submitted:(1) When the called-in application was being considered by the inspector and the First Secretary of State, Gazelle and the Council had agreed in the Statement of Common Ground that the whole application site had a lawful Class B2 use. Neither the inspector nor the First Secretary of State indicated any disagreement with that position. At the inquiry no one contended that one part of the application site should be differentiated from another when the fallback use was being considered.

(2) Even if it was only the buildings and hardstanding on the site that had been actively put to Class B2 use, neither the inspector nor the First Secretary of State explained why the whole site would not benefit from a lawful use in that use class. If the site was in one ownership when the Class B2 use of the buildings and hardstanding became established, and such use had continued uninterrupted after that, the site would have been a single planning unit and this would have been the primary use of the site as a whole unless it was abandoned – which it was not (see Burdle v Secretary of State for the Environment [1972] 3 All E.R. 240). There is no analysis running counter to that conclusion either in the inspector’s report or in the decision letter.

(3) Throughout the inspector’s report and in the First Secretary of State’s decision letter the term “the site” means the application site as a whole, and not merely the buildings and hardstanding on it.

(4) In paragraphs 455 and 456, when considering the preclusion of the fallback, the inspector referred to “the use of the site” in Class B2. One should not read those references to “the site” as meaning anything different from the references to “the site” elsewhere in the decision letter. They mean the entire application site. Indeed, it is clear from paragraphs 455 and 456 that the inspector had the distinction between “the site” and “the buildings” well in mind when referring to the prospect of industrial activities taking place outside the buildings. The First Secretary of State adopted paragraphs 455 and 456 of the report in paragraph 35 of his letter, where he said that there was a “real prospect of the B2 use of the site continuing …”.

(5) The enforcement appeal inspector was wrong to conclude, in paragraph 22 of his ruling, that the term “the site” in paragraph 35 of the decision letter did not mean the site, but only the buildings and hardstanding. This cannot be reconciled with the First Secretary of State’s endorsement, in paragraph 30 of his letter, of the conclusion in paragraph 436 of the inspector’s report that there was “a realistic prospect of the B2 use continuing on the site”. Nor can it be reconciled with the First Secretary of State’s adoption of paragraphs 455 and 456 of the inspector’s report, in paragraph 35. In this context the natural and correct reading of the expression “the entire site” in paragraph 35 is that it means exactly that – the whole site and not merely a part of it. The reference to “part of the site” later in the same paragraph makes the intended distinction clear. There is nothing in that paragraph that requires one to read “the site” as meaning “the buildings and hardstandings on the site”. There is no reason to think that the First Secretary of State meant anything other than what he said.

(6) The First Secretary of State’s agreement with paragraph 435 of the inspector’s report – in the first sentence of paragraph 35 of his letter – sits well with that literal interpretation of what he said. He could logically accept the existence of the three fallback scenarios identified by the inspector in paragraph 435 of the report as well as the proposition in paragraph 456 that planning permission was not required for “the continuation of the use of the site for general industry”. And the First Secretary of State clearly did accept that proposition, as he made clear in the second sentence of paragraph 35.

(7) When the inspector referred to “the works” he was using that term in its normal sense – a place where industrial or manufacturing processes are carried out. He was doing so to distinguish the application site from the areas in which mineral had been extracted (see, for example, in paragraph 432 of the report). He was not indicating that in his view the relevant planning unit was limited to the buildings and hardstanding on the site.

[52]For the Secretary of State Mr Hereward Phillpot submitted:(1) The enforcement appeal inspector approached the interpretation of the First Secretary of State’s decision letter correctly, and with a clear understanding of the rival arguments before him. His conclusions on the meaning of the decision letter were right, for the reasons he gave.

(2) In paragraph 30 of the decision letter the First Secretary of State endorsed the inspector’s conclusion on the fallback position, for the reasons he had given in paragraphs 427 to 436 of his report. Those paragraphs of the report must be read together, and in the light of the rest of the report.It is important to see how the inspector described the relevant planning unit. He referred in paragraph 432 to “the works” forming “a distinct planning unit in its own right …”, and in paragraph 433 to “the works” having formed “a separate planning unit for some time”.

(3) It is therefore necessary to look at what the inspector said about “the works” in that part of his report. In paragraph 429 he referred to “the works on the site”, and to the tramway that had “brought the material right inside the works”. Both here and elsewhere in his report he was plainly using the term “the works” to mean something different from and smaller than the whole application site. For example, in paragraph 14 he referred to “the buildings comprising the … works” and “extensions and alterations … carried out to the works”. In paragraph 431 he referred to “the works” being “mothballed”, and in paragraph 439 to “the machinery and buildings” being “mothballed”.It was “the works” – and no larger area – that the inspector concluded had “a lawful use for general industry” (paragraph 433). By “the works” he meant only the buildings and hardstanding on the site. This is clear in paragraph 435, where he said that “the buildings and hardstandings on the site enjoy a B2 fallback …”.

(4) It is clear, therefore, that the inspector did not accept that the whole application site benefited from a lawful Class B2 use.

(5) If the First Secretary of State had disagreed with the inspector on the extent of the relevant planning unit and thus the extent of the lawful Class B2 use, he would have said so. And he would have explained why. But did not. In paragraph 30 of his letter he simply accepted the inspector’s findings and conclusion on those matters.

(6) The First Secretary of State’s conclusions in paragraph 35 of his letter are entirely consistent with those of the inspector in paragraph 435 of his report, and also with his own and the inspector’s conclusions on the extent of the lawful Class B2 use. The three fallback positions acknowledged by the First Secretary of State in paragraph 35 relate only to the buildings and hardstanding on the site. To describe a Class B2 use of those parts of the site as “the B2 use of the site” was consistent with his own conclusion in paragraph 30 of his letter and with the inspector’s in paragraphs 427 to 436 of the report. The same may be said of his reference to the “likelihood of a significant B8 use of the site” when he was contemplating the fallback available for building A.

(7) Any view previously expressed by Council about the lawful use of the site cannot assist Gazelle now (see R. (on the application of Reprotech Ltd.) v East Sussex County Council [2003] 1 W.L.R. 348). In any event paragraph 6.1 of the Statement of Common Ground for the 2002 inquiry referred only to the “existing use” of the site, and not to its “lawful use”, nor to the use of it all. And at the inquiry the Council’s case on the fallback, as recorded in paragraphs 192 and 193 of the inspector’s report, related specifically to the buildings and the hardstanding.

[53]For the Council Mr Humphreys adopted Mr Phillpot’s submissions and added these of his own:(1) Since Gazelle has now abandoned its reliance on the principle of “res judicata” these proceedings are of limited value.

(2) The land affected by settlement, to which the inspector referred in paragraphs 15 and 434 of his report, was land to the north-east of Area A – the part of the application site comprising the buildings and hardstanding. The planning permission granted in 1970, to which the inspector referred in paragraph 15, included Area E, but not Area A. Planning permissions for the reclamation of land further to the north-east, beyond Area E, were granted in 1976 and 1978 (ibid.). In its correspondence with Pioneerin 1985 Wansdyke’s planning officer was saying, in effect, that Area A was a separate planning unit. The inspector found that “by the end of the 1970s the land subject to subsidence following the cessation of mining operations had been restored” (paragraph 434). In his analysis of the planning history he distinguished between “the works” and “the adjacent land”, which had not been either worked for mineral or in Class B2 use after its restoration was complete (ibid.).

Discussion

[54]As all three parties acknowledge, and I agree, in his decision letter of 1 August 2003the First Secretary of State accepted that the buildings and hardstanding on the application site had the benefit of a lawful use for general industry in Class B2, and that one of the buildings, building A, also had a lawful use for storage within Class B8. This much was not in dispute between Gazelle and the Council before the First Secretary of State in 2003, and it seems not to be in dispute now, at least between Gazelle and the Council.

[55]The contentious question in these proceedings is whether the First Secretary of State’s decision letter is to be read as going beyond that conclusion, and, if so, whether it presents a positive conclusion, as Gazelle contends it does, that the lawful Class B2 use attaches to the application site in its entirety. The inspector in the enforcement appeal saw this as the critical question for him to decide on the first preliminary issue. He decided it in favour of the narrower construction of the First Secretary of State’s decision letter contended for by the Council, a construction now supported by the Secretary of State through the submissions of Mr Phillpot.

[56]As I have already said, the role of the court in this case is, and is only, to construe the First Secretary of State’s decision. The court is not determining the extent of any lawful Class B2 use on the site that is the subject of the Council’s enforcement action. It is not reviewing a decision in which the primary question for the decision-maker was the existence and extent of any lawful use on the application site. It is interpreting part of a decision of the First Secretary of State on an application for planning permission, in which he had to consider whether there was a lawful fallback position for Gazelle as the owner of the site and, if there was, whether and how that fallback position was likely to be taken up if planning permission was refused.

[57]It is important to keep in mind that a decision on a called-in application for planning permission under section 77 of the 1990 Act is a decision taken on the planning merits of the proposal in hand. Such a decision necessarily involves considerations different from those that arise under the provisions of section 177(1)(c), when an appeal against an enforcement notice is being determined under section 174, or in a decision on an application for a certificate of lawfulness of existing use under section 191 (see the speech of Lord Bridge of Harwich in Thrasyvoulou v Secretary of State for the Environment [1990] 2 A.C. 273, at p.287g to 288d, and p.290d-h; and the judgment of Stuart-Smith L.J. in Porter at pp. 702h to 703b and p.703e-h; and, generally, the speech of Lord Hoffmann in Reprotech). In Thrasyvoulou (at p.290f-h) Lord Bridge said:

“… A decision to grant planning permission creates, of course, the right which such a grant confers. But a decision to withhold planning permission resolves no issue of legal right whatever. It is no more than a decision that in existing circumstances and in the light of existing planning policies the development in question is not one which it would be appropriate to permit. …”

[58]The First Secretary of State’s consideration of the lawful use of the site arose in the context of the “very special circumstances” put forward both by Gazelle and the Council in urging him to grant planning permission, as a justification for permitting “inappropriate development” in the Green Belt. In considering that question the First Secretary of State was not obliged to make, and did not purport to make, any formal determination of the lawful use of the application site or of any part of it. He had to reach a view on what was likely to happen in the future if he decided to refuse planning permission. But he did not have to go further than that. It would therefore be a mistake to seek in his decision letter greater precision or certainty as to the lawful use of the site than was necessary for him in assessing the planning merits of the development proposed.

[59]In this part of Gazelle’s case on the called-in application it described the nature and effect of the lawful Class B2 use that it said was likely to be resumed if its application was rejected. The Council did not disagree, but the third parties did. The question for the First Secretary of State on this issue, therefore, was essentially a practical one. This meant that he had to consider whether any or all of the fallback scenarios advanced at the inquiry, and apparently agreed between Gazelle and the Council, was realistic. He therefore had to ask himself whether any or all of those hypothetical schemes could be lawfully implemented. He did that. But he was not required to take the further step of reaching a concluded view on the precise extent of any lawful use on or within the application site. That was not part of his statutory remit in determining the application for planning permission. None of the parties invited it. And, it should be remembered, the two main parties – Gazelle as applicant and the Council as local planning authority – were largely in agreement on this aspect of the case.This is clear not only from the Statement of Common Ground but also from the inspector’s summary of the evidence and submissions he received from Gazelle and the Council on the fallback position (see paragraphs 17 and 22 above).

[60]I must consider whether the enforcement appeal inspector’s interpretation of the First Secretary of State’s decision letter was right. As I have said, the approach to construction is not in itself controversial. I have referred to the relevant jurisprudence (see paragraph 50 above). It is necessary to read both the inspector’s report and the decision letter as a whole, without an overly semantic examination of what they say. One should resist a construction that creates inconsistency either within or between them. One should not detach particular passages from their proper context. One should not read into the report or the decision letter words that are not there, or construe particular terms or expressions to mean different things in different places, unless the context requires it. One should assume that the inspector and the First Secretary of State chose their words with care, and that they meant to say nothing more or less than they did.

[61]Paragraph 30 of the decision letter, under the heading “Fallback”, simply records, without elaboration, the First Secretary of State’s agreement with the inspector’s conclusions in paragraph 436 of his report, “on whether a fallback position exists”, and with the reasons given for those conclusions in paragraphs 427 to 436. So it is to those ten paragraphs of the inspector’s report that one must go to find the substance of the First Secretary of State’s conclusions and reasoning on this question. This is confirmed by the first sentence of paragraph 35 of the decision letter, where the First Secretary of State agreed that the “three fallback positions” identified in paragraph 435 of the inspector’s report are “theoretically available”.

[62]In keeping with the general format of his report, in paragraphs 427 to 436 the inspector referred back to several preceding paragraphs from which he drew his findings and conclusions. Those passages, referred to in the bracketed notes at the end of each paragraph, appear in the parts of the report where the inspector dealt with the application site and its surroundings, the relevant planning history, and the cases put forward by the parties at the inquiry.

[63]In paragraphs 427 to 436 of the report the inspector did five things.

[64]First, he directed himself to consider the relevant planning unit (paragraph 427). He was clearly conscious of the law bearing on that matter. He referred to the Divisional Court’s decision in Burdle. In that case Bridge J., as he then was, said (at p.244a-h) that “[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.” The inspector had that basic principle in mind when he acknowledged that the planning unit would normally be “the whole unit of occupation” unless “some smaller unit” could be identified “that amounts to a separate use both in physical and functional terms”. This was a correct statement of the law. The inspector also understood that the question was one of “fact and degree” (paragraph 428). He saw the importance of considering the history of the site, using the available evidence in documents, photographs and maps and in the accounts given by witnesses at the inquiry (ibid.).

[65]Secondly, the inspector reviewed the evidence of the history of “the works on the site” (paragraph 429). In the light of that evidence he made several findings of fact, which he set out in paragraphs 429 to 434. He accepted that “the works” had at one time been active in the processing of fuller’s earth extracted from land nearby, and, in the late 1970s, material imported from elsewhere (paragraphs 429 to 433). He referred to the tramway system that had been used to convey the mineral “right inside the works” (paragraph 429) and “directly into the works” (paragraph 432). He found that “the works” had been “mothballed” in about 1980, and eventually closed in 1986 when the machinery was removed (paragraph 431).The paragraphs to which he referred in support of this last finding included paragraph 184, in which he had set out the chronology given to him by the Council. In that chronology it was noted that in about 1980 mineral extraction had been suspended and the “site mothballed”.

[66]Thirdly, in paragraph 432 the inspector answered the question he had effectively put to himself in paragraph 427 – what is the planning unit? The answer he gave is perfectly plain. The planning unit was “the works”. He found that since the early 1960s “the works” had “formed a distinct planning unit in its own right”, processing the mineral brought there from a new adit at Under Sow Hill, and separate from the planning unit in which the mining operation was comprised (paragraph 432). The inspector emphasized the “physical separation” between “the works” and “the mining operation at Under Sow Hill”, which, he found, “did not form part of the same planning unit” (ibid.). The lawful use of “the works” was for “general industry (B2)” (paragraph 433). One of the buildings on the application site, building A, had been erected after planning permission for a new warehouse was granted in 1969, and this had a lawful use for “warehousing and storage (B8)” (paragraph 433 and 435). Because “[the] works” were “adjacent to” a mine it had been possible for the company running them in 1974, which was a mineral undertaker, to make use of permitted development rights for various acts of operational development, including the erection of two silos. Land within the “adjacent mine” had been subject to reclamation schemes for which planning permissions had been granted in the 1970s (paragraph 434).

[67]Fourthly, in paragraph 435, the inspector set out the conclusions to which he had come as a result of this assessment. These were clearly based on the findings and conclusions he had expressed in paragraphs 427 to 434 – hence the word “therefore” in the first sentence of paragraph 435. The conclusions in paragraph 435 are expressed in perfectly clear terms, so far as they go. The inspector identified three distinct fallback positions. He concluded that “the buildings and hardstandings on the site enjoy a B2 fallback …”, and could therefore be used for general industry without planning permission having to be sought and granted. He also concluded that “building A enjoys a warehouse/storage (B8) fallback”. That was the first fallback position. The second and third fallback positions were based on the first. The second fallback position was a consequence of permitted development rights for changing 235 square metres of Class B2 use to Class B8 use and an unlimited amount of Class B2 use to Class B1 use. The third would be achieved if planning permission were granted for the re-use of about 2,000 square metres “of buildings for B1 with controlled use of areas of hardstanding” in accordance with the relevant guidance in PPG2. The “worse case scenario” in the inspector’s view was “the B2/B8 fallback”. These conclusions seem to reflect the Council’s case on “The Fallback Position”, which the inspector had recorded in paragraphs 192 to 194 of his report – the three paragraphs mentioned at the end of paragraph 435. As the inspector noted in paragraph 192, the Council had contended that building A could lawfully be used for “the storage of any materials, not just minerals” within Class B8, and that the “remaining buildings and their hardstandings” had a lawful Class B2 use.

[68]Fifthly, in paragraph 436 of his report the inspector concluded that there was evidence of “a realistic prospect of the B2 use continuing on the site”. This conclusion was based on the fact that an aggregate recycling business had “set up on the site”, and that a number of companies, among them a concrete batching business has “expressed an interest in using the site”.

[69]Nowhere in those ten paragraphs did the inspector say that in his view the planning unit was something less than the whole “unit of occupation”, or something less than the whole application site. He did not say that it comprised only the buildings and hardstanding on the site. On a fair reading of the findings and conclusions that he did express, I do not think one can say that he regarded the “unit of occupation” as being anything other than the application site itself, or that he regarded the relevant planning unit as being anything other than the “unit of occupation” or asextending no further than the buildings and hardstandings. It is beyond dispute that he had recognized and purported to apply the approach indicated in Burdle. This being so, if he really had concluded that the planning unit was a smaller area than the “unit of occupation”, or a smaller area than the application site, he would surely have said so in unmistakeable terms. And he would have explained why. But he did not. Both Gazelle and the Council seem to have been saying to him that the application site was the planning unit. As Mr Edwards submitted, it seems fair to say that if the inspector was rejecting the position of the two main parties on that matter he would have made this plain, and he would have given his reasons for doing so.

[70]In their submissions Mr Phillpot and Mr Humphreys highlighted the first sentence of paragraph 435 of the inspector’s report, where he said that “the buildings and hardstandings on the site enjoy a B2 fallback …”. But that sentence has to be seen in the context of the totality of the inspector’s findings and conclusions in paragraphs 427 to 436 and the earlier passages in his report to which he referred. When it is viewed in that context I do not think one can properly read into it the conclusion that the lawful Class B2 use attached only to the buildings and hardstandings.

[71]I do not accept that in describing the three fallback scenarios to which he referred in paragraph 435 the inspector was saying, in effect, that only the buildings and hardstanding had gained a lawful industrial use. The evidence and submissions the inspector had heard on the fallback position had focused on the buildings and hardstanding. That is clear. But to say that the buildings and hardstanding could lawfully be put to use in Class B2, and that there was a realistic prospect of such use continuing, did not logically exclude the concept that the lawful use itself related to the whole unit of occupation – or the whole application site. It was not tantamount to saying that the planning unit whose lawful use was now in Class B2 was restricted to the buildings and hardstandings alone, and did not comprise all of the site of which they were part.

[72]In the absence of any explicit finding by the inspector that the relevant planning unit – “the works” – was something less than the whole unit of occupation, or the whole application site, I do not think one can infer from his findings and conclusions in paragraphs 427 to 436 that in his view the lawful Class B2 use extended no further than the buildings and hardstandings themselves.

[73]Although the inspector referred to “the works” forming “a distinct planning unit” in paragraph 432, and “a separate planning unit” in paragraph 433, he did not say exactly what he meant by “the works”, or by “the works on the site” – an expression he used in paragraph 429. He did not say that whenever he referred to “the works” he meant only the buildings and hardstanding. On the contrary, if one reads those paragraphs together with the evidence and submissions underpinning them, as recorded by the inspector in the earlier passages of the report to which he referred, he seems to have been using the term “the works” as synonymous with “the application site”. Clearly, “the works” is a term whose meaning is somewhat elastic. Its definition in the Shorter Oxford English Dictionary (sixth edition) is “[a] place or premises where industrial activity, [especially] manufacture, is carried on”. Its range of meaning is not restricted to buildings used or capable of being used for some industrial process and the area of hard surface immediately around them. It is broad enough to encompass the site occupied by an industrial concern, which may be larger than the area of buildings and structures, connecting roads, areas of open storage, car parking and so forth, and include other areas around them.

[74]In paragraph 432 of his report the inspector did not differentiate “the works” from the application site itself. He distinguished them from the area of mineral extraction at Under Sow Hill. In doing so he seemed to be accepting what had been said in evidence and submissions at the inquiry, both by Gazelle and by the Council. In paragraph 101 of his report he recorded as part of Gazelle’s case on the fallback position the contention that “the application site has always been used for some form of industrial process and certainly since the early 1960s had formed a separate and distinct planning unit in its own right”, and then that “the extraction operation at Under Sow Hill did not form part of the planning unit” (see paragraph 22 above). In paragraphs 186 and 187 he recorded what the Council had said about the planning unit, including these points: that “by 1980 the application site was a separate unit of occupation from the mine workings …” (paragraph 186), that both Gazelle’s and the Council’s planning witnesses had “correctly concluded that the site is now a separate planning unit from the previous mine …”, and that this had been so “for some considerable time …” (paragraph 187) (see paragraph 24 above). It was in the light of this evidence that the inspector referred in his own conclusions to “the works”, in contradistinction not to the “application site” but to the land on which mineral extraction had occurred.

[75]Paragraph 433 of the inspector’s report begins with the finding that “the works … have a lawful use for general industry (B2)”. The inspector saw support for this finding in “the registration of the works under the Alkali & Works Regulation Act 1906” (ibid.). He observed that “[mineral] extraction was not registrable under the Act”. At the end of paragraph 433 he referred back to paragraph 190, where he had mentioned the relevant registration. That was in his summary of the Council’s case on the planning position, in the course of which, at paragraph 186, he had recorded the Council’s evidence and submission that “the application site” was “registered under the Alkali & Works Regulation Act 1906 …” (see paragraph 24 above). There is no indication in paragraph 433 that in this context he was distinguishing “the works” from “the application site”.

[76]Subsequent paragraphs of the report, including paragraphs 455 and 456 where the inspector was considering the “Preclusion of the fallback position”, reinforce the view that he did not define the planning unit as an area smaller than the application site. In paragraphs 455 and 456 he referred to the prospect of “the B2 use of the site” continuing (paragraph 455) and “the continuation of the use of the site for general industry” (paragraph 456). There is nothing to indicate that his references there to “the site” meant anything other than the application site, which was the sense in which he used that expression throughout the report.

[77]I can return now to the First Secretary of State’s decision letter.

[78]In paragraph 31 of his letter the First Secretary of State agreed with the inspector on the issue of “Abandonment”. That paragraph, like paragraph 30, is brief. It simply states that the First Secretary of State agrees with the inspector’s relevant conclusion in paragraph 443 of his report, and the supporting reasons in paragraphs 438 to 443. The inspector’s conclusion in paragraph 443 was that “the use of the site for B2/B8 purposes” had not been abandoned. The inspector did not limit that conclusion to the use of the buildings and hardstanding alone.

[79]I turn then to paragraphs 35 to 37 of the decision letter, where the First Secretary of State expressed his own conclusions on the “preclusion of the fallback positions”. This was the crucial part of his treatment of the fallback, because it was the part of his assessment in which he considered what was likely to happen on the site if he refused planning permission.

[80]What the First Secretary of State said in those three paragraphs shows that he did not entirely agree with the inspector’s conclusions on the likelihood of the fallback positions becoming a reality.

[81]In paragraph 35 the First Secretary of State set out a series of conclusions about the first fallback position, including these: first, as the inspector had said in paragraphs 455 and 456 of his report, that there was a real prospect of “the B2 use of the site” continuing; secondly, that the evidence was not sufficient to show that “the entire site” was likely to “be used for B2 use” under the fallback position; thirdly, that “continued B2 use of part of the site” would be harmful but capable of being partly mitigated by screening; and fourthly, that there was not evidence enough to show a real likelihood of “significant B8 use of the site”.

[82]An obvious difficulty for Mr Phillpot’s and Mr Humphreys’ argument is the need to reconcile the First Secretary of State’s use of the expression “the entire site” in paragraph 35 and the several references in that paragraph to “the site” – rather than to the buildings and hardstanding on the site – with the notion that it was only the buildings and hardstanding on the site that enjoyed a lawful use in Class B2. The enforcement appeal inspector saw this as a conundrum. He resolved it, in paragraph 22 of his ruling, by concluding that the words “the site” in paragraph 35 of the decision letter do not have the same meaning as they do everywhere else in the letter.

[83]I cannot accept that. In my view, for the reasons I have already given, there is no necessary tension or conflict between paragraph 35 of the First Secretary of State’s decision letter and the inspector’s findings and conclusions in paragraphs 427 to 436 of his report, which the First Secretary of State adopted in paragraph 30. If one does not read into paragraphs 427 to 436 of the report a conclusion the inspector did not state – that the lawful Class B2 use relates only to the buildings and hardstanding – one does not need to search for an explanation of the way in which the First Secretary of State dealt with the preclusion of the fallback in paragraph 35 of his letter. The references to “the site”, the “entire site” and “part of the site” in paragraph 35 are compatible not only with the language used by the inspector in his own analysis, both on the prospect of Class B2 use “continuing on the site” in paragraph 436 of his report, and on the preclusion of the fallback in paragraphs 455 and 456, but also with his conclusions on the existence of a lawful Class B2 use in paragraphs 427 to 435, so long as one does not imply into those conclusions anything more than he actually said.

[84]Paragraphs 35, 36 and 37 of the decision letter must be read together with paragraph 30. In combination those four paragraphs show two things: first, what the First Secretary of State considered to be the lawful use on which the fallback positions were based, and secondly, what weight he thought should be given to the preclusion of the fallback positions in the planning decision. I cannot accept that he would have chosen to express his own judgment on the preclusion of the fallback positions in the way that he did if he had understood the inspector to have found in paragraphs 427 to 436 of his report that the lawful Class B2 use attached only to the buildings and hardstanding, rather than to the application site as a whole. Had this been his understanding of what the inspector had said one would have expected him to refer in paragraph 35 to “the buildings and hardstandings”, “the entirety of the buildings and hardstandings” and “part of the buildings and hardstandings” rather than “the site”, “the entire site” and “part of the site”. The fact that he did not do so is in my view significant. And I see no reason to think that the way in which he put his conclusions here was unintentional or ill-considered, or such as to create an inconsistency in his use of the term “the site” between one part of his letter and another.

[85]The conclusion that in paragraph 35 of his decision letter, and indeed throughout the letter, the First Secretary of State meant the site when he said “the site” is strengthened by several passages in which he distinguished the buildings on the site from the site itself. For example, in paragraph 33 he said that he agreed with the inspector “that the site has become an eyesore and that the buildings have become unsightly”, and in paragraph 56, again agreeing with the inspector, he said that “the buildings have assumed a dilapidated air and … the site generally looks unkempt” (see paragraph 44 above).

[86]I come finally to paragraph 59 of the decision letter, in the First Secretary of State’s “Overall conclusion”. Here he repeated his view that “the preclusion of the fallback position” did not carry “much weight” in his decision. This was because he did not think “the site’s full return to B2 use” was likely, and he disagreed with the inspector on the degree of harm “from such use”. In my view this conclusion is to be read in the same way as paragraph 35 of the letter. Once again, when dealing with the fallback position, the First Secretary of State spoke of “the site”, which, as I see it, clearly means the application site rather than merely the buildings and hardstanding on it.

[87]Mr Phillpot’s and Mr Humphreys’ submissions, persuasively put as they were, do not convince me that the First Secretary of State reached a more restrictive conclusion on the extent of lawful Class B2 use on the application site than his words conveyed.In my view his decision letter, properly construed, does not express or imply the conclusion that only the buildings and hardstanding on the application site benefited from lawful use in Class B2. He did not confine his conclusion on the existence of a lawful Class B2 use to an area less than the entire application site. I think the correct interpretation of the relevant parts of his decision letter is that, without determining this question in any formal way, he did not doubt the existence of a lawful Class B2 use on the whole of the site. To this extent I accept the submissions of Mr Edwards for Gazelle.

[88]It follows that the enforcement appeal inspector’s ruling on the first preliminary issue cannot stand.

[89]That is enough to dispose of the issue that arises in these proceedings. It is not an outcome from which I think Gazelle can take very much comfort. My task has not been to decide whether the First Secretary of State was right in what he said about the lawful use of the site, but only to discern what he meant. As the enforcement appeal inspector recognized in paragraph 1 of his ruling, and this has not been in dispute before me, “the extent of the [Class] B2 fallback” was not finally determined by the decision of the First Secretary of State. This is a question that will have to be resolved in Gazelle’s enforcement appeal. The inquiry into that appeal will be the forum in which evidence and submissions are heard on the precise nature and extent of any lawful use of the site to which the enforcement action relates. No doubt the Council will wish to deploy Mr Humphreys’ argument on the site’s planning history, including the submissions he made about the series of planning permissions granted in the 1970s for the reclamation of land that had once been worked for fuller’s earth. The decision on the appeal will, I assume, provide a formal determination of lawful use. This claim for judicial review could never have achieved that.

Conclusion

[90]For the reasons I have given I propose to make an order quashing the inspector’s ruling on the first preliminary issue. I shall hear counsel on the question of whether any further relief ought to be granted, and, if so, in what form.