“3.3 It is our client’s case that it has been providing parking that is not ancillary to the use of the school for more than 20 years. The mixed use referred to in the Notice has been continuous for that period.”
“5.1.1 Car parking in association with events at Wembley stadium has, without doubt, occurred at or around the appeal site, in common with most other viable sites within walking distance, during the past 22 years. The issue is whether at any time throughout a continuous 10 year period the Council could have taken enforcement action against a material change of use of the appeal site. Whilst the appellant has provided evidence of a more commercial and organised use of the appeal premises in more recent times it is clear that: ………… (g) The use the subject of the enforcement notice, involving public parking of around 300 cars spread across most of the appeal site, is materially different to activities that have occurred at the appeal site over the preceding 20 years.”
“29. In the unlikely event that you conclude that 60 cars, parked one day in March 2007, followed by a further 500 cars parked over a further 7 days during the rest of that year, was the beginning of a new intermittent mixed use. There is a material difference between that use and the use the subject of the enforcement notice involving around 8,000 cars parked over 42 days in a year. The former activity is parking that is but a contributory part to the general comings goings and activities on the land, during the brief and irregular periods it happened, the latter totally dominates comings goings and activities on the land for most weekends and many other evenings of the year. What is happening on the land and its impact off the land results in a change the character of the use from anything that happened in 2007 (Mistry). Hertfordshire v. SoSCLG and Metal and Waste Recycling[2012] EWCA Civ 1473 para 25.”
“I can confirm that at no time in the evolution of the description of the breach did the Council ever raise the suggestion that the material change of us which it sought to enforce against was an intensification of a mixed use which included parking. Rather the Council’s position was always that the material change of use was caused by the introduction of a new primary parking use.”
“Without planning permission, the material change of use to a mixed use as school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the uses as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities).” ii) At DL 6 the inspector stated: “In my view, the corrected allegation, agreed by the main parties, accurately identifies the mixed use on the appeal site at the time the notice was served.” iii) At DL 7 the inspector stated: “In appealing on ground (d), the burden of proof is firmly on the appellant to demonstrate, on the balance of probabilities, that the development was lawful through the passage of time at the date when the enforcement notice was issued. That is, had there been a material change of use to a mixed use as school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the use as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities) on or before12 April 2007 and that the mixed use had occurred continuously throughout that period it would be lawful through the passage of time.” iv) At DL 12 the inspector stated (it appears that there is a word or words missing after the words ‘material change of use’): “The Council consider that sometime around 2016 a material change of use at the appeal site that included parking for off-site events at the new Wembley Stadium.”
“19. The Council consider that the material change of use i.e. the point at which it considers that there was a separate primary parking use at the appeal site, took place in 2016. Between 2007 and 2009 the Council consider that the parking for new Wembley Stadium events was de minimis. In 2013 the Council consider, on the basis of invoices, that parking was available for six off-site events. The Council consider that in 2016/17 there was a marked change in the level of activity for the off-site event parking use at the site. This coincides with Tottenham Hotspur football club holding home games at the new Wembley Stadium. 20. However, in my view a primary parking use to serve those attending events at the new Wembley Stadium started at the time of the under 21’s match in March 2007. On the date of this event the school had people outside of the site directing cars to park at the school and collecting money from those driving onto the school grounds to park within the designated area. While numbers of cars parked were between 50 and 60 such numbers could not be regarded as de minimus and it would have been apparent to those in the vicinity of the appeal site that people were parking their cars at the appeal site and walking in the direction of the new Wembley Stadium and returning at the end of the game, all at a similar time. In addition, people from the school collected the£10 parking fee in buckets in 2007, which is not something which took place with any onsite event parking. Furthermore, it would have been different from events at the school where ancillary parking took place as the occupiers of the cars parked would have remained within the appeal site to attend the event. The off-site impacts can therefore be distinguished. 21. The school had restarted a use it clearly found beneficial to the finances of the school at an early opportunity after the new Wembley Stadium was opened. The school then continued to do so for another 7 events in 2007. The use of the parking and the frequency of the parking for events increased and it was managed more extensively and marketed as such, but the primary use for parking began on24 March 2007 . This use was not ancillary to any of the other elements within the mixed use and it was at an intensity, even in March 2007, that constituted a change in the character of activity generated at the site and was material. The parking for off-site events was provided on a regular basis to coincide with many events at the new Wembley Stadium. 22. I find that the case made by the appellant to be sufficiently precise and unambiguous for me to conclude, on the balance of probabilities, that the material change of use to a mixed use as school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the uses as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities) took place on24 March 2007 and that this mixed use continued for a period of ten years prior to the service of the Notice and the appeal on ground (d) should succeed in respect of those matters which, following the correction of the enforcement notice, are stated in it as constituting the breach of planning control. In view of the success on legal grounds, the appeal under grounds (a) and (g) as set out in section 174(2) of the 1990 Act as amended do not fall to be considered. Formal Decision 23. It is directed that the enforcement notice be corrected by the deletion of the words " from a school to a mixed use as a school and a car park (i.e. parking that is not ancillary to the use as a school " in Schedule 2 of the enforcement notice and the substitution thereto of “to a mixed use as school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities and parking (i.e. parking that is not ancillary to the uses as a school, nursery, for religious gatherings, celebrations, parties conferences, meetings, sports and leisure activities). Subject to these corrections the appeal is allowed and the enforcement notice is quashed.”
“(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”
“9. It is not disputed that intensification of a use is capable of constituting an MCU. That was accepted in Guildford Rural District Council v Fortescue[1959] QBD 112 , Lord Evershed at page 124, in Lilo Blum v Secretary of State and Anr [1987] JPL 278 , by Simon Brown J, and in R v Thanet District Council[2001] 81 P & CR 37 by Sullivan J. What is necessary, however, and accepted by the parties to the present appeal, is that the test for deciding whether there has been an MCU is whether there has been a change in the character of the use. In East Barnet Urban District Council v British Transport Commission[1962] 2 QB 484 at 491, Lord Parker CJ stated: “It seems clear to me that under both Acts [ Town and Country Planning Acts, 1932 and 1947 ] what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier.” ”
“(1) For the purposes of this Act— (a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control.”
“ (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;”
“27. In the present case, had the activities which took place on the land between 19811983 continued unabated until 1992 and had the landowner then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities that type of problem would have arisen. But the inspector did not find that the commercial use continued unabated. If anything, he found the contrary. He approached his task by asking whether the LPA had shown that the commercial use which existed in 1981 and 1982 had been abandoned and applying a presumption that in the absence of clear evidence to the contrary the unlawful commercial activity continued throughout the period 1981-1989. Thus instead of deciding whether the landowner had shown that the unlawful activity had continued throughout the relevant period he asked himself whether the LPA had discharged some burden of proof in relation to that period. He apparently held that the landowner's own declaration in the Requisition for Information that on8 July 1983 the land was being used for agriculture and a dwelling was not sufficient. He did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That is a question which should in my judgment have been addressed by him and should be addressed by the Secretary of State if this appeal is dismissed and the case is remitted to him. 28. I accept Mr Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on — because it is the week-end or the factory's summer holiday, for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr Hockman's submission that enforcement action can be taken once the new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others. 29. Nor did the Inspector clearly address the question whether there had been a material change in the use of the land within the 10 years prior to the issue of the enforcement notice. He did not examine what in 1989 the facts were on the ground. It may be that it was open to him to come to the conclusion that what was going on in 1989 was similar to what was going on 10 years later and that nothing which should be described as a material change of use had occurred between those dates. However, I am not persuaded that this was the way that he approached his task.”
“33 I would only add that as with a judgment, the appellate body must appreciate how the parties' case was put, since that will bear on how the decision is structured and what parts of the case are given emphasis in it. Moreover, the appellate body should not be expecting that the decision will necessarily flow in a linear manner, part by part, paragraph by paragraph, with the conclusion at the end. That would be a counsel of perfection. The reality is that the decision may have been reached by considering the material as a whole and not by a stage by stage process, each stage considered in isolation. Thus in putting pen to paper a statement at a particular part of the decision may be based not only on what comes before it but it may anticipate what follows. It is artificial to expect the written decision to proceed paragraph by paragraph if the conclusion itself derived from a far from logical process. What is required is that the decision be read in good faith and understood as a whole.”