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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kinnersley Engineering Ltd v Secretary Of State For Environment Transport & Regions [2000] EWHC Admin 396 (11 October 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/396.html Cite as: [2000] EWHC Admin 396

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KINNERSLEY ENGINEERING LIMITED v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS [2000] EWHC Admin 396 (11th October, 2000)

Case no: CO/100/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 11 October 2000

ALAN AYLESBURY (instructed by Gordan Bancks & Co, Pershore, Worcs WR10 1AH) appeared on behalf of the Appellant
TIM CORNER (instructed by the Treasury Solicitor, London) appeared on behalf of the Respondent

Kinnersley Engineering Ltd appeals to this Court under s289(1) of the Town and County Planning Act 1990 against the dismissal by an Inspector of its appeal, with others, against an enforcement notice issued by Malvern Hills District Council in respect of the use of the former farmyard of Kerswell Green Farm, Kempsey.

In brief, the enforcement notice concerned four former agricultural buildings, including two Dutch barns or similar, grouped around a yard. Two other buildings, which were not the subject of the enforcement notice, complete the buildings around the yard; one of those two buildings has the benefit of a planning permission granted in March 1988 for use as engineering workshops, and the other which is in effect part of it is used as offices and lavatories in connection with it. Those two buildings are described in the appeal, respectively as P and Q.

Access to all the buildings is taken off the yard, known as "U". Building O is a Dutch barn, R is a small tractor shed, S an enclosed Dutch barn-type building and T is a post war agricultural building.

The enforcement notice was dated 12th February 1999. It is not necessary to set out the full allegations and requirements; in summary, the allegation was that buildings R, S, T and O had been used for storage purposes in connection with various manufacturing activities and that the yard U had been used for "manufacture, fabrication and repair of machinery and vehicles, storage in connection therewith and the parking of motor vehicles and the storage of a touring caravan". The requirement of the notice was that those activities should cease within 3 months.
The appeal was made on grounds (a), (b), (c), (d) and (f) of s174(2) of the 1990 Act. The appeal was dealt with by way of an Inquiry at which the evidence was given on oath. It was dismissed on all grounds subject to minor alterations and corrections. The challenge in this Court relates to grounds (b),(c) and (d).
I shall deal first of all with Mr Alesbury's submission on behalf of the Claimant in relation to ground (b), his first ground of challenge, in which he contends that the Inspector's conclusions about the yard U are internally inconsistent, and amount to a finding that the use alleged to have occurred both had in fact and had not in fact occurred.
The Inspector dealt with the appeal on ground (b), ie that the breaches of planning control had not occurred as a matter of fact, as follows.
"6. Under an appeal on this ground it is claimed that the matters alleged in the notice have not occurred as a matter of fact. The appellants contend that the description used in the notice is not wholly incorrect, but that it would be more accurate to describe the use of the whole of the site covered by the notice as being for the manufacture, fabrication and repair of machinery, tractors and vehicles for non-agricultural and agricultural purposes, and for storage and other activities included or ancillary to the primary uses of the site.
19. I further conclude one the balance of probability from the evidence given by Mr Derrett, Mr Whittal-Williams, Mr Sawyer and Mr Baldwin and the statutory declarations referred to submitted in support of the appellants affirming the use of the site by other parties, and the evidence of the Council's Enforcement Officer, that few of the items being stored in buildings T, S and O when the enforcement notice was issued are ancillary to the use of building P for engineering purposes, but that instead the storage uses of these buildings are independent primary uses forming part of a composite use of the site. While it may be that there are occasions when some engineering work associated with the permitted use of building P as an engineering workshop has been carried out in building O and in the yard (U) (my conclusions below refer), and same `cannibalising' takes place of items stored in buildings S, T and O, I conclude on the balance of probability from my consideration of all the evidence given by the parties at the inquiry, that these are occasional and sporadic activities and do not amount to a material change of use. I found no evidence of any manufacturing fabrication or repair works taking place in buildings R, S and T. I do however conclude from the evidence given by Mr Derrett, Mr Whittal-Williams and other supporting witnesses, including statements made in statutory declarations, and photographs taken of the appeal site in 1998, that the use of the yard (U) for the manufacture, fabrication and repair of machinery and vehicles, storage in connection therewith and the parking of motor vehicles and the storage of a touring caravan has occurred as a matter of fact."
Her overall conclusions in paragraph 52 are also relevant.
"52. I conclude from all the evidence, on the balance of probability, including that given orally by witnesses at the inquiry and in statutory declarations and letters, that prior to the relevant date, 12 February 1989, building P was in use for engineering purposes with the adjacent yard (U) in use for ancillary parking and loading and unloading of goods; but that apart from the remnants of their former agricultural use, still visible to-day, little use was being made at that time of buildings O, R, S and T for non-agricultural storage purposes. Any use being made of these buildings and the yard (U) for non-agricultural purposes at the relevant date, other than ancillary parking, loading and unloading in connection with the use of building P for engineering purposes, amounted to no more than a de minimis use. If the site had been operating at that time at the intensity of use claimed by the appellants, I conclude on the balance of probability that Mr Lethem, as the prospective purchaser of Kerswell Green Farmhouse, would have noticed the activity and uses taking place on the site in the course of his visit to inspect the Farmhouse and its surroundings during the process of purchasing the property in 1989. At this time there were no physical barriers between the grounds of the Farmhouse and the appeal site - the wall had not been built along the boundary of building O and the steel fencing had not been erected along the boundaries of the site."

It is also relevant to note that much of the material which the Inspector sets out in paragraphs 6-20 of the Decision Letter is relevant primarily to ground (d), although appearing in the section where ground (b) is considered.

Mr Alesbury highlights her conclusion, in the last sentence but two of paragraph 19, that some engineering work associated with the permitted use of building P was taking place in the yard, but that it had been occasional, sporadic and did not amount to a material change of use. If that is correct, how can she then conclude, as she does in the last sentence of paragraph 19, that the yard had been used for manufacture, repair, storage and parking? This is however the basis of upholding the allegation in the enforcement notice in relation to yard U.
In paragraph 52, she concludes that before February 1989, the yard was in use for parking, loading and unloading of goods ancillary to building P, with de minimis use for any other purposes.
In dealing with this challenge to the conclusions on ground (b), it needs to be remembered that although ground (b) had been raised, the real thrust of the Claimant's case had been that the uses complained of had in fact occurred, and it was only seeking clarification so as to make a single allegation of manufacturing and storage use relate to the site as a whole, rather than to have sub-divisions of the site with separate but similar allegations for each part. Paragraph 6 of the Decision Letter makes that clear.
Mr Corner, for the Secretary of State, submits that the Inspector's conclusions, in the light of the way in which the Claimant puts its case at the Inquiry can only be seen as accepting the basic case, namely that at the date of issue of the enforcement notice, the use of yard U was taking place as alleged. Her conclusion in paragraph 19 that manufacturing use of yard U was sporadic and did not amount to a material change of use must relate to the conclusion along similar lines in paragraph 52 and to her eventual conclusion on ground (d) that the material change of use had not occurred more than ten years before February 1999. I have already noted, as Mr Alesbury pointed out, that much of the material in the section dealing with ground (b) is in part primarily directed to ground (d). Moreover, submits Mr Corner, the Claimant cannot complain of the Inspector's acceptance of its basic point on ground (b), that the use complained of was indeed taking place.
There is a confusion in exposition in the Inspector's letter; but the two conflicting conclusions can be reconciled on the basis which Mr Corner submits, recognising that that fits with the Claimant's case at the Inquiry. Albeit with an element of benevolence, I consider that is the way in which the Inspector's Decision Letter should be read. The alternative is to suppose that the Inspector reached two wholly conflicting conclusions in the one paragraph which is improbable. Accordingly, the first ground of challenge fails.
Mr Alesbury's second ground of challenge relates to the effect of the Inspector's upholding of the requirement in the enforcement notice that the use of the yard U for "parking motor vehicles" should cease. Whilst the ground appears to be an attack on the Inspector's conclusions as to what the planning units on the appeal site were, its sting relates to her treatment of those existing use rights which she found to exist.
The relevant parts of the Decision Letter, in addition to paragraph 52 which I have already set out, are paragraphs 22 and 23.
"21. Underlying my consideration of this ground of appeal is the definition of the planning unit. Having regard to my conclusions under ground (b) and the judgment in the case of Burdle v SSE [1972], I conclude that the planning unit is the whole of the appeal site owned by the appellants apart from building P, the engineering workshop, and its ancillary office and toilet block (Q), which are physically distinct buildings constituting one planning unit both physically and functionally separate from the remainder of the appeal site which I consider for the above reasons, to be in a composite use. Although the remainder of the site does not represent a single unit of occupation, there is no apparent physical or functional distinction between its different parts. This is particularly so in respect of the yard (U).
23. Although not a condition on the permission granted for the engineering workshop (P) in 1988, the explanatory note on the planning permission dated 14 March 1988 made it clear that the permission related solely to the building coloured red on the deposited plan and permitted no storage of goods, materials or vehicles on land outside that building. The Council concede that some activity must be lawfully ancillary and incidental to P but that this would be limited to the use of the yard (U) for employee car parking and for the loading and unloading of materials and equipment in and out of P, not for outside storage or working. I consider that to be a reasonable interpretation of the planning permission granted in 1988. However, in R v Harfield [1992] referred to by the Council, it was held that a use ancillary to a primary permitted use was permitted without the need for any separate planning permission. No enforcement notice could take away such legally permitted rights. Case law has established that any enforcement notice will be construed so as to retain ancillary rights."
The Inspector clearly accepted that the yard U could lawfully be used for certain activities ancillary to building P, namely loading and unloading of materials and equipment, and employee car parking. She does not consider the relationship of the yard to buildings R, S, T, or O, although no specific complaint is made of that. However, she also concluded that buildings P and Q constituted one planning unit, separated from the rest of the enforcement notice site which, including the yard U, she considered to be another planning unit.
Mr Alesbury is concerned that where a use is ancillary to another, they cannot be in separate planning units. If they are in separate planning units, the use cannot be ancillary. Hence, the use of yard U cannot be ancillary to building P and Q as the Inspector has found them to be in separate units. Accordingly, the ancillary use would not be protected as a matter of interpretation of the enforcement notice were the Claimant to be prosecuted for parking vehicles in the yard for the purposes of building P. At least, says Mr Alesbury, it is not obvious that it would be protected.
Mr Corner submits that the question of the planning unit is irrelevant to the arguability of ancillary uses, which would obviously be protected in the light of the Inspector's comments in paragraph 23 of the Decision Letter.
The basic approach to this problem of protecting existing use rights from the effect of enforcement notices is set out in a number of cases, the effect of which is usefully summarised in the Planning Encyclopaedia Volume 2 at P.176.05 and goes under the name of the Mansi doctrine; I have paid particular attention to what I see as the rather different case of Cord v SoS [1981] JPL 40. Given that existing use rights are to be protected, the question of whether it is necessary to spell those out in the enforcement notice depends on how obvious it is that the enforcement notice can and will be construed so as to protect them, in the context of a criminal prosecution. It needs to be remembered that subsequent landowners are also bound by the notice, and concern over its interpretation may affect dealings with them.
In my judgment, the key issue is whether it is obvious that the existing use rights as found by the Inspector would be protected. I do not consider that it is. If one examines the wording of the enforcement notice together with its plan, there could have been a case for saying that it is obvious that the notice is not meant to stop the yard being used for any purpose ancillary to the lawful use of all its surrounding buildings, or for any ancillary purpose commonly found in such yards. But this would not be easy in view of the specific prohibitions in the enforcement notices. Moreover, that would be rejected by a prosecuting Council because buildings R,S, T, and O are not referred to by the Inspector as generating any lawful ancillary uses in the yard, and the Inspector qualified the range of uses ancillary to building P which could be carried on in the yard. The Inspector's reasoning would be deployed against an approach derived just from the notice and plan itself.
However, if the Inspector's reasoning is to be used, the concept of a use in one planning unit ancillary to another use in another planning unit, which is the basis of her approach, is misconceived. The concept of "primary" and "ancillary" uses is one which relates to a single planning unit and indeed may help to define it. On the Inspector's approach to the planning unit, she needed to identify an independent, lawful yard use. She did not do so. If, therefore, the Inspector's reasoning is to be analysed to help interpret the enforcement notice in a prosecution context, it does not assist in reaching a conclusion obviously protective of what she intended to protect. It might be argued that the Inspector's use of the word "ancillary" is something of a red herring, when it is clear that if the uses she wanted to protect were treated as independent uses, they could still be described as "parking in connection with building P". On the other hand, it would be argued that there is no scope for ancillary uses, which is what the Inspector has in mind, to be protected in the light of her planning unit conclusion and in the light of the wording of the agreement notice prohibition. But either way, I do not consider the result to be obviously one protective of the existing use rights, in a situation where it is another Court, in a criminal context, perhaps with another landowner, which has to decide what is the effect of the words of the enforcement notice.
In my judgment, the Inspector acted beyond her powers or failed to provide adequate reasons for her conclusion in relation to existing use rights, to the prejudice of the Claimant. Had she recognised the difficulties in her approach as I have discussed them, I consider that she would have sought expressly to save existing use rights or at least explain very much more fully, why that express saving was unnecessary. There is a conflict between her approach to the planning unit and to ancillary uses which may affect the way in which existing use rights are defined. I do not know how that conflict may be resolved, with what effect on the definition of existing use rights e.g. if the yard were to be treated as part of the building P unit, other activities might be protected; if the whole site were one unit or the yard a unit in its own right, a different result might follow. The conflict may be resolved by a different view as to what constituted the planning unit. That is a further reason why I am reluctant to conclude that it is obvious how a Criminal Court would approach existing use rights. The appeal will be allowed on this ground.
Mr Alesbury's fourth ground was that if, as the Inspector had found, the yard could be used for some purposes ancillary to building P, she ought "therefore" to have found that it could be used for any purpose ancillary to building P, in particular for ancillary repair work. As I have said, there is a clear conflict between the Inspector's approach to the planning unit and her approach to ancillary uses. When that issue is examined again in the context of existing use rights, the extent of ancillary or independent uses will need to be examined. All I need to say at this stage is that if on reconsideration, the planning units are changed so that the yard is treated as part of the same unit as building P and Q, and so its use can be ancillary to the use of those buildings, I can see no reason why a lawful analysis of existing use rights should not confine those rights to ancillary uses actually undertaken for ten years rather than extend to any ancillary activity. I am not persuaded by Mr Alesbury's simple assertion that the contrary must follow.
Mr Alesbury's next ground relates to building O and to the way in which the Inspector recorded or understood the evidence of Mr Gittins. In effect it is said that she misunderstood his evidence and hence failed to take into account a material consideration. The issue to which the evidence went was whether building O had been in non-agricultural storage use earlier than February 1989 (ground (d), for it was not in issue but that subsequently it had been in that use.
In paragraph 14, the Inspector dealt with the evidence of Mr Gittins as follows:
"Mr C L Gittins, a local farmer, gave evidence that he had farm machinery either repaired or fabricated by Kinnersley Engineering. He said in answer to a question put in re-examination that building O was sometimes clear and sometimes a shambles, although there always seemed to be something there."

She returned to this at the end of paragraph 51, picking up the point in relation to building O and treating it as illustrating a wider point about the fluctuation of storage on site.

Building O is also referred to in paragraph 18 of the Decision Letter in which she concluded that most of the materials brought to the site and stored in building O, when the Claimant's business moved there, were moved out to building P in 1988. She concluded in paragraph 39 that building O was in storage use in 1991, and in paragraphs 41 and 46 that the building was in storage use in 1990. In paragraph 52, she concludes that before 1989, little use was being made of building O for non-agricultural storage.
Mr Sawyer, the Claimant's solicitor, states in his witness statement that what Mr Gittins actually said during re-examination was that it was the yard which was sometimes clear and sometimes a total shambles, and it was building O which always appeared to have something in it and was never empty. He exhibits (Bp218) his contemporaneous note This is supported by Mr Gittins' witness statement (Bp227). The Inspector has treated that as all one answer (not entirely internally consistent) relating to building O. In her witness statement, the Inspector states that her recollection is that Mr Gittins gave evidence as she has recorded it in her Decision Letter and identifies other evidence about building O in paragraph 18 of her Decision Letter.
I am satisfied that the Inspector has misunderstood the evidence. The two witness statements are clear as to the purport of the answers given, and are supported by the contemporaneous note. The Inspector is recollecting her misunderstanding.
Although the Inspector had other evidence set out in paragraph 18, that evidence does not deal with the question of whether all non-agricultural materials were moved out, and the evidence of Mr Gittins is referred to twice by her.
Whilst it is said by Mr Corner that the Claimant had the benefit of the evidence of Mr Gittins that there always appeared to be something in building O, her mistaken reference to it being sometimes empty and sometimes a shambles has clearly influenced her in her view as to the degree of non-agricultural storage in 1984-1999 in building O, (paragraph 51) and must have been part of the evidence which she refers to in paragraph 52 as leading to the concussion that pre-1989, non-agricultural storage use was de minimis.
I conclude that a material consideration was overlooked; I do not accept Mr Corner's submission that it makes no difference in view of all the other evidence. Had my conclusion in relation to this piece of evidence been my only adverse conclusion in relation to the appraisal of the ground (d) evidence, I would have accepted this submission. Unfortunately, it is not.
Mr Alesbury next contends that in paragraph 51, where the Inspector addresses the fluctuation of uses during the ten-year period up to 12th February 1999, she ought to have considered fluctuations before that date. If, it was submitted, the use had commenced before February 1989 as a fluctuating use, it would have been immune from enforcement. However, on the assumption that the Inspector's appraisal of the relevant evidence were not legally flawed, she has dealt with this point in her conclusion that before 1989, the use was de minimis.
Mr Alesbury next submits that the Inspector has ignored or given inadequate reasons for rejecting the evidence of 9 witnesses, given under oath, and of 17 statutory declarations, in rejecting the Claimant's case on ground (d).
I do not need to set out all the passages in the Decision Letter where the Inspector considers this evidence. It is clearly considered at some length in paragraphs 8 to 16 and conclusions are clearly drawn from the material in paragraphs 18 and 19. The oral evidence of Mr Whittal-Williams of the Claimant, Mr Derrett, Mr Battersea, Mr Sawyer and Mr Baldwin is referred to. The conclusions are said to draw on the statutory declarations. Whilst this is under the heading of ground (b), much of it clearly relates to ground (d) as does the first conclusion in paragraph 19 that the non-agricultural activities did not amount to a material change of use.
When explicitly considering ground (d), the Inspector identifies the issue in paragraph 25 as being whether the uses enforced against had started as claimed between late 1987 and early 1988; the Council's case was that they started no earlier than the early 1990s. She lists the contemporaneous evidence, which she then proceeds to analyse: rent invoices, customer accounts and invoices, planning applications, photographs, correspondence between local residents and the Council, and notes of visits in the early 1990s by Council Officers and a Valuation Rating Officer. In her discussion of that material there is reference to oral evidence from Mr Whittal-Williams and Mr Derrett, from Mr Humber, Mr Gittins, and Mr Sawyer, and to Mr Lampitt's statutory declaration. That evidence is discussed in the context of an appraisal of the contemporaneous evidence.
In paragraph 52, the conclusion is drawn from all the evidence, including oral evidence and statutory declarations that non-agricultural use had not started before February 1989.
As a body of evidence, the oral evidence of the 9 witnesses and the evidence of the 17 statutory declarations is not discussed. Yet her appraisal of this as a whole in relation to ground (d) is fundamental to her conclusion on the Claimant's evidence as a whole.
In my judgment, the Inspector cannot be said to have ignored the Claimant's written and oral evidence, in view of the extensive reference to it, even though 9 witnesses (oral or written) are not referred to. I also accept Mr Corner's submission that the Inspector did not have to deal with every witness or every statutory declaration, nor express any detailed analysis of what she accepted or rejected, or was left unpersuaded by eg because of its vagueness, and lack of focus on the key period.
However, aside from her appraisal of the contemporaneous documentary evidence, and the discussion in paragraph 18, it is impossible to identify the reasoning process which took the Inspector from the Claimant's oral and written evidence, or from her extensive recital of parts of it in paragraphs 6-16 to her conclusions. There is a dearth of explanation: did she accept it but conclude that it was unsatisfactory in some respect, eg that it was too unspecific? did she disbelieve it? did she see it as a consistent or inconsistent body of evidence?
In my judgment, she has not given adequate reasons for her conclusions on this principal issue. She has failed to provide reasons for the way in which she dealt with the main features of the Claimant's evidence. As I have said, such reasons do not have to be extensive, but they do have to give some reasonable indication as to why the Claimant's case failed, by reference to the extensive evidence which he provided. I cannot infer her reasoning; there are many possibilities. The Claimant is in my judgment prejudiced by this failure in not knowing whether her appraisal contained mis-appreciation of the evidence, or other legally challengeable flaws.
Accordingly, for this reason also the appeal will be allowed.
Mr Alesbury's next points add weight to my judgment that the explicit appraisal of the evidence might harbour misapprehensions. In paragraph 34, she records Mr Humber's evidence that it was possible for machines to be repaired at the farm, where they were being used, rather than being taken to the appeal site. She appears to attach weight to it. Yet Mr Sawyer states in his witness statement that Mr Humber's evidence was rather more extensive than that, including the point that such farm machines were in fact often repaired at the appeal site after April 7 1988. The Inspector states that she cannot recall that evidence and refers to his undated letter which was before the Inquiry, which like Mr Sawyer's statement is unspecific as to when after April 1988 such repairs took place.
Even taking Mr Humber's evidence at its lowest, as set out in the letter (BP 215) which was before the Inquiry, and assuming that the Inspector had regard to it, there should be an explanation for the selection of one part and the rejection of the seemingly more significant part. In the absence of such explanation, I infer that it was overlooked.
Again, if all else were in order on the Inspector's reasoning, I would accept Mr Corner's submission that this did not matter in the light of the other evidence in paragraph 34. However, the reference in that paragraph to the use of building P in preference to O because of its size, would require explanation in the light of Mr Humber's letter referring to the use of building O after April 1988. However, I do not regard the Inspector's reasoning as otherwise adequate.
The Inspector's approach to the invoice evidence is important. The Claimant submitted the invoices to show that as from March/April the Claimant has moved to the appeal site from Kinnersley, and thus used it for engineering purposes. However invoices continued to show the old address. The Inspector attached weight to this, implicitly but not explicitly, rejecting the evidence on behalf of the Claimant that they had moved to the appeal site in March/April 1988 and had not continued to trade from Kinnersley. The Inspector concluded, in paragraph 32, that the Claimant continued to trade in part from Kinnersley for some time after the business relocation had begun.
Mr Sawyer points out in his witness statement, that at the Inquiry, all the evidence had been of a relocation without any continued trading link, that invoices showing the old address had had a sticker with the new address put on them, and that the reasons those invoices produced at the Inquiry generally had no sticker was because those produced by the Claimant were its own file copies to which no such sticker needed to be attached. The Inspector does not respond to this point, in her witness statement.
In my judgment, she either overlooked this evidence, or ought to have explained her view on it, including its significance for what she concluded was a long-term process of relocation.
I appreciate that this point, together with those relating to Mr Gittin's and Mr Humber's evidence has to be seen in the context of the evidence as a whole upon which the Inspector based her conclusion.
However, together with my conclusion in relation to her reasons for her conclusion as to the Claimant's evidence, those assume a larger significance, and justify allowing this appeal. I do not regard it as obvious that the conclusion would have been unchanged.
I should add that I do not accept that the Inspector's comments about what she can deduce from photographs is flawed. Mr Alesbury complains that she draws a conclusion as to the extent and use of buildings from a photograph of the exterior alone with doors closed. In paragraph 42 she does indeed draw a conclusion in relation to the site and buildings. She was obviously aware that the buildings were shut in the photographs and recognises that they give only a snapshot in time. It is a reasonable inference for her to draw, in comparing the photographs that active use of the yard would accompany active use of the buildings and vice versa.
However, for all the reasons which I have given, this appeal will be allowed and the matter remitted to the Secretary of State for his redetermination.