Mr. Stephen Morris QC:
Introduction
- This is an appeal under section 289 of the Town and Country Planning Act 1990 ("TCPA") by Chas Storer Limited ("the Appellant") against the decision of Mr. David Baldock, an inspector ("the Inspector") appointed by the Secretary of State for Communities and Local Government ("the First Respondent"). By his decision dated 10 June 2008 ("the Decision Letter"), the Inspector substantially dismissed the Claimant's appeal against an enforcement notice dated 30 November 2006 ("the Enforcement Notice") issued by Hertfordshire County Council ("the Second Respondent") alleging a breach of planning control.
- The Appellant is a company which owns and occupies a site at Coopers Lane, Northaw, Potters Bar EN6 4NE ("the Site") on which it has operated, at least since 1978, a business involving the collection and processing of types of waste. The Site is a rectangular area of 0.6 ha.
- The Enforcement Notice alleged a material change in the use of the land arising from a change in, and intensification of, the type of materials brought onto the Site and imposed requirements which restricted the type of materials which could be processed, and the hours of operation of, and the number of lorry movements into and out of, the Site. On appeal, the Inspector upheld the Enforcement Notice in a varied form. In particular, the Decision Letter maintained the placing of limitations upon permissible types of material, hours of operations and vehicle movements, albeit in somewhat less restrictive terms than in the original Notice.
- Shortly stated, the issue on this appeal is whether the Inspector was entitled in law to impose limitations on the hours of operation of, and the number of vehicle movements into and out of, the Site.
Factual Background
- The Site comprises buildings, including portakabins, sheds and bunkers and open land. There is a nearby residential development, the houses in which are about 90 to 95 metres from the Site, with gardens slightly nearer. Whilst certain planning permissions have been granted from 1965 onwards, these are not directly relevant to the matters in issue. There were no pre-existing restrictions on the hours of operation or the number of vehicle movements at the Site, save in respect of operations relating specifically to green waste, which was the subject of planning permission granted in 2004.
The Enforcement Notice
- The Second Respondent issued the Enforcement Notice on 30 November 2006. The breach of planning control alleged in the Enforcement Notice was (as stated in the Decision Letter):
"without planning permission, the material change of use of the land [as a result of intensification] from use for the collection and baling of paper and use of part for the collection and bulking of green waste to a mixed use for the collection and baling of paper and use of part for the collection and bulking of green waste and use as a mixed waste transfer station, the totality of the new use having a different nature and character from the original use"
- The requirements imposed by the Enforcement Notice were:
"1. Cease and do not resume, lorry movements in excess of 92 movements, 46 into and 46 out of the land on any weekday.
2. Cease and do not resume, any activities whatsoever at the land (including lorry movements to and from the land) outside the hours of 0800am to 1830pm Monday to Friday.
3. Cease and do not resume, any activities whatsoever at the land (including lorry movements to and from the land) on Saturdays, Sundays and Public/Bank Holidays.
4. Cease and do no resume the use of the land for the importation, deposit, sorting or baling of any material other than paper, cardboard and green waste."
The appeal to the Secretary of State
- The Appellant appealed to the First Respondent against the Enforcement Notice under s.174 TCPA. The appeal was brought on the grounds (a), (b), (c), (d), (f) and (g) specified in s.174(2) TCPA. For present purposes, grounds (b), (c), (d) and (f) are of particular relevance and provide as follows:
"(b) That [the matters stated in the notice] have not occurred;
(c) that those matters (if they occurred) do not constitute 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;
...
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters, or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; ..."
- The Inspector held an inquiry which sat for 6 days in December 2007 and January 2008. At the same time, he heard an appeal by the Appellant against a refusal of planning permission by the Second Respondent dated 23 November 2006. In addition to the Appellant and the Second Respondent, evidence and argument was submitted to the inquiry by local residents, acting through the Northlands Residents' Association. On the appeal against the Enforcement Notice, the Appellant's principal argument was that there had not been a material change of use, for which planning permission was required, in the ten years preceding the Enforcement Notice.
The legal background
- Section 55(1) TCPA provides:
"Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land." (emphasis added)
Section 57(4) TCPA provides:
"Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out"
Section 191(2) TCPA provides:
"For the purposes of this Act uses and operations are lawful at any time if-
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reasons); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force"
- An appeal under s.289 (1) TCPA lies on a point of law. Paragraph 22.6C(14) of CPR Part 52 Practice Direction - Appeals provides that, where the court is of the opinion that the decision appealed was erroneous in point of law, it will not set aside or vary the decision but will remit the matter to the Secretary of State for re-hearing and determination in accordance with the opinion of the court.
The Inspector's decision of 10 June 2008: the Decision Letter
Summary of the outcome
- In summary, the outcome of the appeal to the Inspector was as follows. The Appellant's appeal under ground (b) succeeded in part and the terms of the Enforcement Notice were corrected accordingly (see paragraph 16 below). The appeal under grounds (a), (c) and (d), and (g) failed. The appeal under ground (f) (dealing with the requirements) succeeded in part and as a result the requirements in the Enforcement Notice were varied.
- This outcome is reflected in the Inspector's Formal Decision set out in Section 12 of the Decision Letter, which provided, so far as relevant:
"I direct that the enforcement notice be corrected by deleting paragraph 3 and substituting a new paragraph 3 below and varied by deleting paragraph 5 and substituting the new paragraph 5 below.
3. THE BREACH OF PLANNING CONTROL ALLEGED is without planning permission the making of a material change in the use of the land from use for the collection and baling of paper, card and plastic film and/or sheeting and use of part for the collection and bulking of green waste to use for:
1) The collection and baling of paper, cardboard and plastics
2) The collection and bulking of green waste
3) The collection and bulking of dry recyclable waste, that is paper, cardboard, cans, glass and plastics
the totality of the new use being an intensification of the former use having a different nature and character from the former use.
5. WHAT YOU ARE REQUIRED TO DO
1. Cease and do not resume, lorry movements in excess of 92 movements, 46 into and 46 out of the land, on any weekday.
2. Cease and do not resume, any activities whatsoever at the land on Mondays to Fridays outside the hours of 06.00 - 20.00 (including all lorry movements, excepting not more than three lorry movements between 04.00 and 06.00).
3. Cease and do not resume, any activities whatsoever at the land on Saturdays (including all lorry movements to and from the land) outside the hours of 07.00 to 15.00.
4. Cease and do not resume, lorry movements in excess of 40 movements, 20 into and 20 out of the land, on any Saturday.
5. Cease and do not resume, any activities whatsoever at the land on Sundays and Bank/Public Holidays (including all lorry movements to and from the land) outside the hours of 09.00 to 14.00.
6. Cease and do not resume, lorry movements in excess of 12 movements, 6 into and 6 out of the land, on Sundays and Bank/Public Holidays.
7. Cease and do no resume the use of the land for the importation, deposit, sorting or baling of any material other than paper, cardboard and plastic film and/or sheeting and for the collection and bulking of green waste.
...
Subject to these corrections and variations, I dismiss the appeal, uphold the enforcement notice and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended"
- A comparison with the original Notice shows that, in summary, the variations to the requirements made by the Inspector were as follows:
(a) To allow longer hours of operation on weekdays (an extra 2 hours in the morning and extra 1½ hours in the evening) and also to allow some early morning (pre 6am) vehicle movements.
(b) To allow some vehicle movements and hours of operation (to a lesser extent than on weekdays) on Saturdays, Sundays and Bank Holidays
(c) To make clear that processing of certain plastics as well as paper and cardboard is permitted.
However the number of vehicle movements permitted on each weekday remained at 92 per day.
The Decision Letter in more detail
- Section 5 of the Decision Letter summarised the Evidence of Fact received. In particular, paragraph 5.5 referred to the evidence of the Appellant's managing director, Mr. Curtis concerning a particular type of material, "co-mingled waste", in the following terms:
"Co-mingled household waste has been received since 2003 from Enfield, following the purchase by the Council of vehicles with two compactors. Each vehicle collects separately green waste and co-mingled waste (including paper, card, plastics, cans and glass). The latter is not sorted but bulked up and transported to a MRF."
"Co-mingled waste" is synonymous with the type of waste referred to as item 3) in the current uses specified in paragraph 3 of the corrected Enforcement Notice (set out at paragraph 13 above).
- Section 6 of the Decision Letter addressed ground (b) of the appeal, under which the Appellant sought a correction to the allegation in the Enforcement Notice and in particular to the description of the use as at November 2006, on the basis that it objected to the term "mixed waste transfer station". In the event, the Inspector accepted, with some modification, one of the two alternative descriptions put forward by the Appellant. Subject to this correction, ground (b) failed. In the course of a description, at paragraph 6.2, of the processes applied to materials brought on to the Site, the Decision Letter stated in respect of co-mingled waste:
"Enfield household waste collection vehicles deliver unsorted paper, card, cans, plastic and glass which is emptied on to the ground then transferred to a lorry for export without any sorting"
- Then, in section 7 of the Decision Letter, the Inspector made his findings on appeal grounds (c) and (d). The Appellant had put its case in a number of ways. The Inspector essentially identified two main arguments: first, that the planning permissions which had been granted for buildings on the land had effectively granted permission for use of the land for paper and card without any limit on the scale of the use, the number of vehicles or working hours; and secondly, that any change in the character and nature of the activities had not resulted in material change of use within the ten year period.
- As regards the first argument, the Appellant's argument was not just that permissions granted in relation to the building created a right to use the building, but rather that the scope of the permission included the use of the whole site, for the purpose for which the building was designed, except in so far as conditions constrain that purpose or use. The Decision Letter, at paragraph 7.8, rejected this argument on the basis that the permissions did not encompass the use of the land incidental to the building and conditions as to use of the land could not lawfully have been imposed.
The issue of material change of use
- The second argument - whether there had been a material change of use during the ten years preceding the issue of the notice - was dealt within at paragraphs 7.10 to 7.46 of the Decision Letter, under the heading "The use of the land November 1996-November 2006".
- Paragraph 7.10 of the Decision Letter stated:
"Although it is the overall character of the use which is fundamental to the decision, I intend to begin by focussing on the available evidence in a series of different topics: range of materials and throughput; vehicle movements; days and hours of working; and noise and disturbance. ..."
The Decision Letter then dealt, in turn, with each of these four topics.
- Range of materials and throughput was addressed at paragraphs 7.11 to 7.16. In particular, at paragraph 7.16, the Inspector stated:
"According to the appellant's 2005 figures bulk plastic was 8% of throughput by this time (5,000 tonnes). A further change resulted from the handling of the Enfield co-mingled waste and green waste from 2003. The green waste is recorded as some 10% of throughput in 2005 and was the subject of a planning permission. Table 2 does not record separately the total weight of the co-mingled waste because that includes both paper and card and other recyclables. According to the appellant's witness, paper and card make up 90% of this waste in which case the total would be some 12,500 tonnes. That is consistent with the 2005/6 figure of 13,500 tonnes obtained from Enfield and amounts to almost 20% of site throughput by weight. Given that this material is a cohesive stream of material which is handled separately on site in a specific area, its significance is demonstrated by its total volume rather than dis-aggregation to exclude paper and card preferred by the appellant. It is likely that there were other less substantial changes in the source and character of materials arriving at the site by November 2006..." (emphasis added)
- Vehicle Movements were addressed at paragraphs 7.17 to 7.28. Paragraph 7.17 stated:
"The number of vehicle movements to the site is important both because this has potential impacts on amenity and highway safety and because it may indicate the size of throughput. ..."
Then, at paragraphs 7.22 to 7.24, the Inspector recorded his view as to the level of vehicle movements as at November 2006. Although he did not make one specific finding, he referred to a range of between about 134 and 170 daily vehicle movements on a weekday. Further, paragraph 7.24, although not entirely clear, suggested that the incoming waste vehicles from the Enfield contract represented over 20% of total movements, leaving out of account the outward movement of this co-mingled waste. Paragraphs 7.25 to 7.28 addressed levels of vehicle movements in the period before 2006. Whilst the evidence was not entirely clear, paragraph 7.28 of the Decision Letter effectively concluded that level of vehicle movements in November 1996 was 90 per day. As regards October 2003, whilst no express finding was made, the evidence cited suggests that in October 2003 the level was also 90 per day.
- Days and Hours of working were addressed at paragraphs 7.29 to 7.35. Paragraph 7.29 stated:
"The requirements of the enforcement notice are based on the use of the land in 1996 being from 08.00 to 18.30 on Mondays to Fridays only. Extension to the hours and days of working is seen as part of the change in the character of the use." (emphasis added)
Again the evidence of hours of operation over the years was not entirely clear. At paragraph 7.34 the Inspector concluded:
"On balance it seems probable that core weekday operating hours in 1997 were 08.00-18.00, with some vehicle movements outside those limits starting around 04.00. By around 2000 evening work is more common and the number of early morning vehicle movements progressively increased through to 2006." (emphasis added)
As regards weekends, the first three sentences of paragraph 7.35 referred to evidence of Saturday morning working, even at the outset of the period. Further as regards Sundays and Bank/Public Holidays, the Inspector went on to conclude:
"on balance it seems probable that in the mid-1990s there was a low level of deliveries on Sundays and on Bank/Public Holidays. This has increased recently, although it is not the main focus of local objections" (emphasis added)
- Finally, noise and disturbance were addressed at paragraphs 7.36 to 7.41. At paragraph 7.36, the Inspector introduced this aspect in the following terms:
"Noise and disturbance may be both what is found in technical noise assessments and subjective perceptions of the effect of the use. The impact of a use upon its surroundings may be relevant to whether there has been a material change of use"
Plainly here the Inspector was stating that this factor was a relevant consideration, but was not making a specific finding, at this stage, that noise constituted, or contributed to, a material change of use in the present case. At paragraph 7.41, the Inspector concluded simply that he was "not surprised that residents find the activities on the site disturbing both in their gardens and indoors".
The Inspector's conclusions on material change of use
- The Inspector's conclusions on appeal ground (d) were set out at paragraphs 7.42 to 7.46 of the Decision Letter, under the heading "Has there been a material change of use?".
- At paragraph 7.42, the Decision Letter stated the relevant question:
"... There is no difference between the parties as to the correct approach to this case, which requires an assessment of the character of the use of the land over the period to determine whether on its particular facts there has been a material change for which planning permission is required. ...
- Then, at paragraph 7.45, the Inspector set out the substance of his conclusion, in the following terms (which lie at the heart of this appeal):
"In 1996 this was principally a paper and card business, bulking and baling the materials brought to the site. Some plastic sheeting was handled, but there is no evidence that the scale of this activity was other than small. The scale of total throughput is unknown, although this is fundamental to this business and its growth. The business progressively expanded and this has had a number of consequences. The land is now exclusively occupied for this purpose, with the cessation of the vehicle breaking business, and some vegetation has been removed to facilitate the utilisation of the whole of the site. The limited photographic evidence supports the existence of a more intensive presence on the land. There has been some expansion of the days and hours of working, in response both to the scale of activity and customer requirements. Vehicle movements have increased, illustrated particularly in experience since 2004, but very probably a persistent trend. Looking at the consequences, there has been an impact upon local residents from these changes. Nevertheless if this were the whole story I do not believe there would have been a material change of use, notwithstanding what is likely to have been a fairly large increase in throughput and vehicle movements. It is the change in the nature of the materials which is telling. The receipt and bulking of co-mingled waste is part of overall site activities and its effects are to some extent part of the general impact of the use of the land. Some handling noise is part of the paper and card business, including the handling of the loose material stored under the domed cover erected in 2001. But the co-mingled material is a new type of waste with a specific character which is likely to have impacts from noise during handling, as has been experienced locally. There are also other effects, mainly the increased presence of vermin. Overall it is my conclusion that there has been a material change of use. Given the significance which I attribute to the co-mingled waste this is likely to have occurred by the end of 2003." (emphasis added)
- The Inspector concluded, at paragraph 7.46, that for the reasons given in paragraph 7.45 ground (d) failed. The Inspector then continued by setting out the nature of the breach of planning control alleged, in the same corrected form as stated in the Formal Decision (paragraph 13 above).
The "requirements"
- Section 8 of the Decision Letter dealt with ground (f) - namely that the requirements in the notice "exceeded what was necessary to remedy any breach of planning control which might be constituted by those matters, or as the case may be to remedy any injury to amenity which had been caused by any such breach". In this section, the Inspector analysed requirements 1 to 4 in the original Enforcement Notice (set out in paragraph 7 above).
- Before doing so, he made some general observations. Paragraph 8.2 stated:
"... there is an obligation not to prevent the resumption of the previous lawful use, which can take place by virtue of s.57(4). In closing, the Council described the requirements as: "taking the use of the site back to a level roughly commensurate with that in 1996, i.e. back to the lawful use"
Paragraph 8.6 of the Decision Letter stated:
"An argument was made by the appellant under this ground [i.e. requirements too extensive] that draws upon the case I have considered and rejected under ground (c). It is argued that the use for the collection and baling of paper and cardboard is entirely unrestricted in terms of vehicle movements, hours and days of the week so that for this activity requirements 1-3 are unlawful. In closing the source claimed for this unrestricted use is the planning permission cited under ground (c). That argument fails for the reasons previously given" [i.e. those summarised at paragraph 7.8]
Paragraph 8.7 made clear that the Inspector's assessment of lawful use was based on the proposition that the relevant lawful use was that in place as at November 1996:
"in the light of these conclusions this ground of appeal turns on whether, on the balance of probability and with the onus of proof on the appellant, it has been demonstrated that any requirement would prevent the use of the site that was taking place in November 1996. Where it is demonstrated, it may be appropriate to vary the requirement or delete it entirely. ..."
- Then, at paragraphs 8.8 to 8.15, each of the four requirements in the Enforcement Notice were assessed by reference to the position in 1996 and giving reasons for any variations he made.
(a) As to requirement 1 (vehicle movements on weekdays) based on the findings at paragraphs 7.25 to 7.28, there was no need to vary the requirement. Requirement 1 properly reflected the number of vehicle movements in 1996, namely 90.
(b) As to requirement 2, at paragraphs 8.9 and 8.10, the Inspector varied the requirement for hours of operation, by extending them to 6am in the morning, and 8pm in the evening, and allowing some movements between 4am and 6am. He referred to his findings, at paragraph 7.29 and 7.34, that in 1996 or 1997, whilst 8am to 6pm were the core hours of operation, there had been some movements outside those hours. He concluded that the hours of operation should be set wider than the core hours to reflect these variations from time to time. The requirement as varied is paragraph 5(2) of the varied Enforcement Notice (set out at paragraph 13 above).
(c) As to requirement 3 (dealing with Saturdays, Sundays and Public/Bank Holidays), at paragraph 8.11 to 8.13, the Inspector noted that requirement 3 precluded all working on Saturdays, Sundays and Bank/Public Holidays. Relying on his findings at paragraph 7.35 of activity on these days in 1996, he varied the requirements to allow some hours of operation and vehicle movements on these days. The requirement as varied is paragraph 5(3) to (6) of the varied Enforcement Notice
(d) Finally, as to requirement 4, the Inspector varied the requirement as to type of materials by allowing plastic film and plastic sheeting, in order to reflect his findings at paragraphs 7.14 to 7.15 because there had been "some handling of plastics in 1996". The requirement as varied is paragraph 5(7) of the varied Enforcement Notice
The Parties' contentions and the Issues
- The Appellant's principal contention is that the Inspector was not entitled to impose restrictions in relation to matters which did not constitute or form part of the material change of use. The material change of use in the present case was, and was only, the additional use of the co-mingled waste. This is clear from paragraph 7.45 of the Decision Letter. Paragraph 7.45 necessarily means that, without the addition of co-mingled waste, the increase, since 1996, in vehicle movements and in hours of operation would not have amounted to a material change of use (and thus not development). Thus, on their own, the increase on vehicle movements and hours of operation would have amounted to lawful use, which, pursuant to s.57(4) TCPA, were not and could not be affected by an enforcement notice. Further, the Appellant contends that, particularly in the face of the clear conclusion in paragraph 7.45, no inference can be drawn from other parts of the Decision Letter to support a different conclusion as to the nature of the material change of use. Whilst in the grounds of appeal and in counsel's skeleton argument, the Appellant put forward two further, interrelated, arguments as to the appropriate date at which to set the base of lawful activity at the Site, in oral argument, Mr. Ash QC expressly disavowed reliance upon these points.
- The First Respondent contends, in summary, that it was the totality of the increased vehicle movements, hours of operation and noise together with the addition of co-mingled waste that constituted the "material change of use". He makes two principal arguments:
- First, he submits that, on a true reading of the Decision Letter as a whole, the Inspector found that the totality of the increase (since 1996) in vehicle movements, hours of operation and types of material constituted the material change of use and so the Inspector was entitled to restrict all such aspects of activity back to the levels and types existing as at 1996.
- Secondly, he submits that the Inspector was entitled to limit vehicle movements and hours of operation, even if the material change of use was constituted only by the addition of co-mingled waste. The requirements in paragraphs 5(1) to 5(6) do not restrict activities back to the level in 1996, but rather to a level much closer to the present day levels; and these reductions in vehicle movements and hours of operation do no more than reflect the incremental increases which are attributable to the addition of co-mingled waste to the materials brought on to the Site. This second argument effectively accepts that it is the addition of co-mingled waste which constitutes the material change of use; and thus this argument is necessarily an alternative to the first argument.
Furthermore, the First Respondent contends that in the Decision Letter the Inspector had rejected the Appellant's argument based on the proposition that there was no previous restriction placed upon vehicle movements and hours of operation.
- The central issue in the appeal, therefore, is what constituted the "material change of use" found by the Inspector in the Decision Letter? Further, if the material change of use comprised the addition of co-mingled waste alone, was the Inspector nevertheless entitled to place restrictions upon the number of vehicle movements and hours of operation at the Site?
Analysis
The First Respondent's second argument: requirements 5(1) to (6) reflect only incremental activities resulting from co-mingled waste
- I start by considering the First Respondent's second argument based on the levels of vehicle movements and hours of operation set by the Inspector in requirements 5(1) to 5(6) in the Decision Letter (set out at paragraph 13 above). In the course of oral argument, Mr. Coppel, counsel for the First Respondent, sought to demonstrate that the vehicle movements and hours of operation set by those requirements did not represent a return to the levels of activity in 1996, but rather were closer to the levels as at 2006. From that premise, he made the argument that the requirements reflected only the increases in activity attributable to co-mingled waste being brought on to the Site. However, in my judgment, the premise is not correct. The number of vehicle movements and the days and hours of operation set by requirements 5(1) to (6) are at, or very close to, the level prevalent in 1996. Moreover it is clear from the Decision Letter that in setting those requirements, the Inspector was intending to reflect the levels of activity as in 1996. This latter conclusion is stated expressly at paragraph 8.7 of the Decision Letter (set out in paragraph 30 above).
- As regards weekdays, the Decision Letter sets vehicle movements at 92 per day. The level in 1996 was found to be 90 (see paragraph 7.28 Decision Letter), whilst the level in 2006 (or at the date of the inquiry) was between 134 and 170. (In a joint note from counsel following the hearing, it was confirmed that, as far as concerns weekdays, the Inspector had not increased the number of permitted movements above the level of 92 in the original Enforcement Notice). In setting the level at 92, paragraph 8.8 expressly referred back to paragraph 7.28. Moreover, I do not accept the argument that the reduction from 134-170 to 92 was intended to reflect that proportion of vehicle movements which were attributable to the addition of co-mingled waste to the materials brought on to the Site. First, on the findings of the Inspector, it is not possible to make any arithmetic correlation between the proportion of vehicle movements accounted for by co-mingled waste, and the reduction to 92 imposed by the Inspector. For example, on the basis of the figures found in paragraph 7.24 of the Decision Letter, if co-mingled waste accounted for 20% of vehicle movements, the number of movements for materials other than co-mingled waste would be in the range 107 to 122; even if co-mingled waste was 30% of movements that range would be 94 to 107. (On the range of 134 to 170, and a 30% proportion, the number of movements for other materials would be in the range 94 to 119). Secondly, there is nothing in the Decision Letter itself which indicates that, in reaching the figure of 92, the Inspector carried out such an exercise of correlation between current vehicle movements and the proportion accounted for by co-mingled waste.
- As regards hours of operation on weekdays, it is the case that the Inspector allowed longer hours than those set in the Enforcement Notice, and that these are longer than the "core" hours in 1996. However, in my judgment, it is clear that, in paragraphs 8.9 and 8.10, the Inspector was seeking to reflect the characteristics of use in 1996, which he found were not strictly confined to the core hours. Paragraph 8.9 was concerned wholly with describing working hours in 1996 and, in paragraph 8.10, the words "the former lawful use" are a reference to use in 1996. The extension (to 6am in the morning and 8pm in the evening) was not intended to reflect any extension of hours which had taken place since 1996.
- As regards Saturdays and Sundays and Bank/Public Holidays, requirements 5(3) to (6) set vehicle movements at 40 and 12 respectively, and hours of operation at 7am to 3pm and 9am to 2pm respectively, in circumstances where the original Enforcement Notice had not permitted any operations on these days at all. Again, in my judgment, this limited permission was included so as more accurately to reflect the position in 1996, and not to reflect any change or increase of practice since 1996. The reference, in paragraph 8.12, to "clear evidence of some Saturday working" is a reference to 1996: see first three sentences of paragraph 7.35. Similarly, the reference in paragraph 8.13 to the probability of "a low level of activity on Sundays and Bank/Public Holidays" is a direct reference to the penultimate sentence in paragraph 7.35, which addresses the position "in the mid-1990s".
- Thus, once it can be seen that requirements 5(1) to (6) set the levels of vehicle movements and hours of operation at, or close to, the levels in 1996, the First Respondent's second argument falls away. In my judgment, there is no material to support the proposition that those requirements were set by the Inspector so as to restrict only such additional vehicle movements and hours of operations as were attributable to the addition of co-mingled waste, and so as otherwise to allow increases in vehicle movements and hours of operation between 1996 and 2006. Whilst it is thus not strictly necessary for me to decide the point, I also agree with Mr. Ash's submission that, in any event and if the Inspector had considered that the addition of co-mingled waste had had a corresponding proportionate effect upon vehicle movements and hours of operation, there would have been no need to include the requirements 5(1) to (6), since requirement 5(7) prohibiting co-mingled waste would of itself prevent any increase in vehicle movements and hours of operation caused by receipt of co-mingled waste.
The central issue: what was the "material change of use"?
- What remains therefore is the issue at the heart of the appeal: what constitutes the material change of use found by the Inspector?
- First, having posed the question in the heading above paragraph 7.42, the Inspector directly and expressly answered it at paragraph 7.45 of the Decision Letter (see paragraph 27 above). In my judgment, paragraph 7.45 is, in its own terms, clear. There the Inspector found that it was the receipt and bulking of co-mingled waste which constituted, or gave rise to, the material change of use. He further found that, absent the addition of co-mingled waste, the increase in vehicle movements and in the hours of operation since 1996 would not have given rise to a material change of use. This is the clear sense of the entire paragraph. Moreover examination of individual passages within the paragraph lead to the same conclusion. Both these findings appear from the two sentences "Nevertheless if this were the whole story I do not believe there would have been a material change of use, notwithstanding what is likely to have been a fairly large increase in throughput and vehicle movements. It is the change in the nature of the materials which is telling". Whilst, in the next two sentences of paragraph 7.45, he accepted that the co-mingled waste was only partially responsible for the overall increase in activity on the Site and that handling of other materials also caused noise concerns, he then went on to single out the particularly adverse effects of co-mingled waste in the following terms: "But the co-mingled material is a new type of waste with a specific character which is likely to have impacts from noise during handling, as has been experienced locally. There are also other effects, mainly the increased presence of vermin." He then concluded that "overall ... there has been a material change of use". His final sentence is "Given the significance which I attribute to the co-mingled waste this is likely to have occurred by the end of 2003". The word "this" is a pronoun referring to the material change of use. In my judgment the references both to the "significance" of the co-mingled waste and to 2003 as the date of the occurrence of the material change of use confirm the conclusion that the material change of use found by the Inspector was the addition of co-mingled waste. As found in paragraph 5.5, 2003 was the date when co-mingled waste was first received at the Site. Further, at paragraph 7.16 (set out in paragraph 21 above) the Inspector expressed the view that co-mingled waste represented the most substantial change in source and character of materials arriving at the Site.
- Mr. Coppel for the First Respondent submitted that, as a matter of logic, it does not follow that, if the vehicle movements and hours of operation had been as they were found to be, but that there had been no addition of co-mingled waste, the Inspector would not have found there to be a material change of use. I do not agree. In my judgment, in paragraph 7.45, the Inspector did effectively say that "but for" the co-mingled waste, he would not have found there to have been a material change of use.
- Secondly, as to other parts of the Decision Letter, the First Respondent relies upon a number of passages in the Decision Letter to support its counter-argument that the totality of the change of use (including the increased vehicle movements and hours of operation) constituted the material change of use. It points to the statement, at paragraph 7.10, that "it is the overall character of the use which is fundamental to the decision". However that paragraph went on to indicate a "topic by topic" approach to the issue of material change of use and that approach is then reflected in the approach of the Inspector, both in his discussion and in his conclusions at paragraph 7.45. The First Respondent also refers to the statement, at paragraph 7.29, "Extension of the hours and days of working is seen as part of the change in the character of use". However, that sentence did not amount to a finding by the Inspector that the extension of hours of operation did in fact constitute or form part of the material change of use. Rather, as Mr. Coppel accepted, that sentence (just as in the case of a similar, but not identical, sentence in paragraph 7.36) is an introductory statement that hours of operation were one factor to be taken into account in considering whether there had been a material change of use.
- Reliance is also placed on paragraph 7.46 which is substantially repeated in part of the formal decision as set out in paragraph 12.1 (see paragraph 13 above). There the change of use is identified as being from use for paper, card, plastic and green waste to use for those materials and co-mingled waste and is followed by the description "the totality of the new use being an intensification of the former use having a different nature and character from the original use". Considered on its own, this appears to provide support for First Respondent's argument. The "totality of the new use" appears to comprise the use of the Site for all types of waste and thus all activity. However, I do not accept that this is, or the Decision Letter as a whole is to be read as, a finding by the Inspector that the increased vehicle movements and hours of operation formed part of the material change of use. First, paragraph 7.46 does not expressly so state. Secondly, such a conclusion is wholly inconsistent with the clear and express finding in paragraph 7.45. Thirdly, what the Inspector was intending to do at paragraph 7.46 (and at the relevant part of paragraph 12.1) was merely to correct the precise scope of the allegation made by the Council in the original Enforcement Notice, in the light of his conclusions, in Section 6, on ground (b) of the appeal. Thus at paragraph 7.46, the Inspector stated that "having regard to my conclusion under ground (b), the allegation should be corrected" and paragraph 3 of the Enforcement Notice is corrected so as to read "THE BREACH OF PLANNING CONTROL ALLEGED". I do not consider that, in those passages, the Inspector was recording his own finding and conclusion in relation to the nature of the material change of use under ground (d). There is no clear indication that he was, there, addressing the nature of material change of use or departing from the express finding he had just made at paragraph 7.45. That his own conclusion on that issue is recorded in paragraph 7.45 (and not in paragraph 7.46) is further supported by the opening words of paragraph 7.46 "Ground (d) therefore fails". Similarly, whilst, in the Formal Decision, he went on to "uphold the enforcement notice", subject to the corrections, I am not satisfied that in so doing, the Inspector was intending to depart from his express findings in paragraph 7.45.
- The First Respondent further argued that the framing of the requirements themselves is an indication of what the Inspector had found to constitute the material change of use; and that, because requirements 5(1) to (6) restrict vehicle movements and hours of operation, the Decision Letter is to be construed as having found that vehicle movements and hours of operation in excess of those limits formed part of the material change of use. I do not accept this. It is a circular argument, since it assumes the very thing which the Appellant puts in issue, namely the lawfulness of the scope of the restrictions. Moreover, the argument (and indeed the requirements) appear to ignore the Inspector's findings at paragraph 7.45 and to be based only on the original terms of Enforcement Notice. In my judgment, the Inspector, when he reached the requirements stage, appears not to have taken account of his own clear findings on material change of use. At best, the First Respondent's argument here is one based on inference, and I agree with Mr. Ash's submission that such an inference cannot properly be drawn in the face of the clear express findings to the contrary at paragraph 7.45.
- Finally, there is Mr. Coppel's contention that, at paragraph 8.6 of the Decision Letter, the Inspector rejected an argument made by the Appellant at the inquiry that vehicle movements and hours of operation in relation to paper and cardboard activities could not lawfully be restricted. This, he contended, showed that unrestricted movements and hours were not a previous lawful use, as the Appellant contended. However this does not advance the First Respondent's case. Paragraph 8.6 referred to "the reasons previously given". Those reasons, at paragraph 7.8, make clear that the relevant planning permissions were concerned with the buildings and not the use of the rest of the land at the Site and that was the reason why no inference could be drawn from absence of conditions attached to the planning permission for the buildings. Moreover, the fact that the Inspector rejected an argument that he did not have power to impose restrictions, casts no light either on his findings as to material change of use or upon whether he was entitled in law to impose the restrictions in the light of those findings.
- The First Respondent can fairly say that, in certain respects, the Decision Letter is not entirely clear. For example, the discussion of the requirements in section 8 appears to pay little attention to the findings on material change of use in section 7; the Inspector's amendments to the terms of the original Enforcement Notice do not appear to reflect his own findings on material change of use at paragraph 7.45. However nowhere in the Decision Letter is there an express finding by the Inspector that the material change of use comprised not just the addition of co-mingled waste, but also the increase in vehicle movements and hours of operation. Moreover, to construe the Decision Letter as containing an inferred or implied finding to that effect is precluded by the clear words of paragraph 7.45.
Conclusions
- For these reasons, in my judgment, the Inspector's findings and conclusion on the nature of the material change are found at paragraph 7.45. Paragraph 7.45 clearly stated that it was the addition of co-mingled waste that constituted or gave rise to the material change of use. I do not consider that the material change of use was found to be any wider than that. At no point in the Decision Letter did the Inspector state that the material changes of use included the increased vehicle movements and hours of operation. To reach such a conclusion would fly in the face of the clear findings in paragraph 7.45, not only that the material change of use was the addition of co-mingled waste, but also that the increase in vehicle movements and hours of operation on their own would not have constituted a material change of use.
- On the basis of this finding, increases in vehicle movements and hours of operation between 1996 and 2006 did not constitute or form part of the material change of use and thus did not amount to development. It follows that such activities at those increased levels remained lawful use. The Inspector was not entitled to impose requirements which went beyond what was necessary to confine relevant activities to lawful use. Accordingly, on the basis of his findings as to the nature of the material change of use, he erred in law by imposing requirements (namely those set out at paragraph 5(1) to (6)) restricting vehicle movements and hours of operation at the Site.
- Finally, if, contrary to the foregoing, the Inspector had intended to make such a wider finding of material change of use, then such a finding was not adequately stated in the Decision Letter, and I would, in any event, have remitted the decision on the grounds of inadequate reasoning amounting to an error of law.
- Accordingly this appeal is allowed and the matter will be remitted to the First Respondent for re-hearing and determination, pursuant to paragraph 22.6C(14) of the Practice Direction.
Consequential matters
- I will hear submissions on the appropriate terms of the order, if the parties are unable to agree. I propose dealing with this and other consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and, in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions.
- I am grateful to Mr. Ash QC and Mr. Coppel for their assistance to the Court in the presentation of oral and written argument in this matter.
