Appeal 3233726

The appeal is allowed and the enforcement notice is quashed.

At the hearing it was confirmed by both main parties that no costs applications would be made, and that the earlier written submissions to that effect were withdrawn.

For an appeal to succeed under this ground, the appellant must satisfy me on the balance of probabilities that matters stated in the notice had not occurred as a matter of fact on the date it was issued.

In essence, the notice alleges an unauthorised material change of use of the land facilitated by shipping containers, hardstanding, bunding, building materials, objects and debris. Significantly, it specifically alleges that the material change of use said to have occurred was from agricultural to storage.

It was agreed by the main parties at the hearing that the planning unit at the time the notice was issued corresponded to the area shown edged in red on the enforcement plan and within the occupation and ownership of the appellant. This view is supported by the application of the Burdle1 tests for the reasons highlighted by the appellant, and I have seen or heard nothing which would lead me to a different finding.

Notwithstanding the allegation made, the Council’s hearing position was that at the time the notice was issued the pre-existing use of the planning unit was in fact a mixed use of agricultural and B2 general industrial and B8 storage uses2 due to the latter commercial uses having been established at the southern part of the unit. On the Council’s own submissions, therefore, the allegation is incorrect as to (i) a change of use having taken place from a single primary agricultural use, and (ii) a change of use having been made to a single primary use of storage, since the Council told the hearing that the new use was mixed as it continued to include the pre-existing B2 and B8 uses. I also note that there appears to be residential use of a building within the planning unit as part of a mixed use and which has also been omitted from the uses described in the notice. For these reasons, that change of use stated has factually not occurred.

Within this context, the appellant has put forward a suggestion of an extensively amended allegation should I be minded to use my power under s176(1) of the Act to correct the notice accordingly. I have considered the use of my discretion under that provision very carefully, as I may not exercise it unless satisfied it would cause no injustice to the appellant or Council.

When asked for its view on the suggested new allegation, the Council’s responses were somewhat equivocal. While [name] on behalf of the Council appeared to confirm in one brief response that it would not be inappropriate to make such an amendment, it was evident from her contributions overall that the Council did not accept that the mixed use as set out by the appellant was correct. In particular, [name] rejected the appellant’s submissions (and live unsworn evidence) that at the date the notice was issued the planning unit had an agricultural use as part of the mixed use. She remained firm as to that position, stating that officers had not witnessed such a use nor had responses to Planning Contravention Notices evidenced such a use.

The notice allegation is wholly wrong (even on the basis of what has been accepted by the Council) and, in the circumstances, I am not satisfied that using my power to correct the allegation amid disagreement on this key issue would not cause injustice to a main party. To include agricultural use in the alleged new use is inconsistent with the Council’s enforcement concerns that what has factually occurred in its view is a material change of use which excludes agricultural use to the detriment of the Green Belt and the open rural character and appearance of the area. To exclude agricultural use from the allegation would cause injustice to the appellant since omission would affect the terms of the deemed planning application and its consideration. 1 Burdle & Williams v SSE & New Forest RDC [1972] 1 WLR 1207 2 The Town and Country Planning ([name]) Order 1987 as amended

For the reasons given above, I conclude that the appeal should succeed on ground (b). The enforcement notice will be quashed. In these circumstances the appeals under the various other grounds set out in section 174(2) to the 1990 Act as amended, and the application for planning permission deemed to have been made under section 177(5) of the 1990 Act as amended, do not need to be considered.