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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gazelle Properties Ltd, R (on the application of) v Bath and North East Somerset Council & Ors [2014] EWHC 393 (Admin) (27 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/393.html Cite as: [2014] EWHC 393 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The Queen (on the application of Gazelle Properties Limited) |
Claimant |
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- and - |
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Secretary of State for Communities and Local Government |
Defendant |
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- and - |
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(1) Bath and North East Somerset Council |
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(2) Svenska Handelsbanken |
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(3) Maple Scaffolding Limited |
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(4) Stonecraft of Bath Limited |
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(5) Waste Recycling @ Bath Limited |
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(6) Bath Recycling Skips Limited |
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(7) Mr Paul Derek |
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(8) Mr Simon Bishop |
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(9) Mr Scott Mason |
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(10) Mr Matthew Turner |
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(11) Mrs Susan Ridings |
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(12) Mr Barry Williams |
Interested Parties |
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Mr Hereward Phillpot (instructed by the Treasury Solicitor) for the Defendant
Mr Richard Humphreys Q.C. and Ms Thea Osmund-Smith (instructed by the Principal Solicitor to Bath and North East Somerset Council) for the First Interested Party
Hearing date: 18 December 2013
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Crown Copyright ©
Mr Justice Lindblom:
Introduction
The issue for the court
"There are two issues to address. The first is the extent of the land considered by the [First Secretary of State] in August 2003 to be covered by Use Class B2 of the Town and Country Planning (Use Classes) Order 1987 (as amended) as a fallback position. The second is whether the principle of res judicata is applicable in these appeals. …".
"… On the extent of the B2 fallback I agree with the Council and the Rule 6 parties that it is restricted to the buildings and hardstandings only. However, for the reasons I set out, although that will be a matter of fact, it is not a matter about which I am currently clear from the evidence. On the point of principle, I also agree with the Council and the Rule 6 parties that [Porter and another v Secretary of State for Transport [1996] 3 All E.R. 693] is fatal to [Gazelle's] argument. I therefore conclude that the extent of the B2 fallback is not finally determined by the decision of the First Secretary of State … in 2003 although I also conclude that it will be a material consideration to which, subject to certain qualifications, substantial weight is likely to be given as it is so clear."
Background
"Without planning permission the change of use of the Land from agriculture and general industrial use (B2), to the mixed use of the Land including the following activities:The mixed use of the areas described below for general industrial use (within use class B2), storage and distribution use within the areas shown on the attached plan '2012 Enforcement Notice 01 detail plan'):
- Area 'A' coloured yellow,
- part of Area 'E' coloured brown,
- Area 'D' coloured green as well as
- the car parking area in front of the dwellings known as Nos 1 and 2 the Firs, coloured blue."
The Council maintained that only Area A, which comprised the buildings and hardstanding on the site, had a lawful Class B use. It therefore sought to restrict such use to that part of the site.
"The appellant's central case [is] that the site that is being used for the processing of waste and the repair of scaffolding and the manufacture of stone items has a lawful use for B2 purposes based upon the historic use of this site. This use covers the entire site [apart from an area to the west identified as a car park] and all of the uses being undertaken within it. … ".
The First Secretary of State's decision on the called-in proposal
The Statement of Common Ground
"The applicant and the local planning authority are in agreement that the existing use of the site is industrial processing which falls within Class B2 (General Industrial) of The Town and Country Planning (Use Classes) Order 1987. The Rule 6 Parties and named objectors assert that there has never been a B2 General Industrial use …., because mining is a sui-generis use. In any event the Rule 6 Parties and named objectors contend that the sui-generis use, or any other use that might be proved, has been abandoned."
Section 7 of the Statement of Common Ground dealt with the "Fallback Position". Paragraph 7.1 said this:
"The applicant and the local planning authority agree that the existing buildings at the site could be re-used for another purpose, particularly Class B1 Business use, in accordance with the guidance set out in PPG2. Assessed against paragraph 3.8 of PPG2, such a re-use would not constitute inappropriate development because:such a use would not have a materially greater impact than the present use would not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it;the prevention of any extensions associated with re-use and the sensitive design of car parking and landscaping would avoid conflict with the openness of the Green Belt and the purposes of including land in it;the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction.The Rule 6 Parties and named objectors insist that any use has been abandoned and so the existing buildings would need planning permission to use for any purpose. The Rule 6 parties and named objectors deny the whole of 7.1".
The inspector's report
"The extraction of Fullers Earth from beneath the area around the application site had led to uneven settlement at ground level. To reclaim land affected by settlement, a number of permissions were granted in 1970, 1976 and 1978 for the stripping of soils, the subsequent filling of any dips and hollows with clay and other excavated materials and the replacement of the soils. This mainly occurred on land to the north-east of the application site, particularly the area now occupied by the park and ride facility".
"98. When considering the benefits that would accrue if the proposal were to go ahead, it is also necessary to take into account what the consequences would be if the site was to continue to be used for its lawful use. In order to determine the lawful use of any land, it is necessary to have regard to what constitutes the planning unit. In making that assessment it is important to look as "the whole unit of occupation unless and until some smaller unit could be recognised as the site of activities which amount to a separate use both physically and functionally". This was so held in the judgement in the case of Burdle & Another v Secretary of State for the Environment … .…
101. What is clear from the above is that the application site has always been used for some form of industrial process and certainly since the early 1960s has formed a separate and distinct planning unit in its own right. In cross-examination, the main planning witness for the umbrella group of third parties accepted that the extraction operation at Under Sow Hill did not form part of the planning unit. This must be right given the physical separation from the application site and the clear statement provided by the former employee on the use of the site and the source of raw materials. The exchange of correspondence in the early 1980s between the planning authority at the time and the then owner of the site also indicates that they considered the site to be a separate planning unit. (The 1980s exchange of correspondence is included as item 6.8 of the core documents, document 11).
102. In these circumstances a fallback position can be relied upon if there is a real likelihood that the B2 (general industrial use) would continue. … It is the applicant's firm intention to continue and intensify the use of the site for B2 purposes in the event that planning permission is refused. An aggregates re-processing operation occupies part of the site. A number of companies have expressed an interest in using the site for various industrial purposes, including a concrete batching plant. This is an indication of the continuing demand in the Bath area for sites for the dirtier type of industrial use. The significance of this is that there is a settled intention to continue the B2 use, a use that has continued since the applicant took possession of the site in 1999. …
103. If the buildings and associated hardstandings were to be more intensively used for B2 activities than is currently the case, and especially if much of the activity was to be generated by the dirtier type of industrial use, this would have an appreciably greater impact than the proposed development. …
104. In addition, without the investment generated by the proposed offices and residential units there would be little money available to improve the appearance of the buildings or the site, beyond a few basic repairs to the buildings. The outdoor storage of materials and the use of outside plant and machinery together with the unrestricted use of outdoor lighting could all stem from the continued B2 use of the site. These and the continued run down appearance of the buildings and the site in general would detract from the setting of the World Heritage Site and the character of the landscape.
105. The impact of the proposed development has to be seen in the context of the adverse impact that would arise from the continued and intensified use of the site for B2 purposes. Whereas the proposed redevelopment of the site would be carefully controlled … , the continuation of the B2 use would be largely uncontrolled. The implementation of a scheme for offices and residential units end the use of the site for general industry with its potential for adversely affecting the rural landscape, amenity of neighbours and highway safety. This is an important consideration that should be accorded significant weight.
…
107. Interestingly enough, none of the third parties appear to have considered the possibility of the B2 fallback position in any detail. … In essence, the site has only been used for processing operations. This is an industrial process falling within Class B2."
"…1970 permission granted to reclaim land to north east of site.
1974 submission under Class XIX of General Development Order 1973 for extension, roof alterations and 2 silos.
1976 permission granted to reclaim land to north east of site.
1978 permission granted to reclaim land to north east of site.
…
1978 Material from Redhill in Surrey and from overseas processed at the site and finished products manufactured and sold. …
C.1980 mineral extraction suspended and site mothballed. …
1982 mine was last entered. …
1982 the solicitor of the then local planning authority advises that the use of the site probably within Class V of the Use Classes Order 1972. …
1985 the planning officer of the local planning authority advises that existing use is Class V and proposal for a concrete batching plant would be within Class VII …
1986 plant closed and machinery removed. …
1986 application for relocation of concrete batching plant refused.
…
1993 Avon Minerals Local Plan adopted with site shown as "planning permission fro mineral extraction/plant and as an "inactive" mine with workable reserves fro several years. …
1999 site bought by applicant and since used for the production of secondary aggregates and general storage. …"
"185. The planning unit. A former employee, Mr Upshall, states that until the early 1960s mineral was mined from an adit above Combe Hay Lane, but this then closed. Thereafter, material was mined at Under Sow Hill approximately 1.6 kilometres away by road. … During his 38 years associated with the site, no operations were ever carried out from within or immediately around the works buildings. This is consistent with paragraph 92 of the site investigation and structural survey report, which shows that by the 1970s the workings were on the far side of Combe Hay Lane and were never adjacent to the works, at least after the 1950s. In the 1970s, the adjacent area of working was being reclaimed.186. Thus, by … 1980 the application site was a separate unit of occupation from the mine workings; was not used for the winning of materials; was registered under the Alkali & Works Regulation Act 1906; and was used to process material from afar as well as locally won material and to manufacture "finished products". After 1980, it seems to have been used for a while to process stockpiled reserves. …
187. Both the applicant's and the Council's planning witnesses have correctly concluded that the site is now a separate planning unit from the previous mine, which has now been abandoned. In fact, it has been a separate planning unit for some considerable time as recognised by the planning officer of the then local planning authority in 1985. (See item 6.8 in the bundle of core documents, document 11)."
"188. Use Class. In 1974, the then local planning authority treated the proposal [for the extension and alteration of one of the buildings and for the erection of two silos] as permitted development with Class X1X of the General Development Order 1973 … .189. At that time the company was a mineral undertaker; the works were adjacent to a mine (a series of worked out adits to the north-east of the site); and the buildings and silos were required in connection with the treatment or disposal of minerals.
190. Thereafter various parts of the adjacent mine to the north-east (the only relevant adjacent land) were the subject of a series of permitted reclamation schemes. … . By 1982, the mineral extraction had been suspended for 2 years and the buildings had been used for the processing and manufacture of non-local minerals. … The solicitor considered that the proposed concrete batching plant might fall within Class VI as an alternative and this Class specifically excludes a "process ancillary to the getting, dressing or treatment of minerals which is carried on in or adjacent to a quarry or mine", which reinforces the view that by 1982 activities at the site no longer constituted mining operations and that the works were a separate planning unit from the former mine. (See item 6.8 in the bundle of core documents, document 11).
191. In 1985 an applicant for planning permission was advised that the existing use was Class V. It is submitted that this conclusion is probably correct on the basis of the current available evidence."
"192. … Thus, the current uses are as follows: building A has a storage/warehouse permission (now B8), which may be used for the storage of any materials, not just minerals, without the need for further permission. The remaining buildings and their hardstandings have what is now a B2 use. Under the current General Permitted Development Order, the applicant may change up to 235 square metres of B2 to B8 and an unlimited amount of B2 to B1.193. For example, the applicant could convert C, D and F to B8 (some 229 square metres), which would give a total of 360 metres of B8, and use, say, B, E, G, H, J, K and P as 1,605 square metres of B2 or B1. (Buildings M and Q could also be used in this way). Use could also be made of areas ancillary to these uses, such as adjacent areas of hardstanding, for external storage, parking[,] loading, unloading and the like. …
194. These two alternative fallbacks, building A to B8 and the remainder to B2, and then the taking up of permitted development rights for further changes of use have not been considered by the other parties. It is clear that up until the opening of the inquiry, the third parties had not considered the possibility of there being a fallback position.
195. In the alternative, planning permission could be granted in accordance with paragraphs 3.7 to 3.9 of PPG2 for the use of about 2,000 square metres of B1 with associated controlled areas of hardstanding. This applies even if the previous B2 use has been abandoned, since the PPG does not require an extant use, merely an extant building. A B8 use could remain in building A."
"338. The umbrella group's view is that there is no permitted B2 use for the site and there never has been. The site was an integral part of the planning unit of which the mine was the dominant part. The use exercised by the previous owners up to 1980 was a sui generis mining use. This use had to be registered as an IDO permission under the Planning and Compensation Act 1991 by 25 March 1992 or the permission would cease to have effect. It was not registered and accordingly it ceased to have effect. …339. Even if the umbrella group is wrong in it assertion and there had been a lawful B2 use of the site, that use was abandoned after the mine closed in 1980. …".
"427. In assessing both the harm and benefits that would result if a proposed development were to go ahead, it is important to weigh these against what would happen if a site was to [continue] to be used for its lawful purpose. To decide what is the lawful use of a site, regard should be had to what constitutes the planning unit. In coming to this decision, the judgment in Burdle and Another v Secretary of State for the Environment is of assistance. It points to looking at the whole of the unit of occupation unless and until some smaller unit can be identified that amounts to a separate use both in physical and functional terms. (98, 178 and 344).428. Fundamental to the investigation of what constitutes the planning unit, and whether a smaller unit can be identified, is to look at the chronology of events relating to a site. Thus, the investigation of the planning unit is a matter of fact and degree. In this case, it seems to me that the history of what occurred on a site is a matter of what can be gathered from maps, photographs, records and the account of those who know or have known the site. (98 and 178).
429. To my mind, the chronology of events starts when the works on the site were established in the 1890s to process Fullers Earth extracted from one or other of two adits that were dug in the woodland immediately to the north of Combe Hay Lane. The area worked was under much of the area that is now the adjoining park and ride facility as well as land on the opposite side of the A367. However, no working of the mineral took place either under or in the immediate vicinity of the works. A photograph attached to the main planning witness for the third parties [sic] shows some sort of tramway system in use for conveying the Fullers Earth to the works. My understanding is that the tramway brought the material right inside the works. Fullers Earth was extracted from open cast mines on Duchy of Cornwall [sic] between Vernham Wood and Middle Wood, approximately 650 kilometres to the north of the works. (99, 100, 184 and 185).
430. This state of affairs continued until the early 1960s when, according to a former employee who had worked at the site since 1943, the adits north of Combe Hay Lane were closed and a new adit dug at Under Sow Hill, some 1.6 kilometres from the works. Fullers Earth from the new adit was brought to the site by road. During the late 1970s, the former employee says that local supplies of the mineral was augmented by Fullers Earth brought in from Redhill in Surrey and also from North Africa, via the docks at Avonmouth. (100, 184 and 185).
431. In about 1980 mineral extraction in the locality was suspended and the works were mothballed. In 1986 the works were closed and machinery removed. There may have been some processing of reserves of Fullers Earth in the intervening period, but the evidence on this point is not entirely clear. (184 and 185).
432. From this chronology it seems to me that up to the early 1960s the processing of Fullers Earth in the works was inextricably tied up with the extraction of the mineral from underneath nearby land and brought directly into the works. However, since then the works have formed a distinct planning unit in its own right processing the mineral brought in from the new adit at Under Sow Hill, which was at some distance from the works. This physical separation is important. The planning witness for the third parties accepted that the mining operation at Under Sow Hill did not form part of the same planning unit as the works. (101, 184 and 185).
433. In processing the mineral and manufacturing finished products, the works thus have a lawful use for general industry (B2). Further evidence for this position lies in the registration of the works under the Alkali & Works Regulation Act 1906. Mineral extraction is not registerable under the Act. There is also recognition given by the planning officer of the then local planning authority in 1985 that the works had formed a separate planning unit for some time. I also note that planning permission was forthcoming in 1969 for the erection of a new warehouse on the application site. Thus this building has a lawful use for warehousing and storage (B8). (190)
434. I note that the then local authority in 1974 treated the erection of 2 silos and an extension and the alteration of roofs as permitted development within Class XIX of the General Development Order 1973. Class XIX is concerned with development carried out by mineral undertakers for the treatment or disposal of minerals on land in or adjacent to and belonging to a mine. This decision was consistent with the circumstances appertaining at the time. At that time, the company running the works was a mineral undertaker. The works were adjacent to a mine, albeit that it consisted of a series of worked out adits to the north-east of the site. The buildings and silos were required in the treatment or disposal of minerals. However, the various adits and workings of the adjacent mine, the only relevant adjacent land, were the subject of a series of planning permissions in the 1970s for various reclamation schemes. These schemes have been implemented. Thus, not only had the adjacent mine closed by the early 1960s but by the end of the 1970s the land subject to subsidence following the cessation of mining operations had been restored. (184, 188 and 189).
435. I conclude, therefore, that the buildings and hardstandings on the site enjoy a B2 fallback, that is, they may be used for general industry without the need for further planning permission. In addition, building A enjoys a warehouse/storage (B8) fallback. Under the current General Permitted Development Order, the applicant may change without planning permission 235 square metres of B2 to B8 and an unlimited amount of B2 to a B1 use, which covers light industry, offices and research and development. This provides a second fallback scenario. There is also a third fallback scenario. Planning permission could be granted for the re-use of approximately 2,000 square metres of buildings for B1 with controlled use of areas of hardstanding in accordance with paragraphs 3.7 to 3.9 of PPG2. In my view, the worse case scenario in terms of visual, environmental and traffic impact is the B2/B8 fallback. I consider the implications of this scenario in more detail when looking at the very special circumstances being claimed by the applicant and the highway and landscape implications of the proposal. (192, 193 and 194).
436. The fallback position can be relied upon if there is a real likelihood that the B2 use would continue. The third parties make the point that the applicant is a developer not a manger of an industrial site, but an aggregate recycling business has set up on the site in the last year and a number of companies, including a concrete batching business, have expressed an interest in using the site. To my mind, this represents evidence of there being a realistic prospect of the B2 use continuing on the site. (102, 193 and 351).".
"Period of non-use. The machinery within the buildings was not removed until 1986. Up until then the machinery and buildings had been mothballed with the suspension of mineral extraction in the locality. In 2002 an aggregates recycling business started up on the site. The period of non-use is thus a maximum of 16 years. There is nothing unusual about this period of time. …".
In his conclusions on the "Owner's intention" the inspector referred, in paragraph 441, to evidence that the previous owner of the site "had gone to considerable lengths to protect the site by erecting a perimeter fence and securing buildings against the weather and trespassers". He went on to say that "there was no abandonment of the established use of the works, which long before [the coming into force of the Planning and Compensation Act 1991] were a separate planning unit" (ibid.). He concluded in paragraph 443 that "the use of the site for B2/B8 purposes has not been abandoned, unlike the abandonment of mineral extraction because of the failure to register under the Planning and Compensation Act 1991".
"455. … I have already concluded that in the event [of] the proposal not proceeding, there is [a] real prospect that the B2 use of the site would continue. The companies that have shown most interest in moving onto the site are those at the dirtier end of the range of prospective general industry uses. They include aggregate reprocessing, concrete batching and vehicle body repair businesses. Such businesses are likely to be associated with the erection of outside plant and other structures, such as crushers and new silos, which are likely to be visually intrusive. They are likely to be associated with the outside storage of materials and vehicles. They are also likely to give rise to a requirement for floodlighting and other outside lighting. The activities carried out by such businesses often generate noise and dust and give rise to heavy goods vehicle movements. (102, 103 and 249).456. As there is no requirement for planning permission to be sought for the continuation of the use of the site for general industry, there would be no control over external and internal activities. There would also be no requirement for the buildings to be renovated or for the site to be tidied. The continuation of the B2 use, in my assessment, would be highly damaging to the setting of the World Heritage Site and the visual amenities of the Green Belt. It would also adversely affect the setting of the adjoining AONB, a matter I discuss further when I deal with the landscape impact of the proposal. (102, 103 and 104)."
"Regard must be had to what would happen in the fallback position. There would be no requirement to remove the rusting silos or to carry out the wholesale renovation of the existing buildings. Some of the industrial uses that could come onto the site if there was a continuation of a general industrial use, such as aggregate recycling and concrete batching, could lead to the erection of new silos, the introduction of tall stockpiles of materials and the introduction of tall plant and equipment. There would also be no control over lighting. It is likely that some of the uses may require the erection of floodlights to allow them to operate early in the morning or late at night".
"… Through neglect, the buildings have assumed a dilapidated air and the site generally looks unkempt. The site detracts from the setting of World Heritage Site, the visual amenities of the Green Belt and the appearance of the rural landscape. The redevelopment of the site in the manner proposed would not materially harm the openness of the Green Belt not prejudice the reasons for including land within the Green Belt. It would bring about a number of significant benefits, including an improvement in the appearance of the buildings and the site, the provision of jobs and the prevention of the continued use of the site for general industry with all the problems that this would cause. … Without the residential element, the proposed development would not go ahead and the general industrial use of the site would continue."
The First Secretary of State's decision letter of 1 August 2003
"The Secretary of State agrees with the Inspector's conclusions in paragraph 436 on whether a fall back position exists, for the reasons given in paragraphs 427-436 of his report."
"35. … The Inspector identifies three fallback positions (IR 435) and the Secretary of State agrees that these are theoretically available. As to the first (B2) use, the Secretary of State accepts that there is a real prospect of the B2 use of the site continuing (IR 455-6), though he has insufficient evidence to assess the likely extent or type of B2 use. He agrees with the Inspector that a continuing B2 use could cause some damage to the setting of the World Heritage Site and the visual amenities of the Green Belt. The extent of this damage is dependent on the extent and type of use. The Secretary of State is not satisfied on the basis of the evidence before him that it is likely that the entire site will be used for B2 use under the fallback position. He is not satisfied that the potential damage to the setting of the World Heritage Site and visual amenities of the Green Belt, or the effect on traffic, is likely to be significantly greater than at present. Whilst continued B2 use of part of the site would cause some continuing damage to the visual amenity and the World Heritage Site, the effect of this is mitigated from a number of viewpoints, though not by any means all, by screening. The Secretary of State gives some weight to the prevention of the first fallback position. The Secretary of State gives some weight to the prevention of the first fallback position. The Secretary of State notes that under the General Permitted Development Order 235 square metres of B2 floorspace may be changed to B8 use and that building A has an existing permission for B8 use. The Secretary of State does not consider, on the basis of the evidence before him that there is a real likelihood of significant B8 use of the site and attaches little weight to this prospect.36. The Secretary of State has considered the Inspector's second theoretical fallback B1 use. Again he does not identify any additional harm to the Green Belt from such use – there may be some small benefit, as it would require some renovation of existing buildings. He attaches little weight to this fallback as the assertion made by parties at inquiry was that such B1 development would be unviable without other, enabling development, which would not be possible under the permitted development rights. In addition there may be difficulty in converting the existing buildings for office use without planning permission.
37. The Inspector also identifies another fallback position for B1 use (IR 435). As a further planning permission would be required for this, the Secretary of State does not consider its preclusion to be a matter to be weighed in favour of this proposal."
"The Secretary of State has considered the preclusion of the fallback position – continuing B2 use but does not accord this much weight as he does not think the site's full return to B2 use is likely, and he does not identify the same degree of harm from such use as the Inspector. He has also considered the other fallback positions and for the reasons given in paragraphs 34, 35 and 36 [sic] gives them little if any weight. …".
In paragraph 60 the First Secretary of State said that in his view "the special circumstances put forward and the other benefits do not amount to the very special circumstances necessary to clearly outweigh the identified harm to the Green Belt". In paragraph 62 he said he "[did] not consider there to be considerations of sufficient weight to determine the application other than in accordance with the development plan and Green Belt policy".
The inspector's ruling of 31 January 2013
"...Turning first to question 1, there is in my view no need for the Secretary of State to seek an opinion from the court about the meaning of a decision he himself has taken. Moreover, I do not find any ambiguity at all in the Secretary of State's decision.
At DL35 he very clearly contemplated the likelihood of the entire application site (in context, the only reasonable construction of the word 'site' throughout his decision) being used for B2 use under the fallback position. The use of the work 'likely' must imply some element of possibility. If he had concluded that only part of the site had a fallback use for B2 he could not have rationally considered the possibility of that use over the entire site since such use on parts would not be a fallback position.
It is in my view certainly arguable that this is not a conclusion that flows naturally from what Mr Robinson's report says. However, that does not matter. First, Mr Robinson is, by way of his report, simply providing further information to enable the Secretary of State to make a decision. That decision stands on its own and in any event does not follow Mr Robinson's recommendation. Second, if anyone felt the Secretary of State had misdirected himself that could have been pursued elsewhere within the appropriate time limits.
…".
"18. The main reason the extent of the fallback is in contention is because of the sentence midway through DL35 which says 'The (FSS) is not satisfied on the basis of the evidence before him that it is likely that the entire site will be used for B2 use under the fallback position'. … In my first response I expressed what could only be an initial view given that no submissions (other than the appellant's JO) or evidence had at that point been heard and tested, that this paragraph was unambiguous. On its face and in the context of the way the FSS has used the words 'the site' …, I do not consider that initial view to have been unreasonable and it remains the view of the appellant.19. However, it was put by the Council and the Rule 6 parties … that the DL had not been challenged on any point and was therefore a lawful decision attracting a presumption of regularity. To now interpret it as inconsistent with the IR would be wrong as a matter of law. … I can see the force of that argument if what I consider to be the proper interpretation of DL35 could only be explained by concluding that the FSS had misunderstood the IR.
20. DL35 begins by recording the agreement of the FSS that the three fallback positions identified by Mr Robinson are theoretically available. In doing so the FSS refers to IR435 which is where the unequivocal conclusion about the B2 fallback quoted above … appears. That does appear to set the context for DL35. … Mr Humphreys … invited me to construe 'the site' in DL 35 as being the site of the first fallback when reading that part of it.
21. The use of the phrase 'of the site' in DL35 is drawn from IR455-6 where it appears more than once and differs from the phrase in IR436 where the phrase in the exact same context is 'on the site'. I raised this distinction in my second response but none of the advocates addressed this. To do so will probably stray into the realm of forensic analysis and the better view is most likely to be that Mr Robinson simply used a different word within what is a very lengthy report.
22. Having said that, to agree with Mr Humphreys' interpretation would mean accepting that in this one paragraph of the DL 'the site' had a meaning ascribed to it different to that throughout the rest of the DL. However, given that the conclusion in IR435 and incorporated by the FSS in DL30 is so clear, on balance, I accept that is the correct interpretation.
23. I therefore conclude that there is no inconsistency between DL30 and DL35 and find therefore that the B2 fallback relates only to the buildings and hardstandings on the site.
24. Unfortunately, for the purposes of the appeals before me this only takes us so far at present since the actual extent of the fallback area remains unknown on the evidence before this Inquiry. The IR defines these areas by description, not by a plan. …
25. Nevertheless, what did comprise the buildings and hardstandings at the time of the DL must be a matter of fact that should be known to most, if not all, of the parties to these appeals since they also took part in the 2002 Inquiry. This is therefore something that will need to be agreed upon and included in the Statement of Common Ground."
Submissions
(1) When the called-in application was being considered by the inspector and the First Secretary of State, Gazelle and the Council had agreed in the Statement of Common Ground that the whole application site had a lawful Class B2 use. Neither the inspector nor the First Secretary of State indicated any disagreement with that position. At the inquiry no one contended that one part of the application site should be differentiated from another when the fallback use was being considered.(2) Even if it was only the buildings and hardstanding on the site that had been actively put to Class B2 use, neither the inspector nor the First Secretary of State explained why the whole site would not benefit from a lawful use in that use class. If the site was in one ownership when the Class B2 use of the buildings and hardstanding became established, and such use had continued uninterrupted after that, the site would have been a single planning unit and this would have been the primary use of the site as a whole unless it was abandoned – which it was not (see Burdle v Secretary of State for the Environment [1972] 3 All E.R. 240). There is no analysis running counter to that conclusion either in the inspector's report or in the decision letter.
(3) Throughout the inspector's report and in the First Secretary of State's decision letter the term "the site" means the application site as a whole, and not merely the buildings and hardstanding on it.
(4) In paragraphs 455 and 456, when considering the preclusion of the fallback, the inspector referred to "the use of the site" in Class B2. One should not read those references to "the site" as meaning anything different from the references to "the site" elsewhere in the decision letter. They mean the entire application site. Indeed, it is clear from paragraphs 455 and 456 that the inspector had the distinction between "the site" and "the buildings" well in mind when referring to the prospect of industrial activities taking place outside the buildings. The First Secretary of State adopted paragraphs 455 and 456 of the report in paragraph 35 of his letter, where he said that there was a "real prospect of the B2 use of the site continuing …".
(5) The enforcement appeal inspector was wrong to conclude, in paragraph 22 of his ruling, that the term "the site" in paragraph 35 of the decision letter did not mean the site, but only the buildings and hardstanding. This cannot be reconciled with the First Secretary of State's endorsement, in paragraph 30 of his letter, of the conclusion in paragraph 436 of the inspector's report that there was "a realistic prospect of the B2 use continuing on the site". Nor can it be reconciled with the First Secretary of State's adoption of paragraphs 455 and 456 of the inspector's report, in paragraph 35. In this context the natural and correct reading of the expression "the entire site" in paragraph 35 is that it means exactly that – the whole site and not merely a part of it. The reference to "part of the site" later in the same paragraph makes the intended distinction clear. There is nothing in that paragraph that requires one to read "the site" as meaning "the buildings and hardstandings on the site". There is no reason to think that the First Secretary of State meant anything other than what he said.
(6) The First Secretary of State's agreement with paragraph 435 of the inspector's report – in the first sentence of paragraph 35 of his letter – sits well with that literal interpretation of what he said. He could logically accept the existence of the three fallback scenarios identified by the inspector in paragraph 435 of the report as well as the proposition in paragraph 456 that planning permission was not required for "the continuation of the use of the site for general industry". And the First Secretary of State clearly did accept that proposition, as he made clear in the second sentence of paragraph 35.
(7) When the inspector referred to "the works" he was using that term in its normal sense – a place where industrial or manufacturing processes are carried out. He was doing so to distinguish the application site from the areas in which mineral had been extracted (see, for example, in paragraph 432 of the report). He was not indicating that in his view the relevant planning unit was limited to the buildings and hardstanding on the site.
(1) The enforcement appeal inspector approached the interpretation of the First Secretary of State's decision letter correctly, and with a clear understanding of the rival arguments before him. His conclusions on the meaning of the decision letter were right, for the reasons he gave.(2) In paragraph 30 of the decision letter the First Secretary of State endorsed the inspector's conclusion on the fallback position, for the reasons he had given in paragraphs 427 to 436 of his report. Those paragraphs of the report must be read together, and in the light of the rest of the report. It is important to see how the inspector described the relevant planning unit. He referred in paragraph 432 to "the works" forming "a distinct planning unit in its own right …", and in paragraph 433 to "the works" having formed "a separate planning unit for some time".
(3) It is therefore necessary to look at what the inspector said about "the works" in that part of his report. In paragraph 429 he referred to "the works on the site", and to the tramway that had "brought the material right inside the works". Both here and elsewhere in his report he was plainly using the term "the works" to mean something different from and smaller than the whole application site. For example, in paragraph 14 he referred to "the buildings comprising the … works" and "extensions and alterations … carried out to the works". In paragraph 431 he referred to "the works" being "mothballed", and in paragraph 439 to "the machinery and buildings" being "mothballed". It was "the works" – and no larger area – that the inspector concluded had "a lawful use for general industry" (paragraph 433). By "the works" he meant only the buildings and hardstanding on the site. This is clear in paragraph 435, where he said that "the buildings and hardstandings on the site enjoy a B2 fallback …".
(4) It is clear, therefore, that the inspector did not accept that the whole application site benefited from a lawful Class B2 use.
(5) If the First Secretary of State had disagreed with the inspector on the extent of the relevant planning unit and thus the extent of the lawful Class B2 use, he would have said so. And he would have explained why. But did not. In paragraph 30 of his letter he simply accepted the inspector's findings and conclusion on those matters.
(6) The First Secretary of State's conclusions in paragraph 35 of his letter are entirely consistent with those of the inspector in paragraph 435 of his report, and also with his own and the inspector's conclusions on the extent of the lawful Class B2 use. The three fallback positions acknowledged by the First Secretary of State in paragraph 35 relate only to the buildings and hardstanding on the site. To describe a Class B2 use of those parts of the site as "the B2 use of the site" was consistent with his own conclusion in paragraph 30 of his letter and with the inspector's in paragraphs 427 to 436 of the report. The same may be said of his reference to the "likelihood of a significant B8 use of the site" when he was contemplating the fallback available for building A.
(7) Any view previously expressed by Council about the lawful use of the site cannot assist Gazelle now (see R. (on the application of Reprotech Ltd.) v East Sussex County Council [2003] 1 WLR 348). In any event paragraph 6.1 of the Statement of Common Ground for the 2002 inquiry referred only to the "existing use" of the site, and not to its "lawful use", nor to the use of it all. And at the inquiry the Council's case on the fallback, as recorded in paragraphs 192 and 193 of the inspector's report, related specifically to the buildings and the hardstanding.
(1) Since Gazelle has now abandoned its reliance on the principle of "res judicata" these proceedings are of limited value.(2) The land affected by settlement, to which the inspector referred in paragraphs 15 and 434 of his report, was land to the north-east of Area A – the part of the application site comprising the buildings and hardstanding. The planning permission granted in 1970, to which the inspector referred in paragraph 15, included Area E, but not Area A. Planning permissions for the reclamation of land further to the north-east, beyond Area E, were granted in 1976 and 1978 (ibid.). In its correspondence with Pioneer in 1985 Wansdyke's planning officer was saying, in effect, that Area A was a separate planning unit. The inspector found that "by the end of the 1970s the land subject to subsidence following the cessation of mining operations had been restored" (paragraph 434). In his analysis of the planning history he distinguished between "the works" and "the adjacent land", which had not been either worked for mineral or in Class B2 use after its restoration was complete (ibid.).
Discussion
"… A decision to grant planning permission creates, of course, the right which such a grant confers. But a decision to withhold planning permission resolves no issue of legal right whatever. It is no more than a decision that in existing circumstances and in the light of existing planning policies the development in question is not one which it would be appropriate to permit. …"
Conclusion