England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Friday 1st February, 2002

1. LORD JUSTICE KEENE: This appeal raises the issue of the scope and correct approach to Part 4 Class B of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO"). Part 4 is that part of the GPDO which grants planning permission for temporary buildings and uses.
2. The appeal concerns a roughly rectangular piece of land forming part of Hill Farm, Rushmere St Andrew in Suffolk. The farm as a whole comprises some 121 hectares, of which the appeal site amounts to about 7.6 hectares.
3. There is some history of the appeal site and of other land on the farm being used in the past for motorcycle scrambling. In the late 1980s planning applications for permission to use the site for motorcycle scrambling/motorcycle track for practice only, and for permission for change of use to a track for sports and leisure use by off-road vehicles were refused. However, in reality use for vehicular purposes was taking place and enforcement notices were served in January 1990. Appeals against those notices were dismissed later that year and the use stopped in about 1992.
4. On the other hand, appeals in 1990 against enforcement notices relating to operational development which had taken place on the site were successful. That development, comprising engineering operations, created a number of banks, depressions and jumps which have remained on the appeal site to the present time, forming a form of course or track.
5. In February 1995 the appellants applied under section 192 of the Town and Country Planning Act 1990 ("the 1990 Act") for a lawful development certificate ("LDC") in respect of the appeal site. They sought an LDC specifying:

"... the use of agricultural land for the purpose of vehicular sports and leisure activities for a period not exceeding 28 days in any calendar year."

6. This was refused by the planning authority, and a subsequent appeal to the Secretary of State and thence to the High Court were dismissed.
7. On 21st April 1998 the appellants applied for an LDC in respect of the operational development that had taken place on the appeal site in the late 1980s; that is to say, the banks and depressions and jumps and so on. The planning authority granted this LDC in September 1998. The certificate referred to:

"The creation of a circuit or track by mechanical excavation and raising of banks and jumps on formerly level or graded field or meadow."

8. Meanwhile on 10th June 1998 the appellants had sought the LDC which is the subject of the present appeal. The application was in identical terms to that made in February 1995, the terms of which I have already quoted. It was refused by the local planning authority and the appellants appealed to the Secretary of State. One of his inspectors held an inquiry in August 2000, but the appeal was dismissed by a decision later dated 25th December of that year. A further appeal to the High Court was dismissed by Scott Baker J on 11th April 2001. It is against that decision that this appeal is now brought, the judge himself having granted permission to appeal.
9. In order to identify the issues in this case, it is necessary to set out something of the statutory and regulatory context. Section 192(1) of the 1990 Act provides:

"If any person wishes to ascertain whether-

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question."

10. It will be observed that that provision embodies the basic distinction between change of use development and operational development, which is set out in section 55(1), when "development" is defined, and indeed which permeates the 1990 Act.
11. An LDC can only be granted if it is shown that the proposed use or operations would be "lawful", the meaning of which is provided by section 191(2), namely:

"... uses and operations are lawful at any time if-

(a) no enforcement action may then may 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 reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

12. The appellants' case throughout has been that, while the proposed use of the appeal site for the purpose of vehicular sports and leisure activities would be "development", because it would involve a material change of use of the site, it does not require an express planning permission because permission for such a use of up to 28 days in any one calendar year has already been granted by the GPDO, Article 3(1) and Part 4 Class B of Schedule 2. If that is right, then the proposed use is lawful and could not be enforced against.
13. Article 3(1) of the GPDO reads as follows, in so far as material:

"Subject to the provisions of this Order ... planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."

14. Schedule 2 Part 4 is headed "Temporary buildings and uses". Class B of Part 4 describes the permitted development as:

"The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more than 14 days in total may be for the purposes referred to in paragraph B.2, and the provision on the land of any moveable structure for the purposes of the permitted use."

15. Paragraph B.1 then excludes certain development, but is not relevant in the present case. Paragraph B.2, dealing with the maximum of 14 days which is allowed, lists the holding of a market and motor car and motorcycle racing, including trials of speed and practising for these activities. Neither of those matters is directly relevant to the present case.
16. I should add that it is accepted that the appellants were entitled to make this further application for an LDC for the use proposed, despite their earlier unsuccessful application in respect of the same proposed use. The inspector on the present appeal noted that there had been physical changes to the appearance of the appeal site since the previous appeal, in that most of a paling fence and posts with nylon rope marking part of the course had since been removed. Consequently, there had been a material change from the findings of fact made and relied on by the previous inspector, and that change prevented issue estoppel from arising.
17. The inspector recorded the appellants' case that in between the proposed events the site would revert to agricultural use involving the grazing of animals, with the physical appearance of the land remaining unaltered. She described the issue as being whether the proposed use would have the attributes of a temporary use or a permanent, though intermittent, use.
18. In determining that issue she referred to the various earth banks, depressions and jumps which had been created in the past, describing them as permanent physical alterations which had materially altered the character and appearance of the land. She then stated, at paragraph 12:

"The Appellants do not propose to remove these features between events. I believe that even on days when the use was not taking place the site would have the appearance of a facility created for vehicular sport and leisure activities. I find as a matter of fact and degree, in the light of the existing character and appearance of the land, that the re-introduction of the vehicular leisure use would amount to a permanent, though intermittent, use subject to the requirements of the effective enforcement notices rather than a temporary use."

19. Although there had been an LDC granted for the engineering operations since the previous appeal, those operations, she noted, had been lawful before the grant of that LDC. She emphasised that the appeal site had the appearance of a facility created for vehicular sports, and she regarded the proposed use as being a permanent one falling outside Part 4 Class B of the GPDO. She therefore dismissed the appeal.
20. On the appeal to the High Court, Scott Baker J observed that the use of the land reverted to grazing after each of the 28 occasions, but that the land nevertheless retained physical features referable to the vehicular sports and leisure activities. He examined a number of the leading authorities dealing with dual uses and temporary uses, observing that none of the Court of Appeal or Divisional Court decisions dealt specifically with the point at issue. But he concluded that in determining whether the proposed use is temporary or occasional on the one hand or permanent or normal on the other, one should look not only at the duration of the use but also at its character. He identified the issue as being whether the proposed use would be a temporary change of use or a permanent change to a mixed or dual use. The judge then went on to say:

"29. It seems to me that as a matter of law physical changes that have been made to the land are capable of being a relevant considerations [sic] in the decision maker's assessment of the character of the proposed use. He is not simply limited to looking at duration in every case. It seems to me that the decision maker's assessment of the character of the proposed use cannot sensibly exclude a factor which is both necessary for the proposed use to take place and has been created solely for that purpose. ...

30. The question whether a use is temporary for the purposes of the GPDO 1995 is one of fact to be decided according to the circumstances of the particular case. In resolving this question it is necessary to look at the character of the use. Whilst duration is likely to be decisive in many, perhaps most, cases there will be some, of which the present case is an example, in which it will not. The inspector was entitled to take into consideration that the layout of the land made it suitable for the use under consideration and that the works to achieve that layout had been undertaken by the Claimants."

21. Consequently he dismissed the appeal.
22. His decision is now challenged by the appellants. On their behalf Mr Bird advances a number of propositions. First, he says that the Class B Part 4 right permits the material change of use of the land in its existing lawful physical form to a different use on 28 occasions per annum, or for not more than 28 days per annum.
23. Secondly, provided the use of the land in between the 28 occasions or at the end of 28 days is capable of reverting to its normal use (in reliance on section 57(3) of the 1990 Act) and it does so revert, no question of any permanent mixed use arises.
24. Thirdly, for the purpose of determining whether the Part 4 Class B right is available, physical changes to the land effected to facilitate a temporary use are relevant only if they prevent the process of reversion to the normal use of the land after each instance of temporary use.
25. His fourth proposition is that such physical changes, once immune from enforcement, are irrelevant for the purposes of assessing whether the Part 4 Class B right is available. The only issues in such circumstances are the duration of the use and the extent of recurrence of the proposed activity, and whether or not any new and additional physical changes to the land would prevent its reversion at the end of the temporary use to the normal use.
26. It is emphasised on behalf of the appellants that all the evidence was that the existing use of the site was for agriculture; and that that was so, despite the physical changes which had been made to the land form some years ago. The inspector at an inquiry in 1996 described the site as having reverted to agriculture in the form of grazing. Therefore the land clearly could be used for grazing at times other than the 28 days, or less, when the proposed use was taking place, and indeed the application for the LDC made it clear that the land would in fact revert to agricultural use between those occasions.
27. It is emphasised by Mr Bird that there was no finding by the inspector that the proposed use would prevent the reversion of the land to agricultural use. The 1990 Act clearly distinguishes, he says, between development consisting of the carrying out of operations on the one hand and development consisting of a material change of use. Provided therefore the 28-day limit is not exceeded, no question of any permanent use arises. By definition such a use is an occasional use. He submits that it is wrong to say that a temporary use of a permanent physical feature of the land becomes a permanent use because of the existence of that physical feature.
28. Mr Mould, on behalf of the first respondent (the second respondent playing no part in this appeal), argues that the physical changes are relevant because they indicate that the proposed use would endure on more than an occasional basis. The permanent physical changes are relevant therefore to an assessment of the character of the proposed use, especially because they were made in this case to facilitate the use now proposed. Reliance is placed on the Divisional Court decision in Tidswell v Secretary of State for the Environment (1977) 34 P&CR 152, where the court distinguished between a permanent, albeit intermittent use, and a temporary use.
29. Mr Mould submits that there would here be a change from agricultural use to a mixed use of agriculture and vehicular sport and leisure use. He accepts that it is relevant to consider whether it would be possible for the land to revert to the normal use after each so-called occasional use. But he argues that, for example, a field used for playing football on up to 28 days a year and for grazing during the rest of the year could, nonetheless, be seen as falling outside the GPDO Class B of Part 4 if the field is marked out as a pitch with holes in it for goalposts and so on. Mr Mould concedes that Class B is expressed solely in terms of the duration of the use. But he contends that the effect on the character of the land is relevant to deciding whether the land has a dual or mixed use as its normal use, even though one of those uses is carried on for no more than 28 days in the course of a calendar year.
30. Here he says the inspector in effect found that even use for one day for vehicular sports and leisure would, because of the physical character of the land, fall outside the GPDO. She was entitled to take into account the fact that the land would have the appearance and character of a racetrack, as well as the duration of the proposed activity, and she was entitled to conclude therefore that the proposed use would be a permanent one not covered by the deemed permission granted by the GPDO.
31. There are a number of situations which can arise in terms of planning law where a particular use of land only occurs for part of a year. In some circumstances the use of the land may be a dual one where the land is used for a substantial part of the year for one purpose and then for another substantial part of the year for another purpose. That was the situation which arose in Webber v Minister of Housing and Local Government [1968] 1 WLR 29. That was a case relied upon by Scott Baker J in the court below, when he concluded that this site could properly be regarded, if the proposed use were instituted, as having a mixed or dual use. It is therefore relevant to examine the facts and the reasoning in Webber.
32. That was a case where a field had been used for some years as a camping and caravan site from Easter until September each year, and then during the winter months for grazing sheep. The Court of Appeal drew attention to the concept of the "normal use" of the land as found in the planning legislation, and contrasted that with the occasional use of the land which is permitted up to a maximum of 28 days a year. It held that the normal use of the field had been a seasonal one - camping during the summer season and grazing during the winter season - with the result that permission was not required when one seasonal use ended and the other began. Diplock LJ stated that land may be used for two purposes, and then he added:

"Provided that each activity is recurrent and accounts for a substantial part of the total amount of activity taking place upon the land during the appropriate period to be taken for determining what use is made of the land, the natural answer to the question: `What use is made of the land?' is, in my view: `It is used for the two activities.'"

33. Diplock LJ referred to subsection (3) of section 13 of the Town and Country Planning Act 1962, which was one of the provisions using the concept of "normal use" of land, and said that he had no difficulty in saying that where each activity was carried on on the land for about six months each year, each was part of the normal use of the land rather than an occasional use.
34. The concept of "normal use" still exists in the 1990 Act. Indeed, it appears in the very provision which makes it unnecessary to obtain express planning permission each time when the land reverts to its normal use after a temporary use covered by Class B of Part 4 of the GPDO. Section 57(3) provides as follows:

"Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use."

35. It will be seen that Webber was not dealing with the situation where one use took place on no more than 28 days and the other use took place for the rest of the year. It was a case concerned with two uses each lasting for a substantial part of the year. That is the situation where land could properly be held to have a dual or mixed use, because of two uses each making exclusive use of the land for a substantial part of the year. A 28-day use could not properly be seen normally as forming a substantial part of the total activity. The approach adopted by Diplock LJ was cited with approval in South Buckinghamshire District Council v Secretary of State for the Environment (1989) 58 P&CR 121, at 130, by Nicholls LJ, who went on to say on that page:

"... use made of land by virtue of permission given by Class IV.2 is an exceptional use, as distinct from the normal use, of that land, and it remains such even if repeated on the maximum permissible number of days (whether 28 or 14) within one year and even if repeated from year to year."

36. It is also possible for land to have a single permanent use, even though no activity takes place on it for the bulk of the year. An instance of such a use was given by Widgery J in Hawes v Thornton Cleveleys Urban District Council (1965) 17 P&CR 22, at page 28, namely that of land used as a racecourse, where racing only takes place on intermittent occasions during the year. It is clear that the judge there was dealing with a situation where the land was not put to any other use in between the days when racing took place. Another example of such a permanent though intermittent use would be where land is used as a football pitch on winter Saturdays, and is not otherwise used for any other purpose during the year. Such uses are permanent uses of the land in question, and they fall outside the scope of the deemed permission granted for temporary uses by Part 4 Class B of Schedule 2 to the GPDO. That is so even if the activity, such as the football matches, only takes place for 28 days or less during the calendar year.
37. On the other hand, once there has been a change to such a use from a previous use, such as agriculture, no change of use takes place each time the activity occurs. The previous agricultural use has ceased and the land has in effect become a sports field.
38. Then land used normally for one purpose such as agriculture may be used on certain occasions during the year for another use. A village fête would be one obvious example of this. If this latter use occurs on 28 days or less during the year, no express planning permission is required because the use is permitted by the GPDO. It is characteristic of this category of situations that during the rest of the year the normal permanent use continues, with the land reverting to agriculture in the example which I have given when it is not in use for the village fête or the other temporary activity. That reversion is to my mind of crucial importance.
39. As was said in the South Buckinghamshire District Council case, such temporary use for 28 days or less per annum does not lose the benefit of the deemed permission under the GPDO, merely because such use is repeated year after year; as indeed happens with most village fêtes. But if it takes place on more than 28 days during the year, then the use clearly will fall outside the scope of this class of the GPDO. Such a use would then require express permission, as does a change to a single permanent though intermittent use. As the case of Tidswell establishes, there is in such cases a breach of planning control from the outset.
40. For my part, I do not find that the decision in Tidswell is of any real assistance in the present case. The facts in Tidswell were that the appellant had begun operating a Sunday market on land within a football club ground. The planning authority served an enforcement notice on him at a time when he had held the market on nine Sundays, from 23rd June to 18th August 1974. He appealed against the notice. An inquiry was held in April 1975. Meanwhile, he had continued to operate the market each Sunday between the service of the notice and the holding of the inquiry.
41. Under the then equivalent of the GPDO, there was deemed permission to use land for market purposes for up to 14 days a year. The appellant contended that the enforcement notice was premature because at the time of its service in late August 1974 he had only held markets on nine Sundays. The Divisional Court held that there was ample evidence by the time of the inquiry to show that his use of the land was not a 14-day temporary use but, rather, a permanent use, Forbes J saying, at page 156:

"Here it would be impossible, it seems to me, to contend that the character of the use which this appellant was making of the land by using it as a Sunday market was a 14-day use at any time once one was in possession of the evidence that at all times between June 1974 and April 1975 he had continued to use the land for the purpose of Sunday markets."

42. While Forbes J there used the expression "the character of the use", that permanent character derived from the fact that by April 1975 it was clear that the appellant was exceeding the 14-day maximum for a temporary market use under the deemed planning permission. It was the duration of the so-called temporary use which was crucial. One can readily see that in 1974 alone the market had been held for far in excess of 14 days, and the same was already true by April 1975 of that calendar year. What Tidswell establishes is that where there is a material change of use to an intermittent use which is not covered by the deemed permission in the GPDO, the planning authority can enforce at once because there is no period of grace of 14 or 28 days which has to elapse first. In that respect the decision in Tidswell reflected the fact that Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 had reversed Cater v Essex County Council [1960] 1 QB 424.
43. What then is the relevance of physical changes to the land where those changes facilitate a use which is to take place on no more than 28 days in a year? I accept the emphasis placed by Mr Bird on the significance of the distinction in planning law between operational development and change of use development. Nonetheless, the carrying out of operations on the land, either in anticipation of the proposed use or accompanying it, may in some cases be relevant on the issue of whether the proposed use is a temporary one within the GPDO or is instead a permanent change of use of the land. That would arise if the operations make it difficult or impossible for the site to revert realistically to its previous normal use (such as agriculture) in between the occasions when the land is used for the new use. If the physical changes have that effect, then one would be dealing with a material change of use from the previous use, which had to all intents and purposes ceased, to the new use, even though the latter only in practice involved activity on 28 days or less a year. It is duration and reversion to normal use which is of importance.
44. But that relevance seems to me to be the only relevance which such physical changes to the land are likely to have to this issue. Engineering and other operations are themselves subject to planning control, so that the local planning authority is well able to control physical alterations to land form. If physical changes to the land are allowed to take place and they do not prevent the normal permanent use from continuing for most of the year, I, for my part, cannot see in principle why the rights under Part 4 Class B of the GPDO should not be available for another use which does not take place for more than 28 days in the year. Nothing in the wording of the GPDO would prevent the deemed permission from being available in such a situation. There is no reference in Class B of Part 4 to the character or appearance of the land as a criterion or to its planning merits generally, but only to the maximum duration of the use during each year. It is well-established that the planning legislation constitutes a statutory code (see Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] AC 132), and I can see no justification for adding such an additional test to the statutory wording which Parliament has thought fit to adopt.
45. Moreover, such physical changes may lead to a change in the appearance and character of the land, as the inspector found was the case with the appeal site. But those physical changes in the present case have already taken place and have the benefit of an LDC to establish their lawful existence. They are a physical fact. They are there and they have been there for many years, and so far as can one can judge they will continue to be there for the future.
46. In my judgment, the inspector and the judge below went wrong in attaching the significance which they did to the existing physical changes to the site. It is the duration of the proposed use and the reversion in between times to the normal use of the land which are the critical factors. If this appeal site is used for the proposed use on no more than 28 days a year and it reverts after each occasion to agricultural use for the rest of the year, then the deemed permission in Part 4 Class B covers the proposed use. Those conditions seem to me to be met in this case.
47. As a result, it seems to me that the inspector applied the wrong test in the judgment to which she came. For the reason which I have set out, I for my part would allow this appeal.
48. LORD JUSTICE ROBERT WALKER: I agree. I wish to add only one footnote to a point which has already been emphasised by my Lord, Lord Justice Keene.
49. Our decision will bring home to those concerned with planning matters the importance (as Lord Justice Keene said, the crucial importance) of land reverting to its normal use (generally agricultural use) after each occasion of temporary use. In this case it has been conceded that there will be a reversion to agricultural use, mainly in the form of grazing sheep. Some off-road drivers appear to take delight in testing the performance of their vehicles in extremely muddy conditions which would appal most road users. A circuit deliberately prepared and intensively used in that way, even for a maximum of 28 days in a calendar year, might, as a matter of fact, be incapable of reverting to agricultural use. However, it has not been suggested that that is a material factor in the present case.
50. LORD JUSTICE ALDOUS: I agree with both judgments.
ORDER: Appeal allowed; order made by Scott Baker J of 12th April 2001 set aside; decision of the first defendant's appointed inspector, communicated by letter dated 25th September 2000, quashed; First Defendant to pay the Claimants' costs here (assessed at £4,870) and below (assessed at £5,807); permission to appeal to the House of Lords refused. (Order not part of approved judgment)