England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2
		7th March 2002

Thursday, 7th March 2002

1. LORD JUSTICE SCHIEMANN: The large West End store known as Harrods wishes its chairman to be able to come to and from work on Monday to Friday in helicopter which would land on the roof of the store. They asked the local planning authority whether this required planning permission. The local planning authority said it did. Instead of applying for planning permission, Harrods appealed to the Secretary of State against that conclusion. He arranged for an Inspector to hold an inquiry and to report to him. The Inspector reported that he considered that no planning permission was needed. However, the Secretary of State disagreed with his Inspector and agreed with the local planning authority. Harrods then appealed to Sullivan J sitting in the Administrative Court, but he agreed with the local planning authority and with the Secretary of State. Nothing daunted, Harrods now appeal to us. The issue we have to decide is whether the Secretary of State made an error of law in concluding that planning permission was required.
2. It is common ground that the root question for the Secretary of State was whether the introduction of the helicopter use amounted to development by the making of a material change of use of the Harrods store. The Secretary of State, as I have indicated, came to the conclusion that it did, and therefore Harrods lost their appeal. But in so doing the Secretary of State made it clear that had he taken the view that use of a shop roof for helicopter take-offs and landings was ordinarily incidental to the use of city centre retail businesses, he would have held that no material change of use was involved.
3. The most relevant legislative provisions are to be found in section 55 of the Town and Country Planning Act 1990 and in the Use Classes Order. Section 55 provides:

"(1)... 'development' means... the making of any material change in the use of any buildings or other land.

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land..."

4. There then follow various examples, each one of which is lettered, of which the most immediately potentially relevant is (f), which provides:

"in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

5. Although that is the most immediately relevant subparagraph, it is worth mentioning, because the case law touches on them, two other subparagraphs:

"(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;

(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used."

6. The Secretary of State and his predecessors have made a whole series of so-called "Use Classes Orders" of which the currently relevant one has the formal name the Town and Country Planning (Use Classes) Order 1987. The most immediately relevant provisions are in regulation 3, which says:

"(1) Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land.

(3) A use which is included in and ordinarily incidental to any use in a class specified in the Schedule is not excluded from the use to which it is incidental merely because it is specified in the Schedule as a separate use."

7. The schedule includes a Class A1, Shops, which is then particularised in a way which I need not set out in detail, but which starts:

"Use for all or any of the following purposes

(a) for the retail sale of goods other than hot food

(b) as a post office..."

8. The Inspector's report to the Secretary of State contained the following paragraph, which Mr Guy Roots QC, who appears for Harrods, relies on as providing a proper approach to the question:

"55. In the present case, the purpose is to provide for the mode of transport and arrival and departure of a key worker in the planning unit. It has a commercial basis relevant to the business in terms of the time saving and security and the advantages to the business that it would provide. The proposed use is limited in its scale to exactly that which is necessary - weekday trips to and from the workplace. I do not consider the purpose or intrinsic nature of the activity is unusual, and I cannot but help to compare it to the provision of areas and facilities for car or bus parking for employees coming to work. The use of such land is undoubtedly incidental, ordinarily or otherwise to the primary use. I appreciate that the use of a helicopter to land on the roof of a retail unit does not, on the evidence available, occur elsewhere in England and Wales, but I consider this proposed use can be considered to pass the tests postulated by both sides in the appeal. It might be a new means of transport in the particular circumstances, but it is not unheard of as a means of travel to and from premises in a broader sense. I realise there are stringent conditions to be complied with for journeys to take place, but neither this nor all the other circumstances present render the proposed use so out of the ordinary that it cannot, as I judge it on a matter of fact and degree, be held to be an ancillary use to the use of Harrods as a retail department store."

9. The Secretary of State, as I have indicated, differed from his Inspector. The relevant paragraphs of the decision letter are the following:

"7. It is agreed with the Inspector that the main issue to be determined in this appeal is whether the proposed use of the roof of Harrods for helicopter landings and takeoffs would be lawful as being incidental to the primary Class A1 retail use of the planning unit, which is accepted as being the whole of the Harrods store, or whether it is a material change of use that constitutes development within section 55 of the Town and Country Planning Act 1990..."

10. Then comes paragraph 8:

"... The Secretary of State... takes the view that the planning unit in this case comprises the whole of the Harrods store... in agreement with the Inspector, the Secretary of State concludes that it is only the activity that takes place within the planning unit that is required to be considered for the purposes of this appeal. But, he takes the view that the use of the airspace above the store, rather than involving a use of part of the planning unit, as the Inspector concludes, in fact comprises part of the journey to and from the store that takes place outside the planning unit. However, the Secretary of State agrees with the Inspector that these journeys are not relevant to the consideration of any change of use of the store premises, taking the view that the act of travelling to the premises and the means of transport used would not constitute development, and it is, as the Inspector concludes, the activity of landing and takeoff from the roof of the planning unit that is at issue in judging whether any change of use is involved in the proposal or whether the use may be regarded as ordinarily incidental to the primary retail store use.

9. The Secretary of State has carefully considered the Inspector's conclusions on the Nature of the proposed use... in which he finds that there is a clear functional link between the proposed use and the primary use; that the proposed use is subordinate to the primary use and does not involve the exercise of an 'unrestrained whim' of the occupier. However, he comes to the conclusion that the circumstances of this appeal lead to a different outcome from that proposed by the Inspector. Considering first the possible functional link between the use of the roof for helicopter landing as proposed in the application and the main use of the planning unit, the Secretary of State accepts that there is a degree of linkage, as the Inspector describes, in that the existence of the main retail use provides the requirement for the Chairman to attend the premises to carry out his duties. However, the way in which he chooses to achieve his attendance is considered to be much more related to the needs or requirements of the store owner than to the purposes of the main retail use of the store, in that the helipad would not support or facilitate that main use and it does not directly represent part of the trading activities of the store.

10. With regard to the Council's submission that this question should be addressed by the consideration of whether the proposed use can be regarded as 'ordinarily incidental' to the main use, for the purposes of Article 3(3) of the Use Classes Order, the Inspector has concluded... that the use of the word 'ordinarily' is no more than a feature of the drafting of the Order rather than setting a particular standard or nature of incidence. This conclusion is not accepted. The Secretary of State takes the view that the inclusion of the word in the drafting of the Order does imply a test and while it is agreed with the Inspector that novel uses need not be excluded from constituting incidental uses, it is concluded that each case should be examined individually, considering the purpose, nature and manner of the use, from a starting point of it needing to be ordinarily incidental to the main use.

11. For the reasons set out in paragraph 8 above, the Secretary of State concludes that the use of a specialised mode of transport for a single, albeit key, worker, notwithstanding the claimed benefits to the business in terms of time saving and security, that provision in this case represents benefits more closely related to the needs of the key worker than those of the business itself. Although the scale of the proposed use is limited to the particular requirements of the Chairman, this factor is considered to represent a further link with his requirements rather than those of the business itself. The Inspector draws a comparison between the appeal proposal and the provision of car or bus parking facilities for employees. However, having concluded that the proposal should pass the test of being ordinarily incidental to the main use, the Secretary of State considers that while vehicle parking is commonly provided for employees of businesses, no evidence has been produced of helicopter landing facilities being commonly, or ordinarily, provided in connection with city centre retail businesses. Accordingly... it is concluded that in the particular circumstances of this case the proposed use of the roof of Harrods for helicopter landing as proposed, cannot, as a matter of fact and degree, be regarded as ordinarily incidental to the main, retail use of the premises. The appeal will therefore be dismissed.

The judge, in a long and very careful judgment, considered the regulations, the statute and the case law, and starts his conclusions at paragraph 93:

"93. The starting point is that the Act and the Regulations and Orders made thereunder provide a 'comprehensive code of planning control.' The courts must give effect to the intention of Parliament as evinced by that comprehensive statutory code: see Lord Scarman's speech in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, at pages 140 to 141.

94. It was the intention of Parliament that 'material changes in the use of buildings or other land' should be subjected to planning control. In developing the incidental/ancillary use principle the courts have, effectively, removed those uses falling within that principle from the ambit of planning control. The use of the words 'incidental/ancillary' should not obscure the fact that such uses can be very substantial indeed, with potentially significant implications in terms of factors such as numbers of employees, noise, traffic et cetera, all of which would be relevant if planning permission was being sought for an independent use of a comparable scale and nature.

95. To take Harrods as an example, the total floor area of the store is a little in excess of 121,000sq m, of which a little in excess of 44,000sq m is non-selling space. Within such a large building there is clearly the potential for the introduction of substantial uses (at least in floor space terms) under the incidental/ancillary principle. Such new uses might well, but for the application of the incidental/ancillary principle, fall within the description 'material change of use'.

96. A restrictive formation of the ancillary use test, so as to include the words 'ordinarily incidental', would, in my judgment, give effect to Parliament's intention that material changes of use should, in general, be subject to planning control. Where Parliament intends that changes of use which might otherwise be considered material should be deemed not to amount to development, it says so in subsection (2).

97. The ancillary use principle was developed by the courts as a response to practical realities on the ground: the factory containing administrative offices; the car park associated with the office building; the storage area associated with the shop. It gives the occupier a valuable measure of flexibility to respond to changing needs. But restricting that degree of flexibility to ancillary uses which are 'ordinarily incidental' to the primary use of the planning unit as a whole does not prevent the introduction of the extraordinary, or the unusual. It merely subjects it to the need to apply for planning permission. If, on consideration of an application for planning permission, it is found that there are no good reasons to refuse permission (bearing in mind the provisions of sections 54A of the Act) then planning permission will be granted. If there are good reasons to refuse planning permission, it must be in the public interest that those reasons should be able to prevail and not be 'sidestepped' by the application of an unqualified 'incidental/ancillary' use test."

11. The judge then examined a number of cases in which the courts have used the words "ordinarily", "ancillary" and "incidental" in the context of section 55(2)(d) and (e) and in particular two decisions of this court, Wallington v Secretary of State for Wales [1991] JPL 942, and Millington v Secretary of State for the Environment Transport and the Regions [1999] 3 PLR 118. The judge says in paragraph 102:

"If one looks at the authorities dealing with paragraphs (d), (e) and (f) in subsection 55(2), a consistent pattern emerges. Starting with paragraph (d), it is true that Wallington turned on the words 'as such' at the end of that paragraph. But those words merely take one back to the phrase 'incidental to the enjoyment of a dwelling-house as a dwelling-house.' In deciding whether the use enforced against was incidental to the enjoyment of a dwelling-house as a dwelling-house, the Court of Appeal said that the Inspector 'was perfectly entitled to have regard to what people normally did in dwelling-houses' (see page 944). I see no practical difference between asking what people 'normally' do in dwelling-houses and what uses are 'ordinarily incidental' to other primary uses.

103. Turning to paragraph (e), in deciding whether an activity is a use for agriculture it is not sufficient that the secondary use is incidental, one must have regard 'to ordinary and reasonable practice' and ask in the light of that whether it can be 'regarded as ordinarily incidental' (see Millington at page 136). It would be strange if the 'ordinarily incidental' test was to be applied when deciding whether activities fell within 'agricultural use' for the purposes of the Act but not for the purpose of deciding whether activities fell within other, primary uses.

104. Lastly, paragraph (f). A Use Classes Order, containing a provision in substantially the same terms as those found in article 3(3) in the 1987 Use Classes Order, has been in force since the first appointed day."

12. That was, I think, 1st July 1948.

"The 1987 Use Classes Order (and its predecessors) formed part of the detailed foundations upon which the 1990 Act was constructed. As such, it is permissible to use it as an aid to interpretation. The formulation of the 'ordinarily incidental' test is consistent with the approach of the Divisional Court in Hussain [[1971] 23 P & CR 330], and with the court's approach to paragraphs (d) and (e) in section 55(2). Again, it would be surprising if a different approach (omitting 'ordinarily') had to be applied to ancillary uses included in primary uses outwith the Use Classes Order. Although often referred to as 'sui generis' uses, many such uses are not unusual: for example, builder's merchants, and scrap metal yards, where 'ordinarily incidental' uses might well be found. I therefore conclude that the proper test is 'ordinarily incidental/ancillary' and not 'incidentalal/ancillry'.

105. Turning to Mr Roots' submission that the Secretary of State erred in equating 'ordinary' with 'commonly', it seems to me that the Secretary of State was entitled to have regard to 'ordinary and reasonable practice' or to what is 'normally done' at inner city department stores (see Millington and Warrington) in deciding whether the proposed use met the 'ordinarily/incidental' test.

106. I recognise that such an approach has the potential, if strictly applied, to limit the scope for the introduction of novel ancillary uses, a matter remarked upon by the Inspector in paragraph 54 of his report. But 'commonly' does not mean 'universally' and account must be taken of the characteristics of the planning unit in question (see the South Oxfordshire case).

107. In any event, it is all very well to debate the question as one of abstract principle. In reality, novel secondary uses, which have no significant planning consequences, are likely to escape the notice of the local planning authority. Novel secondary uses, which do come to the local planning authority's attention, are not prohibited. If they fall outside the ambit of being 'ordinarily incidental/ancillary' to the lawful primary use, planning permission will be required. Thus, the introduction of novel ancillary uses will be prohibited in practice only insofar as they would give rise to legitimate planning objections. This approach, in my judgment, strikes a reasonable balance between the interests of the landowner and the public interest in the maintenance of an effective system of development control.

108. For these reasons, I am satisfied that the inspector was wrong and the Secretary of State was right."

13. I have quoted that judgment at length because this judge has an unrivalled experience of the application of planning law both at the Bar and on the Bench, and his evaluation is one with which, in broad terms, I concur.
14. The appellant's submissions were as follows before us. Mr Guy Roots QC, for Harrods, submitted that premises which fell within a particular use class did not need planning permission for any activity within the planning unit if there was a functional connection between the new activity and the primary use. It was important to take into account the particular premises (in this case Harrods) and what was reasonably incidental to the effective functioning of those premises as a shop being ran in the way in which the occupier of that shop wished to run his premises provided that he was not being unreasonable. He submitted that it is extremely rare for the whole of a planning unit to be devoted solely to activities comprising the primary use. Large commercial premises will have a range of areas used for storage, packing and staff facilities which an ordinary shop will lack. He submitted that the test ought to be whether a secondary activity is directly facilitating the primary use in such a way that it is inseparable from it, or whether the secondary use is really a separate activity. Just as the reception of goods for sale which had come by lorry was regarded as part of shop activities, and continue to be part of shop activities even if larger lorries started to be used or lorries started to make more frequent journeys, and just as the reception of key staff who arrived by car which they park within the planning unit is regarded as part of the shop use, so ought the reception of the working chairman who arrives by helicopter. I think he accepted that his argument led to the proposition that in the case of a store like Harrods, if it becomes commercially desirable to sell a particular product on the first day that it was available, say Beaujolais Nouveau, or grouse, then flying that product in by helicopter on that day could be regarded as being within the primary use.
15. This approach, Mr Roots accepted, was at odds with that adopted in Hussain v Secretary of State for the Environment [1971] 23 P & CR at 330, which was approved by this court in Lydcare Ltd v Secretary of State for the Environment [1984] 49 P & CR 186.
16. Mr Phillip Sales relied on Hussain, which was dealt with by the learned judge in his judgment. The judge said this:

"39. In chronological order they were as follows. In Hussain v Secretary of State for the Environment [1971] 23 P & CR 330, the appellants took over a shop in which was sold, enter alia, green groceries, meat and poultry. They decided to cater primarily for the Muslim community and, accordingly, began to keep live chickens on the premises and to slaughter them in accordance with Muslim ritual. The planning authority served an enforcement notice requiring the discontinuance of that use. The Secretary of State dismissed an appeal and the appellants appealed to the Divisional Court, contending that keeping and slaughtering chickens was ordinarily incidental to the keeping of a food shop serving the Muslim community. Thus, having regard to article 3(1) of the Town and Country Planning Use Classes Order 1963 it did not involve development.

40. At page 331 Lord Widgery CJ referred to the scale of the activity:

'The scale of the activity is important.

The Inspector who conducted the inquiry found that up to 300 birds were sold each week;

these birds prior to slaughter and sale were kept in a pen which the appellants constructed in the rear part of the premises of the shop.'

41. Lord Widgery then looked at the reasons which prompted the Secretary of State to dismiss the appeal. The Secretary of State had accepted the Inspector's conclusion:

'that this use of the appeal site for the keeping and slaughtering of chickens for commercial purposes cannot be regarded as incidental to the use of the shop for retail trading, but as a separate use ancillary to or in the nature of use of a slaughterhouse.

It is considered that its introduction was a material change of use constituting development for which planning permission was required and was not obtained and involved a breach of planning control.

[Counsel for the appellants] attacked that conclusion upon these lines. He says that on the evidence the Secretary of State should have decided that in the case of a shop serving the Moslem community facilities for keeping live chickens and slaughtering them was an ordinary incident of shopkeeping...

the matter must be judged on its own peculiar facts, and that the peculiar facts appropriate to this case are that the shop is serving the Moslem community and that this feature of keeping live chickens and slaughtering them is ordinarily incidental to the keeping of a food shop serving that community.

The argument is a very short one, and it has been economically placed before us by [counsel], but in my judgment it is wrong. I think that the Secretary of State was entirely right in the approach which he made to this case. The first question properly to be asked is: has there been a material change of use of these premises looking at them as a whole?

... The Secretary of State thought that there had, and the question is primarily one of fact and degree for him. It is proper, I think, to add that, if I had to make the decision myself, I should without hesitation have reached the same conclusion: that the introduction of this new and additional activity, very considerable in volume, was quite enough on its face to produce a material change in the use of the premises as a whole.'

42. Lord Widgery continued:

'Having ascertained there was a material change in the use of the premises as a whole consequent upon the introduction of this new activity, the next question which one has to ask oneself is whether that activity is itself ordinarily incidental to retail trading. One has to ask that question because, under the Town and Country Planning (Use Classes) Order 1963, it is permissible to change the use of a shop to a different kind without planning permission.

Accordingly, one must see whether this additional use is a use ordinarily incidental to retail trade generally, because if it is its inclusion does not require the obtaining of planning permission. In deciding whether it is ordinarily incidental to retail trade generally one has not to consider the special requirements of particular localities, particular areas and particular customers; the question has to be judged by looking at the shop as an activity as a whole and asking whether this new activity is one which is ordinarily incidental to the operation of keeping a retail shop. In my judgment the conclusion that it is not ordinarily incidental to the keeping and running of a retail shop is one which cannot possibly be avoided.'"

17. Mr Sales submitted that that approach was correct; that the most convenient approach to questions such as those approached in the present case is first to consider whether on its face the introduction of this new use would amount to making a material change of use, ignoring the provisions of the Use Classes Order. At this point, he says, one looks at the particular activity which is going on at the moment, you compare it with the total activity which will be carried on if the new activity is introduced, and you decide whether or no that change is material. And in considering whether that change is material, a relevant factor is the effect on neighbours and also what neighbours might expect to be going on at a large store. And at that stage one is looking at the reasonable expectations of the neighbours in broad terms.
18. There are exercises of judging fact and degree to be performed upon which reasonable men can differ, but at some point one reaches a stage where what is proposed will so alter the existing use, that neighbours would expect - and reasonably expect - that planning permission would be required to introduce that use. If one comes to the conclusion that what is proposed involves the making of a material change of use, the next question is then to consider the Use Classes Order, because the effect of section 55(2)(f) is effectively to say that this is not to be treated as development, although it might be regarded at first blush as being a material change of use. When one does that part of the exercise, you look at what is commonly done in shops generally, and you depart from the particular shop in question; and so he takes issue with the premise upon which Mr Roots' argument is founded.
19. Mr Timothy Straker QC, who appeared for the Royal Borough of Kensington and Chelsea, submitted that the question in these cases is is the use of the premises as a shop materially changed by the addition of this particular activity? If the particular use added is ordinarily incidental it will not be a material change of use because that use is comprised within the operation of the premises as a shop as ordinarily understood to operate. If on the other hand the new use is not ordinarily incidental, its introduction would amount to a material change of use because the extraordinary is not embraced by the operation of the premises as a shop as those premises as a shop are ordinarily understood to operate.
20. In my judgment, the proper approach to these cases by the local planning authority is to start by considering whether what is involved amounts to a material change of use. That is the statutory test. The case law reveals the application of that test to a variety of different situations. In the course of doing that different phrases have been used. I gave some examples in my judgment in Millington , which Sullivan J cited in the present case. But it would be wrong to substitute some phrase from one or other judgment for the statutory formula. Those phrases are merely an aid to judicial exegesis.
21. In the present case what the Secretary of State in effect did was to ask himself whether, ignoring the Use Classes Order, the introduction of a facility for operating helicopters from the roof of the store amounted to a material change of use of the store, a change from retail use to retail plus helicopter use. He answered that question in the affirmative. In my judgment he was, as a matter of law, entitled to come to that conclusion.
22. It is important to emphasise that when a shop owner wants to introduce an activity which is reasonably incidental to the running of his shop but which is not reasonably incidental to the running of most shops, he is not necessarily introducing an activity which will produce a material change of use. That is a matter of fact and degree which can be evaluated without reference to the Use Classes Order. If the Secretary of State approached matters in a legally permissible way so far as the first question is concerned, namely, is this on the face of it a material change of use, does the Use Classes Order make any difference so as to vitiate his answer? In my judgment the Secretary of State was entitled to conclude that it does not. The judge was right to reject Mr Roots' approach. It is not appropriate to concentrate on what is incidental to this particular shop, given the way it is run, and given its needs. The right approach is to see what shops in general have as reasonably incidental activities. And the reason that is the right approach is, in my judgment, the reason given by Mr Sales. Planning is concerned with balancing the interests of the community with the interests of the landowner - and one of the things one seeks to avoid is having too much regulation - but on the other hand another thing one seeks to avoid is giving the opportunity to bypass a careful scrutiny of activities which do impact severely (or can do) on neighbours.
23. A person who moves next door to a shop can expect normal shopping activities to go on there without there being a requirement for planning permission. A person who moves next door to Harrods can expect things which are normal there and in other emporia of that sort of size. But if what an appellant wants to introduce is not generally associated with what goes on in shops then it seems probable that Parliament intended that neighbours should have the chance to object to the grant of planning permission and thus force the owner to go through the appropriate procedures to get his planning permission. And it is probably a fair comment (although it is legally irrelevant) that the fact that this appeal is being pursued through one court after another is an indication that Harrods are not particularly hopeful of actually getting a planning permission. In any event they have not chosen to apply. They may turn out to have been unduly pessimistic. That is not for this court to judge.
24. Regulation 3(3) of the Use Classes Order is of no direct application to the present case. Its function is to prescribe that the fact that a use appears in a class of its own does not affect the operation of the ancillary use rule. However, it can be observed that it does proceed from the premise that one can in general do whatever is ordinarily incidental to the main use and that supports the general approach adopted by the judge and which I hope has been echoed in this judgment.
25. That merely leaves one secondary point which Mr Roots argued before us. I fear I do not do it entire justice because I do not fully understand it. He submitted that even if the judge was correct in concluding that the term "ordinarily" is part of a test in judging whether one use is incidental or ancillary to another, the judge was wrong in holding that the Secretary of State interpreted and applied that test correctly, in particular by equating "ordinarily" with "commonly". The passage he focused on in the Secretary of State's decision letter is to be found in paragraph 11, which I have already cited. I think that the point being made is that the Secretary of State was wrong to regard "ordinarily" as being the same as "commonly" or as being something similar. I cannot do justice to the argument, as I say, because I do not fully follow it. But it does seem to me in principle that we ought to concentrate on the basic question, namely, whether there is a material change of use and not on the precise adverb or adjective that is used.
26. Essentially, for the reasons given by the learned judge, I would dismiss this appeal.
27. LORD JUSTICE SEDLEY: I agree. The crucial thing to which my Lord's judgment draws attention is that while there is no statutory formula for testing whether a particular use is within an established use of land, there is a statutory formula for testing its counterpart: is a material change of use involved? If it is, then, subject possibly to the Use Classes Order, the use in question is not within the established use: if not, then it is. The tests usefully assembled by Schiemann LJ in Millington are variant, but not discrepant, judicial descriptions of the dividing line. They demonstrate that semantically analysing the significance of the word "ordinarily" in the phrase "ordinarily incidental" is not legally useful. What matters, as Schiemann LJ has explained, is that the permitted use of land in a case like the present is defined by its class. The sole question, accordingly, is what activities legitimately form part of the extant shop use.
28. Mr Straker's formulation (which Schiemann LJ has quoted) describes the same inquiry from the other side of the looking glass. It is an approach which seems to me to pay due regard to the fact that shops vary greatly in their size, range and status, without privileging particular shops on the basis of their special characteristics. A good measure of the appropriateness of such an approach is that neighbours, whether individuals or businesses, will justifiably set their own expectations by the first, but not by the second, of these things.
29. The result, as again my Lord has pointed out, is not a judicial adoption of Professor Conford's sardonic axiom that one should never do anything for the first time. Activity amounting to a material change of use is not banned; it simply requires separate planning permission. Sullivan J, to the quality of whose judgment I, too, would pay tribute, was therefore right to hold that there was no ground for laxity in drawing the line; rather, as he said, the contrary.
30. I agree that the Secretary of State has asked himself the right question and has answered it in a sense which is entirely consistent with his Inspector's findings of fact.
31. I, too, would therefore dismiss the appeal.
32. MR JUSTICE CHARLES: I agree this appeal should be dismissed.
(Appeal dismissed; Appellant do pay the Secretary of State's costs; application for permission to appeal to the House of Lords refused).