England and Wales High Court (Administrative Court) Decisions

THURROCK BOROUGH COUNCIL v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS and TERRY HOLDING [2001] EWHC Admin 128 (22nd February, 2001)

Neutral Citation Number: [2001] EWHC Admin 128 Case No: CO/1200/2000

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand WC2A 2LL

Thursday 22^nd February 2001

Claimant

First Defendant

Second Defendant

MR JUSTICE NEWMAN:

Introduction

1. The claimant, Thurrock Borough Council, seeks to challenge two decisions of the Secretary of State, by his Inspector (the first defendant). The decisions, communicated by letter dated 10 March 2000, ("the decision letter") allowed appeals by Mr Terry Holding (the second defendant) in respect of two enforcement notices served upon him in respect of Kings Farm, Parkers Farm Road, Orsett, Essex ("Kings Farm").

2. The claimant is the local planning authority, having statutory powers of enforcement in connection with Kings Farm. Both enforcement notices were dated l5 July 1999. One alleged an unlawful change of use from domestic and agricultural purposes to use for domestic purposes and use as an airfield and the storage of aircraft. It did not seek to enforce against the whole use, but "under enforced". Mr Holding successfully appealed against this notice on ground (d) of Section l74(2) of the Town and Country Planning Act 1990 ("the Act"), contending that the present use had commenced more than ten years prior to the issue of the enforcement notice. Accordingly, the enforcement notice was quashed. The claimant appeals under Section 289 of the Act against that decision. The other notice alleged the unlawful laying of a hard standing on a concrete base and the erection of a metal framed building on the concrete base. The Inspector allowed the second defendant's appeal against that notice. He held that, although the erection of the building did not constitute permitted development, even if the notice were upheld, the second defendant could erect another building in the curtilage of the dwelling house. He also concluded that the harm to the Green Belt caused by the building would be outweighed by the benefits to the Green Belt. For these reasons he decided that very special circumstances for the retention of the building had been made out and he allowed the second defendant's appeal under ground (a) of Section 174(1) of the Act. The claimant appeals that decision under Section 288 of the Act and seeks to quash the Inspector's grant of planning permission for the aircraft hangar and hard standing.

The Issues

The Section 289 appeal

3. The principal issue which arises is whether the Inspector adopted the correct approach when considering whether the use defined in the notice was immune from enforcement. Mr Hobson QC, for the claimant, submitted that the correct approach required, as a starting point, that close regard be paid to the use current at the date of the notice, because it was the use being enforced against. That gave rise to argument as to how the notice should be interpreted so as to identify the use enforced against. Once the character and intensity of the use enforced against has been identified, then Mr Hobson submitted, questions as to the character and intensity of the use, which the developer must show to have existed for more than ten years fall to be examined.

4. It was common ground that the burden is upon the developer to establish immunity, but there are practical difficulties which affect the local planning authority's ability to question the character and intensity of use which may have prevailed over the ten year period prior to the notice. Planning authorities, once aware of a development by way of change of use, frequently issue a written warning to the developer. Frequently the warning will lead to a reduction in the use, perhaps to a level appearing to amount to a cessation, but at some time thereafter a recommencement may occur which, only when its intensity gives rise to complaints or otherwise comes to the knowledge of the local planning authority, will give cause to act. If an enforcement notice is served, then the question arises as to whether the period of time in which there has been (i) an apparent response to a warning notice, and (ii) an absence of knowledge on the part of the local planning authority as to the precise nature of the use beyond an apparent reduction or cessation, should be allowed to contribute to the period which can provide immunity. Mr Hobson submitted that if the approach adopted by the Inspector in this case is held to be correct there are evidential difficulties for local planning authorities, which cannot, as the defendants submitted, be met by serving statutory inquiries, for they are amenable to self serving concealment and disclosure. The trend therefore might be towards resort to enforcement as a first step, which would not be desirable.

5. Mr Hobson submitted that the Inspector approached the issue of immunity upon the basis that once a change of use was established it was to be regarded as the equivalent of a lawful change of use. Therefore, he started with the date at which, on the evidence, he held there had been a change of use, and applied to the total period thereafter principles of planning law in connection with a lawful use. This approach had the effect of passing the burden to the local authority to establish that, after the date when the change of use had occurred it had been abandoned or otherwise lost by operation of law.

6. Although I must examine the decision closely it is beyond argument that the Inspector treated the change of use which he held had occurred, as though it was lawful from its inception. The defendants have not submitted otherwise, but have submitted that no error of law occurred, nor mischief or harm has resulted. The defendants submitted that the Inspector was entitled to take the terms of the alleged "breach of planning control" set out in the notice as conclusive of the character of the use enforced against. Thus the only paragraph which was relevant to the question was paragraph 3, "The Breach of Planning Control Alleged". Each submitted that if a change of use, matching the terms of paragraph 3, was disclosed by the evidence to have occurred more than 10 years before the date of the notice, that was the starting point for the inquiry. Each submitted that the paragraph had to be interpreted on its own, without reference to paragraph 5, headed "What you are required to do." If through a lack of specificity as to the character and the intensity of use enforced against, credible evidence conforming to a change of use matching the general description was adduced, then, even though it may be apparent that such a use would not have given rise to enforcement, its establishment should defeat the notice. Thus, it was submitted, earlier, less intensive uses, can be used to defeat an enforcement notice, notwithstanding that, at the time of service, the circumstances which exist are very different from those which prevailed at any earlier stage. There appears to be little or no direct authority touching the difficulties which I have outlined, but the editors of the current Encyclopaedia of Planning Law and Practice, volume 2 at paragraph 2-3597, state as follows under the heading "The date of breach: change of use cases":

"Pinpointing the date of breach is often difficult. Change of use frequently is a gradual process, involving fluctuations in intensity and shifts in precise location. In such cases, the only effective test is to compare the present use with the previous use, or the use in the base year (i.e. normally ten years prior to taking enforcement action) and assess whether there has been any material change: see Cheshire County Council v The Secretary of State for the Environment 1971 222 EG 35. The immunity conferred by the ten year limitation period (four years in the case of dwelling house uses within sub-section 2) means that an enforcement notice may not be used to extinguish uses existing at that time. Excessive requirements in a notice may be cut down by means of the Secretary of State's powers to correct or vary the notice of appeal, under Section 176."

To the case of Cheshire, which illustrates the suggested approach, should be added the case of Lynch v Secretary of State for the Environment [1999] JPL 354, which is illustrative and supportive of the approach.

7. I have said enough to introduce the nature of the dispute which arises in relation to the Section 289 appeal. As to the section 288 appeal, the questions which arise are:

(i) whether there was evidence before the Inspector which entitled him to conclude that the second defendant would erect another building within the curtilage;

(ii) whether the Inspector considered whether the use of any such building would be reasonably incidental to the enjoyment of the dwelling house;

(iii) whether, in holding that very special circumstances existed, the Inspector took into account irrelevant considerations, namely the restriction limiting the number of aircraft to be kept in the building to three, and the restriction on the second defendant's exercise of permitted development rights.

The approach to be adopted by the Court on each appeal

8. Mr Hockman QC commenced his submissions by helpfully providing the court with a thorough and succinct summary of the High Court's powers of review in a planning matter, taken from the judgment of the Divisional Court in The Queen on the application of Holding and Barnes plc v The Secretary of State for the Environment, Transport and Regions and others (unreported l3 December 2000) It would serve no purpose to recite the paragraphs from the judgment, but in fairness to the argument of Mr Hockman, he desired to emphasize:

(1) that the court is only concerned with the legality of the decision, not with the merits of the case,

(2) matters of weight are for the judgment of the Inspector and not for the court. He relied upon a passage in the speech of Lord Hoffmann in Tesco Stores Limited v The Secretary of State for the Environment 1995 2 PLR 72:

"This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

(3) that the review involves examining the evidence but it does not mean examining the evidence with a view to forming its own view about the merits of the case, but only to explore in order to see if the decision is vitiated by legal deficiencies. The court may not set about forming its own preferred view of the evidence.

Appeal No.1

9. Paragraph 3 of the enforcement notice, headed "The breach of Planning Control Alleged" stated: "Without the benefit of planning permission the change of use of the land from domestic purposes and agriculture to use for domestic purposes, and as an airfield and for the storage of aircraft." The notice did not require a cessation of all activities on the land in connection with its use as an airfield and for the storage of aircraft but set out the requirements of the notice in paragraph 5, as:

"(1) there shall be no microlight movements, except in an emergency;

(2) there shall be no helicopter movements, except in an emergency;

(3) there shall be no training flights;

(4) cease all aircraft movements in excess of four for seven hours and after 2300 except in an emergency;

(5) cease all movements of aircraft (including touch and go movements) in excess of 50 per day;

(6) cease the covered storage of aircraft in excess of ll aircraft;

(7) cease the outside storage of aircraft in excess of l4 aircraft;

(8) cease all air shows in excess of one per year;

(9) cease all air show activity before 0900 hrs and after l900 hrs."

The period for compliance with the requirements was 28 days. The first paragraph of the notice stated:

"This is a formal notice which is issued by the council because it appears to the(sic) there has been a breach of planning control, under Section l7lA(1)(a) of the above act, at the land described below. They consider that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.

Paragraph 4, headed "Reasons for issuing this notice" stated:

"It appears to the council that the above breach of planning control has occurred within the last ten years. The land lies within the Metropolitan Green Belt on the adopted Thurrock Borough Local Plan 1997 one. Policy GB1 of that plan and Government Guidance contained in the Department of the Environment Plan and Transport Policy Guidance Note No 2 (PPG2) indicate that in order to achieve the purposes of the Green Belt it is essential to retain and protect its open character and that new development will only be permitted outside existing settlements in very special circumstances. The use of the land and buildings as an airfield in excess of the levels identified in the requirement of the notice would give rise to damage to residential amenity and visual damage to the countryside in conflict with Policies GB2 and GB11 of the adopted plan.

10. Power to issue an enforcement notice is conferred upon a local planning authority by Section l72 of the Act. In its material part it provides:

"(1) The local planning authority may issue a notice (in this Act referred to as an enforcement notice) where it appears to them -

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2) ......

(3) ......

Section 173 stipulates for the contents and the effect of the notice, Section l73(1):

An enforcement notice shall state -

(a) the matters which appear to the local planning authority to constitute the breach of planning control; and

(b) the paragraph at Section 171A(1) within which, in the opinion of the authority, the breach falls.

(2) A notice complies with sub-section l(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are -

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which has been caused by the breach.

(5) An enforcement notice may, for example, require -

(a) the alteration or removal of any buildings or work;

(b) the carrying out of any building or other operations;

(c) any activity on the land not to be carried on except to the extent specified in the notice; or

(d) the contour or a deposit of refuse or waste materials on land to be modified by altering the gradient or gradient of its sides."

(6) - (10) ............

(11) Where -

(a) .....

(b) all the requirements of the notice have been complied with, then, so far as the notice did not require, planning permission shall be treated as having been granted ..."

(12) Where -

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted..."

A breach of planning control is defined in section 171(A)(1):

(1) "For the purposes of this Act -

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitations subject to which planning permission has been granted, constitutes a breach of planning control

(2) ....

(3) ...."

Section 55(1) of the Act defines development:

"Subject to the following provisions of this Section, in this Act, except where the context otherwise requires, development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land".

11. It has long been recognised than an enforcement notice must contain all the material which the Act requires it to contian, and in sufficient detail to make it clear to the recipient what it is he is alleged to have done, and what he is required to do to put it right. In the words of Upjohn LJ in Miller Mead v The Minister of Housing and Local Government 1963 2 QB 196, the test is:

"Does the notice tell (the person on whom it is served) fairly what he has done wrong and what he must do to remedy it?"

Further it is plain from Section l72(1)(b) that in addition to being satisfied that there has been a breach of planning control, the local planning authority must have considered whether, having regard to the provisions of the development plan and to any other material considerations, it was expedient to issue the notice. The discretionary power includes the power to "under enforce". The enforcement notice in this case made it plain that having regard to the Metropolitan Green Belt and the relevant local plan, it was essential to retain and protect its open character and to permit development outside existing settlements only in very special circumstances. The notice also stated that the use of the land and buildings as an airfield in excess of the levels specified in the notice would give rise to damage to residential amenity and visual damage to the countryside in conflict with these policies. It is possible that, had the local authority gone for a complete cessation of activities on the land, it would have been open to a claim that it had over-enforced and that the relevant planning controls and criteria could be met by allowing some restricted use of the airfield and buildings.

Time Limits upon Enforcement

12. Section 171(B) provides:

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed;

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the period of ten years beginning with the date of the breach.

(4) The preceding subsections do not prevent -

(a) the service of a breach of condition notice in respect of any breach of planning control of an enforcement notice in respect of the breach is in effect; or

(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or have purported to take enforcement action in respect of that breach."

Section 174(1) provides that a person served with an enforcement notice may appeal to the Secretary of State and sub-section (2) provides:

"An appeal may be brought on any one of the following grounds -

(a) ....

(b) ....

(c) ....

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

..........."

Certificate of Lawfulness of existing development

13. Section 191(1) of the Act provides:

"If any person wishes to ascertain whether -

(a) any existing use of buildings or other land is lawful ... he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter."

The purpose of the section is to enable a user to obtain a certificate which, if granted, is conclusive as to the lawfulness of the use to which it relates. A certificate once granted is conclusive answer to any enforcement notice subsequently issued and is a conclusive answer to any other illegality which may be raised under any other statutory provision (see R v Epping Forest District Council ex parte Philcox (13 April 2000)

The Decision Letter

14. Paragraph 2 of the decision letter states:

"In this appeal the onus is upon the appellant to demonstrate, on the balance of probabilities, that the material change of use from domestic and farming use to an airfield and aircraft storage started more than ten years before the date of the notice ie on or before l5 July 1989. The decision of the High Court in Panton & Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse DC [1999] JPL 461 is a forcible reminder that a material change of use is a once-and-for-all event. There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years. On the strength of this settled law, I reach the conclusion that, if the appellant can demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before l5 April 1989, then this appeal should succeed."

Mr Hobson appeared before the Inspector. He referred him to volume 2 at page 2-3597 of the Encyclopaedia of Planning Law. He did not refer him to the case of Panton, nor did anyone else. If the Inspector had it in mind before he came to prepare his decision letter, he did not mention it.

Panton

15. Mr Panton purchased a Grade II listed three-storey mill in June 1987 from Mr Farmer, who retained the right to live in it for life. Mr Panton lived nearby and wished to use the mill to store wine for his wine business. He applied under S.191(1)(a) of the Act for a certificate of lawful use. Mr Farmer had used the mill for artistic construction/sculpting, as well as for catering, in the l960s. Mr Panton (as the judge observed) ".... promoted his appeal pursuant to every possible avenue open to him." He contended the use commenced:

(1) before the end of l963, alternatively after l January 1964, and continuing for 10 years before July 27, 1992;

(2) alternatively for 10 years prior to ll April l997, and subsisting on that date (the date of the application for a certificate).

The dates in (1) reflected the requirements under former statutory provisions and July 27 1992 was the date when new provisions in relation to enforcement and lawful development certificates introduced by the 1991 Act came fully into effect.

The Inspector appeared to ignore (1) and concentrate on (2). As a result it was necessary for the judge to examine the legislation over the periods covered by (1), namely the Town & Country Planning Act 1962, the Town & Country Planning Acts l968, l971 and l990, and the Planning and Compensation Act 1991, and to ask, ".... The question, therefore, is whether the Planning and Compensation Act 1991, introducing an entirely new basis for immunity from development control, on the basis of a "rolling" ten year period of use, removed such already accrued immunities". He answered the question thus:

"It is clear, therefore, that an immunity accrued under the previous statutory provisions was not prejudiced by the 1991 provisions .... Further, in accordance with long established principles, such an accrued planning use right could only be lost in one of three ways, by operation of law. First by abandonment, secondly by the formation of a new planning unit, and thirdly, by way of a material change of use (whether by way of implementation of a further planning permission, or otherwise): Pioneer Aggregates Ltd v Secretary of State 1985 AC 132. (Further, of course, a discontinuance order can be made under S.102 of the l990 Act)."

These observations were made in connection with Mr Panton's claim that an accrued use had been acquired in the l960s, which claim it was alleged the Inspector had failed to consider. They were not made in connection with claim (2) above, namely that for ten years up to the date of the application for a certificate, the use existing at the date of application had continued. The judge held that the Inspector had erred in not examining whether a right had accrued prior to the legislative change, which preserved accrued rights.

16. The judge also considered the words in S.191, "any existing use of buildings or other land is lawful ..." He concluded that a dormant use "can be an existing use". He earlier defined dormant use as: "... representing a use which had arisen by way of a material change of use, but was now inactive, possible for a long period of time ... The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above."

In the "Comment" by the editors of the Journal of Planning Law Reports, after the report of Panton (page 470-1), the following appears:

"The point not directly raised by the case but which could be important is the extent to which a material change of use can become lawful if the use has not been actively carried on for the full 10 years. In strict logic a "dormant" use is still in legal existence and so could be sufficient to establish its lawfulness. Yet this would mean that a local planning authority might have to issue an enforcement notice to require the sleeping use to stop: this would surely be a nonsense. The Deputy Judge stated that "an enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense."

17. I agree that the judgment is not clear on the point, but having regard to the issue which he was addressing, I doubt that the judge should be taken to have been referring to an unlawful change of use rather than an accrued right. He was considering a case in which it was being contended that a lawful use had accrued. He was dealing specifically with a submission that S.191(1) required the use to be active and not "dormant" at the date of application. He would not have considered loss by operation of law if he had been considering an "unlawful use". Further, for the reasons which will appear, if he was referring to "unlawful use", it would not have conformed with what I take to be law.

18. The combined effect of Section 171B and Section 191(2) and (3) is that after the relevant time limit has expired no enforcement action can be taken and any uses or operations become lawful. Where an enforcement notice is served, alleging a breach of planning control, its issue cannot be effective in law unless the breach alleged occurred within the prescribed time limit, because " ... no enforcement action may be taken after the end of the period ...." The rationale of the immunity is, that throughout the relevant period of unlawful use the local planning authority, although having the opportunity to take enforcement proceedings, has failed to take any action, and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. In my judgment it must follow that if at any time during the relevant period the local authority would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to the immunity.

19. Since the burden is upon the recipient of a notice to establish a defence, that burden involves establishing that at any time during the relevant period enforcement action could have been taken. Each case will depend upon its own facts. Where a material change of use without permission is alleged, issues of intensity and character of the use will be relevant, as will occasions or intervals of inactivity. According to the particular use under scrutiny, short periods of inactivity may be regarded as part of a continuing use, longer periods may not be so regarded. Warnings issued by a local planning authority, followed by inactivity, would fall for particular consideration. However, it will be irrelevant, save in cases where it is alleged an accrued right existed, to consider principles of abandonment and loss by operation of law.

20. I am left in no doubt that the Inspector was misled by his consideration of the case of Panton and was wrong to ignore paragraph 2-3597 of the Encyclopaedia which had been drawn to his attention. In my judgment the approach recommended by the editors is one which should be followed. Having regard to the terms of the enforcement notice served on the second defendant, it was obvious that the use enforced against was a use over and above the specified requirements in the notice, and for that reason, very close regard had to be paid to the evidence of the character and intensity of the present use.

21. Mr Hockman for Mr Holding, and Mr Corner for the Secretary of State, submitted that the Inspector asked himself the correct question in the first sentence of paragraph 2 of the decision letter, and that his reliance on Panton led to no error. He did ask the right question but, in my judgment, it is plain from paragraph 2 that as a result of the case of Panton:

(1) he proceeded upon the basis that once a material change of use occurs it is "a once-and-for-all-event". He therefore analysed the change which occurred in the 1980s and treated it as though it was a lawful change. The ambit of the factual inquiry he set himself was stated in the last sentence of paragraph 2 as follows:

"On the strength of this settled law, I reach the conclusion that, if the appellant can demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before l5 April 1989, then this appeal should succeed."

(2) The case before him required consideration as to whether, notwithstanding what occurred in the l980s, the present use had continued for 10 years. Because he approached the case in the wrong way, he did not consider the present use, nor the use over the relevant period, or the use in the period after the early l980s, up to l989 or 1990 in the context of the issue to which it went or with adequate precision.

The degree to which the case of Panton permeated his reasoning can be demonstrated from the ensuing paragraphs of his decision letter:

(i) In paragraph 3 he held that in the early l980s a significant commercial business of aircraft advertisements by banner towing took place but that it ceased prior to February l984.

(ii) In paragraph 4 he concluded that:

"Nevertheless, the `Sky Ads' flying advertising banners enterprise operated from this site for a significant length of time, some two years, in the early l980s"

He then (rightly) observed that such use was not incidental and concluded:

"I take the view that a material change of use of the land to an airstrip with associated storage of aircraft took place when the Sky Ads operation was based at this site, i.e. well before l5 July l989. If there have been no clear cut changes in planning circumstances between the end of l983 and the middle of l989, such as conflicting grant of planning permission or an indication that the use has at some time been abandoned, then the appeal will be allowed on ground (d).

It can be seen that the Inspector regarded two years of unlawful activity, which ceased, as amounting to a lawful use accrued over 10 years. His reasoning thereafter was flawed because he tested the effect of the evidence by reference to the concept of abandonment or loss by operation of law.

(iii) In paragraph 5 he considered the claimant's case that the change of use did not occur until late l989: "absence of planes in l986", and listing in Pooley's flight guide from l990 onwards"; and complaints from members of the public. In paragraph 6 he concluded:

"Its overall effect is to reinforce my conviction that at no time was the airfield use abandoned after the Sky Ads operation ceased. Panton and Farmer makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time. For that reason, I do not find the absence of aircraft from the l986 aerial photograph to be conclusive evidence of abandonment."

In general the cessation of an unlawful use cannot give rise to any rights. It amounts to compliance with the law. I do not rule out that in certain circumstances the "cessation" might require close examination to determine whether it is proper to regard it as "cessation".

(iv) In the rest of paragraph 6 he referred to the planning authority's case for a material change of use having occurred after April l989 and concluded:

"Overall, I can find no clear evidence of abandonment of the airfield use since the Sky-Ads operation ceased in l983-4. As a consequence, I find, as a matter of fact and degree, that the airfield operation of l983 is not materially different from the present usage of the site which has therefore continued for more than ten years."

It is said that the above conclusion, as expressed, shows that he was addressing the issue which he had to decide. It does reflect the issue he had to decide, but the conclusion was reached "as a consequence" of an erroneous approach.

Conclusion

In my judgment:

(1) Although consideration was given to the material advanced by the claimant in support of its case that the material change of use occurred after April l989, the Inspector assessed it as though the evidence went to discharging a burden upon the claimant to establish abandonment.

(2) The Inspector erred in law in treating an unlawful change of use as though it was a lawful accrued use.

(3) The Inspector applied the wrong approach to the issue before him. He should have followed the guidance in the Encyclopaedia at volume 2 paragraph 2-3597. Such an approach applied to the terms of the notice would necessarily have involved close attention to the requirements in paragraph 5, which would have assisted him in determining the present use alleged, which would in turn have fallen to be considered against the claim for the use having continued for more than 10 years.

(4) The appeal under S.289 must be allowed and the Inspector's order quashing the enforcement notice must be quashed.

(5) The second defendant's appeal against the enforcement notice must be remitted for hearing before a different Inspector.

Appeal No.2

22. The Inspector held that the building which had been erected by the second defendant was not permitted development within Class E of part l of Schedule 2 of the Town and Country Planning (Generally Permitted Development) Order 1995 on the ground that the building lay outside the curtilage of the dwelling house at the time of its construction. Accordingly the Inspector dismissed the second defendant's appeal under S.174(1)(c).

23. The Inspector went on to consider the appeal under S.l74(1)(a). He decided that the building was not an appropriate development in the Metropolitan Green Belt and therefore, in the absence of very special circumstances, the appeal under this grant did not succeed.

24. He then went on to consider whether there existed very special circumstances that justified setting aside the normal presumption against inappropriate development in the Green Belt. He applied the test set out in Vision Engineering Ltd v The Secretary of State for the Environment and Guildford Borough Council 1991 [JPL 951]. There is no allegation that he applied the wrong test. The Inspector decided firstly that the second defendant could rely on a fall-back position, in that he was likely to erect a replacement building which would be within the agreed curtilage of the dwelling house. He concluded that the harm caused by the existing building to the Green Belt would be outweighed by certain benefits he identified. He identified three benefits:

* the removal of the second defendant's Class E permitted development rights

* a planting and landscaping scheme, and

* the imposition of a limit of three on the number of aircraft kept in the building.

Mr Hobson submitted that he erred in holding that very special circumstances existed. His error was to take into account irrelevant considerations and unreasonably give weight to conditions of little or no value. More particularly, he submitted, there was no evidence before the Inspector which entitled him to conclude that the second defendant would erect another building within the curtilage, and thus to implement a "fall-back" position. Secondly, the Inspector failed to consider whether the use of any such building would be incidental to the enjoyment of the dwelling house and thus whether the second defendant had Class E permitted development rights at all. Thirdly, the Inspector took into account irrelevant considerations in that the limitation to three aircraft was not a benefit at all, given that there was evidence that no more than three aircraft would fit in the hangar.

The Fall Back Issue

25. There was a dispute in this court as to whether Mr Holding gave evidence to the Inspector to the effect that he would erect another building within the curtilage of his garden if he was required to take down the offending building. Mr Hobson maintained that the evidence was not given and relies upon a contemporaneous note taken by his junior of the evidence given by Mr Holding and, in particular, cross examination by Mr Hobson. The note records no evidence to the suggested effect. I am bound to say that had evidence to the effect been given I have little doubt that Mr Hobson would have cross examined the second defendant on the issue. Thus the question is whether the note is comprehensive and accurate in all respects. Anne Esplen, the Principal Planning Officer for the claimant, has made a witness statement. She states "... there was no evidence before the Inspector that the appellant intended to rely on such a fall back." There is evidence from Mr Hickling, the second defendant's planning consultant, and from Mr Holding himself, that such evidence was given. There is no dispute that counsel who appeared for Mr Holding argued from the outset, and as I understand it from counsel, made it perfectly plain by way of argument that that was what would happen, or was very likely to happen.

26. If Mr Holding gave evidence that he would erect the building in the curtilage of his garden, the Inspector does not record the fact, nor does he record any view that he formed about that evidence. The Inspector stated:

"15. It was argued forcibly on the part of the appellant that, if this enforcement notice were upheld and the building were demolished, the appellant could erect a building, within the generally agreed curtilage of the dwelling house, of the same size in a more prominent and therefore less desirable location without the need for planning permission. For such a fall-back position to be a material consideration, there has to be a realistic prospect of that alternative scenario being put into effect. It is clear from the judgment in New Forest District Council v The Secretary of State for the Environment and Shorefield Holidays Limited 1996 JPL 935, where a number of earlier authorities were reviewed, that only where there is a real possibility of the fall-back situation being carried out does this become a material consideration to be taken into account by the decision maker."

In the next paragraph the Inspector went on to state:

"16. There is no argument that, within the terms of Class E of part l of Schedule 2 to the Town and Country Planning (General Development Procedure) Order 1995, a substantial building covering up to 50 per cent of the generous rear garden of the dwelling house at the appeal site could be erected to an overall height of four metres with a ridged roof without the need for planning permission. I have little doubt that any such structure would be visually less desirable than the present unauthorised building, as it would not be seen against the backdrop of the original barn when viewed from the east. In normal circumstances I would consider the likelihood of a structure of this type being erected to be remote, but the appellant is clearly a man with considerable financial resources at his disposal. In this particular situation, I have every reason to believe that he would carry out such a threat."

27. Mr Hobson submits that the starting point for determining whether there is a real possibility of an event occurring in the future at the hands of a particular individual, is the receipt of direct evidence from the person in question. The second defendant had not intended to give evidence to the Inspector, but according to the evidence in this court, this issue was one, among others, which caused him to be called. Thus although there was no concession on the point raised by Mr Hobson, the argument was not contentious. I have no doubt, as a general rule, that the starting point for proof of such a fact is more likely than not to require evidence from the person in question. The weight of the evidential burden will vary according to the particular facts, but it is to be noted that in this case the Inspector himself regarded the prospect of a structure such as this, being erected by a property owner in a garden of a dwelling house, to be remote. That he had evidence from Mr Holding on other issues is not in dispute, and in fairness to the Inspector it could be said that he would have some opportunity to form a view as to the temperament and character of Mr Holding in the course of that evidence. Nevertheless it has to be said that, having regard to the issue to which such evidence was relevant, the giving of it had a substantial self-serving purpose and proper consideration of its impact would require a careful assessment of whether it had been asserted simply to suit the purposes of the case. What leads me to conclude that the Inspector gave inadequate consideration to this topic and came to his conclusion, without considering all the material relevant to the issue, which was or could have been, before him, is that upon a proper analysis his reason for concluding that there was a real possibility of the fall-back position being carried out, was based upon two factors: namely,

(1) that it was argued forcibly on the part of the appellant, and

(2) that he was clearly a man with considerable financial resources at his disposal.

Had the Inspector heard evidence and been impressed by the tenor of it on this matter, I would have expected him to have recorded that as part of his reasoning. If he did hear evidence on the topic but found it so lacking in persuasion or weight that it did not bear upon his decision, as his decision letter would indicate, then he should have weighed it in the balance against the forcible argument that he had heard and the considerable means that he concluded the appellant had.

28. I have therefore concluded that Mr Hobson's complaint under this head of the Section 288 appeal is made out.

29. In anticipation of the court so concluding, Mr Hockman submitted that to allow the appeal on this basis would be a wholly pointless exercise, because there was evidence from Mr Holding before this court, from which the court should conclude that it was obvious that this was what Mr Holding would do. That he would give this evidence at the fresh appeal and that the appeal would be bound to be successful on this ground. If remitted, the outcome, he submitted, would be inevitable. I reject the submission. It would be quite wrong for this court to speculate, as though it was the fact finder, on the likely outcome of a fact-finder's decision in relation to evidence which will have to be given at the fresh hearing, when for all the reasons I have stated above, careful scrutiny of such evidence will be necessary in order to determine whether or not there is a real possibility that he will do what he is presently threatening to do.

The construction of a hangar incidental to enjoyment of the dwelling house

30. The Inspector was required to consider the test for Class E development and did so at paragraph 8 of his decision letter, where he stated:

"... The question remains whether the building is within the curtilage of the dwelling house on the appeal site and, if so, whether it is put to a use that is incidental to the enjoyment of a dwelling house as such. If the answer to either of these questions is no, then planning permission is required and both appeals will fail."

He determined that the building was not within the curtilage and therefore did not consider the second question, namely whether the building was incidental to the enjoyment of the dwelling house on the appeal site. When he came to consider the fall-back position, it is accepted that he made no reference at all to whether the building, if it was erected in the rear garden, would be the erection of a building which was incidental to the use of the house as a dwelling house. Putting the matter at its lowest, the facts would appear to give rise to an issue as to whether or not the use of such a building as a hangar was a commercial one, not incidental to the enjoyment of the dwelling house, although I acknowledge there was material which pointed towards a conclusion that Mr Holding used his aircraft in the same way as people use motor cars, which require a garage. Both the defendants submit that it would be wrong to conclude that the Inspector, having referred in his decision letter to the relevant permitted development class, namely Class E in part 1 of Schedule 2 to the General Permitted Development Order 1995 in the paragraph before, forgot it by the time he came to the later part of his decision. I am uneasy about this aspect of the decision, for as Mr Hobson pointed out, in considering the appeal and the building which had been erected, he stated:

"I take the view that the building, the subject of this appeal, is a substantial structure in its own right, while its use for the keeping of the appellant's private aircraft, used for business as well as domestic and pleasure purposes, is not a sporting or recreational activity. In these circumstances, I am satisfied that the laying of a hard standing and concrete base and the erection of a metal framed building on the concrete base is not development that is appropriate in the Metropolitan Green Belt."

I do not accept, as Mr Hobson submitted, that in that finding he was concluding that the existing building, subject of the appeal, was not being used for purposes incidental to the occupation of the dwelling house. But having identified on the material before him a connection with business use, one would have expected, if consideration was being given to the issue as to whether the threatened building would be incidental, some reference to or consideration of the issue, for it has to be said it was clearly part of the local planning authority's case.

31. In my judgment there are grounds for concluding, and I so conclude, that the Inspector's consideration on this question was inadequate and the reasons for his conclusion being sufficiently in doubt, the Section 288 appeal should be allowed in this respect.

Benefit

32. I do not regard the Inspector's conclusions as outside the evidence which was before him and would not have allowed the appeal on this ground.

Conclusion

33. The appeal under Section 288 is allowed and the Inspector's orders consequent upon the decision letter are quashed.

MR JUSTICE NEWMAN: For the reasons which are contained in the judgment, which I now hand down, which must be now read as altered by deletion at paragraph 33 the words "I will hear counsel" to the end of that sentence, to the word "court", are to be treated as deleted. The words which appear at the end of paragraph 21 under the heading "Conclusion" and in the fifth subparagraph under the conclusion the words "hearing before a different Inspector" should be deleted and the word "redetermination" be substituted.

MR HOBSON: I am much obliged, my Lord, and in the circumstances I apply for an order for costs against the first defendant, the Secretary of State. My Lord those costs have been agreed between the Secretary of State and my clients in the sum of £10,000, and I apply for an order in that amount.

MR JUSTICE NEWMAN: Yes.

MR CORNER: My Lord, I can confirm that has been agreed. So, my Lord, I have no further observations on the matter of costs. I do, however, wish to ask for permission to appeal to the Court of Appeal. Would it be convenient if that were taken now, my Lord?

MR JUSTICE NEWMAN: Of course.

MR CORNER: Thank you very much. My Lord, I can deal with it quite concisely. There were of course two appeals before your Lordship, as your Lordship has described them. There was the section 289 appeal (Appeal No 1) and the section 288 appeal (Appeal No 2).

My Lord, I ask for leave to appeal in respect of both of your Lordship's decisions, and with your leave I will go on to say why?

MR JUSTICE NEWMAN: Yes.

MR CORNER: My Lord, so far as the first decision is concerned, that is the section 289 appeal, my Lord the first issue that I raise is what I call, for shorthand, the Panton issue. I think if I use that description your Lordship will know instantly what I mean without my rehearsing the arguments which I made to your Lordship at some length.

My Lord, the point is of course what is the right approach to be taken in circumstances where one is considering a use which has been commenced but when the use has not physically continued to take place throughout a period before the ten years' immunity period has elapsed. My Lord, just by way of example I could take your Lordship to paragraph 19 of your Lordship's judgment, if your Lordship were just to cast an eye over that paragraph.

MR JUSTICE NEWMAN: Yes.

MR CORNER: I think that paragraph goes some way to encapsulating the point that was at issue. My Lord, as your Lordship has made clear in the judgment the matter was one of some not only importance I would suggest, but also one which is not included by authority. I would suggest that it is an important point of principle, my Lord, as to how one deals with uses before the ten year period has elapsed; whether indeed it is right to consider principles of abandonment or not. So, my Lord, that is the first point.

MR JUSTICE NEWMAN: Are you, Mr Corner, referring to a straight forward case of regard being paid to a particular period of in excess of ten years, but not substantially in excess of ten years?

MR CORNER: No, my Lord, I am thinking in particular of the case that we had here, where a use had been instituted/ commenced and then before the elapse of a ten year period from its institution there had been a period of either non-use, or perhaps non-use. I will come back to the "perhaps non-use" point in a moment, my Lord.

MR JUSTICE NEWMAN: What I am just trying to elicit for the moment is whether the point you are making is addressing a case, for example, as there might have been here, and there might still be here, but it was not the one which was considered. Namely, assume that the finding of the Inspector in this case stands to the effect that there was some commercial flying activity by way of Sky-Ads in the early 80s, then it is possible that if you examine a period of time from the early 80s through to the early 90s that you can in any one case - and this case might be one, but it is a matter for investigation - one might end up at a conclusion in which you say 'Well, for the ten years between the early 80s and the early 90s there was indeed intense use on a day-to-day basis and there can be no doubt that during the period of those ten years a material change of use occurred and that thereafter, in respect of that use, no enforcement notice can be served.'

MR CORNER: Yes.

MR JUSTICE NEWMAN: Now, if you then serve an enforcement notice, as at the date served in this case, the argument would be, in effect, that there was an accrued right, such right having been proved in the early 90s.

MR CORNER: Yes.

MR JUSTICE NEWMAN: Suppose, not this case, but suppose in the case in question there had been very little activity since the early 90s through to the time when the enforcement notice is in fact served, then there would be different issues. They may be issues which in this case need to be investigated, but I am not at the moment sure why you say that there is any point of difficulty. What difficulty is presented by, what seems to me to follow as a fundamental principle from the enforcement notice, is that you simply look at the periods, and you have to determine how long things have been going on, but examine them carefully.

MR CORNER: I do not seek to, as I said earlier on, rehearse the arguments which I put to your Lordship before, but your Lordship I simply say that there was debate before your Lordship as to how one deals with the situation before the ten year period has elapsed. How one looks at that situation, and whether the approach the Inspector took was correct. My Lord, you held that the approach the Inspector took was not correct. I seek to argue in the Court of Appeal that it was and that he correctly applied the principles which he set out: abandonment, change of use and so forth to that period. That is the point I seek to make.

MR JUSTICE NEWMAN: All right, I understand. That is the first appeal.

MR CORNER: My Lord, just secondly, if I may. So far as the first appeal is concerned, I do just refer to the fact that there was - as we argued, as the first and second defendants argued before your Lordship - evidence in any event of the continuation of the use during the 80s and after the Sky-Ads operation had ceased. My Lord, I sought, and my learned friends sought, to justify the Inspector's decision by reference to that evidence in any event. My Lord, I would wish to seek to argue in the Court of Appeal that point also. For those reasons, whatever decision might be taken so far as the first point is concerned, the Inspector was entitled to reach the decision he did.

My Lord, that is the first appeal. I would now come to the second appeal, if I may. My Lord, I have really two points to make on this. The first point relates to the fall-back issue, which is in your judgment at paragraph 25 onwards. My Lord, the concluding paragraph is really paragraph 27, where your Lordship was dealing with the question of whether one would, as a general rule, have as a starting point a requirement of evidence from the person in question as to the possibility of implementing the fall-back position. Your Lordship accepted that.

Your Lordship then at the foot of the page, on which paragraph 27 begins, your Lordship said:

"What leads me to conclude that the Inspector gave inadequate consideration to this topic and came to his conclusion, without considering all the material relevant to the issue, which was or could have been, before him, is that upon a proper analysis his reason for concluding that there was a real possibility of the fall-back position being carried out, was based upon two factors..."

Then your Lordship names them. Then you say:

"Had the Inspector heard evidence and been impressed by the tenor of it on this matter, I would have expected him to have recorded that as part of his reasoning. If he did hear evidence on the topic but found it so lacking in persuasion or weight that it did not bear on his decision as decision letter would indicate that he should have weighed it in the balance and so forth."

My Lord, I seek to make simply two points in relation to that. The first is, my Lord, that the question of whether the Inspector should, having heard evidence, have referred to it specifically and dealt with it specifically. My Lord, I would wish to argue that it was not necessary for him to do. Secondly, my Lord, so far as -- there was a dispute, you will recall, about whether evidence was in fact given. My Lord, you referred to the case of Crane (?)--

MR JUSTICE NEWMAN: Yes.

MR CORNER: --R v Camden London Borough Council ex parte Crane, my Lord, as a case which assisted in resolving any such disputes. My Lord, I would wish in the Court of Appeal also to refer to that case and argue its relevance.

MR JUSTICE NEWMAN: I thought we had all agreed that that did not have much bearing on it, but there we.

MR CORNER: I do not think that we did.

MR JUSTICE NEWMAN: There we are. That was certainly the view I formed.

MR CORNER: My Lord, there is one other point, if I may, and that is in relation to the construction of the hangar incidental to enjoyment of----

MR JUSTICE NEWMAN: Yes.

MR CORNER: My Lord, you deal with that in your judgment at paragraph 30 onwards. Again the question of course was whether the Inspector had taken into account the requirements that the use of this structure be incidental to occupation of a dwelling house. My Lord, you will see towards the end of your paragraph 30 that your Lordship, in essence, I paraphrase, concludes that the Inspector should have dealt with it specifically. My Lord, I would wish to argue that that is to require too much of the Inspector in terms of the specificity of the decision letter.

My Lord, that nearly exhausts the points that I have. There is just one other point to which I would just draw attention, if I might, that relates to Appeal 1.

If I can take your Lordship back to paragraph 6 of your judgment, this is part of the introductory material. My Lord, in this paragraph your Lordship refers to the enforcement notice in Appeal 1 and to the breach of planning control alleged. Then your Lordship goes on to refer to paragraph 5 of the enforcement notice headed: "What you are required to do", I wonder if your Lordship sees that?

MR JUSTICE NEWMAN: Yes.

MR CORNER: My Lord, you record in that paragraph of your judgment submissions of the parties that the requirements of the enforcement notice do not assist in interpreting the breach of planning control alleged."

Your Lordship does recall that. My Lord, that is a submission that I would wish to maintain in the Court of Appeal. The reason I put it in that way is that I am not sure that it forms a part of your judgment, my Lord, to disagree with that matter.

MR JUSTICE NEWMAN: I think you have to read on.

MR CORNER: Yes.

MR JUSTICE NEWMAN: You have to read on, let me see where---

MR CORNER: Well, my Lord, certainly, if and to the extent that it did, I would wish to raise that also in terms of Appeal 1.

MR JUSTICE NEWMAN: Yes. Well there is what was a conclusion that you cannot. This is again expressing it not in the terms of the judgment for the purposes of simply eliminating. Certainly, I took the view that in order to properly determine what was the use at that time, namely the present use, when the enforcement notice was served you had to have regard to paragraph 5.

MR CORNER: Well, my Lord, I am looking at the conclusions to your judgment on Appeal 1, at conclusion 3 in particular.

MR JUSTICE NEWMAN: Yes, there we are.

MR CORNER: My Lord, reading that I was not absolutely clear that that was a necessary part of the conclusion leading to the success of Appeal 1, my Lord. But, my Lord, insofar as it is I would wish to take that point also. Thank you very much.

MR JUSTICE NEWMAN: Thank you very much. Mr Hockman?

MR HOCKMAN: My Lord, we would equally seek permission to appeal on a similar basis, but may I briefly set it out in my own words?

MR JUSTICE NEWMAN: Yes, of course.

MR HOCKMAN: My Lord, again dealing with what Mr Corner called Appeal 1 and then with Appeal 2. So far as Appeal 1 is concerned, as we see it at the moment, there are perhaps three headings upon which we would seek permission to appeal and which we would like to raise hereafter.

The first, and perhaps the most important heading is what Mr Corner has called the Panton point. I would I think prefer to call it the "continuity point". It does arise, as Mr Corner has pointed out, in paragraphs 18 and 19 of your Lordship's judgment. If I can ask your Lordship to look at those again. Mr Corner referred to 19, I think it is the last sentence of 18 and the first sentence of 19, when your Lordship says:

"...that if at any time during the relevant period the local authority would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to the immunity.

19. Since the burden is upon the recipient ... and burden involves establishing that at any time during the relevant period enforcement action could have been taken."

Now, my Lord, if I may respectfully say so, your Lordship is there articulating with the utmost clarity and succinctness a proposition of law, what this case plainly does raise, and I think it may have been your Lordship who first spotted that and articulated it during the hearing, it plainly raises the question whether indeed that is right. I think the point that both the Secretary of State and our client wish to raise in the Court of Appeal is whether indeed it is right.

Now, my Lord, in order to show not only the importance of it, which we would say is self-evident, but if I may put this as tactfully as I can, the reasons why, arguably at least, it might not be right, can I simply mention the following matters? This whole discussion stems, does it not, from section 171(b)(3), and your Lordship has helpfully set this out in paragraph 12 and it is 171(b)(3) which is the provision which, in relatively few words, creates the immunity defence.

"No enforcement action may be taken after the period of ten years beginning with the date of the breach."

So that the question, we would submit, and there may be other ways of putting it, but one way of putting it is certainly this: is it right to imply into that provision a requirement of continuity as your Lordship has done? Something for which, we would say, there is no apparent express warrantee in the words of the statute for which, on any view, there is no decided authority, and which we would respectfully say, moreover, is actually not supported by the passage in the Planning Encyclopedia itself, which your Lordship sets out in paragraph 6.

In none of those sources in the legislation - in case law, in the notes in the Encyclopedia - does one find express support for what your Lordship has held. Indeed, I think it would be fair to say that your Lordship's conclusion derives from a consideration of principle----

MR JUSTICE NEWMAN: Basic principle. A question of simply basic principle. This is an immunity, otherwise actions are unlawful at the time they occur. If they cease you have no rights and unlawful activities should not, as a matter of principle, give rise to rights save as to statute as laid down, and that means ten years. I mean that is the argument.

MR HOCKMAN: My Lord, we would say that it is a classic (inaudible) where the Court of Appeal should at least have the opportunity of hearing debate on both sides and deciding whether it agrees.

MR JUSTICE NEWMAN: I have your point.

MR HOCKMAN: It may very well do so but we would like to have the opportunity of arguing. My Lord, the second and third points are probably not as clear as that in terms of an application for permission, but I mention them briefly.

The second point I put slightly differently from Mr Corner, and it is this question of the different parts of the enforcement notice. As we see it, we were not at a deviance about this with Mr Corner, your Lordship has undoubtedly held, probably expressly but at least by very clear implication, that in interpreting the notice in terms of the breach against which it is aimed you are entitled to take into account and look at the steps required to correct the breach. What you could do relevantly for present purposes is you can use the latter part of the notice as a tool of construction so as to narrow the scope of the breach against which you say the notice is aimed thereby, no secret about it, making it more difficult to establish the immunity.

Now that approach undoubtedly runs all the way through your Lordship's decision-making on this, and I think your Lordship effectively said as much to Mr Corner a few moments ago. We submit again there is an interesting point there. Again, it is not a point on which, as far as we know, there is any authority. Again I suspect, if I may put this respectfully, your Lordship would say it is a matter of principle; it is something that one is entitled to do on the basis of the policy of the Act. For very simple reasons we suggest it is a matter that the Court of Appeal ought to have the opportunity of considering.

My Lord, the third point - and again I put it, it is Mr Corner's point put in my own words - is we would simply want to say that even if we are wrong on points 1 and 2, even if the Court upholds your Lordship on both those legal points, we would want to say that on the primary fact as found by the Inspector, which have not in themselves been subject to challenge, the conclusion that he reached was the inevitable conclusion in any event. That is a point which involves looking at the facts and looking at the terms of the letter. It is a more conventional point in the context of this arena, and by itself probably would not be as strong as the first two. But we would invite your Lordship to accept that if there are two solid points of law then this further point is one that the Court of Appeal should also have the opportunity to consider so that it has the whole matter before it.

My Lord, on the other appeal our submission there is simply this, and I put it as one single point, although it probably should be subdivided. In essence, your Lordship's approach on the hangar was that the Inspector might have been right or he might have been wrong, but he did not really articulate his position as fully as he might have done. I think what we would want to raise is whether his failure to articulate his approach in this case could really be said to justify quashing on the basis that the statute requires. That is either outside his powers or not complying with relevant requirements to the prejudice of the local authority.

The issue of law that we would want to raise is whether such taciturnity, as one might find in the decision in one or two areas, could it really be said to give grounds for legal intervention. That is the question that we would want the Court of Appeal to consider in those areas.

MR JUSTICE NEWMAN: Thank you very much. Yes, Mr Hobson?

MR HOBSON: My Lord, I would seek to resist the application for leave to appeal in this case. Your Lordship has been reminded by my learned friend, Mr Corner, that there are two appeals before the court, obviously you will wish to consider in the case of each of them whether they justify leave to appeal being granted.

My Lord, I do not propose to rehearse the arguments again. My Lord, in my submission this is not an appropriate case in relation to either appeal for further appeals to the Court of Appeal. With regard to the section 289 matter, my learned friends have focused upon the role of the case of Panton, and clearly that was a case which figured crucially in the Inspector's decision. Your Lordship has not found there to be an error in the Panton decision. Your Lordship is able to reconcile that; it is paragraph 17 of the your Lordship's judgment. The point is that in this case the Inspector misunderstood it and misapplied it considering its role in his decision letter. As a consequence of that failure on the Inspector's part properly to understand that case, he has then fallen into error and has not actually considered the evidential material he ought to have done in relation to the period after the cessation of Sky-Ads in 1989.

So, in my submission, there is not any issue of principle arising in relation to the Panton case, and the decision letter in this case remains clearly and plainly flawed due to that gaping whole in the evidential material that the Inspector ought to have considered, and which he did not. So I submit in the light of those errors there is no serious prospect of success at all in relation to any further appeal.

My Lord, with regard to the section 288 appeal in this case there are substantial flaws that were disclosed in the Inspector's approach. He decided to allow the appeal on the narrowest grounds, the fall-back position he had already decided was inappropriate development on the Green Belt. On this very narrow issue he allowed the appeal. He did so, it was submitted, on the basis of no evidence. Your Lordship has identified the only material that he referred to but the purport of the evidence was rejecting that.

So far as the application to the Crane case is concerned, as was shown to your Lordship there was material put before the court on the claimant's behalf, direct evidence of what had transpired at the inquiry. There was nothing put in on the other side that was able to rebut that, so the Crane case, even if it had any application at all, the test did not arise in the circumstances of this particular case. There was, in any event, in relation to the other aspect no consideration given by the Inspector to one crucial aspect of the matter, which is whether or not this building conforms to the requirements of the General Permitted Development Order, whether it was reasonably acceptable as a dwelling house. On any view that was a critical issue in the case and one that the Inspector should not have ignored, as he did. So in this regard as well, the section 288 matter, there is no reasonable prospect of success either.

For those reasons I would invite your Lordship to reject the applications for leave to appeal.

MR JUSTICE NEWMAN: I have before me two applications for permission to appeal to the Court of Appeal in respect of the judgment I have just handed down. So far as the section 289 appeal is concerned a number of points are made, but two I emphasise: (1) the judgment lays down a point of general importance. It is said that that point is hitherto without direct authority and, therefore, it is appropriate that the Court of Appeal should look at that; (2) it is said that so far as the application of the principle to this case is concerned and, in particular, by reference to the case of Panton, that there is a free-standing ground for leave being granted as well.

I will take the second point first. In my judgment there can be no doubt that the Inspector approached the case having regard exclusively to the case of Panton. It is not being submitted that the case of Panton was relevant before his determination because it is no doubt acknowledged that the case of Panton was concerned to consider accrued lawful rights, and not simply a case in which unlawful activity had prevailed over a period of 10 years.

As to that Mr Hobson submits that whether or not the point of principle stands, in effect the Inspector's decision cannot because he plainly did not assess the material before him having regard to the right test. Underlying the right test is the passage in the Encyclopedia which I set out in the judgment, which again is without express authority.

In my judgment, the point of principle is clear and it simply derives from the purpose of the statute providing immunity after ten years of unlawful activity. I recognise, however, that the matter has not received the consideration of the Court of Appeal. On its own I would not have been minded to grant permission on that point. However, taken in connection with the point in connection with Panton, ultimately my decision is that on the first appeal under section 289 it is a matter which should be looked at by the Court of Appeal. I therefore grant permission in relation to that.

So far as the section 288 appeal is concerned, the points are very much shorter. The failure which in law is at the heart of the judgment in this regard is, in essence, the success of a reasons challenge. In my judgment the application in respect of the section 288 appeal should be refused. But, of course, the matter can be reviewed on application to the Court of Appeal.

MR CORNER: My Lord, I would just raise one further matter in the light of your Lordship's determination. My Lord, normally we would have 14 days in which to review the matter before the Court of Appeal. It is within your Lordship's discretion to extend that time, and I wonder whether you would see fit to extend that to 28 days? There are matters of some complexity here, and as far as one can see there would be no prejudice to anyone from a short extension in those terms. I do not know whether my learned friend takes the same view but that is the application I would make.

MR HOCKMAN: It would be very helpful, my Lord.

MR HOBSON: I have no observations whatsoever on this, my Lord.

MR JUSTICE NEWMAN: 21 days.

MR CORNER: Thank you very much.

MR JUSTICE NEWMAN: Thank you all very much.

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