England and Wales High Court (Administrative Court) Decisions

Ramsay v. Secretary for the State for the Environment Transport and The Regions And Suffolk Coastal District Council [2001] EWHC Admin 277 (11th April, 2001)

Case No: CO/4029/2000

Neutral Citation Number: [2001] EWHC Admin 277

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 11^th April 2001

MR JUSTICE SCOTT BAKER:

1. There is before the court an appeal under Section 195 of the Town and Country Planning Act 1990 ("the 1990 Act"). That appeal is against a decision of a planning inspector appointed by the first Defendant who upheld the second Defendant's refusal to grant a lawful development certificate ("L.D.C"). The Claimants had asked the second Defendant to certify as lawful for planning purposes their use of land at Hill Farm, Rushmere St. Andrew, Ipswich ("the appeal site") for the purpose of vehicular sports and leisure activities for a period not exceeding 28 days in any one calendar year. That application was made under Section 192 (1) (a) of the 1990 Act.

2. The planning history of the appeal site is as follows. In August 1988 planning permission was refused for the proposed use for a motor cycle scramble/motor cycle track for practice only. In September 1989 planning permission was refused for change of use to a track for sports and leisure use by off-road vehicles. This use was operating without permission and enforcement notices were served on 23 January 1990 to stop it. Appeals against these notices were dismissed on 27 September 1990 and a subsequent appeal to the High Court was also dismissed. Engineering operations had been undertaken on the appeal site sometime in the late 1980's in order to create a track for sports and leisure use by off-road vehicles. Those operations included the creation of banks, depressions and jumps which have remained to this day. After proceedings in the Ipswich Magistrates Court in 1992, the use of the site for vehicular sports and leisure activities has not recurred.

3. On 16 February 1995 the Claimants applied for a L.D.C for;

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

This was refused. The appeal to the Secretary of State was dismissed and subsequent appeal to the High Court was also dismissed in 1997. Meanwhile, on 10 October 1996, the Claimants had submitted an application relating to an adjacent parcel of land immediately to the east of the site. This sought a L.D.C for use of the land in identical terms. After initial refusal the second Defendant granted a L.D.C on 27 October 1997.

4. On 21 April 1998 the Claimants applied for a L.D.C in respect of the operational development that had taken place on the appeal site in the late 1980's i.e. the banks, depressions, jumps etc. The second Defendant granted this on 25 September 1998. The certificate referred to:

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

At the same time it refused to grant the L.D.C which is the subject of the present appeal. That application had been made on 10 June 1998 and was in the same terms as previously for:

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

The Claimants appealed against the refusal and there was an inquiry on 22 August 2000. The decision letter dismissing the appeal is dated 25 September 2000.

5. By Section 191(2) of the 1990 Act a proposed use of land is lawful for planning purposes at any time if:

a) no enforcement action may then be taken in respect of it (whether because it does not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

b) it does not constitute a contravention of any of the requirements of any enforcement notice then in force.

6. By Section 57 (1) of the 1990 Act planning permission is required to carry out any development of land. It is not disputed that the proposed use of the appeal site for the purpose of the vehicular sports and leisure activities would involve development i.e. because it would mean a material change in the use of the site (Section 55 (1)). But the Claimant's case is that (i) they do not require express planning permission to use the appeal site for the proposed use for up to 28 days in any one calendar year because planning permission for that temporary use has been granted by article 3 (1) and class B of part 4 of the 2nd Schedule to the General Permitted Development Order 1995 ("the G.P.D.O") and (ii) their proposed use of the appeal site to the extent authorised by the planning permission granted by the G.P.D.O does not contravene the enforcement notices because to that extent the proposed use would not be one which contravenes Part III of the 1990 Act.

7. In short, the Claimants contend that their proposed use of the appeal site satisfies Section 191(2) of the 1990 Act and is lawful, because it has the benefit of planning permission granted by the G.P.D.O and does not contravene the enforcement notices which remain in force. If they are correct in their first contention i.e. that planning permission has been granted by the G.P.D.O, then it is accepted that their second contention follows as a matter of course.

8. I should mention in passing one issue that was before the inspector and that is whether it was open to the Claimants to make a further application for a L.D.C in the light of the earlier unsuccessful application. The inspector rejected the contention of issue estoppel, pointing out that there had been physical changes to the appearance of the appeal site in that most of the paling fence and posts with nylon rope marking part of the course had been removed. There had thus been a material change to the previous inspector's finding of fact, and his finding of fact was an essential foundation for his determination. This conclusion is accepted and it is not disputed the Claimants were entitled to apply again for a L.D.C.

9. Furthermore, the inspector drew a distinction between the appeal site and the land to the east, because whereas the appeal site had undergone specific engineering works that remained a permanent feature and retained the appearance of a facility for vehicular sports even when no activities were taking place, the land to the east looked like a field in agricultural use.

10. Article 3 of the G.P.D.O provides:

(1) Subject to the provisions of this order......... planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.

It is not necessary to recite the remainder of Article 3.

11. Part 4 of the 2^nd Schedule is headed "Temporary Building and Uses." Class B describes the permitted development as:

B. The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more than 14 days in total may be for the purposes referred to in paragraph B2.

Paragraph B1 then excludes certain development but is not relevant in the present case. Paragraph B2 lists (a) the holding of a market and (b) motor car and motorcycle racing including trials of speed and practising for these activities. Neither is directly relevant to the present case.

12. The critical issue in the present case relates to the distinction drawn in planning law between on the one hand a temporary (or occasional) change in the use of the land from its (permanent) (or normal) use and, on the other, a permanent change in the use of land from a single to a mixed use of which one element is characterised by activities which are intermittent or seasonal in nature. If the Claimants' proposed use falls within the former category, then it is authorised by the G.P.D.O, whereas if it falls within the latter category then express planning permission is required to authorise it.

13. The essence of the Claimants' case is that the intended use will not take place for more than 28 days in any one calendar year and that in between events the site would revert to agricultural use with the physical appearance of the area remaining unaltered. Therefore, the case falls squarely within the G.P.D.O. It would be a temporary use taking place on no more than 28 separate and discrete occasions each year. No permission is required. The Claimants' difficulty is that following each of the 28 occasions, although the use of the land reverts to grazing the land nevertheless retains features that are referable to the vehicular sports and the leisure activities. As the inspector said, the land remains grassed and it would be possible for sheep to graze on it, but it retains physical features identified with the previous unauthorised use. For the most part, the route of the track/circuit can clearly be seen. The various earth banks depressions and jumps have been created by the excavation and relocation of soil. These amount to permanent physical alterations which have materially changed the character and appearance of the land. These features will not be removed between events, and on days when the use is not taking place the site will still have the appearance of a site created for a vehicular sport and leisure activities.

14. Mr Simon Bird, for the Claimants, submits that in assessing whether a proposed use falls within Part 4 class B the existing lawful character and appearance of the land is irrelevant. The starting point is the land in its existing form. The principle issue, he submits, is the duration of a proposed use and of subsidiary relevance are any new effects on the character and appearance of the land which would result from the proposed temporary use. It is the lawful form of the land which sets the lawful character and appearance of the land against which any additional changes resulting from a change of use has to be assessed. This, he says is consistent with the distinction drawn by the Act between operational development and material change of use (see Sections 55 (1) and 336 (1) of the 1990 Act). He fortifies his submission by pointing to the fact that land, as defined in Section 336 (1), means:

"any corporeal hereditament, including a building, and, in relation to the acquisition of land under Part IX includes any interest in or right over land. "

Land therefore means the land in its existing lawful form and includes any lawful additions, alterations or accretions. Turning to the appeal site, its lawful form includes the excavated vehicle track, raised banks and jumps because, per Section 191 (6) of the 1990 Act, following the grant of the L.D.C on 25 September 1998, the lawfulness of the operations leading to their formation is to be conclusively presumed.

15. Mr Bird's argument is that if one does take into account in a case such as the present the existing lawful character and appearance of the land when determining whether the use under consideration is occasional or normal, the effect will be to exclude many accepted temporary or occasional uses from Part 4 class B. He says there are many cases where the existing topography of the land makes it especially suitable for a particular purpose for example:

* a quarry for off road vehicle trials.

* a redundant airfield for a Sunday market.

* gravel workings for water sports.

* archaeological remains e.g. an amphitheatre for summer entertainment.

16. He submits it is duration coupled with the extent of the new ancillary physical changes, and whether or not those are in reality indications of a permanent use, which are relevant.

17. Mr Bird says it was not possible for the inspector to conclude that the existence of the changed land form meant there was an existing permanent mixed use. Accordingly, the land form would not prevent the reversion to agricultural use in accordance with Section 57 (3) of the 1990 Act after each day of temporary use. So there was no basis in law or fact for the inspector's conclusion that the use of the land for a temporary period would amount to a permanent mixed use. The inspector identified nothing beyond the lawful appearance of the land to justify her conclusion. Also, he says, there is no logic in planning terms. If the physical appearance of the land is a constant, what justification is there for preventing its temporary use for a purpose for which it is ideally suited? Intention is not relevant in planning law. Why the land form was changed, indeed the fact that it has been changed is irrelevant. Furthermore, any temporary user always utilises some permanent feature of the land. It is inevitable that the land has to be suitable for the use.

18. The Inspector approached the problem in this way. Since the previous inquiry there had been physical changes to the appeal site in that the fences, ropes and tyres had been removed. The land remained grassed and it was possible for sheep to graze on it, but it retained the features associated with the unauthorised use identified by the previous inspector. As I have said, the route of the track or circuit was still largely visible as were the man-made banks depressions and jumps. These features were permanent. They would still be present when events were not taking place. She found that as a matter of fact and degree, in the light of the existing character and appearance of the land the reintroduction of the vehicular leisure use would amount to a permanent, though intermittent, use. Accordingly it would be subject to the requirements of the effective enforcement notices. As a temporary use it would, of course not.

19. I turn therefore to the authorities to see what assistance can be found as to the distinction between those cases that fall within the G.P.D.O and those that do not. The first case is Webber v Minister of Housing and Local Government [1968] 1 WLR 29. The owner of a field had used it for some years without planning permission as a camping and caravan site from Easter until September and in the winter months for grazing sheep. The planning authority served an enforcement notice alleging a material change of use and requiring the removal of the caravans, tents and dormobiles. The owner lost on appeal to the Minister and thence to the Divisional Court. It held that the two uses, winter and summer, were different and entirely separate, and that there was a material change of use each time one use was ended and another begun. The Court of Appeal allowed the appeal holding there could only be a material change of use if there was a change of use from the "purpose" or " purposes" for which the land was normally used. Where purposes for which the land was normally used were seasonal, whether mutually exclusive or not, the normal use could only be ascertained after comparing the manner in which the land was used from year to year. On the facts, the normal use was for the purpose of a caravan site in summer and for agriculture in the winter and, as the field had been so used for over 4 years, service of the enforcement notice was too late. Lord Denning M.R. said at p.32:

"By way of contrast from the "normal use", there is "occasional use" of piece of land. This arises when it is used on occasions for a purpose other than its normal use, such as for a football match, a flower show or a fete."

Diplock L.J. at p.34 observed that in ordinary parlance land may be used for two purposes and that either or both of these may be intermittent or seasonal.

20. Tidswell v Secretary of State for the Environment [1977] JPL 152 involved the operation of a Sunday market on land within a football club. At the time of service of the enforcement notice alleging a material change of use the appellant had operated the market on 9 Sundays over a two month period. He continued to do so at least until the date of the inquiry. He contended he was covered by the forerunner of the G.P.D.O and that the enforcement notice had been premature because he was entitled to use the land for market purposes for 14 days. The Divisional Court held that there was a distinction between a general and temporary casual use, which was covered by the Order, and the beginning of a permanent use, which was not. There had at the time of the inquiry been ample evidence to show the use which the appellant was making of the land was not a temporary 14 day use but a permanent use. Forbes J, having pointed out it was the appellant's duty to bring himself within an exemption, said at p.156:

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

Slynn J. at p.157 specifically drew attention to the distinction between the beginning of a permanent user on the one hand, and a general and temporary casual user on the other.

Although not directly in point, this case is important because it illustrates that the character of the use is significant and that the issue has to be resolved in the light of the facts of the case.

21. The next case is South Bucks District Council v Secretary of State for the Environment [1989] 1PLR 69. It was another Sunday market case. The Court of Appeal held that there was a series of developments constituting a change of use on each day when the agricultural use was replaced by the market use. Nicholls L.J.said at p.76:

"By definition, the change of use permitted by class IV 2 is not permanent. Further, the period for which temporary uses may be made of land is confined to 28 days in all (14 days in some instances) in any one calendar year. The occupier of the land is permitted to use his land for any purpose he may choose, except as a caravan site, but on a temporary basis only. In my view, on each occasion when the normal use of land is replaced by the different, temporary use, there is a change of use on which the article 3 permission bites. On each occasion, to use the language of article 4, a development is carried out. If, for instance, a market is held on agricultural land on one Saturday in each month, there is a change of use from agricultural use to market use on each of those Saturdays. The development which is carried out on first of those Saturdays consists only of the change of use which takes place on that day. On the following day, the land reverts to its normal agricultural use. The resumption of that use does not require a fresh planning permission: see section 23(8) and 24(6). When the relevant Saturday in the next month arrives, there is again a change of the use being made of the land. No doubt, the intention of the landowner throughout is to hold a market monthly on these Saturdays. But the physical change of use, which occurs each time the market is held, is not deprived of its character of a "material change of use" of land by the landowner's having an intention to repeat the temporary use at intervals. In the event, when each market is held, article 3 permits what would otherwise be a breach of planning law."

And at 77 c:

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

22. None of these cases deals specifically with the point at issue in the present case. The one instance in which it has been considered is in the earlier appeal in the present case by Mr Lockhart-Mummery Q.C. sitting has a deputy High Court judge [1998] JPL 60. As he pointed out p.63 the one issue at the inquiry was the purely legal one relating to the interaction between the confirmed enforcement notices and the G.P.D.O. The judge noted that it is trite law that whether there has been a material change of use of land is a question of degree and that the courts were most reluctant to intervene with the assessment made unless there has been an error of law justifying intervention on judicial review principles. He said at p.68:

"In the present case, the following matters have been found. First it has been found that the land retains physical features associated with the unauthorised use, particularly, tyres embedded in the ground, fencing and ropes marking out the track, pits and mounds forming a vehicular "obstacle course" in the north-western quadrant of the site and remains of the former motor cycle course in the north-eastern quadrant. These have been found to be "permanent physical alterations". It has been found that these alterations have materially altered the character of the land in planning terms. It has further been found that these alterations have altered the appearance of the land. Further, it has - in my judgment - been found that in the reintroduction of the vehicular leisure use would, against that background, amount to a permanent, though intermittent, change of use. "

Then he said at p.69:

"In most cases, of course, the actual or intended period of the use will be the relevant consideration - see Webber. In this case, however, it was in my judgment open to the inspector and the Secretary of State, as a matter of fact and degree, to reach the conclusion that any use such as that proposed would, in the light of the existing character and appearance of the land, have the attributes of a permanent rather than a temporary use."

23. The Claimants contended before the inspector that there was a significant difference between the 1996 case and the present one in that in the earlier case they did not argue any point in relation to the permanency of the physical features of the site. The previous inspector did not have the benefit of the knowledge that the changes in the character of the land were immune from enforcement action and would therefore be permanent come what may. The L.D.C in respect of them was not granted until September 1998. The physical appearance of the site would remain unchanged whether or not the proposed activities took place. The inspector in the present case dealt with this by pointing out that the decision letter in the previous case had expressly pointed out that the changes were permanent and that the judgment of Mr Lockhart-Mummery was on that basis. So the inspector concluded at p.14 of the decision letter that the grant of the L.D.C did not represent a material change of circumstances since the previous appeal.

24. It is, in my judgment, difficult on the face of it to fault any of the inspector's reasoning. Mr Bird's submission is however that the pre-existing layout of the land is irrelevant to the question whether the proposed use is temporary or occasional on the one hand or permanent or normal on the other. By taking the topography of the land into account she made an error of law. The physical character of the land is irrelevant. The inspector has failed to address the duration of the proposed use - which must be for a period not exceeding 28 days in any calendar year. Nor has she considered reversion to normal use between vehicular events. On the inspectors analysis there could not, said Mr Bird, be vehicular use even on one day a year without it being a permanent use. He submits that the critical aspects of temporary use are the period or periods of operation and the ability to revert to normal use. Duration, he says, is really the key issue.

25. Now it is true that none of the authorities, with the exception of the earlier appeal in the present case, tackled the question of the relevance of the physical features of the land when deciding whether a proposed use falls within Class 4. Tidswell is helpful because it establishes it is necessary to look at the character of the use in question. It is also helpful in identifying the issue as of one of fact.

26. Mr Mould, for the Secretary of State, identifies the issue in the present case in the following terms. In determining whether as a matter of fact and degree a proposed use of land is lawful for planning purposes (here by virtue of constituting an occasional use within the meaning of the G.P.D.O) is one entitled to have regard to physical changes to the land on which the use is to be carried on, being physical changes which have been brought about only in order to enable that use to function in practice. The physical changes, he points out, are integral features of the use to which the land is to be put. They are hallmarks of the activities.

27. In my judgment it should be kept in mind that the purpose of the G.P.D.O is to enable landowners to use their land for occasional or temporary purposes other than its normal use without the necessity of first obtaining planning permission. The process of obtaining planning permission involves local authority intervention, in other words, a voice for the local community. This seems to me to be a pointer, albeit a small one, towards looking towards not just the temporal nature of the use sought but also at its character and this involves looking at the whole nature of the operation. In doing this it is impossible to ignore the features of the land on which the vehicular sports and leisure activities take place. Similar examples would be where land is laid out permanently as an assault course, but only used on a few occasions, or where a football pitch is marked out throughout the whole season from August to May but only used for say 20 matches.

28. Mr Bird submits that resolving the problem in this way will prevent some uses being defined as occasional or temporary even if they occur only on one or two occasions. He gives as an example situations where the natural contour of the land is essential to the particular use under consideration. And he points out that the contour of the land may have been untouched by man. There is therefore no logical reason for drawing any distinction when human intervention has produced physical changes to land, provided the state it is in is lawful within the meaning of Section of 191 (2) of the 1990 Act.

29. It seems to me that as a matter of law physical changes that have been made to the land are capable of being a relevant considerations in the decision maker's assessment of the character of the proposed use. He is not simply limited to looking at duration in every case. It seems to me that the decision maker's assessment of the character of the proposed use cannot sensibly exclude a factor which is both necessary for the proposed use to take place and has been created solely for that purpose. The G.P.D.O does not carry the right to carry out physical works. Had the works not been done, the Claimants would not be able to do them without planning permission. Mr Mould draws a distinction, which I think is a valid one, between a case where the layout is purely coincidental for example a runway on a disused airfield and a situation like the present one where there is a causal connection between works deliberately executed and the proposed use.

Conclusion

30. The question whether a use is temporary for the purposes of the G.P.D.O 1995 is one of fact to be decided according to the circumstances of the particular case. In resolving this question it is necessary to look at the character of the use. Whilst duration is likely to be decisive in many, perhaps most, cases there will be some, of which the present case is an example, in which it will not. The inspector was entitled to take into consideration that the layout of the land made it suitable for the use under consideration and that the works to achieve that layout had been undertaken by the Claimants. It is nothing to the point that the existing character and the appearance of the land is lawful. The inspector was correct to uphold the second Defendant's decision not to grant a L.D.C. and that the introduction of vehicular leisure use would amount to permanent though intermittent use rather than a temporary or occasional use. She made no error of law and there was nothing unreasonable in the Wednesbury sense about her decision and this appeal therefore fails.