QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BENNETT FERGUSSON COAL LIMITED||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE||(1ST DEFENDANT)|
|DERBYSHIRE COUNTY COUNCIL||(2ND DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPEL (instructed by the Treasury Solicitor) appeared on behalf of the 1ST DEFENDANT
MR J CAHILL QC AND MR R WALTON (instructed by the Solicitor for Derby County Council) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
"(1) If any person wishes to ascertain whether --
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land would be lawful,
He may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If on an application under this section the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted, or begun at the time of the application, they shall issue a certificate to that effect, and in any other case they shall refuse the application.
"For the purposes of this Act, uses and operations are lawful at any time if --
(a) no enforcement action may then be taken in respect of them whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason."
"The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land . . .
(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land, or subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."
"Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land."
In passing I should also note Article 3, paragraph 3 and Article 3, paragraph 6(g). Article 3(3) reads as follows:
"A use which is included in and ordinarily incidental to any use in a class specified in the Schedule is not excluded from the use to which it is incidental merely because it is specified in the Schedule as a separate use.
And Article 3(6)(g) reads as follows:
"No class specified in the schedule includes use . . .
(g) as a scrapyard, or a yard for the storage or distribution of minerals or the breaking of motor
"Use for the carrying on of an industrial process other than one falling within class B1 above."
I should say that B1 is headed "business" and it relates to various purposes -
" . . . being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit."
Class B8 is use for storage or as a distribution centre.
"Industrial process means a process for or incidental to any of the following purposes --
(a) making of an article or part of any article (including a ship or vessel, or a film video or sound recording);
(b) the altering, repairing, maintaining, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article; or
(c) the getting, dressing or treatment of minerals in the course of any trade or business other than agriculture, and other than a use carried out in or adjacent to a mine or quarry . . . "
Pausing there, I should say that the phrase that I have just read beginning with the words "in the course of any trade or business", appears in the copy of the Use Classes Order that I have been provided with as if it were part of paragraph (c). However the Butterworths edition of the Use Classes Order suggests that those words qualify the whole of the definition. I suspect that the Butterworths copy is correct, but in any event, it makes no difference to the outcome of this claim.
" . . . the making of any material change in the use of any buildings or other land."
"Briefly, coal and manufactured fuels are delivered to the site in bulk by road and some may initially be stockpiled. The mine coal which forms approximately 75 per cent of the input is screened and the smaller elements are mechanically loaded into bulk carriers for delivery to commercial customers, primarily National Power. Larger size material is recovered from this mine coal by screening, graded, sometimes washed, and stockpiled separately for domestic use. Other kinds of coal and manufactured fuels are also delivered directly to the site from a variety of sources and some of this is blended with the larger products of the mine coal. The resulting materials are loaded into hoppers, from where they are either bagged up or loaded directly into lorries for local delivery. Some of this kind of material is processed through a bagging plant where it is sealed into plastic bags, put on pallets and delivered to outlets such as filling stations and similar retail outlets. The activities on the site as a whole are generally supervised and controlled from the offices close to the site entrance."
"4. I have no doubt that the activities on the site include major elements of storage, distribution and activities which fall within the definition of industrial processes as set out in Article 2 of the UCO (Use Classes Order). However, that does not necessary mean that the site's use falls within either B2 (General Industrial) or B8 (storage or distribution) of the classes defined by the UCO. For the use of the site as a whole to be regarded as falling within class B2, activities such as storage or distribution would have to be ancillary to the primary use of the site for the carrying on of an industrial process. The converse would have to apply to the overall use of the site to be regarded as falling within class B8. On the basis of the information before me, I do not consider that either applies on this site.
"5. This is a large site and substantial areas of it are used for the storage of materials, their processing by means such as screening, grading, and blending, and activities associated with the delivery and distribution of the finished protects. Furthermore, each of these three general categories of activity are major ones, and are essential to the success of the enterprise as a whole in both functional and commercial terms. In view of the level of processing that takes place, I do not consider that the overall use of the site falls within class B8. However, I find the arguments in this area finely balanced as to whether it should be regarded as being within class B2 or, instead, as a 'sui generis' use which is not within any of the UCO's classes.
"6. I have also taken note of two other matters. Article 3(6)(g) of the UCO states that no class specified in the Schedule of Uses includes use as a yard for the storage or distribution of minerals. Whilst this is not a full or exact description of the use prevailing in this case it is very similar to it and to the description of the site given in the 1975 notice of planning permission. I have also considered the Land Use Gazetteer which, whilst describing uses such as 'coal grading place' and 'coal mixing place' as B2, classifies others such as 'coal yard' and a 'coal merchant's yard' as 'sui generis' uses. Taking these matters into account along with all the other relevant factors and arguments, my conclusion is that the use of the appeal site is a 'sui generis' use which does not fall within any of the classes of the UCO."
"The existing use of the site is typical of many industrial/commercial operations in that it involves bringing materials to the site, carrying out some operations upon those materials and then disposing of them away from the site. Materials are brought, processed and then sold, hopefully at a profit. This is the nature of such uses whether or not they are regarded as an industrial use, a distribution use, or some unique combination of the two uses (a "sui generis" use).
"7. The use proposed by the appellants is described as use of part of the site for a materials recycling facility. The area concerned is not defined but I have no doubt that it will be a substantial proportion of the site. Their intention is that general waste materials will be delivered to the site by road and these will then be sorted to recover saleable materials such as scrap metals or intact building products. Some material such as concrete will be crushed and screened. Timber will be chipped, and papers and cardboards will be baled. There would also be some recovery and blending of soils and soil substitutes for subsequent sale. All of the re-usable products, estimated by the appellants to be about 65 per cent of the total volume of materials entering the site, will be sold on and the unsaleable residue will be disposed of to licensed landfill sites. There would be no incineration or chemical treatment of materials. It is anticipated that a portal frame building would be needed for much of the processing and there would also be external storage bays.
"8. Again I accept that the proposed activities on the site would include substantial elements of storage, distribution and activities which fall within the UCO's definition of industrial processes. However, in this instance it seems clear to me that the primary use of this site would be as a materials recycling facility and that any elements of storage, processing or distribution would be ancillary to that primary use. I turn therefore to consider the nature of use of the area as a materials recycling facility.
"10. A materials recycling activity also involves a similar group of three main activities but the overall use is crucially different from the use I have referred to in the previous paragraph. In the latter, the materials brought to the site are valuable in themselves and have to be purchased. In the former, they are usually waste materials and a recycling company is almost always paid to take them away. In my interpretation the use proposed in this case would constitute the provision of a disposal service for which customers pay a charge as opposed to a straightforward purchase, adaptation and sale operation.
"11. I note that the Land Use Gazetteer classifies many uses which deal with the transfer or recycling of waste as 'sui generis' uses. I have also taken into account that there are fundamental differences between materials classified as wastes and minerals, both physically and as perceived by many members of the public. Taking into account all of the relevant factors I consider that the proposed use would not fall within class B2 but would be a 'sui generis' use outside any of the UCO classes."
"Based upon my conclusions as to the character of the existing and proposed uses, I am satisfied that the two uses would be materially different irrespective of whether the existing use is regarded as a B2 or a 'sui generis' use."
"It seems to me perfectly clear that prima facie the question of whether a change of use is a material change of use is one of degree and of fact . . .
"In so far as it was a pure question of fact, I can see no reason why the minister could not come to the conclusion he did. The materiality to be considered is a materiality from the planning point of view and, in particular, the question of amenities."
"It is necessary to answer two questions which are primarily questions of fact. First, what is the precise character of the established use? Secondly, what is a range of uses sufficiently similar in character to the established use to be capable of replacing the established use without involving a material change? Behind the second question lies a potential question of law in that there may be some uses of such a character that a reasonable tribunal of fact, directing itself correctly in law, must necessarily conclude that they lie within that range, or beyond it, as the case my be."
Mr Fraser drew my attention to that remark in order to emphasise that there is a limit to the range of view as to what properly can be regarded as a material change, and no less importantly, what cannot be properly so regarded. The short question here is whether, as Mr Fraser submitted, a change of use from the existing use as described in paragraph 3 of the decision letter, to the proposed use as described in paragraph 7 of the letter, is an immaterial change, and more particularly, whether in concluding that it would be a material change, the inspector reached a conclusion that no reasonable inspector upon the facts could have reached. I am of the view that the question being essentially one of fact and degree for the inspector, but subject always to the limits of the permissible range of view to which Lord Bridge referred, the inspector was entitled to conclude that there would be a material change, and that it is impossible for this court to say that in so deciding he reached a conclusion which, on a comparison of the two uses, no reasonable inspector could properly have reached. On any view, the uses are very different, involving, as the inspector pointed out in paragraph 11 (although this could not in itself be determinative), wholly different materials. It follows, in my judgment, that the claim fails.