QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| BELMONT RIDING CENTRE
|- and -
|(1) FIRST SECRETARY OF STATE
(2) LONDON BOROUGH OF BARNET
| First Defendant
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Strachan (instructed by The Treasury Solicitor) for the First Defendant
Crown Copyright ©
Mr Justice Richards:
"(1) If any person wishes to ascertain whether –
(a) any proposed use of buildings or other land…
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use … in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use … described in the application would be lawful if instituted … at the time of the application they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(3) A certificate under this section shall –
(a) specify the land to which it relates;
(b) describe the use … (or in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use or operations to be lawful; and
(d) specify the date of the application for the certificate
(4) The lawfulness of any use … for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted … in any of the matters relevant to determining such lawfulness."
"… The burden of proof is firmly on the applicant. He will have to describe the proposal with sufficient clarity and precision to enable the LPA to understand (from a written description and plans) exactly what is involved in the proposal; and to submit whatever supporting information or legal submission he wishes to make to satisfy the LPA that a LDC should be granted for the proposal. Where a proposed change of use is involved, it will be necessary to describe the present, or last, use of the land; and where the lawfulness of that use is being relied upon to pave the way to implementing the proposed use, provide sufficient information to satisfy the LPA of the lawfulness of the existing use (having regard to the criteria in paragraph 8.16 above for deciding what is lawful)."
"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."
"Class D2. Assembly and leisure
Use as -
(a) a cinema,
(b) a concert hall,
(c) a bingo hall or casino,
(d) a dance hall,
(e) a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms."
"The submitted drawings are illustrative, however, it is envisaged that the proposed health and fitness club would include a swimming pool, gym, dance studio and health and beauty facilities, with ancillary changing rooms, creche and members rooms, housed within the shell of the existing indoor riding centre arena.
No elevational alterations are proposed and it is envisaged that the other outbuildings and stables within the site would only be used for ancillary purposes to the proposed club."
"5.2 The LPA statement appears to confirm that there is agreement between the parties on the conclusion that the existing uses are best described as a composite equestrian, residential and agricultural use across a single planning unit comprising the Belmont Estate…
5.4 The proposal under consideration in this appeal would involve the sub-division of the existing planning unit (comprising the entire Belmont Estate) into a smaller separate unit (comprising the land and buildings the subject of the appeal) and it follows that it is necessary to consider whether this sub-division would result in a material change for which planning permission would be required.
5.5 In this regard, it is appropriate to note that a material change in use does not occur automatically upon the sub-division of a planning unit… The question that arises is this: would the use of the new planning unit constitute a material change of use for which planning permission is required?
5.6 Until 1996, the appeal site was occupied by Belmont Farm Riding School Ltd (an Irish company) and used as a riding school, providing riding lessons for the public. These operations were continued in essentially the same form by a new English company, also called Belmont Riding Centre Limited, after the acquisition by the current owner of the Belmont Estate, but these operations ceased and Belmont Riding Centre Limited terminated its lease of the appeal site and thereafter ceased to trade in May 2000, following the need for refurbishment and the failure to secure planning permission for a major new equestrian centre.
5.7 Although the riding school company ceased to trade the unchallenged evidence given at the other hearings by Mr Reid on oath was that the use of the indoor riding school for riding instruction and related equestrian activities has continued from the date that the company ceased trading to the present day.
5.8 In these circumstances the sub-division of the appeal site and the use of it as a riding school would not constitute a material change of use. It would involve simply a full use of the indoor riding school building, its associated manèges, and car parking for the lawful use for which they were originally permitted and for which they have been used continuously without interruption since 1963.
5.9 Use of the appeal site as a riding school is a use within the same D2 use class as the appeal proposal for a health club and it follows that the provisions of section 55(2)(f) of the Act apply and the change from the riding school to the proposed use would not require planning permission."
"2. The area of land that is the subject of this appeal is sited on the north side of The Ridgeway to the west of St Vincent's Convent and to the east of Mill Hill School's preparatory school. Its principal feature is the concrete portal framed riding centre constructed in the early 1960's. A battery of twelve loose boxes now occupies the centre of the indoor riding arena and a further six are located at the southern end of the building. In contrast, the stables complex to its east, formerly used in conjunction with the riding centre, is now vacant and disused, although an open sided barn to the north of the stables is still used for the storage of feed. There is a seemingly unused manège to the north of the riding centre and a former manège to its south is now used mainly for the open storage of road planings. Apart from a riding track covered with wood chippings that runs to the east of the riding centre building, most of the rest of the appeal site area is laid out to grass."
"3. Belmont Farm has been the subject of recent appeal decisions. In a decision of the First Secretary of State dated 8 January 2003, concerning the formation of a manège to the north of St Vincent's Convent, there was no mention of the precise nature of the present uses of the site. At paragraph 4.1 of his report the Inspector records that there was agreement at the inquiry between the parties that the planning unit included this site and the land to its east as a single unit of occupation. In his Findings of Fact, the Inspector states at paragraph 10.4 that, excluding any residential use, the primary activity on the planning unit is now breeding racehorses and training racehorses and polo ponies. Other activities are the playing of field and arena polo and riding holidays and teaching. The Inspector goes on to say that whereas the latter are secondary in terms of scale, they are not ancillary or incidental to the primary mixed use. This previous Inspector had the benefit of hearing evidence over a period of three days. In contrast, I only inspected the site over a period of 1½ hours. However, during that time I saw nothing to contradict my colleague's findings".
"4. Within the area identified on the plan attached to the application for the lawful development certificate, one of those secondary activities, the riding holidays and teaching within the riding centre building, takes place. It is argued on behalf of the appellants that these activities are a continuation of the former riding centre use but I do not agree. The former riding centre was available to a fairly wide cross-section of the public at large to use for commercial equestrian activities for much of the year. The principal use of the riding centre building now seems to be the stabling of horses and riding holidays were not evident during the course of my visit, even though this coincided with a half-term school holiday. An essential pre-requisite for activities defined by Class D2 of the Town and Country Planning (Use Classes) Order 1987 is that they involve assembly and leisure. Access to this part of Belmont Farm, in common with the rest of the complex, can only be gained through a complicated and sophisticated security system. This is sited well to the east, adjoining the main racehorse and training facilities and is designed to keep most members of the public out of the area. Unlike the earlier commercial riding centre operations, there is no longer access to this land for the public at large direct from The Ridgeway.
5. In overall terms, I find that the area, the subject of the lawful development certificate application, has been artificially carved out of the planning unit based upon historic past activities which no longer take place. The planning unit, agreed at the 1-3 October 2002 inquiry, encompasses a much larger area and a very different range of equestrian activities from those associated with the former riding centre use. Although the building associated with that activity remains intact, I could see no evidence that any of the purposes for which the structure was erected survive in the building and its surroundings. The predominant activity within the building now is the stabling of horses. These may or may not be associated with riding holidays. They are certainly not there for the hiring out to a wide cross-section of the community. The stables associated with that use are empty and feed stored in the barn can presumably be fed to horses kept anywhere within the complex, not just those in the immediate facility.
6. It is argued that both the former riding centre use and the proposed use as a health and fitness club fall within Class D2(e) of the Town and Country Planning (Use Classes) Order 1987, areas for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms. However, this presupposes that the riding centre use has survived in any shape or form. I could see no visual evidence for this on the ground. Alternatively, if the riding centre activities are still extant, they are diffused across the entire planning unit and not enclosed within the narrow confines of the site identified in the application drawing, which has no physical boundaries between it and the remainder of the single unit of occupation. Consequently, use of this site as a health and fitness club would constitute a material change of use requiring planning permission and a lawful development certificate should not be granted. Therefore, the appeal must fail."
"18. In my judgment the law is as follows: where in respect of one planning unit a use comprising uses A, B, and C together is joined by use D, there is a change of use, which may or may not be a material change of use, to uses A, B, C, and D. But whether there is a material change of use or not involves a comparison of uses A, B and C with uses A, B, C and D. If the change does involve a material change of use, it is to a new use which comprises both the old and the new uses, whether they are separate uses within the one planning unit or mixed or composite uses within the one planning unit. If, as time goes on, another use is added so that the use being carried on is A, B, C, D, plus now E the same issues arise. Whether a material change of use has occurred is to be judged by whether the uses A, B, C, D and E are materially different in planning terms from the use A, B, C and D. If it is it is a new use again comprising old and new uses. Uses A, B, and C are not treated as distinct uses unaffected by the additional uses unless they are carried out in a distinct planning unit. That is not an issue that arises here".
"What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use?
But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land.
Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit".