Neutral Citation Number: [2008] EWHC 3117 (Admin)
 
CO/5209/2007 and CO/4878/2007 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 20th November 2008
 
B E F O R E:

MR DAVID HOLGATE QC
(sitting as a deputy High Court judge)

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PAUL ERIC PHILLIPS
Appellant

‑v‑ 

(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) SOUTH OXFORDSHIRE DISTRICT COUNCIL 
Respondents 
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Mr John Hobson QC and Mr Robert Palmer (instructed by Messrs Challenor Gardiner, Oxford OX1 1RR) appeared on behalf of the Appellant
Miss S‑J Davies (instructed by the Treasury Solicitor, London WC2B 4TS) appeared on behalf of the First Respondent
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J U D G M E N T
1.	THE DEPUTY JUDGE:  This is a challenge to a decision by the Secretary of State given on his behalf by an inspector by letter dated 17th May 2007, relating to a site adjacent to the A40 Northern Bypass, Oxford, known as Phillips Tyres.  The second respondent, South Oxfordshire District Council, does not appear in these proceedings.
2.	The inspector dismissed the appellant's two appeals, the first being against an enforcement notice issued by the District Council on 30th September 2005, and the second an appeal under section 195 of the Town and Country Planning Act 1990 against the second respondent's refusal of an application under section 191 for a lawful development certificate ("LDC") in relation to an existing use of the land.
3.	I am giving judgment today at the conclusion of oral argument, and I hope that I may be forgiven any infelicities of expression during the course of this extempore judgment.
Factual Background 
4.	The background is helpfully summarised in the inspector's decision letter at paragraph 7.  It was common ground at the inquiry that a tyre‑related business had been run from the appeal site since about January 1973.  In 1993 Mr Phillips submitted an application to the District Council for an LDC which described the then existing use as a "scrap tyre transfer station".  The District Council granted that certificate on 6th September 1993.
5.	Paragraph 11 of the decision records that Mr Phillips' stepfather had moved his business to the site from Kidlington during 1971.  The business was described as having involved originally the collection, sorting and disposal of worn tyres from other tyre businesses around the district.  The conditions of the tyres varied from scrap to part‑worn.  As part of the process of growing a viable business, the retail sale of part‑worn tyres to the public developed at some point.  Sales of new tyres became a feature of the business, either sourced as unused spares from vehicle breakers or as surplus stock from established tyre dealers.
6.	It appears that the council took the view in 2005 that in about 2001 what they considered to be a material change of use had taken place on the site, to a mixed use including a range of other activities.  As a result on 30th September 2005 they issued an enforcement notice which complained of a breach of planning control in these terms:
"without planning permission, change of use of the land to use for mixed purposes namely (1) use as a scrap tyre transfer station and (2) use for the sale and fitting of new and used tyres."
7.	The enforcement notice allowed six months for compliance with its "requirements" from the date when the notice was to take effect.  As Mr Hobson QC, who appears on behalf of the appellant, explained, that was explicitly included in the notice so as to enable the landowner to make an application during that time for an LDC in relation to the activities then taking place on the site.
8.	Indeed, on 30th January 2006 an application was made under section 191 of the 1990 Act for an LDC.  The District Council issued its decision refusing the application on 25th October 2006.  They refused to certify that on 1st February 2006, the date when the application was received by the council being the material date, the undertaking of the following mixed uses were lawful within the meaning of section 191, namely (1) use as a scrap tyre transfer situation and (2) use for the sale and fitting of new and used tyres.
9.	They gave two reasons for that decision, the first of which was that the appellant had failed to satisfy the District Council on the balance of probability that the current mixed use of the site had taken place for a continuous period of 10 years prior to 30th September 2005, being the date of the council's enforcement notice.  The second reason reads as follows:
"2.  A material change of use of the site to a mixed use(s), including activities unrelated to the tyre business, occurred in or around 2001 such that the current mixed use of the site, for which a Certificate of Lawful Existing Use is sought, has not taken place for a continuous and uninterrupted period of 10 years."
10.	After 10 years' continuous use of the site for that mixed use would have had the effect of making that use lawful (sections 171B(3) and 191(2)).
11.	The appellant appealed to the Secretary of State against that decision under section 195 and an appeal was duly made under section 174 to the Secretary of State against the enforcement notice.  Both appeals were held by the same inspector, who conducted a public inquiry on 24th and 25th April 2007, carried out a site visit on the second day of the inquiry and issued his decision letter on 17th May 2007.
12.	In this court there are two sets of proceedings.  First of all, there is a challenge to the first respondent's decision on the LDC appeal, under section 288 of the Town and Country Planning Act 1990, and there is, secondly, an appeal under section 289 of the same Act against the first respondent's decision on the enforcement notice appeal.  The second appeal required leave from the court, which was granted on 1st November 2007 by Collins J, at which stage he also joined the two sets of proceedings for hearing today.
The powers of the court 
13.	The powers of the court under section 288 to intervene in relation to a decision on an LDC appeal are given by subsection (1) and are well known.  The powers under section 289 enable the court to intervene in order to remit an enforcement notice appeal to the Secretary of State arise if an error of law is established.
14.	The general principles upon which the court acts in proceedings of this kind are well established, having been set out in cases such as Seddon Properties v Secretary of State for the Environment (1978) 42 P&CR 26.  In addition there is an obligation on the part of the Secretary of State or his inspector to give legally sufficient reasons for the decision.  The principles which apply, in particular on adequacy of reasons, are of course set out in the well‑known cases of Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
The issues before the inspector 
15.	In paragraph 5 of the decision letter the inspector agreed to amend the LDC application with the consent of both parties, so that the terms of the application he was considering read as follows, "Mixed purposes namely (1) use as a scrap tyre transfer station and (2) use for the sale and fitting of tyres", which involved the deleting the adjectives "new and used".
16.	At paragraph 7 of the decision letter the inspector recorded the common ground which had been established at the inquiry, and with which he agreed, that the appeal site should be treated as a single planning unit.  The issue in the appeals before him was whether or not a material change of use had occurred during the relevant 10‑year period by reference to the whole of that planning unit.  When the inspector came to consider that question in paragraphs 28 and 29 of the decision letter it is apparent that he determined that matter by reference to the whole of that single planning unit.  There is no dispute in this court about that.
17.	In paragraph 10 of the decision letter the inspector set out his general approach to the evidence that he had heard at the inquiry.  As I understand the position the evidence was taken on oath, as would be normal for proceedings of that kind, and he said as follows:
"10.  The resolution of this issue is entirely about matters of fact and law; as there is no ground (a) appeal or deemed application for planning permission the planning merits do not arise.  The test for the evidence is upon the balance of probability and the onus of proof rests with the appellant.  All of the witnesses at the inquiry gave their evidence on oath and it is right to record that I am satisfied that all of those witnesses gave their testimony in good faith and as truthfully as they could, subject only to the normal limitations of memory.  It is mainly in the interpretation of what was seen, remembered or recorded at any given time by the individuals concerned where the differences most likely lie."
I note in passing that the inspector correctly approached the matter on the basis that the test to be applied in relation to the evidence involved an onus of proof on the appellant, the standard of proof being the balance of probability.
18.	In paragraph 9 of the decision letter, the inspector set out the main issue as he saw it in the appeals, that issue being identical for both appeals:
"9.  The issue is whether the alleged mixed use, being also the use described in the LDC application, commenced before 30 September 1995 and whether it has continued during the following 10 years, uninterrupted by the introduction of other materially different uses, such as to amount to a new mixed use."
19.	The inspector reached a very clear conclusion in paragraph 13 of the decision as regards the position prior to September 1995, in these terms:
"... all of the indicators are that there was probably a mixed use of the site for the purposes described in the current LDC application and the enforcement notice, including the sale and fitting of tyres, prior to September 1995 and that if there were no other unrelated use of the land during the relevant period then the appeals would succeed."
The relevant period there referred to ran between September 1995 and September 2005.
20.	So, as Mr Hobson submitted in these proceedings, the inspector's findings on what transpired during that 10‑year period, and in particular whether or not a material change of use occurred in or around 2001, were critical to the outcome of the two appeals.
21.	The starting point for his consideration of that matter was, as I have just noted from paragraph 13, that by September 1995 the use of the appeal site had changed to comprise two elements.  In addition to the scrap tyre transfer station a second element had been introduced, namely the sale and fitting of tyres.
Legal principles on material change of use 
22.	Before coming to the way in which the inspector approached this and the grounds of challenge, I briefly refer to some principles of law which have been discussed during argument today and about which there is little dispute.
23.	First of all, it is agreed that in order to acquire immunity from enforcement and a lawful use the appellant had to show in this case a use continuing throughout a period of 10 years uninterrupted by a material change of use.  That is based upon the decision of Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226, and it is for that reason that there is no challenge to the way in which the inspector expressed the main issue in paragraph 9 of the decision letter.
24.	Secondly, it is agreed that the introduction of a use to land is not a material change of use if it is to be regarded as incidental or ancillary to the primary use of the planning unit.  In this context it is also agreed that it is relevant to consider functional relationship and not merely the scale or geographical extent of any use.  Two authorities have been cited in that context: Main v Secretary of State for the Environment (1998) 77 P&CR 300 and Harrods Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 600 (Admin), both the judgment of Sullivan J, and also at [2002] EWCA Civ 412, the judgment of the Court of Appeal.
25.	The third area of common ground on the law is that the word "material" in this context means "material for planning purposes": see East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484.  It is also agreed that a change is not material if, for example, it is de minimis in planning terms.
26.	Fourthly, it is agreed that the concept of the planning unit as defined in the leading case of Burdle v Secretary of State for the Environment [1972] 3 All ER 240 is the means for determining the extent of the physical area against which to assess the materiality of an alleged change of use.  There is also no dispute that, first of all, the determination of whether or not a change of use occurs is a matter of fact and degree for the decision‑maker and secondly, subject to that point, as a generality:
"... the larger the [planning] unit ..., the less likely is a change in the use of part of it liable to constitute a material change in the whole." (see paragraph 55.44 of the Planning Encyclopedia, Vol 2).
27.	I would just refer briefly to the decision in Main.  I accept the submission made on behalf of the Secretary of State, which was not disputed by the appellant, that this is not an authority for the proposition that it is only necessary or appropriate to look at function in order to determine whether or not a material change of use has taken place.  Instead, that was a case dealing with, on its facts, a rather different situation, where the inspector was held to have erred in law because he had only considered the size of the area devoted to a particular activity without also considering the functional aspect.  Ironically, that was a case where the applicant in the High Court was challenging the inspector because he had failed to take into account a change of use which was said by the applicant to be material, of course in advance of the commencement of the immunity period which was relevant in that case.  The complaint was there that the inspector had failed to include in the list of immune or lawful uses one additional component of the material change.
28.	As regards the Harrods case, I draw attention to the following paragraphs.  Mr Hobson relies upon paragraph 94 in the judgment of Sullivan J, which is in these terms:
"94.  It was the intention of Parliament that 'material changes in the use of buildings or other land' should be subjected to planning control.  In developing the incidental/ancillary use principle the courts have, effectively, removed those uses falling within that principle from the ambit of planning control.  The use of the words 'incidental/ancillary' should not obscure the fact that such uses can be very substantial indeed, with potentially significant implications in terms of factors such as number of employees, noise, traffic et cetera, all of which would be relevant if planning permission was being sought for an independent use of a comparable scale and nature."
He then went on to illustrate that point by reference a single planning unit as large as the Harrods department store, including ancillary uses such as offices and storage.
29.	At paragraph 96 the judge held:
"96.  A restrictive formulation of the ancillary use test, so as to include the words 'ordinarily incidental', would, in my judgment, give effect to Parliament's intention that material changes of use should, in general, be subject to planning control.  Where Parliament intends that changes of use which might otherwise be considered material should be deemed not to amount to development, it says so in subsection (2)."
In other words, the learned judge was referring to the concept of material change of use as a definition of the point at which planning control or development control is engaged.
30.	At paragraph 99 Sullivan J pointed out that although he had focused on the words "ordinarily incidental", other expressions could he regarded as synonymous, such as "fairly be regarded as incidental" and "reasonably be thought incidental."  He regarded all those different expressions as laying down in substance the same test, and added these words:
"They are different ways of expressing the proposition that a cautious or restrictive approach should be adopted towards implied freedoms from express statutory control."
31.	It was pointed out that the Court of Appeal agreed with the general approach and reasoning of Sullivan J (see [2002] EWCA 412, paragraphs 22‑26).
32.	The one other authority which I mention is the case of Beach v Secretary of State for Environment, Transport and the Regions [2001] EWHC 381 (Admin), a decision of Ouseley J.  This decision was cited to the inspector at the public inquiry, along with an earlier case Lynch.  The inspector expressly directed himself in accordance with those two authorities, as can be seen from paragraph 28 of the decision letter.  I only need to refer to paragraph 18 of the decision in Beach:
"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."
The decision letter 
33.	I next turn to set out the structure of the decision letter after the inspector had identified the main issue and, secondly, after he had gone on in paragraph 13 to find in the appellant's favour that before September 1995 the use of the site had changed to a mixed use comprising the two activities which I described previously.
34.	Between paragraphs 14 and 27 the inspector identified four activities which it was alleged had occurred after 1995 and he considered whether they fell to be assessed under the issue of whether a material change of use had occurred.  In relation to two of those four activities, the inspector reached conclusions which were favourable to the appellant's case.  First, at paragraphs 21 and 22 of the decision letter he dealt with an alleged activity relied upon by the local authority, referred to as a taxi maintenance/repair business, and in the last sentence of paragraph 22 he said:
"I am satisfied from the evidence of Mr Phillips and
Mr Anwar that there is and was no such business, that the taxis seen were there for the purposes of tyre fitting and related operations and did not amount to a new or independent use."
35.	Secondly, the inspector dealt with the allegation that a vehicle repairs business had been commenced during the 10‑year period at paragraphs 23 and 24 of the decision letter.  In short, his conclusion was in the last sentence of paragraph 24:
"Repairs to the firm's own vehicles and equipment would be ancillary to the main use and any work by staff on their own cars would in all probability be on a sufficiently small scale as not to amount to a material change of use."
That forms part of his overall reasoning for treating that allegation as immaterial.
36.	The inspector then dealt with two other matters which are the subject of the challenge in this court.  He dealt with the allegation that there had been an introduction of a new activity referred to as vehicle storage in paragraphs 25 and 26 of the decision letter and, fourthly, he dealt with the final new activity, storage of scaffolding, at paragraphs 27 and 28.
37.	In relation to vehicle storage at paragraph 26 he rejected the submission made on behalf of the appellant that that should be regarded as ancillary or de minimis, and in that sense he came to the conclusion that it comprised what he then described as a material use of land.
38.	In relation to storage of scaffolding, at paragraph 27 of the decision letter he concluded that that had occurred over a period of 13 months in such a way as to constitute a material use of the land.  My reading of the decision letter is that he was using there the phrase "material use" to indicate that these were additional activities which on the evidence he was satisfied should be taken into account by him when going on to address the question of whether or not a material change of use of the whole planning unit had occurred in or around 2001 following the approach in Beach.  In paragraph 28 of the decision letter, he makes that clear in these words:
"Having regard to my findings in respect of the vehicle storage use and the scaffolding use I am led to the further conclusion that a new mixed use of the whole site, comprising a single planning unit, commenced in or around 2001, which featured both those new uses and the existing scrap tyre transfer station and associated tyre sales use.  ...  Taking account of the principles laid down in those judgements [i.e. Lynch and Beach], the question is whether the addition of the new uses on this appeal site to the existing uses amounted to a new material change of use of the whole site around 2001, to a mixed use as a scrap tyre transfer station and tyre sales and for vehicle storage and the storage of scaffolding."
39.	So it is abundantly plain, and there is no dispute about this in this court, that the critical judgment as to whether or not a material change of use had occurred on the facts of this case was reached after paragraph 28.  Indeed, it is clear that it was reached in paragraph 29: 
"29.  As indicated in Beach, this requires a comparison to be made between the situation in 1995 and that pertaining around 2001.  There is an enlargement from an aerial photograph of the site taken in 1995 (Document 3/2) which shows a mainly open tyre storage use occupying roughly the northern half of the site with the remainder apparently under trees or other vegetation.  It is within this overgrown area that the scaffolding and vehicle storage activities took place.  Later aerial photographs taken in 1999 and 2003 were referred to extensively during the inquiry (Document 5/7).  Unfortunately, they date from periods before the new uses started and after they ceased, and are therefore of limited assistance.  What they do show is considerable clearance and tidying of the site with the addition of more structures and, between 1999 and 2003, that the clearance of undergrowth included the areas where the new uses were located.  It therefore seems probable that the character of the site had changed considerably between 1995 and 2001 both in physical terms and in the nature of the mixture of uses occupying it.  Whilst I recognise that some of the physical change was attributable to an expansion of the lawful use, it is likely that the new uses contributed significantly to that process.  Having regard to these considerations, to the various photographs taken at the time and to the descriptive evidence of the several witnesses who saw the site at the critical time, I conclude that the combination of the existing use with those new uses amounted, as a matter of fact and degree, to a material change of use of the whole planning unit around 2001."
The grounds of challenge 
40.	Mr Hobson confirmed that there was no legal challenge to any part of paragraph 29 as such, on the basis that the criticisms he makes of the inspector's decision relate to earlier parts of the reasoning, namely paragraph 26 in relation to vehicle storage and paragraph 27 in relation to storage of scaffolding.  His case is that if either of those paragraphs are legally tainted, then that infects also paragraph 29 of the decision letter.  There is no dispute on behalf of the Secretary of State as to that proposition.  Equally, it follows that if there is nothing erroneous in law with regard to either paragraphs 26 or 27 of the decision letter, then paragraph 29 of the decision letter dealing with the material change of use issue is unimpeachable.
41.	For the avoidance of doubt, I should record the common ground between counsel that the inspector in paragraph 29 approached the material change of use issue by taking into account the two additional activities he had identified in paragraphs 26 and 27 together.  He did not purport to conclude that a material change of use had occurred in this case solely by reference to either one of those two additional activities taken separately.  So for that reason it is common ground that if there is a legal flaw in either paragraph 26 or in paragraph 27 of the decision letter, then that would be sufficient to justify the quashing of the decision letter and I agree with that analysis.
42.	So I come to the grounds of challenge which are raised.  I deal first, for convenience, with the storage of scaffolding.  The inspector's conclusions on this aspect are set out in paragraph 27 of the decision letter, as I have said, which reads as follows:
"27.  Finally, with regard to the scaffolding storage, the facts are that this took place for a period of some 13 months and that rent was received in respect of it, as confirmed by Mr Phillips’ accounts.  It was carried out by a Mr Truby and occupied a part of the site adjoining the car storage area and, as Mr Phillips described it, along the eastern fenced boundary, within an area where tyres were also stored.  It can clearly be seen in Mr Gould’s photographs of 11 July 2001, comprising racks formed from scaffolding, with scaffolding poles and ladders placed on them.  There are no tyres visible in that photograph but, even if there were, it is clear that the activity was a relatively substantial one and completely unrelated to any aspect of the tyre business.  Even though of relatively short duration and confined to a part of the site I conclude, on the balance of probability, that it was a use of a distinctly different character to the lawful use, having its own discernible impact on its surroundings, not least in terms of additional traffic.  Those are the hallmarks of a material use in planning terms and one which subsisted during a period of 13 months, since when it has now ceased."
43.	From that paragraph it can be seen that the inspector found that over a period of some 13 months the storage of scaffolding had taken place and that rent had been received in respect of it.  The storage had been carried out by Mr Truby and it was found by the inspector that it occupied a part of the site adjoining what he described as a car storage area, and within an area where also tyres were stored.  He reached the conclusion that, in his words:
"... it is clear that the activity was a relatively substantial one and completely unrelated to any aspect of the tyre business."
In my judgment, it is clear that in that sentence the inspector was addressing the functional test which he was obliged to take into account, as well as the issue of scale.  There is no challenge in relation to that aspect.
44.	The challenge really focuses on the next two sentences, which read in these terms:
"Even though of relatively short duration and confined to a part of the site I conclude, on the balance of probability, that it was a use of a distinctly different character to the lawful use, having its own discernible impact on its surroundings, not least in terms of additional traffic.  Those are the hallmarks of a material use in planning terms and one which subsisted during a period of 13 months, since when it has now ceased."
45.	I pause to note that when the inspector referred to discernible impact, first of all, he was expressing a matter pre‑eminently of planning judgment and, secondly, although he chose to lay emphasis upon additional traffic generation, his judgment was not confined to that aspect.
46.	The challenge to that part of the decision stems from evidence given by a Mr Horwood, employed by the appellant as the manager at the appeal site, whose evidence was unchallenged by the District Council at the inquiry.  In particular this part of his statement was relied upon:
"Mr Phillips did allow a colleague of his to keep a small amount of scaffolding in the yard sometime ago.  This did not interfere in any way in the running of business as it only occupied a small part of the yard and in any case was not there for very long.  The man that owned the scaffolding would not visit the site very often and I do not recall seeing him more than a couple of times."
47.	The submission made on behalf of the appellant is that the inspector's finding in paragraph 27 of the decision letter that the storage of scaffolding was a relatively substantial activity was, to use Mr Hobson's words, wholly at odds with the evidence before him, namely the unchallenged evidence of Mr Horwood to which I have just referred.  In effect, he is submitting that that was a perverse or irrational conclusion for the inspector to have reached on this fact and degree issue, and therefore one which he was not entitled to reach.
48.	I am afraid I cannot accept that submission.  It was a matter for the inspector to reach his own judgment on the significance of this additional activity.  There is a great deal of authority to support the proposition that inspectors are regarded as decision‑makers experienced in assessing matters of this kind, who are indeed expected to use their own judgment in relation to such an issue.  I cannot see on what basis it could be said that this was a judgment which was beyond the range of rational conclusions to which an inspector would reasonably have been entitled to come.  The evidence relied upon by the appellant from Mr Horwood is insufficient in my judgment for that purpose.
49.	At that stage of the exercise it is to be noted, first of all, that the inspector was not reaching a conclusion about whether the level of traffic generation from this activity was such as to give rise to a material change of use in its own right and, secondly, he was not dealing with the matter purely in terms of additional traffic attributable to that activity.  He dealt with the matter more broadly in land use planning terms as regards the character of the use.  The fact that the additional activity did not interfere with the running of Mr Phillips' business cannot be used to undermine the legality of the inspector's conclusion.  He also had regard to the duration of the use.  I cannot, with respect, see how the inspector's conclusion can be impugned in law.
50.	I turn to the other ground of challenge, which is directed to the inspector's conclusions in paragraph 26 on vehicle storage.  The inspector dealt with this in paragraphs 25 and 26, which read as follows:
"25.  With regard to the alleged vehicle storage, this appears to have been confined to a compound in the south east corner of the site, and is shown in two of Mr Gould’s photographs taken in July 2001.  Mr Gould described seeing vehicles parked close together here in such a way as to appear to be of some long standing.  Mr Phillips’ found some difficulty in recalling what these vehicles were but surmised that they either belonged to him or to employees or might have been abandoned by customers.  The last category had become a problem during a period when scrap cars had no value and people would leave vehicles for tyre fitting and fail to collect them.
26.  Whatever the reason for these vehicles being on the site, whether abandoned,  personal vehicles belonging to staff or Mr Phillips or to anyone else as might be suggested by Mr Gould’s highlighted notes referring to a 'Matthew and Paul', it seems to me that this was a significant use of part of the site.  Having regard to the evidence, I find it difficult to conclude that it formed an activity which could reasonably be regarded as ancillary to the primary tyre business use or in any sense de minimis.  Given it scale and its occupation of a discrete enclosure within the site I find that, as a matter of fact and degree, it comprised a material use of the land in planning terms, even though there was no apparent payment of rent for it by a third party."
51.	The appellant emphasises that the council's case on this aspect rested, crucially, on the evidence of Mr Gould, an officer of the council, who visited the site on one occasion in July 2001, when he observed that vehicles were parked closely together in one part of the site.  It is pointed out that that was not supported by Mr Venners, another official of the council, when he visited the site in March 2003.  However, it is right to point out that the inspector has not suggested otherwise.
52.	Really this argument proceeds by contrasting the evidence of Mr Gould with that of the appellant before the inspector.  In this court I have been shown parts of written statements which the appellant Mr Phillips prepared for the inquiry.  I should record that there is no note of the oral evidence given at the inquiry and in particular any cross‑examination.  That is important when we come back to paragraph 25 of the decision letter. 
53.	In summary, Mr Hobson pointed out that one can see from the written statement of Mr Phillips that he gave explanations for the presence of vehicles on the appeal site.  Firstly, that some were the staff's own vehicles or his own vehicles.  Secondly, some of the vehicles were on site as scrap vehicles, but merely for the purpose of enabling tyres to be salvaged from them as part of the legitimate scrap tyre transfer station.  Thirdly, vehicles had been brought onto the site for what is said to have been a tyre‑related activity.  In other words, the owner of a vehicle would have brought a car to the site with a view, apparently, to having tyres changed, but then subsequently certain vehicles were abandoned by those owners.  That led to a significant problem for Mr Phillips, evidenced by his correspondence with DVLA.
54.	In addition, it is said that that evidence was supported by Mr Jason Horwood, the appellant's manager, whose evidence to similar effect was not cross‑examined to and went unchallenged at the inquiry.  The appellant goes on to submit that none of those three reasons for the presence of vehicles on the site could rationally be held to indicate an independent use of the tyre business, and for that reason it was necessary for the inspector to reach a conclusion on why the vehicles were there.
55.	Further in support of that submission, Mr Hobson says, first of all, the parking of the appellant's and his employees' cars was by definition not vehicle storage because the two concepts of parking and storage in planning law are mutually exclusive: see the decision of the Court of Appeal in Crawley Borough Council v Hickmet Ltd [1998] JPL 210, particularly the judgment of Millett LJ (as he then was).  Secondly, Mr Hobson says that to the extent that vehicles had been brought onto the site as scrap in order that their tyres could be salvaged for reuse, there was, in planning terms, a clear functional link between the presence of the cars and the primary use of the site.  Thirdly, Mr Hobson says that cars which have been abandoned, in so far as they were abandoned for the reasons given by Mr Phillips, should have been regarded by the inspector as being present on the land for what is called, again, a tyre‑related activity.
56.	As against that, on behalf of the Secretary of State two aspects in particular of Mr Gould's evidence are relied upon.  First of all, in paragraph 25 of the decision letter the inspector records Mr Gould's description of the vehicles, as being not only parked close together when he inspected the site in July 2001, but parked together in such a way as to "appear to be of some long standing".  There is no suggestion that the inspector was not entitled to make that finding nor that in coming to that finding he had ignored any other relevant evidence on that aspect of longevity.
57.	In addition, reference is made to page 154 of the bundle, which are some handwritten notes prepared by Mr Gould and which relate to information he gathered on his site inspection in 2001.  In particular, he recorded that in relation to an area called the bottom compound, which appears to have been the area in which this particular activity was said to have been observed, he was given information to the effect that the area was being used for "storage only" by Matthew and Paul, who were buying in cars from auctions but no breaking was taking place.  That evidence is recorded by the inspector in his decision letter in paragraph 16, where he stated that Mr Gould had interviewed Mr Phillips and noted his replies which included the following:
"... the vehicle related activity comprised a storage use within a compound carried on by people known as Matthew and Paul who he noted 'buy in cars from auctions'."
58.	In relation to that material, the appellant relies once again on passages from Mr Phillips' written statement.  In particular at page 197 of the bundle there is a paragraph under the heading "Question 4":
"Question 4 is entitled 'vehicle dismantling' and again has £100 a week rent next to it.  Next to the question is written 'bottom compound ‑ storage only ‑ Mathew and Paul ‑ buying cars from auction ‑ no breaking'.  Once again the allegations made by Mr Evans are clearly shown to be wrong as there is no vehicle dismantling or breaking as stated by Mr Gould nor is there any rent received for such activities.  This part of the yard, which is marked area 4 on AJG2, has always been used as I have always said for the storage of tyres and associated items.  This has included complete cars from time to time and has ebbed and flowed over the years.  My relationship with Mathew and Paul was that as well as them being long standing customers, they would also supply me with used tyres from time to time.  The vehicles in the attached photographs relating to area 4 on AJG2 are all related to the business.  Occasionally we take in old vehicles specifically for their tyres.  Once these have been removed we dispose of the vehicle.  We do not always do this immediately.  These cars would be kept in this area.  As Mr Gould's note says on AJG4 relating to question 4 there is 'no breaking' of vehicles on the site."
59.	In summary it is said that in that text Mr Phillips was indicating that vehicles relating to area 4, or the so‑called compound area, all related to the business.  However, Mr Phillips did not himself condescend to give very much detail about what Matthew and Paul had been doing.  Furthermore, I have to read that alongside what was said by the inspector in paragraph 25 of the decision letter in these terms:
"Mr Phillips’ found some difficulty in recalling what these vehicles were but surmised that they either belonged to him or to employees or might have been abandoned by customers.  The last category had become a problem during a period when scrap cars had no value and people would leave vehicles for tyre fitting and fail to collect them."
60.	I can see no basis for criticising the inspector's statement in paragraph 25 to that effect, which must have reflected whatever took place at the inquiry and there is certainly no witness statement before this court to undermine that finding.  So it does not seem to me that I can treat what appears at page 197 of the bundle as a basis for contradicting the inspector's reliance upon what might be called "the Matthew and Paul evidence".  The inspector returned to that in paragraph 26 of his decision letter, when he said:
"Whatever the reason for these vehicles being on the site, whether abandoned, personal vehicles belonging to staff or Mr Phillips or to anyone else as might be suggested by Mr Gould’s highlighted notes referring to a 'Matthew and Paul', it seems to me that this was a significant use of part of the site."
61.	It seems to me plain from the decision letter read fairly as a whole that the inspector accepted the evidence called by the council in relation to the Matthew and Paul activity which had involved the "storage only" of cars bought in from auctions.  I do not see anything in page 197 of the bundle from Mr Phillips' written evidence which contradicts that specific evidence from the council in such a way that the inspector can be criticised in law for relying upon the council's evidence.
62.	Really what this ground of challenge came down to was a criticism of the inspector in the first sentence of paragraph 26 by rolling together a number of purposes for which the vehicles were present on the site in a way which included, not only vehicles the presence of which might properly be said to be part of an ancillary use of the site, but also referring at the same time to non‑ancillary uses.  It is said that the inspector erred in law in failing to make a finding as to the extent to which vehicles were present on the site for each of these purposes, so as to distinguish between each of them.
63.	I accept the submission made on behalf of the Secretary of State that this sentence, should fairly be read in the context of what the inspector had just stated in paragraph 25 about the difficulty that the site owner had had in recollecting the vehicles and in surmising as to the extent to which they, for example, belonged to him or to employees or might have been abandoned by customers.  The inspector was therefore left in the position whereby it was not possible to reach the sort of precise findings which it is now suggested by Mr Phillips in this court should have been made.  In my judgment, I see no legal basis for saying that the inspector erred in law in those circumstances for not reaching such conclusions.
64.	Instead, what in my view the inspector did on a fair reading of this decision letter was to have in mind the approach set out in Beach.  The inspector identified an additional activity which could be separately identified in respect of scaffolding storage in paragraph 27.  But in paragraph 26 the inspector referred to pre‑existing activities, which would otherwise have been lawful in view of his finding in paragraph 13, they having subsisted since before 1995, but also together with the additional Matthew and Paul independent storage activity which involved the bringing in of cars bought at auction.
65.	From the evidence which was put before the inspector and which has been shown to this court, I do not see why in the circumstances he was not entitled to do that.  That was a finding which then fed into his assessment of material change of use in paragraph 29.  In the same vein, in paragraph 29, having referred to evidence from various sources relevant to the assessment of the material change of use issue, he said this:
"It therefore seems probable that the character of the site had changed considerably between 1995 and 2001 both in physical terms and in the nature of the mixture of uses occupying it.  Whilst I recognise that some of the physical change was attributable to an expansion of the lawful use, it is likely that the new uses contributed significantly to that process.  Having regard to these considerations, to the various photographs taken at the time and to the descriptive evidence of the several witnesses who saw the site at the critical time, I conclude that the combination of the existing use with those new uses amounted, as a matter of fact and degree, to a material change of use of the whole planning unit around 2001."
66.	For reasons I have given, I am afraid I do not think that that conclusion can be attacked as a matter of law whether by reference to the adequacy of the reasons given or otherwise.  For those reasons, the appeal/application is dismissed. 
67.	I remind myself that these were appeals where the burden of proof, albeit only on the balance of probability test, lay upon the appellant.  The inspector made it clear in paragraph 10 of the decision letter that that was the basis upon which he should approach the appeals.  In my view, it is clear, when the decision letter is read fairly as a whole, that his overall conclusion was that the appellant had failed to discharge the burden of proof lying upon him.  I do not accept the submission that it was necessary for the inspector to set out in express terms that specific conclusion.  Given the whole approach of the decision letter it is self‑evident that that was the view the inspector was taking, that the evidence was not sufficient to alter the conclusions which he had reached on such evidence as was made available to him. 
68.	MISS DAVIES:  Thank you, my Lord.  I have an application for costs.
69.	THE DEPUTY JUDGE:  Yes.
70.	MISS DAVIES:  I do not know if ‑‑
71.	THE DEPUTY JUDGE:  I have not seen a schedule.
72.	MISS DAVIES:  May I hand one up, my Lord.
73.	THE DEPUTY JUDGE:  Has this been shown to the appellant's team?
74.	MISS DAVIES:  It has, yes.  (Handed) 
75.	THE DEPUTY JUDGE:  I actually want to add a paragraph to the judgment, I am sorry, before going to costs.  There is something in my mind which I omitted to mention.
(Extra paragraph added to the judgment) 
76.	THE DEPUTY JUDGE:  I am sorry.  Costs.  Thank you.
77.	What do you want me to do?
78.	MISS DAVIES:  I would like you to summarily assess them, my Lord, at the figure of £7,544 and order that they be paid by the claimant to the first respondent.
79.	THE DEPUTY JUDGE:  What do you say, please, Mr Hobson? 
80.	MR HOBSON:  We obviously do not resist the principle we should pay costs.  With regard to the amount, I draw your Lordship's attention to one item.
81.	THE DEPUTY JUDGE:  Yes.
82.	MR HOBSON:  That is the work done on documents on page 2.
83.	THE DEPUTY JUDGE:  Yes.
84.	MR HOBSON:  By the Treasury Solicitor, which indicates 20.4 hours was spent on the documents.  The document bundle in this case were compiled and prepared by my solicitors.  It is quite extraordinary to think that 20.4 hours might have been spent by the Treasury Solicitors.
85.	THE DEPUTY JUDGE:  On the face of it, it seems so.
86.	MR HOBSON:  It seems excessive, so I would invite your Lordship to reduce that figure to something more appropriate.
87.	THE DEPUTY JUDGE:  Do you want to say anything about that?  Can you help me on that?
88.	MISS DAVIES:  My Lord, yes.  In these cases, as your Lordship doubtless knows, there is often a minute of advice prepared within the Treasury Solicitor's department, a minute of legal advice that goes to the Planning Inspectorate ‑‑ 
89.	THE DEPUTY JUDGE:  Yes.
90.	MISS DAVIES:  ‑‑ telling them their legal view of the claim, obviously ‑‑
91.	THE DEPUTY JUDGE:  Is that what this item relates to? 
92.	MISS DAVIES:  That is where ‑‑ 
93.	THE DEPUTY JUDGE:  Can I tell you that I am often asked to summarily assess costs in immigration cases where the Secretary of State's acknowledgement of service and grounds of defence, and often very helpful, takes about 3 hours and the application is for about £500 worth of costs.  This does look excessive if that is the sole purpose.
94.	MISS DAVIES:  My Lord, I do not know if it is the totality of the 20.4 hours, but certainly the minute of advice that is prepared by the Treasury Solicitor and that goes to the Planning Inspectorate is recorded under that heading and that is the usual practice.
95.	My Lord, I hesitate to mention that a schedule of costs that would have been front of your Lordship had it been the other way round would have been in a substantially greater sum.
96.	THE DEPUTY JUDGE:  I think that is slightly churlish, is it not? 
97.	MISS DAVIES:  Indeed.  I do not mention the figure, my Lord, but I do say that it is quite appropriate that these cases should be looked at by the Treasury Solicitor's department when they come in.
98.	THE DEPUTY JUDGE:  Of course.
99.	MISS DAVIES:  And indeed that a formal written minute of advice should be prepared and sent to the Inspectorate, so that unmeritorious cases or the meritorious ones can be properly identified and that that does take a certain amount of time.  There is obviously legal principles raised and the documents to be gone through, and that will certainly account for a proportion of that figure.  I say that when that is taken into account, that figure of 20 hours then becomes a reasonable one.
100.	THE DEPUTY JUDGE:  I am going to assess costs at £6,500.  Thank you.
101.	MR HOBSON:  My Lord, I apply for permission to appeal, which I think I must do in relation to the section 288 matter.
102.	THE DEPUTY JUDGE:  What is the position, I did not have a chance to look at it, on section 289; is it now a second appeal?
103.	MR HOBSON:  It is a second appeal.
104.	THE DEPUTY JUDGE:  So you have to ask the Court of Appeal and there is a separate test there.
105.	MR HOBSON:  Yes, but so far as the 288 one is concerned I have to ask your Lordship, which I do.  I say this is a case obviously raising some matters of considerable importance concerning the relationship between various uses and the way ancillary uses are to be judged, particularly in the light of cases such as Beach and Lynch.
106.	THE DEPUTY JUDGE:  Yes, thank you.
107.	I am afraid I refuse permission to appeal.  I do not think that there are grounds which meet the test for permission to appeal in terms of either arguability or wider issues of public importance, I am afraid.
108.	MR HOBSON:  My Lord, thank you very much.
109.	THE DEPUTY JUDGE:  But can I thank you both for your help.