England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2014

Mr C M G Ockelton :

The claim

1. By this claim under s 288 of the Town and Country Planning Act 1990 the claimant challenges the decision of an inspector, dated 29 November 2013, dismissing the claimant's appeal against a decision of the West Berkshire Council as local planning authority refusing to grant (retrospective) planning permission. The claimant's application to the Council had been for permission allowing the use of its land at A4 Metals, Sevenacre Copse, Reading, RG7 5PT ("the site") for metal recycling and car breaking, allowing the erection of a facilities building there, and allowing the resurfacing of a bridleway leading to the site.

The Law

2. A considerable number of areas of law are raised by this claim. It is convenient to deal with all of them here, because there is otherwise a risk of allowing Mr Masters' discursive submissions to lead down routes that are not legally open to him.
3. The grounds on which proceedings under s 288 can succeed are the ordinary grounds for judicial review. I do not need to set out the development of that doctrine, beginning with Lord Denning MR's remarks in relation to a different statutory scheme in Ashbridge Investments Ltd v MHLG [1965] 1 WLR 1320, 1326, and their endorsement an application to challenges to planning decisions in Seddon Properties Ltd v Secretary of State for the Environment (1987) 56 P & CR 69. Its effect is that an inspector's decision can be challenged on the ground that he made a decision on no evidence, or made a decision that on the evidence no reasonable decision-maker could have made; or that he took into account matters that he should not have taken into account, or failed to take into account matters that he should have taken into account, or misunderstood or misapplied the law. In that context, as well as the law applying in general to decision-makers whose decisions may be challenged for error of law, certain specific duties are imposed on planning inspectors.
4. But s 288 does not provide an opportunity for an appeal against the inspector's attribution of relative weight or importance to the matters that he lawfully took into account; and provided that he committed no error of law in making his decision, matters of the assessment evidence, and of planning judgement are for him alone and the court will not interfere with them: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann.
5. Further, a challenge to an inspector's decision is not to be mounted by treating it as though it were an answer to an examination paper required to set out all facts and law from first principles, nor as a statute requiring interpretation. It is the considered judgment of an expert, after a review of the evidence and usually a visit to the site, and is addressed to parties who are themselves aware of the issues. The absence of specific mention of a matter does not mean that it has not been taken into account; and the inspector is entitled to make his decision on the basis of impressions formed in his review of the evidence and his site visit. So much is clear from R (Newsmith Stainless Ltd) v SSETR [2001] EWHC 74 (Admin).
6. Development or material change of use of land requires planning permission. What amounts to a development or a material change of use is a matter of planning judgment. Intensification of an existing use may amount to a material change of use if (but only if) the intensification amounts to a 'material change in the definable characteristics of the use of the land' (see most recently Herts CC v SSCLG and Metal Waste Recycling Limited [2012] EWHC 277 (Admin); [2012] EWCA Civ 1473). Merely adding 'more of the same' to an existing use is not a change of use unless it has this effect.
7. In considering whether planning permission should be granted, one material consideration is the use to which the land could lawfully be put if planning permission were refused, provided at any rate that there is a reasonable prospect that the land would in fact be used in that way. Thus the inspector will need to reach a view on the 'fallback' position, that is to say, on what are the current lawful uses.
8. The effect of the time limits in s 171B of the 1990 Act is that a development or change of use that has continued for at least the previous ten (or in some cases four) years becomes immune from enforcement. In order to test whether that situation has been reached a landowner can apply under s 191 for a Certificate of Existing Lawful Use or Development (CLUED) which, if granted, provides a conclusive presumption as to the matters mentioned in it. The process for obtaining a CLUED envisages a public inquiry, allowing all those with evidence to give to have their say on oath and be cross-examined. That process is quite different from a hearing or inquiry in relation to an application for planning permission, which is essentially a matter between the planning authority and the applicant. It follows that, even if he needs to determine what are the current lawful uses of the land, an inspector determining an appeal against a grant or refusal of planning permission is not undertaking the process of deciding what uses are lawful through having become unenforceable. To require him to do that would essentially avoid the CLUED process. Similarly, because an application for planning permission by a landowner is not the same as the process of enforcement by the planning authority, an inspector looking at an application is not primarily concerned with whether enforcement in relation to a particular use has become time-barred.
9. Rather, the answer to the question 'What are the current lawful uses of the land?' is again a matter of judgment for the inspector. He must no doubt take into account all relevant matters, including any granted CLUEDs. But in a planning appeal he is not examining whether any particular use for which no CLUED has been granted is a use that has become lawful through lapse of time; and he cannot be required to accept that a use for which no CLUED has been obtained is a use for which one would be obtained if applied for; nor is he required even to make that investigation, for that is not the role of the process he is undertaking. The point in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8, which Ms Thomas cited, was somewhat different: it was whether if a Planning Officer does make a statement in the course of an application to vary the conditions of planning permission, the statement has the effect of a CLEUD. But Pebsham does set out the differences in procedure, and makes it clear that a determination under s 191 requires an application under s 191.
10. Another material consideration is that found in s 38(6) of the Planning and Compulsory Purchase Act 2004, which requires an inspector to make his decision in accordance with the development plan unless material considerations indicate otherwise. As Lindblom J held in Bloor Homes East Midlands Ltd v SSCLG [2014] EWHC 745 (Admin), that duty remains following the introduction of the National Planning Policy Framework (NPPF), which does not displace it; and the weight to be given to any policy or development plan is a matter of the inspector's planning judgment. At the heart of the NPPF, however, is a 'presumption in favour of sustainable development' (para 14), which, according to that paragraph, means that where a proposed development is shown to be a sustainable development,

"For decision-taking this means:

-approving development proposals that accord with the development plan without delay, and

-where the development plan is absent, silent or relevant policies are out-of-date, granting planning permission unless:

-any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

-specific policies in this Framework indicate development should be restricted." (A footnote specifically includes the policies relating to Areas of Outstanding Natural Beauty (AONBs) in this category.)

11. Because of the limited role of the court, the process leading up to the inspector's decision is the place and time for raising all matters of assessment or of planning judgment. So it is not appropriate for a claimant to raise such matters for the first time in proceedings under s 288; Humphris v SSCLG [2012] EWHC 1237 (Admin).
12. The last item in this review of the law is the Scrap Metal Dealers Act 2013, upon which Mr Masters relied: I need to say rather more about it than he did. The Act imposes a licensing regime and various other duties on scrap metal dealers; it repeals the Scrap Metal Dealers Act 1964, whose registration provisions are replaced by the new licences. It also replaces various other provisions chiefly to do with the scrapping of cars. Section 21 contains provisions which apply 'for the purposes of this Act', amongst which at subsection (6) is a definition of 'scrap metal' as including all waste and discarded metal, and any product containing metal that is 'broken, worn out, or regarded by its last holder as having reached the end of its useful life'. At s 21(2), 'scrap metal dealer' is defined as follows:

"(2)A person carries on business as a scrap metal dealer if the person—

(a) carries on a business which consists wholly or partly in buying or selling scrap metal, whether or not the metal is sold in the form in which it was bought, or

(b) carries on business as a motor salvage operator (so far as that does not fall within paragraph (a))."

The background

13. The site falls wholly within an AONB. There are national and local policies applicable to it, as noted by the Inspector and in the materials before me. In particular, the site is within the Beenham Industrial Area, indicating via the West Berkshire Core Strategy and its policy CS9 that employment-generating uses such as that proposed by the claimant will be favourably considered. Further, there is a Waste Local Plan (WLP) identifying the site as a 'preferred area' where waste management development will normally be permitted, subject to provisos. But a number of other policies (including some provisions of CS9) impose requirements even on a development such as that proposed: it must be compatible with residential uses; it must minimise loss of amenity; it must minimise the effects of noise on housing and on the AONB; it must not give rise to adverse environmental and other effects; it must safeguard health and living conditions.
14. The site was at the date of the application for planning permission already in use for metal recycling and car breaking; two-storey and single-storey buildings had been erected; the bridleway leading to it had been given a hard surface, and a parking area had been created alongside the bridleway by widening it. As the application was avowedly made with the intention of obtaining permission for the current uses and development, the Inspector took the present state of the land and its use as that for which permission was sought.
15. On application the Local Planning Authority had issued a CLUED in June 2005. The Certificate specified car-breaking and listed other lawful uses, including storing up to 90 vehicles awaiting breaking, the storage and sale of parts removed from vehicles at the site and the storage of substances removed from such vehicles. The Certificate specifically excluded a number of uses including crushing of vehicles.
16. In June 2012 there was a planning application for 'continuation of metal recycling'. This was refused. In August 2012 there was an application for a CLUED seeking to add 'crushing of vehicles following dismantling and depollution to the lawful used identified in the 2005 CLUED. This was also refused.

The facts found by the Inspector

Policies and Access

17. The Inspector found that the policies to which I have referred are broadly consistent with the NPPF and PPS 10 on Planning for Sustainable Waste Development. He did however go into more detail on the WLP. As he pointed out, the position was that the site had been identified as a suitable one for waste management, but only if access could be obtained from Knott Lane, to the North of the site. This proviso was specifically intended to protect the bridleway to the South that is part of the subject of the present proceedings. Subsequent to the publication of the WLP planning permission granted to the owner of the land between Knott Lane and the site meant that there was now no possibility of access from Knott Lane and the bridleway therefore formed the only means of access to the site.

Use

18. The Inspector conducted a site visit and heard evidence and submissions from the appellant and other interested parties including the Council, local residents and a representative of the British Horse Society. The following is a summary of the relevant facts, either uncontested or as found by him. [Before me there was some discussion as to precisely what applications and appeals were or were not made in recent years, but that has no material effect on these findings]. The site had been used for car-breaking or similar purposes since the early 1980s, longer than the application asserted. The appellant had been operating the yard since 1999. General metal recycling, that is to say recycling of metals arriving at the site other than as cars, began in 2006. At the date of the site visit, some three-quarters of the area was being used for 'general metal recycling, with imported metals being sorted, cut into manageable sizes and baled for exporting for processing elsewhere'. Vehicles were being crushed and the bodies removed off-site for further processing, and metal removed from them on-site formed a 'small part' of the total of the general stream of scrap metal. The general scrap metal business is now the 'primary material stream' and is not merely ancillary to the car-breaking; on the other hand the car breaking has not diminished to such an extent that it ought to be ignored.

Noise

19. There is other industrial use near the site, including a waste recycling facility, the Grundon site, to the east, where noisy operations are carried out under cover: the Inspector recorded that he was not able to identify any significant noise from that site. He could, however, clearly hear and identify noise from the appeal site from 'a considerable distance'. He could also see the activities generating the noise. Individual noise events from the site were measured at between 23 and 30 dBA above the ambient noise levels cited by the appellant. The Inspector concluded, contrary to what was asserted by the appellant, that the noise caused by car crushing and general metal recycling was clearly distinguishable from that caused by mere car breaking, which he described as 'a relatively quiet activity'. The current activities, however, 'inevitably generate noise of types that are most noticeable, unpredictable and disturbing'. The site's neighbours include one dwelling 50m away but close to other industrial uses, a group of houses 220m away and other properties further away. There had been complaints about noise from the occupiers of these properties and others, mostly specific to the site and particularly since 2010. Particular issues cited included 'continuous whines and hisses from machinery, vehicle reversing alarms and horns, intermittent bangs, crashes and cascades of loose pieces of metal dropped onto other metal or into trucks, and crashes as vehicles entering or leaving the site along the bridleway pass over speed bumps. Noise from operations outside the permitted hours, particularly before 0800 and on Sundays was also raised as a cause of concern'. There was other background and ambient noise near the site and affecting the neighbourhood, including that from the M4 motorway, but that other noise tended to be continuous in nature and so less intrusive. There was in force an Environmental Permit for vehicle breaking on the site, amended in 2011 to include scrap metal activities, subject to a noise condition. No action had been taken by the Environment Agency, and the latter raised no issue in relation to the present application. No statutory noise nuisance had been determined.

The bridleway

20. The bridleway, Beenham Bridleway 18, provides the only access to the site. The parts of it needed for the site's current operations have been metalled but not to a standard that the Council would adopt. The surface was said not to be suitable for riding, but the real reason for lesser use by riders and pedestrians might well be (and was said to be) the increased used by wheeled traffic. In the summer of 2013, the Council recorded over 200 vehicle movements per day along the bridleway including about 60 HGVs. Those figures accorded with those reached by informal surveys by residents but were substantially higher than those offered by the appellant from dates earlier in the year. The total number of vehicle visits had in fact declined over recent years 'due to reductions in deliveries of small quantities of scrap metal by individual customers and in retail sales of car parts', but in 2005 the position was said to be that 'occasionally there could be as many as 15' cars and vans per day, and there is now 'significantly greater use by vehicles including lorries'. Some vehicular traffic would arise from lawful use of the site, but the current nature of the use of the bridleway, and the new surface, exacerbated difficulties for horses.

AONB

21. The visual impact of the proposed development and use would not be materially different from that permitted by the 2005 CLUED, whether in relation to the stacking of cars, the machinery, the movements of vehicles or the surface of the bridleway. If the application had been granted, however, there would be a further reduction in the remoteness and tranquillity of the AONB, although that feature of the area had already been compromised to a certain extent by existing lawful uses.

The Inspector's decision on fallback

22. The Inspector (rightly) treated the determination of the fallback position as of primary importance, because the lawful use of the site was the baseline against which any change of use had to be measured. He made the findings of fact that I have summarised, and he set out the history of the site including the 2005 and 2012 applications and their outcomes. He noted that there was an Environment Agency licence, but noted also that the issue of such a licence takes into account matters different from those relevant to planning permission and does not authorise any use for planning purposes. He rejected the Council's submission that even the uses identified in the CLUED had been lost in their replacement by a new mixed use: provided that the car-breaking continued as a non-negligible part of the mix (as he found it did) the site could lawfully revert from the mixed use to that identified in the CLUED. But he rejected also the claimant's submission that despite the lack of success in recent applications the current use of the site should be regarded as 'in line with the terms of the 2005 certificate' and he declined also to regard the current uses as having become lawful by the lapse of time. He noted that he was dealing with an appeal against a decision made on an application for planning permission, not an appeal against an enforcement notice. In all the circumstances he chose the uses identified in the 2005 CLUED as the current lawful uses, and considered the other issues on that basis. He made it clear that that decision was for the purposes of this appeal only and was not intended to be a definitive statement of what uses were lawful.

The Inspector's decision on other issues

23. The inspector concluded on the facts that the activities currently taking place on the site were different from those authorised. He decided that the change to a new mixed use was a material change of use and therefore would require planning permission. Having observed at the beginning of his decision that there were relevant policies, having identified them and said they were to be given weight, the Inspector assessed the proposed development against them in the light of the facts he had found. He concluded that the harm cased by the development outweighed any factors in favour of it because of the noise impact, the impact on use of the bridleway, and the further loss of remoteness and tranquillity of the AONB. He therefore dismissed the appeal against the refusal of planning permission.

The Grounds of challenge

24. The grounds of challenge raised by the claimant are various, and it is interesting to see that they are summarised rather differently by the two defendants. As argued before the Court by Mr Masters they are as follows. First, the Inspector was wrong to find a material change of use. Secondly, the Inspector failed to consider properly what the fallback position was in relation to all issues including the resurfacing of the bridleway. Thirdly, the Inspector failed to consider properly what the fallback position was in relation to all issues including crushing and noise, and he failed to record the evidence as to this issue accurately. Fourthly, the Inspector failed properly to consider the presumptions in favour of development and balance the harm against those presumptions. Formally Mr Masters also raised general challenges based on unfairness of procedure and irrationality of conclusion, but he rightly made no oral submissions in support of them and they do not feature in his skeleton argument.

Discussion

The starting-point: the fallback position

25. Mr Masters submits that the Inspector was wrong to choose the 2005 CLUED as defining the present lawful uses: he should have recognised that the use for crushing of metal and general recycling had continued for more than 10 years and thus was a use that was beyond enforcement. He asserts that the evidence that the uses had so continued was clear and should therefore have been the basis for a decision that the fallback position included them.
26. The difficulties in succeeding in this challenge are formidable. First, the determination of the appropriate fallback was a matter for the Inspector's assessment and judgment; so Mr Masters needs to show that the Inspector was obliged to reach the conclusion he seeks, not merely that he might have reached it. But in the circumstances of this case that is really an impossible argument: it is an argument that the uses that had failed to attain a CLUED must be treated as though they had succeeded. The proceedings before the Inspector were not an application under s 191 and the claimant was not entitled to treat them as though they were. Further, the Inspector was not entitled to ignore the recent determination refusing a CLUED. The lawfulness of the uses claimed by the claimant cannot possibly have been regarded as beyond doubt; and while they were in doubt the Inspector was entitled to make his assessment of whether to accept the claimant's position or to rely on the single CLUED that had been granted (or indeed to adopt some other position, as the Council argued).
27. Secondly, the Inspector was not being primarily asked to assess what existing uses were lawful: he was being asked to hear an appeal against the refusal of planning permission for those uses. The claimant had made an application for permission and the Inspector needed to decide whether permission should be granted. If an application for permission is made, that is not a claim that the present uses are lawful: such a claim is not made by an application for permission but either by an application for a CLUED or by simply waiting and if necessary defending an enforcement notice. As I have explained above, there are good reasons why the one procedure should not be allowed to sidestep another. It may be that if the evidence had been overwhelmingly in favour of the claimant on this point and particularly if there had been no recent adverse CLUED decision, the Inspector could have set the fallback as the claimant argued. But even then it would have been a matter of the Inspector's assessment of all the material before him. To compel the Inspector to treat the current uses as lawful, in the absence of enforcement the claimant needed to obtain a CLUED specifying them.
28. For these reasons the challenge to the Inspector's decision on fallback must fail.

Material change of use

29. Mr Master's argument is that there was no material change of use and so the Inspector was wrong to find one. What there had been, in Mr Masters' submission, was merely a continuation of existing lawful uses as identified in the CLUED as vehicle-breaking. The general recycling of metals brought on to the site for the purpose was not a new use and so combining it with the continuation of car-breaking could not constitute a new mixed use. If there was no new mixed use the only change would have to be by intensification of the existing use; but that had only been 'more of the same'. That could conceivably have been a material change of use if the intensification had been such that the definable character of the use of the land had been changed, but it had not: and, as Mr Masters reminded me, there does not seem to have been a single case of intensification that has been held actually to have had this effect.
30. In order to establish that proposition Mr Masters needs to show that, contrary to the Inspector's view, there had been nothing that could amount to a change of use at any relevant time. His first strategy was to attempt to include the present activities, in particular general scrap metal dealing and car crushing, as part of the fall-back position: anything included within the fallback would not itself be a material change of use. If that failed, as in my judgment it did for the reasons given above, he needed to show that was happening at the beginning of any relevant period necessarily included so many of the elements of the use of the site now, that the latter could not be regarded as anything other than an intensification of the former. Faced with the evident difficulty of demonstrating that activities that were clearly not taking place on the site should be thought of as having been taking place there, Mr Masters took me to the provisions of the Scrap Metal dealers Act 2013 that I have set out above. His argument is that that Act 'clarified' the meaning of dealing in scrap metal as including car-breaking; therefore a car-breaker is a scrap-metal dealer and a person who has been breaking cars must as a matter of law be regarded as a scrap metal dealer; therefore any activity taking place under the description of car-breaking was, in law, being a scrap metal dealer: it is not possible to separate the activities. Thus, scrap-metal dealing taking place now can in law only be regarded as an intensification of the uses specified in the CLUED. This argument pervades Mr Masters' 15-page written skeleton, occupying most of pages 6-11 (in which the 2013 Act is the subject of repeated reference) and part of page 13. The following is a fair sample:

"It is submitted, that had he properly taken into account the provisions of the 2013 Act, he would undoubtedly have come to the conclusion that the use of land for the purposes of a car breaker yard and the use of land for the purpose of general metal recycling are in fact one business namely the use of the land for the purposes of scrap metal dealership."

31. As I remarked at the hearing, the argument appears to me to be simply bizarre: and Mr Masters did not press it in oral arguments, although his arguments on intensification depended on it. It is not easy to know exactly where to start in dealing with it; but one possible starting point is certainly s 21(1), to which Mr Masters chose not to refer: that is the subsection that says that the definition, upon which he places so much emphasis, applies for the purposes of the Act. There is accordingly no reason to take it as having altered the ordinary use of English after the coming into effect of the Act, and, besides, there is no suggestion that any of the provisions of the Act are retrospective, so that the Act could not have applied to the uses of the site before 2013.
32. Even so, the Act is an Act imposing duties and requirements of licences on all those undertaking certain types of trade. It describes the types of trade and then says what it means by the words used. The effect of s 21(2) is that if you do A or B or both, you need a licence. It does not seem to me that by any stretch of the imagination that provision can be read as saying that even for the purposes of the Act if you do B you are to be regarded as doing A. You may have the same obligation to obtain a licence, but that is a different thing altogether: the obligation arises not because the doer of B is doing A (or vice-versa) but because the licensing regime applies to the doer of B even if he is not doing A (or vice versa).
33. Finally, this was not an argument put in any form before the Inspector as far as I can see. It is not open to the Claimant now. If the invocation of the 2013 Act had indicated that the Inspector made a decision that he was not entitled to make in an area on which he should have known that the law prohibited the decision he did make it might nevertheless be possible to say that his decision now was unlawful. But that is very far from being the case. Mr Masters' arguments based on the 2013 Act have not a shadow of merit. The uses specified in the CLUED did not carry the implied meaning, and do not carry the statutory meaning, of general scrap metal dealing.
34. In those circumstances it was clearly open to the Inspector to reason as he did. The importation of metal onto the site other than in the form of cars was a new use. It began in about 2006, after the CLUED (and, although for the reasons given above this is not important, less than ten years before the decision). Sorting of such metal now formed the majority of the use the site although car-breaking had not become a negligible proportion of the work. That there was a new mixed use was not merely a conclusion open to the Inspector: it was virtually inevitable. That there had as a result been a material change of use was a matter for his planning judgment and there is nothing in his decision or in Mr Masters' submissions that could cause the Court to interfere with it.

Presumptions and Policies

35. The claimant asserts simply that the site was identified for waste recycling use and that the Inspector failed to appreciate that. In my judgment the only relevant failure is that of the claimant to understand the policy document upon which he relies: Mr Masters' written submissions on this point run the risk of being seriously misleading in their unqualified assertions in paragraphs 1.1.1, 1.1.3, 1.1.7 and elsewhere of his skeleton argument. In general terms the site was, as the Council said, suitable, but, to use the Inspector's phrase, 'with provisos'. The claimant is not entitled simply to ignore the provisos.
36. The terms of the WLP were correctly summarised by the Inspector. The site was identified as suitable for such purposes provided access was available from the North, that is to say not by the bridleway. In the event, access is not now said to be available from the North. Properly read, in these circumstances the WLP does not identify the site as suitable for the proposed use: indeed, given the fact that the matter has been considered in some detail it is clear that the view of the WLP is that without access by a means other than the bridleway the site is not suitable for the proposed use. That, as it seems to me, is amply sufficient to deal with the arguments based on any presumption in favour of the specific use derived from the Policy. The Inspector was bound to take the Policy into account and did so. The claimant's problem is that the Inspector did read the policy, not that he did not.
37. The Mr Master's second line of argument on this point, really developed only at the hearing, was that the grant of planning permission to the neighbouring site (which is said to have made access from the North impossible) rendered the existing WLP out-of-date, thus bringing into consideration the general presumption in favour of sustainable development found in NPPF paragraph 14. That argument is hopeless. There is no proper basis on which the grant of planning permission to the neighbour can be said to have rendered any part of WLP 11 'out-of-date'. Its terms are no doubt as accurate and valid now as they were when they were written. The site is suitable for waste management but only if access from the North can be obtained. The claimant's increased difficulty of obtaining such access does not at all affect the judgment made in the Policy about the conditions under which this site would be suitable for general waste management. Further, it is again far from clear that this argument was put to the Inspector.

The bridleway

38. In essence, the claimant raises two issues about the Inspector's decision in relation to the bridleway. The first is that the Inspector should have appreciated that the works to the bridleway – the resurfacing – was immune from enforcement as having been undertaken more than four years before the present application. It may be that there was work to the bridleway more than four years ago, and indeed the Council's own position seems to accept that, but that is not the same as saying that the present surface is the one applied then. There was no clear evidence of that. More to the point, this is another argument that was simply not raised before the Inspector. If it had been, no doubt he would have taken it into account and would have determined, for the bridleway as well as for the site, what he would take as a fallback position. On the material put to him the Inspector was entitled to conclude that the surfacing that he saw was an unauthorised development that would require planning permission.
39. The Inspector's primary concern, however, was the use of the bridleway. His clear finding of fact was that the use of the bridleway by heavy vehicles of various sorts had greatly increased as a result of the present use of the site, and that as a an apparent result use by horses and pedestrians, for whom the bridleway is primarily intended, had decreased. The claimant's principal complaint here seems to be that the use ought to have been treated as necessary for the permitted uses of the site: but that presupposes that the claimant's arguments on those issues ought to be or to have been accepted. For the reasons given above I do not accept that.

Balance

40. The claimant's submissions about the way in which the Inspector reached his conclusions and the factors he did or did not take into account are so intertwined with assertions on matters that the Inspector did not accept that it is not easy to see how much of them survives the failure of the other challenges to the Inspector's decision. There can be no doubt that the Inspector took into account both the basic acceptance that, subject to provisos, the site was a suitable place for the proposed development, and the other factors in evidence before him. Other than any presumption that might apply in favour of the development there does not appear to have been any positive argument for it: certainly Mr Masters did not assert any evidenced need for the proposed use at this particular spot, or benefit by the provision of employment opportunities over and above those available for the permitted use, or anything of that sort. In his submissions now he simply says that the Inspector failed to take everything into account in striking the balance.
41. The one specific matter raised in this part of his argument related to the evidence as to car crushing. Mr Masters submits that the Inspector wrongly recorded that the Claimant said that crushing of cars by a ball or the bucket of a digger was not the crushing of vehicles. He does say that (at paragraph 12), and I can see that it is somewhat unlikely that the claimant did say that, because he was attempting to establish long use. But the error is wholly immaterial. The Inspector said that whether this activity was called car crushing or not was a matter of semantics, that is to say, not of substance. What was clear was that although the claimant said this use had occurred, a CLUED for the crushing of vehicles had been refused. That is the important point: whatever anyone called this activity, car crushing was not in the CLUED. Mr Masters also submits that any car crushing going on at the time of the granted CLUED must be taken as included in the CLUED, because of the 2013 Act: that is an argument I have already considered and rejected.
42. On examination of Mr Masters' submissions, the Inspector's alleged failures, like this one, all relate either to the decision not to accept the current uses as lawful through effluxion of time, or the decision that the application sought permission for what was a material change of use. These are arguments about whether the Inspector was right to consider that planning permission was needed, not arguments about his assessment of whether, if it were needed, it should have been granted. I have read the decision with care and it does not seem to me that there is any point where Mr Masters was able to show that in determining the factors for and against the grant of permission for development the Inspector failed to take a relevant factor into account, took an irrelevant factor into account, acted irrationally or in any other way produced a decision that is properly the subject of challenge.

Conclusion

43. For the foregoing reasons this challenge to the Inspector's decision wholly fails and the claim will be dismissed.