England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Birmingham Civil and Family Justice Centre 33 Bull Street, Birmingham B4 6DS
		21 March 2016

The Hon. Mr Justice Coulson:

1. INTRODUCTION

1. On 13 May 2013, the appellants were convicted of using their land at 39, Gwendolen Road, Leicester, as a Builder's Merchants with ancillary sales, in contravention of the terms of an enforcement notice. They appealed to the Crown Court.
2. On 18 October 2013, Mr Recorder Mason QC (sitting with two justices) heard and dismissed the appellants' appeal against that conviction. This followed a lengthy hearing at which the Crown Court had permitted the appellants to call expert evidence.
3. On 1 November 2013, the appellants required the Recorder to state a case. He declined. That decision was challenged by way of judicial review. On 4 March 2015, Cranston J ordered the Crown Court to state a case.
4. In consequence, a case was stated and four questions were identified by the Crown Court. They were:

(1) Whether the Crown Court was correct to admit the evidence of Mr Faqir contained in his statement of 11 October 2013 and to take the view that it was not expert evidence?

(2) Whether the Crown Court was correct to decide that the meaning of "use as a Builder's Merchants with ancillary sales" was a question of fact rather than a mixed question of fact and expert judgment?

(3) Whether there was sufficient evidence on which the Crown Court could reasonably conclude to the required standard that

(i) Trade sales had taken place at the premises during the period mentioned in the information;

(ii) Ancillary sales had taken place at the premises during the period mentioned in the information;

(iii) The amount of trade sales taking place at the material time was sufficient for the use to be as a Builder's Merchant with ancillary sales as distinguished from other uses such as storage or another use within the class prescribed by the Town and Country Planning (Use Classes) Order 1987 or a mixed use;

(iv) The amount of retail sales taking place at the material time was sufficient for the use to be as a Builder's Merchants with ancillary sales as distinguished from other uses such as storage or mixed use;

(v) That the land had been used as a Builder's Merchants with ancillary sales throughout the period alleged in the informations?

(4) Whether the Crown Court was correct to decide that the advertisement of the premises for sales to the trade was evidence that the land had been used for trade sales during the material period?

2. BACKGROUND FACTS

5. The site at Gwendolen Road was permitted for B8 use, that is to say storage and distribution. The respondent became concerned that it was being used as a Builder's Merchants, so they issued an enforcement notice dated 18 March 2010. I have not seen a copy of that notice. My understanding is that the relevant passage in the notice was that it prevented the premises at Gwendolen Road from being used as a "Builder's Merchants including ancillary sales without planning permission".
6. In April 2011, Mr Faqir, one of the respondent's inspectors, visited the site and noted that it was still being used in contravention of the notice. Warnings were given. When he visited again in July 2011, it had been stripped of all materials.
7. However, despite this, the respondent concluded that the site was continuing to be used as a Builder's Merchants because sales were still being transacted there. Accordingly, the appellants were prosecuted for breach of the enforcement notice. The relevant period of breach was said to have been between 6 December 2011 and 19 April 2012. This meant that, in effect, the respondent was saying that there had been an unauthorised change of use.
8. In the case stated, the evidence relied on by the Crown Court in concluding that the appeal against the original conviction should be dismissed is summarised at paragraphs 10 and 11 as follows:

"10. In summary the court came to its conclusion as a result of the following:

(a) Mr. Faqir (planning enforcement officer) visited the premises on 12 July 2011 and it was stripped of all materials.

(b) On two subsequent visits (16.12.11 and 19.4.12) there was a substantial amount of building materials. In addition there was a working cash register that was hidden on the second visit. There was a computer connected to the printer and a credit/debit card machine that was on and working.

(c) There was evidence that the premises and appellant companies had a website advertising that Matson's carried out both trade and retail sales.

(d) The court was satisfied to the requisite standard that the premises were being used as a Builder's Merchant.

11. On the question of whether "ancillary sales" had taken place between the relevant dates, the court took into account the following:

(a) A sale had taken place on 25 February 2012 when the premises was visited and a purchase of materials made by the witness Mr Singh.

(b) The computer was attached to the printer. The screen showed "point of sale" on it.

(c) There was a cash till present and obvious on visits to the premises. It was hidden below the counter of the second visit. There was cash within it.

(d) There was a working card machine which was turned on and had paper in it on the visit on 19 April 2012.

(e) Items in the premises were marked with barcodes.

(f) The evidence given by Mr Singh about the purchase on 25 February 2012 was that it was a normal transaction with cash being handed over and change being given. A receipt was printed off albeit it with a different address on it and the returns policy was explained by the member of staff.

(g) There was in addition to the evidence of Mr Materia evidence from a member of staff, a Mr Laher, who gave different evidence concerning the use of the Epson printer from that given by Mr Materia. Mr Laher said that the printer was no longer used. Mr Materia said that it was used for delivery notes and receipts."

9. In addition, the Crown Court also had regard to the content of the appellant's website which was available during the period covered by the informations. That advertisement referred expressly to the site at Gwendolen Road as the base for the appellant's operations as a Builder's Merchants and went on to identify that its tools and supplies were available "to both trade and DIY".

3. THE APPELLANTS' CASE

10. It is the appellants' case that use as a Builder's Merchants is sui generis; it does not fall into a Use Class defined by the Use Classes Order, so if the use of the site did fall within one of the established use classes, such as B8 (storage and distribution), or A1 (a shop), then it was not being used as a Builder's Merchants and the prosecution must fail. It was said that the prosecution had failed to show use as 'a Builder's Merchants with ancillary sales'.
11. One complaint made by the appellants during their oral submissions, which does not easily fit within the four questions for me, was Mr Clarke's point that the Crown Court did not define the meaning of "Builder's Merchants". In both the Crown Court and before me, he relied on the decision of Sullivan J (as he then was) in R (C W Young Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 141. In that case the following passages seem to be relevant:

"52. But this argument fails on the undisputed facts in the present case. The Claimant never suggested that retail and wholesale sales were separate and distinct. The reverse is the case. I have set out his arguments to the Inspector in 1980 (see paragraph 11 of the 1980 Inspector's report). In his conclusions the Inspector in 1980 noted that the appellant claimed that the two categories of sale "were virtually indistinguishable" (paragraph 35). The Inspector agreed "it is impossible to draw a clear line between one type of sale and another" (paragraph 36).

…

65. The argument that the 1981 planning permission was not implemented elevates the Secretary of State's omission to refer to wholesale trade in the 1981 decision letter to an undeserved importance. On the evidence as set out in the 1980 Inspector's report and the 1981 decision letter, there was but one use on this single planning unit. It would have been more appropriately described as "a builder's merchant's yard". It was not. But what matters is not the label that was given to the use at the time but what activities there were on the ground. They were on the evidence the storage of builder's materials for sale by both wholesale and retail.

66. The Secretary of State mentioned two of those three elements (storage, and retail sale) in the planning permission granted in 1981. He failed to mention wholesale. All three elements of the builder's merchant's yard use continued: storage, retail sales, and wholesale sales. That does not mean that the 1981 planning permission was not implemented. It was, by the continuation of the two elements referred to in the permission: storage and retail sales. Wholesale sales also continued even though they had not been permitted. Clearly, they were being tolerated at that time by the Council.

67. There was, for the reasons I have attempted to set out above, no question of there being two separate uses on this 1h site (a mixed use of storage and retail sales, and a separate builder's merchants' yard with ancillary storage). On all of the evidence it is abundantly plain that there was one use as a builder's merchant's yard. To contend that there were two uses is to construct an artificial edifice upon the basis of the Secretary of State's error."

12. On analysis, I consider that the complaint that the Crown Court did not define what was meant by "use as a Builder's Merchants" is unfair and unfounded. First, it is apparent from the documents that the parties have always been broadly agreed that the definition of "a Builder's Merchants" was "the supplier of building materials". That is expressly accepted at paragraph 11 of the appellants' expert's report. Whilst I recognise that the appellants' expert sought to qualify that by reference to wholesale rather than retail sales, a point to which I will come in a moment, it seems clear that the general definition was agreed. Secondly, it was also agreed by both sides that sales were the critical element of the operation of a Builder's Merchants, both generally and in relation to this particular case. There is no dispute that building supplies could be, and were, stored on this site. The only debate was about sales.
13. Accordingly, it does not seem to me that the definition of a Builder's Merchants required any further definition beyond that which was agreed by both sides. Such a definition was in accordance with CW Young. Against that background, therefore, I turn to the four questions.

4. QUESTIONS 1 AND 2

14. I deal with Question 2 first: was the meaning of 'use as a Builder's Merchants with ancillary sales' a matter of fact or a mixed matter of fact and expert opinion?
15. On this topic, the Case Stated said at paragraphs 6 and 7:

"6. The court did not prevent the appellant from calling his expert, but the question of whether the premises was being used as a Builder's Merchants was, in it opinion, a question of fact for the court.

7. The court gave the term its ordinary meaning and having heard the evidence was sure that the premises was being used as a Builder's Merchants between the dates alleged."

16. It seems to me that the answer to Question 2 is plainly Yes. It is a matter of fact as to whether a particular site was being used in a particular way during the relevant period. Expert evidence can have no place in reaching a decision of that kind.
17. This answer was supported by Mr Clarke's own submissions. His expert evidence, which the Crown Court generously allowed in, went to various arguments of law to the effect that sales might be ancillary to the use of the site for storage and distribution, or that sales might be de minimis, or that sales might not be wholesale. If any of these were possible, it was said that the prosecution must fail. In my view, none of those were matters of expert evidence at all. At best, they were opinions on various aspects of planning law. Their inclusion in the report relied on by the appellants meant that their expert was attempting to set himself up in place of the Crown Court. In my view his evidence was inadmissible.
18. Mr Clarke's alternative submission on this topic was that the decision of fact had to be reached against a background of planning law, and in particular the law relating to use, change of use and the like. I agree with that; Ms Allen agreed with that. Those were matters which the Crown Court was entitled to consider, untrammelled by the views of any so-called planning experts.
19. As to Question 1, it follows that the Crown Court would not have admitted Mr Fariq's evidence as expert evidence, because they rightly did not regard the issue that they had to decide as being one for expert evidence. They did allow in his evidence as to matters of fact. His second statement had been served on the appellants, and was seen by the Crown Court, because the application to rely on his oral evidence in accordance with that statement was only made only on the day of the hearing. The Case Stated said this:

"15. The application was refused [the appellant's application to adjourn as a result of the late notification of the evidence]. The statement was a page and a half. It was not complicated and the appellant's expert was at court and available to give advice if necessary.

16. In any event the court took the view that the statement was not expert evidence. It was a statement from Mr Zafer Faqir, the planning officer, who was essentially summarising in a short statement the council's position. If he did express an opinion about whether the premises were a Builder's Merchants that had no bearing on whether the court found such a fact proved."

20. There can be no question but that Mr Fariq's evidence of fact was properly adduced. There was no expert evidence in his statement. The proof of that can be seen in the Case Stated itself. There is no finding there, no reason for the Crown Court's decision as to whether or not the site was being used as a Builder's Merchants, that was based in any way on any expression of Mr Fariq's opinion. His opinion was simply not relevant.
21. There are other points. The statement was not Mr Fariq's evidence. That was given orally and was more circumscribed than the statement. There was in any event no prejudice to the appellants who were able to rely on their expert evidence as a result of the order of the Crown Court.
22. Accordingly, for these reasons, the answer to Question 1 is Yes.

5. QUESTIONS 3 AND 4

23. I have set these questions out at paragraph 4 above and do not repeat them here.
24. In my view, dealing with Question 3 first, sub-questions (i) to (iv) are based on a false premise. They assume that, in order to succeed, the prosecution had to differentiate each time between trade sales and retail sales, and to demonstrate that there was a certain volume of sales that was required in both categories before a breach of the enforcement notice could be made out. I do not accept either submission.
25. It will often be impossible for a distinction to be made between trade sales and retail sales. The sole trader; the DIY enthusiast with an account who is entitled to a trade discount; it would be impossible to say each time, in relation to each individual customer, whether the sale was wholesale or retail. Indeed that is the very point made in C W Young, that a distinction between them is often imperceptible. As Ms Allen memorably put it, it is asking too much to expect the prosecution to provide evidence of a queue of customers round the block, some in overalls bearing the name of a large construction company, and others in their Sunday best. What matters is the evidence overall.
26. Similarly, I do not agree that a successful prosecution required proof of a certain number of sales in order to succeed. The respondents do not have the resources to monitor the appellants' site on a daily basis, on the off-chance of a breach being demonstrated. Again in relation to sales, what matters is the nature of the evidence overall.
27. In my view, the evidence overall, as summarised in the Case Stated (at paragraphs 8 and 9 of this Judgment), was sufficient to justify the dismissal of the appeal in this case. Overall there was sufficient evidence of wholesale and retail sales.
28. One of the Mr Clarke's principal points was that if the sales were ancillary to storage/distribution, rather than a Builder's Merchants, then the use would have been lawful and no change of use would be established. He said that the failure of the court to conduct an enquiry into that possibility was fatal to the prosecution case.
29. There are a number of points to make about that. First, that was not the defence being run at the time of the original hearing. I note that at paragraph 17 of the Case Stated it says:

"The case put forward by the appellants was that no sales took place from the site in question. Merely that it as used for storage and distribution. It was asserted that sale only took place at the other premises belonging to Matsons Ltd at Humberstone Road."

The evidence plainly defeated that defence, because there was a good deal of evidence of sales and the equipment for sales at the site at Gwendolen Road.

30. In any event, given: i) the history of the site and its prior use as an unauthorised Builder's Merchants; ii) the terms of the enforcement notice; iii) the failure to comply with the enforcement notice in April 2011; iv) the evidence summarised at paragraph 8 above in relation to both the test purchase and the sophisticated sales paraphernalia; and v) the wide terms of the advertisement; the Crown Court was plainly entitled to conclude that these were sales ancillary to the unauthorised use of the premises as a Builder's Merchants.
31. Another of Mr Clarke's submission was that the sales could have been de minimis and again he criticised the Crown Court for not investigating that particular aspect of the case. But again it seems to me that the evidence that I have summarised in the previous paragraph, and in particular, the sophisticated equipment necessary to process regular sales, as well as the web-site advertisement, demonstrates that the test purchase should not be seen in isolation, and should be considered against a background of a system set up to process regular sales.
32. Finally, although Mr Clarke is right to say that the prosecution had to show a material change of use in this case (from B8 storage to the use of the site as a Builder's Merchants with ancillary sales), I conclude that that is what they did.
33. Thus the answer to Question 3 is Yes. That applies to each sub-question even though, for the reasons I have given, all that really matters is Question 3(v).
34. As to Question 4, in connection with the advertisement, for the reasons already given, the answer is also Yes. The advertisement was part and parcel of the background and made plain the appellants' continuing intention to sell construction supplies from this site. That intention was plainly expressed in terms of both wholesale and retail. Contrary to Mr Clarke's submissions, there was no differentiation between the site at Gwendolen Road, and the activities of the appellant companies. On the contrary, the information on the company's own website advertised the site at Gwendolen Road as a Builder's Merchants. The Crown Court was obviously obliged to take this evidence into account.

6. CONCLUSION

35. For all these reasons, it seems to me that the answer to each of the Questions raised in the Case Stated is in the affirmative. The appellants' claim is therefore dismissed.