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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mid Suffolk District Council, R (on the application of) v First Secretary of State [2005] EWCA 2634 (Admin) (27 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2634.html Cite as: [2005] EWCA 2634 (Admin)

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

		Royal Courts of Justice Strand London WC2
		27 October 2005

MR JUSTICE SULLIVAN:

Introduction

1. This is an appeal under section 289 of the Town and Country Planning Act 1990, "the Act", against a decision of an inspector appointed by the first defendant allowing in part appeals made by the second defendant against two enforcement notices served by the claimant in respect of land known as The Woolpit café, which is adjacent to the A14 sliproad at Woolpit.
2. The inspector's decision is contained in a decision letter dated 21st June 2004 and followed a inquiry, which opened on 2nd June 2004. The inspector made a site inspection on 3rd June. The enforcement notices were issued by the claimant on 19th November 2003.
3. Notice A alleged the followed breach of planning control:

"Without planning permission, change of use of land and premises from the use of the land for agriculture, woodland and highway to use as a café including stationing of a mobile catering unit, toilet block and ancillary parking, land for the parking of vehicles unrelated to the use of the café, woodland and highway."

4. Notice A's requirements were as follows:

"1. Cease using the land and premises edged red as a café, for purposes ancillary to the café, and cease the unrelated parking of vehicles or trailers.

"2. Remove the mobile catering unit and toilet block in their entirety from the land.

"3. Remove all hard standing and rubble from the area coloured blue on the attached plan and remove any resultant materials from the area edged red on the attached plan."

5. The breach of planning control alleged in enforcement notice B was:

"Without planning permission, the laying of hard surfacing."

6. The requirement was, in summary, to remove all the hard surfacing from the land.

The decision letter

7. The second defendant appealed against the notices on grounds (a), (c), (d) and (f) in section 174 (2) 2 of the Act. In paragraph 3 of the decision letter, the inspector said:

"In 1995, planning permission was granted (ref: 567/95) for the stationing of a mobile catering unit and the formation of a car park, ancillary works and picnic area. In the following year planning permission 887/96 was granted for the retention of a portable catering unit on the site, the stationing of toilet accommodation and a private sewage system. The mobile catering unit in 1995 was a small burger bar on wheels and it was replaced in 1996 by a larger portacabin with a inside seating area. The café traded from that unit during 1996 and part of 1997 but it was then removed and it would appear that the site was disused for a period until the present, larger portacabin was stationed on a different part of the site in September 1999 and the lower parking area was extended."

8. In paragraph 4, the inspector noted that the second defendant's appeal on Ground (c) was on the basis that the use of a large part of the site for café purposes and the formation of part of the hard standing were permitted by the 1995 and 1996 permissions. The inspector continued in paragraphs 5 to 7:

"It has since been established that the 1:2,500 scale location plan and red line identifying the application site for both of those applications wrongly defines the adjoining area of woodland to the west of the appeal site. However, the 1:500 scale block plan and site layout in both cases identifies the correct piece of land by reference to nearby fixed points. The drawings for both applications were prepared by the same draftsman and use the same base plans. The parties disagree on whether those permissions were implemented. The Council contends that the red line plan is a legal requirement that takes precedence over other submitted drawings and, since no works were carried out within the red-lined area, the permissions have lapsed and have no relevance to the development on the appeal site.

"6. The Town and Country Planning (Applications) Regulations 1988 require that applications should be made on a form issued by the local planning authority, should include the particulars required by the form and should be accompanied by a site plan sufficient to identify the land to which the application relates. The regulations do not require the site to be identified by a red line, but the application form states that the boundary of the application site should be indicated precisely by a red outline. There is no dispute that the red line on the 1995 and 1996 applications outlines the wrong piece of land. However, this caused no confusion at the time because both applications were retrospective and no-one was in any doubt as to where the site was actually located. The 1:500 scale drawings were then considered to be sufficient to accurately identify the site and to show the positioning of the catering unit and hard standing. The Council did not spot the discrepancy between the site layouts and the red line plans until 2001.

"7. I attach significant weight to the fact that both applications were accompanied by a 1:500 scale plan which correctly identifies the land to which they relate, as required by the 1998 Regulations. In view of those plans and the fact that the development actually existed on site when the applications were under consideration, I consider that it would defy common sense to conclude that the incorrect red outline on the 1:2,500 scale plan should take precedence and the that the correct interpretation of the permissions is that they in fact relate to an area of roadside woodland. I conclude that the 1995 and 1996 planning permissions relate to the appeal site."

9. In the light of that conclusion he said in paragraph 9:

"I conclude that the 1995 planning permission relates to part of the appeal site and has been implemented in accordance with section 56 of the 1990 Act. The consequence is that the car park described as "rolled hoggin on a hardcore base" permitted by that permission, and subsequently laid out as is lawful and the appeal on Ground (c) succeeds to that extent."

10. He continued in paragraphs 10 and 11:

"10. In order to interpret the effect of the 1996 permission I consider that it is first necessary to decide whether the portable catering unit and toilet accommodation then permitted are a use of the land or whether they are buildings, and thereby operational development. The defendant contends under this Ground that the 1996 permission is for a use of the land and, since there are no conditions limiting the size or position of the portable catering unit and toilet accommodation, planning permission is not required for the present units.

"11. Before the inquiry both parties had assumed that the stationing of portacabins is a use of the land, but I raised and sought submissions on the alternative proposition that it could amount to operational development. The Council considers that the facts of the case support the conclusion that the stationing of portacabins is a material change of use. The appellant adopted both interpretations in the alternative, since the change of use option supports the Ground (c) appeal, whereas the operational development option supports the Ground (d) appeal."

11. Having discussed the relevant case law in paragraph 12, the inspector said in paragraphs 13 to 17:

"13. I consider that a 36-seat café is of sufficient size to be regarded as a building. It has been in the same position for about five years and I regard that as amounting to physical change of some permanence. It stands on metal skids that rest on timbers placed on the ground and it does not appear to be fixed except by a drainage pipe to the sewage system. I do not regard the limited degree of attachment as being decisive. I conclude as a matter of fact and degree that the café amounts to a building rather than a use of the land.

"14. As a result of this conclusion, it is necessary to correct the enforcement notices in order to transfer the café from the change of use notice to the operational development notice, and to make other consequential adjustments. The change of use notice also includes amongst its requirements the removal of the hard standing areas. This in my view unnecessarily duplicates the requirements of the operational development notice and I propose to correct the change of use notice accordingly.

"15. The detached toilet block is much smaller, more obviously portable, and was brought onto the site in mid-2000 to replace another portaloo-type structure. I conclude as a matter of fact and degree that the stationing of the toilet block is a use of the land. There are no conditions on the 1996 permission restricting the size or position of such a portable toilet unit and I therefore conclude that the stationing of the present toilet block is authorised by the 1996 permission. The appeal on Ground (c) succeeds to that extent.

"16. However, I conclude that the 1996 permission authorised the stationing of a portable catering unit of the specific size and position shown on the approved block plan. It does not in my opinion authorise the café in its present position and the appeal on Ground (c) fails in respect of the café.

"17. The appeals on Ground (c) succeed in respect of the parking area approved by the 1995 permission and the toilet block approved by the 1996 permission."

12. The inspector then considered the second defendant's Ground (d) appeals and in view of his conclusion that the café was a building rather than a use of the land, concluded that it had been in position for more than four years and had therefore become lawful by the passage of time, so that the Ground (d) appeal succeeded to that extent.
13. So far as the car parking area was concerned, the inspector concluded that most of the enlargements since the café was reopened in September 1999 had taken place within the four-year period and were not therefore immune from enforcement action.
14. A small area beyond that authorised by the 1995 permission was however immune and to that limited extent the Ground (d) appeal succeeded in respect of the car park. The remainder of the car park, which was not immune from enforcement action, was identified by the inspector by way of cross-hatching on a plan referred to in his decision letter.
15. The inspector dismissed the appeals on Grounds (a) and (f) and in his conclusions in paragraph 31, said:

"For the reasons given above and having regard to all other matters raised, I conclude that the appeals should succeed in part only on Grounds (c) and (d), but otherwise I will uphold the notices with corrections and variations and refuse to grant planning permission on the other part. The effect of these decisions is that the existing café, the toilet block, the parking area laid out under the 1995 permission and the hard standing completed before 19th November 1999 are lawful. The notices are upheld and planning permission refused in respect of the hardstandings completed after the relevant date and for the use of the land for overnight lorry parking."

16. The inspector's formal decisions in respect of notices A and B are contained in paragraphs 49 to 58 of the decision letter. He corrected and varied both notices so that the breach of planning control alleged in notice A, read:

"Without planning permission the change of use of the land from use for agriculture, woodland and highway to a mixed use for woodland, highway and uses ancillary to a café, namely the stationing of a portable toilet block and vehicle parking, and for the parking of vehicles unrelated to the café, highway and woodland."

17. The requirement read:

"(i) Cease using the land cross-hatched on the attached plan for vehicle parking.

"(ii) Cease any overnight parking of vehicles or trailers."

18. The breach of planning control in notice B read:

"Without planning permission siting a building for use as a café and the laying of hard surfacing."

19. The requirement read:

"(i) Take up all hard surfacing, hardcore and rubble from the land cross-hatched black on the plan attached to this decision and remove all such materials from the land edged black.

"(ii) Restore the land to its condition before the development took place."

20. Thus in practical terms the effect of the inspector's decision was that the amount of hard standing had to be reduced and overnight parking of lorries and trailers had to cease, but the café building could continue in use as such without any conditions.
21. This was the effect of sub-section 173,(11) of the Act, which provides:

"Where --

"(a) An enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not to do so; and.

"(b) All the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."

22. Section 73A deals with the applications for retrospective planning permission.

Submissions and conclusions

23. On behalf of the claimant, Mr Bird submitted that the inspector had erred in law in two respects: firstly, in having regard to extrinsic evidence in reaching his conclusion in paragraph 7 of the decision letter that the 1995 and 1996 permissions related to the appeal side; secondly, failing to pursue the implication of his decision that the café was a building rather than a use of the land was a logical conclusion, and to ask himself whether the use of that building for café purposes was lawful, either because it was permitted by the 1995 and/or the 1996 permission, or because it had become immune from enforcement action.

Ground 1

24. Mr Bird accepted that, subject to the "red line-point", (the fact that the red line on the 1:2,500 location plan identified an area of woodland adjoining the site) the 1995 and 1996 permissions had been implemented. He also accepted that if extrinsic evidence could be considered, it was plain that the red line had indeed been drawn around the wrong site. Nevertheless, he submitted that the authorities clearly established that it was not permissible to have regard to such evidence.
25. The principles were summarised by Keene J, as he then was, in a R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12, 19C-20B:

"The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:

"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and express reasons for those conditions ...

"(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document that is plain on its face without having to consider whether there is any discrepancy between the permission and the application ...

"(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "... in accordance with the plans and application ..." or "... on the terms of the application ...," and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted ...

"(4) If there is any ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application to resolve that ambiguity ...

"(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue ..."

26. At this stage in the judgment it is helpful to look at the 1995 and 1996 planning permissions in a little more detail. The 1995 permission dated 15th August 1995 describes the proposed development and location of the land as:

"Layout of picnic area, car park, stationing of a mobile catering unit and ancillary works; alteration to existing vehicular access. Part OS 4950, land adjacent to eastbound slipway off A14, Woolpit."

27. It states that:

"Planning permission has been granted in accordance with the application particulars and plans submitted subject to the following conditions ..."

28. It is common ground that this form of words was sufficient to incorporate the application form and the site plan and the block plan into planning permission but not in the absence of any ambiguity, the covering letter that accompanied the application.
29. The application form gave the address of the site as Part 0S 4950, land adjacent to eastbound slipway off A14, Woolpit.
30. Question 6 told the applicant to:

"Indicate precisely on your Ordnance Survey site plan by a RED OUTLINE the boundary of the application site.

"Indicate the boundaries of any other land in same ownership by a BLUE OUTLINE."

31. Question 7 asked the applicant to describe the proposed development and the answer was:

"Layout of picnic area, car park and stationing of mobile catering unit and ancillary works."

32. Certain dimensions were given in answer to question 8 and reference was again made to the plans.
33. Question 10 asked, amongst other things, whether the proposal involved the alteration of existing vehicular access, to which the answer was, "Yes."
34. Question 12 asked whether the proposal would involve the felling or lopping of any trees, to which the answer was, "No."
35. Question 13 asked the applicant to describe the purposes for which the land and/or the buildings were now used or last the use, the answer to that was, "Part former A45 highway -- part amenity land."
36. The block plan accompanying the application showed the adjacent highways, indicated the extent of the canopy of trees and bushes at the time of survey and showed the location of the proposed catering van, the picnic area and the car park. In addition, it identified a field entrance with posts up on either side and various other items, such as No Entry signs, British Telegraph poles and so forth.
37. The 1:2,500 plan showed red and blue lines around an area shown as woodland on the Ordnance Survey, which is located immediately to the east of the corrected site.
38. The 1996 permission notice, dated 26th November 1996, describes the proposed development and location of the land as:

"Retention of portable catering unit, stationing of toilet accommodation, private foul sewage system. Part OS 4950. Land adjacent to eastbound slipway off A14, Woolpit."

39. Again, the application form and the plans, but not the covering letter, were incorporated into the permission.
40. The application form gave the address of the application site as, "Catering Area, Part OS 4950, Adjacent A14, Woolpit."
41. The proposed development was described as stationing a portable catering unit, toilet accommodation and installation of septic tank drainage.
42. Again, it was said that there would be no felling of any trees and the description of the purposes for which the land and/or the buildings were used or last used was, "Approved rest/catering area."
43. The 1996 application was not accompanied by a second 1:2,500 location plan on an Ordnance Survey base, but inset into the 1:500 block plan there was a location plan which showed the same areas edged red and blue as had been shown on the location plan which had accompanied the 1995 application.
44. The block plan for the 1996 application was very similar to the earlier block plan, but it now showed a toilet block. It showed a catering unit in a different position. It also showed a field entrance with the posts and the various other features shown on the earlier plan, such as signs, poles and the extent of the tree canopy at the time.
45. On behalf of the Secretary of State, Mr Moffett submitted that the plans accompanying the application should not be considered in the abstract. They described features on the ground. Considering the plans on the site, the inspector had found as a fact that the two 1:500 block plans had identified:

"... the correct piece of land by reference to fixed points."

46. That was a finding of fact with which this court should not interfere.
47. It would therefore be apparent to anyone seeking to relate what was shown on the plans to what existed on the ground that there was a conflict between the plans so that the planning permission was not unambiguous as to where the development described in the permission was being permitted. In those circumstances it was permissible to have regard to the letter dated 26th June 2005, which accompanied the 1995 application, and which stated in terms that the development for which permission was sought had already commenced on the site.
48. With that knowledge and the assistance of the block plan, it was therefore possible to establish the location of the development that was the subject of the 1995 permission. In respect of the 1996 permission, he submitted that the case was even stronger because the permission notice referred in terms to the retention of the portable catering unit.
49. Clearly, permission was being granted on the face of the document for an existing unit, so it must be permissible to look on the site or to look on the ground to see where that unit, which was being permitted, was located.
50. While the covering letter accompanying the 1996 application dated 3rd October 1996 did not state in terms that the development was in existence on the site, if the letter was read as a whole it was plain that the development was on-site, and all the permission being sought was for the provision of the toilet accommodation and the installation of septic tank drainage.
51. Mr Bird submitted that, looking at the plans, there was no ambiguity, merely perhaps an 'anomaly'. Whilst it was permissible to have regard to extrinsic evidence in order to identify a thing, for example what was the portable catering unit which could be retained pursuant to the 1995 permission, it was not permissible to have regard to extrinsic evidence to identify a location, more particularly if that location differed from the location shown by a red line on an application plan.
52. In support of his submission that extrinsic evidence could be used to identify places as well as things, Mr Moffett relied on a passage in a speech of Lord Reid, with whom the remainder of their Lordships agreed in Slough Estates Limited v Slough Borough Council and Others (No 2) [1971] AC 958. At page 962G, Lord Reid said:

"Of course, extrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence."

53. It cannot be stressed too often that each case turns on its own facts. The facts in the Slough case were somewhat complex, but I can see no logical reason why extrinsic evidence should not be admissible to identify a place in the event of ambiguity if it would be admissible to identify a thing in the event of ambiguity, for example in a planning permission granted under section 73A, what was the development which had been carried out and for which planning permission was granted?
54. Although many of the judgments dealing with this issue use the word 'ambiguity', they are not to be construed as if they were enactments, but must be considered in the context of the particular factual matrix that was before the court.
55. In Ashford, the issue was not: "to which area of land, area X or area Y, does this planning permission relate?" but "what development has been permitted on area X?" For obvious reasons, disputes about precisely what has been permitted on a particular area of land are rather more common than disputes about the location of a particular development. Whilst there are sometimes disputes about the extent of a site, this is to the best of my knowledge, the first case where a court has had to consider the argument that, in effect, planning permission has been granted for the 'right' development on the 'wrong' site.
56. Mr Bird submitted that if extrinsic evidence was admissible, it would merely demonstrate that there had been a 'mistake', so that this case would fall within the fifth category set out by Keene J in Ashford, and the planning permission would therefore be invalid. He very fairly accepted that this argument was not put before the inspector. I should add that neither he nor Mr Moffett appeared at the inquiry before the inspector.
57. Mr Bird pointed out that the inspector had not identified the "nearby fixed points" which had enabled him to identify the correct piece of land.
58. However, he acknowledged that there was no evidence as to what information was or was not before the inspector on this point and no information as to whether any and if so, what, submissions had been made in relation to this particular aspect of the appeals.
59. In the absence of such evidence I accept Mr Moffett's submission that the court should not go behind a clear finding of fact by the inspector. A plan should not be considered in the abstract. Whether, looking at a plan of a particular site, an inspector is able to identify a particular piece of land by reference to nearby fixed points is very much a matter of judgment and expertise.
60. There is simply no evidence before the court that the inspector was not in a position, reasonably, to make the judgment set out in paragraph 5 of the decision letter that the block plan, in both cases, identified the correct piece of land by reference to nearby fixed points.
61. Although this particular question was not in issue in the Ashford case or in any of the other cases cited, I see no reason why extrinsic evidence should not be admissible in order to resolve an ambiguity as to the extent, or, as in the present case, the location of an application site, as well as to resolve an ambiguity as to the nature or extent of the development that has been permitted on a particular site. In view of the inspector's conclusion that the block plan identified the correct piece of land, but the site plan did not, there was an ambiguity in the plans which had been incorporated into the permission, which was capable of being resolved by extrinsic evidence. That was possible in the present case, not least because both of the applications can, with the benefit of extrinsic evidence, be seen to have been retrospective applications, so that the development for which planning permission was being sought was in existence and was therefore capable of being identified by means of extrinsic evidence.
62. For the sake of completeness I should mention that Mr Bird referred in his submissions to section 22 of the Act, which provides as far as material, that:

"(1) A development order may make provision as to applications for planning permission made to a local planning authority.

"(2) Provision referred to in subsection (1) includes provision as to --

"(a) The form and manner in which the application must be made;

"(b) Particulars of such matters as are to be included in the application;

"(c) Documents or other materials as are to accompany the application.

"(3) The local authority may require that an application for planning permission must include --

"(a) Such particulars as they think necessary;

"(b) Such evidence in support of anything in or relating to the application as they think necessary."

63. The Town and Country Planning (Applications) Regulations 1998 require that an application for planning permission shall:

"(a) Be made --

"(i) On the form provided by the local planning authority ...

"(b) Include the particulars specified in the form and be accompanied by a plan which identifies the land to which it relates and any other plans and drawings and information necessary to describe the development which is the subject of the application ..."

64. Article 25.3 of the Town and Country Planning (General Development Procedure) Order 1995 provides that a copy of the application together with any accompanying plans and drawings is to be placed in the planning register and will therefore be made available for public inspection.
65. In my judgment, these enactments are of no assistance in deciding whether, because of the apparent conflict found by the inspector between the site shown on the 1:2,500 plan and the site to which the block plan related, it was permissible to have recourse to extrinsic evidence in order to resolve the conflict. The availability of certain material for public inspection on the planning register certainly underlines the need to exclude extrinsic evidence generally when construing planning permissions, but again, that general proposition is of no assistance if the material on the register (in the present case the two sets of plans) is itself ambiguous as to what has been permitted and/or perhaps very infrequently, where it has been permitted.
66. For these reasons, I reject the challenge on Ground 1. I appreciate that my approach differs somewhat from the approach set out in paragraphs 5 to 7 of the decision letter, but it is common ground that the proper interpretation of the 1995 and 1996 permissions is a matter of law for the court, so what matters is whether the inspector got the answer right, not the detail of his reasoning.
67. I merely add that I am comforted that the conclusion that I have reached by the legal route agrees with the inspector's 'commonsense' conclusion.

Ground 2

68. In paragraph 10 of the decision letter (above) the inspector implicitly posed the question: what was the effect of the 1996 permission? However, he did not proceed to answer that question, but instead concluded that the stationing of the Portacabin on the land was operational development rather than a use of the land.
69. The claimant does not challenge that conclusion and accepts that the inspector was entitled, as a matter of fact and degree, to conclude that the café amounted to a building rather than a use of the land.
70. However, Mr Bird submits that the inspector, having raised this point himself and having concluded that there had been operational development, should then have gone on to consider the implications of that conclusion in terms of the use of the building. Was its use as a café lawful or unlawful? Its use would be lawful if it had been permitted by the 1995 or the 1996 planning permission if it did not amount to a material change of use from a use which h ad been begun pursuant to those permissions, or if it had continued for ten years and so had become immune from enforcement action.
71. Merely because a structure has become immune from enforcement action because it has been in existence for four years does not necessarily mean that any particular use of that structure will also be lawful. Subject to the operation of section 173, subsection 11, see above, in the case of buildings that have become immune from enforcement action because they have existed for more than four years, there is no equivalent to section 75, subsections (2) and (3) of the Act, which provide:

"(2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.

"(3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed."

72. Considering first the 1995 and 1996 permissions, whatever else they may or may not have permitted, they certainly did not permit the erection of a café building. It will be remembered that the 1995 permission referred to "the stationing of a mobile catering unit", and the 1996 permission referred to "the retention of a portable catering unit".
73. Therefore, the use of the (immune) café building was not permitted by either of the two planning permissions. It is also clear from the decision letter that it had not been in existence for ten years. The inspector found that following a period of disuse, the Portacabin had been stationed on the site in September 1999. See paragraph 3 of the decision letter.
74. In his submissions on behalf of the Secretary of State, Mr Moffett submitted that it had been unnecessary for the inspector to consider the use of the café building because it was implicit in the 1995 and 1996 planning permissions that permission had been granted for the use of the whole site for café purposes. Enforcement notice A had complained of the stationing of a mobile catering unit. In its grounds of appeal to this court, the claimant had described the "primary use of the site" as a portable catering unit.
75. I do not accept the proposition that the 1995 and 1996 permissions 'implicitly' gave planning permission for a café use over the whole of the site. There is simply no room in the statutory code for an "implicit" permission. Permission is either expressly granted for the making of a material change of use or it is not.
76. In response to two applications for retrospective planning permission, the claimant granted permission in 1995 for a mobile catering unit to be stationed on a location shown on the block plan, and in 1996 for the retention of a portable catering unit, again in a location shown the block plan accompanying the application.
77. While I recognise that there may be questions as to the extent to which the planning permissions enabled those mobile/portable units to be moved about the site without there being a material change of use, it is plain that the permissions did not grant permission for the use of any building on the site as a café. Nor did they grant planning permission for a café use over the whole of the site, including the car parking area.
78. Even if planning permission had been granted for the use of the open land on all or part of the site for café purposes, the question would arise as to whether such a permission would also permit the use of a building on the land if that building was ctedrex without planning permission and subsequently become immune from enforcement action (as a building) by reason of having been in existence on the site for more than four years.
79. These questions were not addressed by the inspector. Although Mr Moffett submits that the inspector was obliged to do no more than respond to the arguments that were placed before him, what distinguishes this case from many others was the proposition that the café was a building rather than a use of land was raised by the inspector himself.
80. Having raised that argument, it was incumbent on the inspector to consider the implications of his conclusion that, whereas the 1995 and 1996 permissions had referred to mobile/portable catering units, the development that had actually been carried out on the site was the erection of a building.
81. It is true that enforcement notice A complained of the stationing of a mobile catering unit, but that was not the whole story. It complained of the use of the land without planning permission, "... as a café, including the stationing of a mobile catering unit ..."
82. Thus if one notionally deleted the complaint relating to the stationing of a mobile catering unit and placed that complaint within the ambit of enforcement notice B, one was left with the Claimant's complaint that the land and premises were being used as a café without the benefit of planning permission.
83. I think it unnecessary and undesirable to express any further views as to the ambit of the development permitted by the 1995 and 1996 permissions. Unnecessary because I am satisfied that the matter must be remitted to the inspector for further consideration in any event, and undesirable because he did not hear argument as to, for example, whether or not it would have been permissible to move the mobile catering units about the site, pursuant to the 1995 and 1996 permissions, or whether it would have been permissible to replace one mobile unit with another.
84. I have heard no submissions about those matters and the second defendant has not been represented before me. I simply say that the matter must be remitted to the inspector to enable him to finish the task, which, in effect, he set for himself. What is the implication of his conclusion that there is not a mobile or portable catering unit on site, but a café building?
85. While the inspector did not find it necessary to consider the Ground (a) appeal in respect of the café building because he indicated in paragraph 26 of his decision letter that the only matters that remained to be considered under Ground (a) were the hatched area of car parking, it is clear that when the matter is remitted to him, he will be in a position to consider whether the use of the immune café building is or is not lawful, if not, whether planning permission ought to be granted under Ground (a), bearing in mind (a) that the structure itself is immune, and (b) my conclusion that he was entitled to conclude that the 1995 and 1996 permissions related to the appeal site. On that basis it is common ground that those permissions were implemented so that for example the car parking and toilet facilities constructed and/or provided pursuant to those permissions would be lawful.
86. The implications of those findings and the question of what conditions (if any) should be imposed on any grant to planning permission will be for the inspector to consider when the matter is remitted to him, which I now do.