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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cophall Farm Parking Ltd, R (on the application of) v Secretary of State for Communities & Local Government [2009] EWHC 270 (Admin) (22 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/270.html Cite as: [2009] EWHC 270 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF COPHALL FARM PARKING LIMITED | Claimant | |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT | Defendant |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr D Forsdick (instructed by Secretary of State) appeared on behalf of the Defendant
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Crown Copyright ©
"Without planning permission making a material change of the use of land from agriculture to use for off airport parking of vehicles in connection with Gatwick Airport."
"(1) To cease using the Land for the parking of vehicles unconnected with the permitted use of the Land for agricultural purposes.
"(2) To remove from the land all vehicles unconnected with the permitted use of the Land for agricultural purposes."
"Without planning permission making a material change of use of the land to use for the off airport parking of vehicles in connection with Gatwick airport."
"(1) To cease using land for the off airport parking of vehicles in connection with Gatwick airport.
"(2) To remove from the land all such vehicles."
"(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice whether or not a copy of it has been served on him.
"(2) An appeal may be brought on any of the following grounds.
"(a) That in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the conditional limitation concerned ought to be discharged.
"(b) That those matters have not occurred.
"(c) That those matters (if they occurred) do not constitute a breach of planning control.
"(d) That at the date when the notice was issued no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters..."
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
"(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of breach.
"(3) In the case of any other breach of planning control no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach."
"Where the Secretary of State gives a decision in proceedings on an appeal under part VII against an enforcement notice, the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according to the rules of court, provide either appeals of the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court."
"(10) Cophall Farm Parking Limited operate a car parking business for Gatwick airport passengers who leave their cars at Cophall Farm. Customers are then carried in the firm's mini buses to the airport, a road distance of 9.66 kilometres to the airport's south terminal... On return, customers ring Cophall Farm from the airport, a mini bus is dispatched to pick them up and return them on a ten to twelve minute journey back to Cophall Farm to collect their cars.
"(11) The business has been gradually built up over the years since 1985. The area has increased so that up to 1,300 cars can be parked on the land in summer. On average, about 800 cars are parked at Cophall Farm."
"(24) The case of Burdle v SSE [1972] 1 WLR 1207 set out three criteria to determine the planning unit:
"(i) When the occupier uses for a single main purpose to which secondary activities are incidental, the unit of occupation is to be taken as the planning unit;
"(ii) When a variety of activities none incidental or ancillary to the other, again consider the entire unit;
"(iii) When two or more areas are occupied for substantially different purposes, each area so used is a separate planning unit.
"(25) Assessment of the planning unit is a matter of degree, Church Commissioners v SSE and Gateshead MBC [1996] JPL 669. In the present case, the enforcement notice shows two separate areas of land the subject of the allegation and the requirements. It was agreed these two areas, referred to as the northern area and the southern area, were two parts of the same planning unit. That is, part of the planning unit used for the appellants' business operation at Cophall Farm for the off airport parking of cars of people using Gatwick airport.
"(26) The remaining area within this planning unit consists of permitted car parking operational land between the two notice areas together with the access road on to Effingham Road. Although it would have been clearer to show the outline of the whole of the car parking planning unit and to distinguish the two areas the subject of the allegation and requirements, no correction is needed to the notice plan in that regard."
"(32) The appeal on ground (d) is now confined to the southern area shown on Plan JLW 1. Ms Carter, the General Manager to Cophall Farm Parking Limited, produced photographs of cars densely parked on the southern area purporting to have been taken around 1996/7. It was not disputed that the photographs showed cars parked for users of Gatwick airport.
"(33) There must be some doubt, however, that the photographs pre-date March 1997. Had that airport car parking amounted to a material change of use of the land and that use been continuous throughout the period to 20th March 2007 (Thurrock BC v SSETR and Holding (COA 27/2/02), it would have become lawful. However, the car parking use on the southern area appears to have taken place only on rare occasions. Also, the start date and the materiality of any change on use is unclear. For example, an aerial photograph of September 1997 (GS 11, Doc 18) shows no cars parked on the southern area. Another aerial photograph taken in April 1999 (GS 12), again, shows no cars parked on the land. Nor does a September 2001 aerial photograph (GS 15). The southern area is shown on an August 2005 aerial photograph in use for car parking understood to have been for a short period when the facility was overbooked. This intermittent and infrequent car parking use of the southern area hardly supports the ground (d) appeal.
"(34) There was also the evidence of Mr Smith (the appellants' planning expert witness) whose plans of the site's history show no car parking use of the southern area in March 1997 (GS 6). Another plan shows part of the southern area said to have never been used for airport car parking while the remainder was said to have ceased to be used for airport car parking by 20th March 2007 (GS 7)
"(35) The appellants said that the southern area should be treated as being part of the parking use today as it was incidental and ancillary to the parking use, even when no cars parked on it. It had been so used for at least 10 years prior to the issue of the notice. It should be treated as immune from enforcement action. The ground (d) appeal should succeed in respect of that land, but the number of vehicles lawfully parked on the whole of the car parking area planning unit be limited to a total of 565.
"(36) My conclusion is that no cogent evidence showed that a car parking use of the southern area was started before March 1997 and actively continued to March 2007. Any material unlawful use of the southern area for airport car parking, from around 1996/7, clearly did not continue without break from more than 10 years back from the date of issue of the enforcement notice. If the change of use to airport car parking around 1996/7 was material, it was still open to the council to serve the enforcement notice, even where the breach ceased several years ago.
"(37) It may be that the southern area as shown on the amended enforcement notice plan was incorporated into the car parking planning unit as a landscaped area more than 10 years before service of the notice. If that is right, although the evidence was not directed at that point, it does not mean that cars could lawfully be parked on the land. The allegation refers to car parking. So the ground (d) appeal is an assertion that the land has been used for parking cars for more than 10 years before services of the notice. That appeal must fail. Any application made to the council for a LDC in respect of the southern area land having been used for amenity purposes in association with the car parking use of adjoining land would need to address the lawfulness of that use.
"(38) What remains before me is that the incorporation of the southern area into the lawful car parking use on land to the north is the subject of the deemed application under ground (a). The appeal on ground (d) fails."
"The proper approach in a case where: one, the alleged breaches is the making of a material change of use; and two, the appeal is on ground (d) of section 174 (2).
"(1) Identify the planning unit.
"(2) Identify the change of use.
"(3) Consider what was the use of the planning unit at the "base year" i.e. ten years before service of the enforcement notice.
"(4) If the use of planning unit is taken as a whole at the time of enforcement was similar to that at the base year then no enforcement action can be taken and the use is immune and in consequence lawful unless either there has been secession or substantial interruption of the use or there has been a further material change of use which has superseded the base year use.
"In the present case:
"(1) The inspector found that the planning unit was the area of occupation by the appellants and use for their business operation for off airport parking (DL paragraph 25) neither the LPA nor the inspector defined it on the plan but is included (at least) to the southern area as well as the "permitted" area, paragraph 26, and the conceded area, paragraph 28.
"(2) The change of use was to off airport parking (from some other use not identified - inspector deleted agriculture).
"(3) The use of that unit of base year. There are two possible interpretations of the DL either:
"(a) The inspector found that it was for off airport parking (see paragraphs 11 and 25). Note that he did not suggest that the extent of the planning unit change between 1997 and 2007 i.e. the planning unit was the same throughout, or;
"(b) He did not consider or make any finding as the use of the planning unit as a whole in 1974.
"(4) That the correct interpretation is:
"(a) Then the use of base year and enforcement year were similar and he should have concluded that it cannot be enforced against.
"(5) If the correct interpretation is (b) then the inspector has failed to apply the necessary test and his decision is flawed. The ground (d) appeal could not properly be determined without consideration of this point. The decision maker must consider the character of the use of the planning unit as a whole. A finding that apart of the planning unit was not in use at the base year or has not been continuously used throughout the ten years fails to address the correct question.
"(6) There is no finding and it was not alleged that the use had ceased, been interrupted or superseded. The use of the planning unit or of additional land within the planning unit for off airport parking was not a change of use of the unit."
"The planning unit is a concept which has evolved as a means of determining the most appropriate physical area against which to assess the materiality of change, to ensure consistency in applying the formula of material change of use. The general rule has also been that the materiality of change should be assessed in terms of the whole site concerned, normally the whole of the area in same ownership or the same occupation."
"What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been "a material change in the use of any buildings or other land"? As I suggested in the course of argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose. I think, therefore, they were entitled here to select as that unit the whole of the hereditament acquired by the appellants and, looking at that, ask themselves: was there any material change in the use of it? It is, I should have thought, as plain as a pikestaff that there was a change of use from an agricultural use as farm building to a storehouse for other purposes. I agree with by brethren that on both ground the appeal should be dismissed."
"But what I think is also clear, and Mr Slynn accepts it, is that a planning authority by an arbitrary division of an area into a number of smaller areas each with its own enforcement notice cannot by that means impose more severe restrictions on the land owner than might have been imposed on him by an enforcement notice applicable to the whole area.
"I find a formidable objection in the way in which the enforcement notices have been drafted in the case to put it, at its lowest: they create a grave possibility that their total and combined effect will be more restrictive than the single effect of a single notice applicable to the whole area.
"I say that for this reason, that the enforcement notice treats each of the areas as though it were a single planning unit. In the case of each area the recital speaks of the activities in that area which are complained of and the mandatory direction is similarly so confined. What the planning authority have done in this case, although no doubt well intentioned, is that having first checked whether there was a material change of use by looking at the area as a whole, they have in effect divided the area arbitrarily into six separate planning units and applied themselves to enforcement in those units individually....
"The breach of planning control relates to the whole planning area; enforcement and its effect must be related to the whole planning area. Difficult as it may to be to achieve the result, I would take the view that the enforcement notices cannot restrict the land owner in the movements of his vehicles or his activities within the planning unit, because he would have the right so to do under a single notice, and a right so to do under the general law. I find the present enforcement notices are unacceptable as a matter of law because they are based on the assumption that each area referred to becomes in effect a separate planning unit as soon as the enforcement notice is served."
"This ground is proceeded with on the basis only (i) if the proposed amendments to the notice are accepted; and (ii) the pink area is treated as being within the same planning unit as the Gatwick parking area, in which case, it must be on the basis that it is accepted that there are parts of the site where no parking takes place, or where parking has taken place intermittently, that nevertheless are treated as part of the same planning unit, because they are part of the same unit of occupation and their use is ancillary and incidental to the primary use."