Bennett Fergusson Coal Ltd., R (on the application of) v First Secretary of State & Anor

Whether a proposed use falls within a Use Classes Order class depends on the true character of the use viewed as a whole. Storage, processing and distribution may form major, functionally related components of a single enterprise without the former being ancillary to the latter. Article 3(1) of the Use Classes Order 1987 applies only to changes between uses in the same class.

Whether a change is material is primarily a question of fact and degree from the planning perspective. The court will intervene only if the decision-maker exceeds the permissible range of reasonable conclusions.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against refusal of a certificate of lawful proposed use. The proposed use was a materials recycling facility on a site used for receiving, processing, storing and distributing coal and manufactured fuels.

The inspector concluded that the existing use was sui generis and that the proposed recycling use was also outside the Use Classes Order. He further concluded that the proposed change would be material. The central issues were whether either use fell within class B2, whether the inspector had misdirected himself, and whether the conclusion on material change was legally open to him.

1. Claim dismissed. The inspector’s refusal of the certificate was upheld.
2. The existing use had to be characterised by reference to the site’s overall activity. Although storage, processing and distribution formed part of one enterprise, the inspector was entitled to find that each was a major and essential category rather than treating storage and distribution as ancillary to industrial processing. In particular, a substantial proportion of material was delivered, bagged or loaded for delivery without undergoing an industrial process within Article 2 of the Use Classes Order 1987.
3. Article 3(6)(g) was an exclusionary provision. It supported the conclusion that use as a yard for the storage or distribution of minerals, including coal, could not be included within a scheduled use class merely because other activities on the site involved industrial processing. The inspector was also entitled to have regard to the Land Use Gazetteer as a publication expressing a view, without treating it as authoritative.
4. Article 3(1) operated only where the existing and proposed uses were within the same class. It was therefore necessary to consider whether the change would nevertheless be material, even though the inspector’s conclusion about the proposed use was open to criticism.
5. Materiality was essentially a question of fact and degree from the planning point of view. Applying Devonshire County Council v Allen Caravans (Estates) Ltd (1963) 14 PCR 440 and the guidance in Westminster City Council v British Waterways Board [1985] AC 676, the inspector was entitled to conclude that the two uses were materially different. The court could not say that no reasonable inspector could have reached that conclusion.
6. Obiter, the judge considered that the proposed recycling operations could fall within the Article 2 definition of an industrial process. The fact that the materials were waste, or that the recycling company was paid to remove them, did not prevent that conclusion.
7. The Secretary of State was awarded costs, summarily assessed at £6,080. No order was made as to the County Council’s costs. Permission to appeal was granted.

The inspector dismissed the claimant’s appeal against Derbyshire County Council’s refusal of a certificate of lawful proposed use. The Administrative Court dismissed the statutory challenge under section 288 of the Town and Country Planning Act 1990. Permission to appeal was granted.