Fidler v First Secretary of State & Anor

For the purposes of the planning enforcement “second bite” provision, the court must examine the breaches actually alleged in the earlier enforcement notices. A later notice may correct a misdescription of the same breach, but it cannot rely on the provision where it extends materially beyond the totality of the earlier allegations or introduces additional facts. A material change of use is assessed as a matter of fact and degree. The decision-maker may consider the planning unit, changes to buildings, the extent and intensity of activities, storage, occupiers and traffic, viewed cumulatively. The Town and Country Planning (Use Classes) Order 1987 does not prevent a material change where the land is in mixed use.

The claimant owned Honeycrock Farm, Surrey, which had been subject to several enforcement notices issued by Reigate and Banstead Borough Council. An inspector quashed Notices B, D and E, but treated later Notice I as a valid second-bite notice under section 171B(4)(b) of the Town and Country Planning Act 1990. He also upheld Notice A concerning alterations to barns and rejected most of the claimant’s application for certificates of lawful existing use.

The claimant challenged the inspector’s decision under sections 288 and 289. The principal issues concerned the validity of Notice I, material change of use, previously established lawful uses, Notice A, and alleged deemed planning permission arising from a 1996 enforcement notice.

1. Second-bite notice. The challenge to Notice I succeeded. Section 171B(4)(b) requires attention to the actual breach or breaches alleged in the earlier notices, rather than the local planning authority’s broad intention. Jarmain v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 126 permits a later notice where the same physical development or change of use has merely been described differently. It does not apply where the later notice goes wider in substance than the earlier notices. Notice I covered a mixed use with more components and additional facts than Notices B, D and E, whether considered individually or collectively. The inspector therefore erred in treating it as a valid second-bite notice.
2. Material change of use. The inspector adopted a lawful approach by considering planning unit C as it existed when Notice I was issued and comparing its use with the use at the beginning of the relevant period. The enlargement and later merger of planning units, alterations and rebuilding of units 9 and 10, increased storage, different occupiers and increased traffic were relevant matters. Their cumulative effect rationally supported a finding that the mixed use had materially changed in character and nature.
3. The construction of a new building did not automatically establish a material change of use. It was relevant because of its practical consequences for the use of the land. Intensification could likewise be considered as part of the assessment of whether the character of the use had changed; the inspector had not substituted intensification for the mixed use alleged in Notice I. The Town and Country Planning (Use Classes) Order 1987 did not avoid the issue because a mixed use does not itself fall within a single use class.
4. The inspector was entitled to find that hay and straw dealing and agricultural contracting had become lawful through ten years’ continuous use, and that no properly advanced case established comparable lawfulness for other specific uses.
5. The challenges concerning Notice A and section 173(11) failed. The inspector’s technically conjunctive description of section 55(2)(a) made no difference because neither statutory limb was satisfied. Section 173(11) did not confer deemed planning permission for uses not alleged by the 1996 notice to constitute breaches. The court found in favour of the claimant on the second-bite issue alone and reserved questions of relief.

The inspector’s decision letter was issued on 17 December 2002 after appeals against enforcement notices and a deemed refusal of a certificate application. The claimant brought statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990. The High Court allowed the challenge on the second-bite issue alone and rejected the remaining grounds; questions of relief were reserved.