Fidler v First Secretary of State Reigate & Anor

A material change of use may result from changes in the intensity and overall character of a mixed use, although its generic components remain unchanged. The decision is one of fact and degree, assessed by reference to the planning unit as a whole. The nature of buildings, expansion onto adjoining land, traffic and the scale of activities may all be relevant.

The protection for changes within the same use class does not apply to individual components of a mixed use. Under section 173(11) of the Town and Country Planning Act 1990, deemed permission extends only to development identified within the breach alleged by the enforcement notice.

The appellant operated a former farmyard as a single planning unit accommodating agricultural and varied commercial activities. An inspector found that expansion of the site, major alterations to its principal buildings, increased storage, new occupiers and substantially greater traffic had materially changed the character of its mixed use during the relevant ten-year period.

The inspector confirmed an enforcement notice requiring most commercial uses to cease and dismissed an application for a certificate of lawful existing use. Richards J, in [2003] EWHC 2003 (Admin), rejected the appellant’s principal challenges but remitted the enforcement appeals because the inspector had used the wrong commencement date for calculating immunity.

The remaining issues were whether the inspector had lawfully found a material change of use and whether an earlier enforcement notice generated deemed permission for other activities omitted from that notice.

1. Appeal dismissed. The inspector had lawfully found a material change in the character of the mixed use. A material change may arise from intensity and other changes affecting the use’s overall character even though its generic descriptions remain the same. This was a question of fact and degree for the inspector, who was entitled to consider the enlarged land area, increased building mass and storage, reconstruction of the main buildings, the nature of newer occupiers and increased traffic.
2. The extension of an existing use onto adjoining land may create a new planning unit and materially alter the unit considered as a whole. The nature of buildings may likewise affect the character of activities undertaken on the site. Neither matter constituted an error of law.
3. Section 55(2)(f) of the Town and Country Planning Act 1990 did not protect the replacement of one component of the mixed use with another activity in the same use class. The relevant land was used for a mixture of purposes and there was no mixed-use class. The Use Classes Order therefore did not prevent a finding of material change.
4. The inspector had not treated intensification as a separate legal test. He found that the combined changes produced a use materially different in character and nature. Fairness required the authority’s case to be made clear at the inquiry, but the enforcement notice did not itself have to allege intensification. The older decision in Kensington and Chelsea RBC v Secretary of State and Mia Carla Ltd was confined to its facts and the more limited pre-1991 amendment regime.
5. Section 173(11) of the Town and Country Planning Act 1990 did not confer deemed permission for every activity remaining after compliance with an enforcement notice. An activity falls within that subsection only if the particular notice could have required it to cease. That requires the activity to form part of the breach identified in the notice. Scott v Secretary of State for the Environment was binding, correct and definitive on that issue.
6. The order remitting the enforcement appeals for reconsideration was confirmed. On remittal, the appellant could pursue ground (f) and propose specific limits which would remedy the breach or injury to amenity without necessarily requiring all commercial activity to cease. The burden of proposing workable limits lay on him.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 1295, dismissed the appeal and confirmed the order remitting the enforcement appeals for reconsideration.
2. Administrative Court: Richards J, in [2003] EWHC 2003 (Admin), rejected the principal challenges but held that the inspector had used the wrong starting date for the ten-year immunity period. He remitted the appeals concerning the use notice and buildings for redetermination.
3. Planning inspector: Confirmed the material-change-of-use notice and the notice concerning the principal buildings, and dismissed the appeal concerning the certificate of lawful existing use.