Winchester City Council, R (on the application of) v Secretary Of State for Communities & Local Government & Anor

The interpretation of “industrial process” in the Town and Country Planning (Use Classes) Order 1987 is distinct from the principles used to identify a planning unit and its primary use. The relevant question is whether, as a matter of fact and degree, the use of the planning unit is for, or incidental to, a specified purpose, such as making an article. The purpose may relate to a process carried out on another planning unit, and there is no requirement for geographical proximity or common ownership. The decision-maker must apply the ordinary meaning of “for or incidental to” and assess all relevant circumstances.

Winchester City Council applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision allowing Wickham Laboratories Ltd’s appeal against the refusal of a certificate of lawful use or development.

The Inspector had concluded that the production of specific-pathogen-free eggs was an industrial process within Class B1(c) of the Town and Country Planning (Use Classes) Order 1987, because the eggs were produced for, and incidental to, vaccine production undertaken elsewhere. The Council argued that an incidental use could not relate to a primary use on a separate planning unit. The central issue was the proper interpretation of “industrial process” and “incidental” in the Order.

1. Claim dismissed. The Inspector’s decision was legally valid and the certificate of lawful use or development stood.
2. The principles in Brazil (Concrete) v Amersham RDC [1967] 18 P&CR 396 and Burdle v Secretary of State [1972] 1 WLR 1207 concern the identification of a planning unit and its primary and ancillary uses. They do not govern the different question posed by the Use Classes Order, namely the classification of a known use within a specified class.
3. Under Article 2 of the Town and Country Planning (Use Classes) Order 1987, “industrial process” means a process for, or incidental to, one of the specified purposes. The words must receive their ordinary meaning. Whether a use is incidental is a matter of fact and degree, having regard to all the circumstances occurring on the planning unit under consideration.
4. An activity may be incidental to the making of an article even where the article or industrial process is located on a different planning unit. The relevant site may be distant, or there may be more than one relevant site. The absence of a geographical limitation in the definition is therefore significant.
5. The Inspector was entitled to conclude that the production of specific-pathogen-free eggs was incidental to vaccine production. Her conclusion was open to her on the facts and was not alleged to be irrational. The other requirements of Class B1(c) were agreed to be satisfied.
6. On costs, the Secretary of State was awarded £5,792, summarily assessed. Wickham Laboratories was refused a second set of costs because its arguments were not a separate issue requiring distinct representation.

First-instance judicial review proceedings. The judgment does not state any prior appellate decision.