Phillips v Secretary of State for Communities & Local Government & Anor

For the purpose of establishing immunity from planning enforcement, the relevant use must continue for the statutory period without interruption by a material change of use. Whether a change is material is a matter of fact and degree, assessed by comparing the former and later uses across the whole planning unit.

The assessment should consider the functional relationship between activities, their scale, character, duration and planning impact. An activity is not excluded from consideration merely because it occupies part of the site, is short-lived, or does not interfere with the principal business. Ancillary and de minimis use principles must be applied cautiously. An inspector’s evaluative conclusions will not be quashed unless legally irrational, inadequately reasoned or otherwise affected by an error of law.

The claimant challenged an inspector’s decision made on behalf of the Secretary of State. The inspector had dismissed an enforcement notice appeal and an appeal under section 195 of the Town and Country Planning Act 1990 concerning refusal of a certificate of lawful existing use.

The site had long been used for a scrap tyre transfer station and tyre sales. The inspector found that vehicle storage and scaffolding storage had later been introduced and that, viewed across the single planning unit, those activities contributed to a material change of use. The claimant argued that the inspector had misapplied the ancillary-use and de minimis principles and had reached irrational conclusions.

1. Outcome. The challenge and appeal were dismissed. The claimant had not discharged the burden of proving, on the balance of probability, a continuous lawful use for the relevant ten-year period. Costs were summarily assessed at £6,500. Permission to appeal was refused.
2. Under sections 171B(3) and 191 of the Town and Country Planning Act 1990, the relevant use had to continue for ten years without interruption by a material change of use. The inspector correctly identified that issue and correctly placed the burden and standard of proof on the claimant.
3. A use introduced during the relevant period is not a material change if it is genuinely incidental or ancillary to the primary use, or de minimis in planning terms. The assessment is not confined to function or to physical scale. Functional relationship, scale, geographical extent, character, duration and planning impact may all be relevant.
4. The whole site was properly treated as one planning unit. Following the approach in Beach v Secretary of State for Environment, Transport and the Regions, the question was whether the combination of the existing uses and the additional uses was materially different in planning terms from the earlier use. The later mixed use was to be assessed as a whole.
5. The inspector was entitled to find that scaffolding storage was a substantial, unrelated activity with a discernible planning impact, despite its limited duration and occupation of only part of the site. He was also entitled to treat the vehicle storage activity as significant, discrete and not ancillary or de minimis.
6. The inspector was not required to make artificially precise findings separating every possible purpose for which vehicles were present, where the evidence did not permit that degree of certainty. Read fairly as a whole, the decision letter gave legally sufficient reasons and its conclusions fell within the range of rational planning judgments.

This was a first-instance challenge to the Secretary of State’s inspector’s decision dated 17 May 2007. The two proceedings, under sections 288 and 289 of the Town and Country Planning Act 1990, were joined for hearing.