Chas Storer Ltd v Secretary of State for Communities & Local Government & Anor

On an appeal under Town and Country Planning Act 1990 section 289, an enforcement notice must be confined to the development that constitutes the material change of use. Where the inspector finds that the material change consists only of introducing a new type of waste, increased vehicle movements and longer operating hours do not become part of that change merely because they contributed to the site’s overall intensification. Those activities remain lawful to the extent that they formed part of the previous lawful use. Requirements restricting them are unlawful if they go beyond what is necessary to remedy the identified breach. An unclear or internally inconsistent decision may itself disclose an error of law requiring remission.

The claimant operated a waste collection and processing business. Hertfordshire County Council served an enforcement notice alleging an unauthorised material change of use caused by intensification and imposed limits on materials, operating hours and vehicle movements.

On the claimant’s appeal under section 174 of the Town and Country Planning Act 1990, the Secretary of State’s inspector corrected and varied the notice but upheld it in substance. The claimant appealed to the Administrative Court under section 289. The central questions were what constituted the material change of use and whether the inspector could restrict vehicle movements and operating hours which were not themselves part of that change.

1. Appeal allowed and matter remitted. The appeal under section 289 of the Town and Country Planning Act 1990 was an appeal on a point of law. The matter was remitted to the Secretary of State for rehearing and determination under paragraph 22.6C(14) of the CPR Part 52 Practice Direction.
2. The inspector’s clear finding at paragraph 7.45 of the Decision Letter was that receipt and bulking of co-mingled waste constituted or gave rise to the material change of use. The inspector also found that, without that addition, the increases in vehicle movements and operating hours would not have amounted to a material change of use. The references to the overall character of the use and to operating hours as a factor did not alter that conclusion.
3. The later description of the breach as an intensification of the former use did not constitute a contrary finding. It corrected the scope of the allegation in the enforcement notice and could not override the express conclusion at paragraph 7.45.
4. Because increased vehicle movements and operating hours between 1996 and 2006 did not constitute or form part of the material change, they did not amount to development on the inspector’s findings and remained lawful use. Under sections 57(4) and 191(2) of the Town and Country Planning Act 1990, the requirements had to remain within what was necessary to confine the use to the lawful use. The inspector therefore erred in law by imposing requirements 5(1) to 5(6), restricting vehicle movements and operating hours.
5. Alternatively, if the inspector intended to find a wider material change, that conclusion was inadequately stated and would independently have required remission for inadequate reasoning amounting to an error of law.

• Secretary of State’s inspector: The claimant’s enforcement appeal under section 174 of the Town and Country Planning Act 1990 succeeded in part. The enforcement notice was corrected and varied, but upheld in substance.
• High Court (Administrative Court): The claimant’s section 289 appeal was allowed and the matter remitted to the Secretary of State for rehearing and determination.