Cophall Farm Parking Ltd, R (on the application of) v Secretary of State for Communities & Local Government

For a ground (d) appeal against an enforcement notice, the relevant question is whether the alleged breach had become immune from enforcement by the statutory limitation date. Where the alleged breach concerns a material change of use, the decision-maker must identify the relevant planning unit and determine its use at the material earlier date. It is insufficient to decide only whether a particular part of the land was continuously used for the alleged purpose. A failure to determine whether land formed part of the planning unit at the relevant date leaves the ground (d) appeal unresolved and renders the decision legally flawed.

The claimant operated an off-airport car-parking business. The local planning authority issued an enforcement notice alleging an unauthorised material change of use from agriculture to airport car parking. The inspector dismissed the claimant’s appeal under ground (d) of section 174(2) of the Town and Country Planning Act 1990, finding insufficient evidence of continuous car parking on the southern area for ten years before the notice.

The claimant brought a section 289 appeal on a point of law. The central issue was whether the inspector had properly considered the claimant’s alternative case that the southern area had formed part of the same planning unit, including as land ancillary or incidental to the lawful car-parking use, before the relevant limitation period.

1. Appeal allowed. The inspector’s decision on the ground (d) appeal was legally flawed and was quashed. The related matters consequently required redetermination.
2. The planning unit is the physical area against which the materiality of a change of use is assessed. It ordinarily includes the whole area used for the particular purpose, including land whose use is incidental or ancillary to that purpose. The principles stated in G. Percy Trentham Ltd v Gloucestershire County Council and De Mulder v Secretary of State for the Environment were relevant to that approach.
3. The claimant’s primary case before the inspector concerned continuous airport car parking on the southern area. Its alternative case was that the area had been incorporated into the same planning unit as ancillary or incidental land. The claimant bore the evidential burden of establishing that alternative factual basis.
4. The inspector’s reasoning focused on whether cars had been parked continuously on the southern area for ten years. Paragraph 37 raised, but did not determine, whether the area had formed part of the planning unit as landscaped or ancillary land before 1997. The expressions used left that issue unresolved.
5. That unresolved issue was material. If the southern area had formed part of the planning unit before the relevant date, the consequences for the ground (d) appeal could not be determined merely by asking whether cars had actually been parked there continuously. The decision therefore failed to address a necessary issue and could not stand.
6. The court did not need to determine the remaining challenges. The section 106(b) matter and the other related appeals were to follow the quashing of the inspector’s decision. The claimant was awarded costs, subject to detailed assessment by summary assessment.

1. Inspector: By decision letter dated 10 June 2008, dismissed the enforcement notice appeal under section 174 of the Town and Country Planning Act 1990, the planning appeal under section 78, and the appeal concerning variation of the section 106 obligation.
2. High Court (Administrative Court): Allowed the section 289 appeal, quashed the decision on ground (d), and directed that the related matters follow.