Howells, R (on the application of) v Secretary of State for Communities & Local Government & Anor

Under section 176 of the Town and Country Planning Act 1990, an inspector may correct or vary an enforcement notice and may enlarge the area shown on its plan, provided that the amendment causes no injustice. Fairness does not generally require provisional findings or further submissions where the relevant issue was foreseeable from the evidence and the parties had an opportunity to present their complete case. Whether a change in use is material is a matter of fact and degree. The addition of a primary lorry-parking use may materially change the character of an existing composite use, while cessation of one component activity will not necessarily do so. Separate successive material changes of use prevent reliance on an uninterrupted ten-year period of immunity.

The claimant challenged, under section 289 of the Town and Country Planning Act 1990, an inspector’s decision dismissing most of his appeal against an enforcement notice issued by Gloucestershire County Council. The notice concerned the importation, storage, crushing and export of concrete and inert building waste at Colethrop Court Farm.

The inspector amended the enforcement-plan boundaries, finding that the relevant planning unit differed from the area originally shown. He also found successive material changes of use, including mixed use, primary lorry parking and later exclusive waste use. The claimant argued that the inspector lacked power to enlarge the plan, acted unfairly, failed to preserve any lawful use, and gave inadequate reasons.

1. Power to amend. Section 176(1) of the Town and Country Planning Act 1990 permits correction or variation of an enforcement notice, including amendment of the attached plan. The power is not limited to reducing the affected area. Its fundamental constraint is that the inspector must be satisfied that the amendment will cause no injustice to the appellant or local planning authority. Ground 1 therefore failed.
2. Fairness. The inspector had expressly considered injustice and explained why the amendment would not cause it. The evidence at the inquiry concerned the nature, extent and duration of activities on the site, so the possibility of findings involving successive material changes of use was foreseeable. The claimant had been able to present all evidence relied upon to establish more than ten years’ use. The inspector was not required to seek further submissions or circulate provisional findings. The principle stated in Castleford Homes v Secretary of State for the Environment, Transport and the Regions and the Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77 did not require that course on these facts. Ground 2 failed.
3. Material change and immunity. The inspector was entitled to find that Preece Contracts’ primary use of the land for lorry parking materially changed the character of the earlier composite use, even though other occupiers parked vehicles incidentally. Conversely, the cessation of that component use did not itself create a material change. This was a fact-and-degree assessment supported by evidence and was not irrational. The reasoning in Wipperman and Buckingham v London Borough of Barking and Ministry of Housing and Local Government [1965] 17 P&CR 225 supported that conclusion.
4. The claimant therefore could not establish uninterrupted continuous use for ten years. There was no obligation to amend the enforcement steps to preserve a lawful waste use. In any event, the later enlargement of the planning unit and cessation of the contractors’ use constituted separate material changes, which independently defeated the claim. The application was dismissed. The claimant was ordered to pay the first respondent’s costs of £10,276. No costs were ordered for the second respondent, which had acted only in a supportive role and raised no separate issues.