Elvington Park Ltd v Secretary of State for Communities & Anor

A material intensification of an established use may constitute a breach of planning control even where the land had a long history of related activity. The relevant comparison is with the last lawful use, supported by evidence of actual use rather than the maximum use contemplated by an informal agreement. Once unlawful intensification is established, enforcement action may require resumption of the previous lawful use. An inspector need not identify every historic baseline detail if the decision clearly addresses whether a breach occurred during the relevant ten-year period and explains the conclusion intelligibly.

The claimant appealed against an inspector’s dismissal of its appeal against an enforcement notice concerning intensified and more noisy motor vehicle activity at Elvington Airfield. The claimant relied principally on Town and Country Planning Act 1990, section 57(4), and argued that the use had become lawful through ten years’ continuance or had not materially intensified.

The inspector found that the introduction of Formula 1 testing and increased motor cycle and other vehicle activity constituted a material change of use. The High Court considered whether the inspector had identified the correct historic baseline, properly interpreted the 1980 Selby Agreement and 1993 planning permission, and adequately specified the alleged breach.

1. Disposition. The appeal was allowed to the extent agreed by the respondents, because the enforcement notice required reconsideration so that activities authorised by the 1993 planning permission were expressly preserved. The appeal was dismissed on all disputed grounds.
2. The 1980 Selby Agreement described the maximum permitted civilian use. It was not evidence that that level of use actually occurred, particularly during weekdays when the RAF was conducting training flights. The claimant therefore needed evidence of actual prior use to establish that noisier or more frequent activity had already become lawful.
3. The inspector was entitled to find, on the evidence, that the introduction of Formula 1 testing and increased motor cycle and other vehicle activity amounted to material intensification and a material change of use. Once that breach had been established, enforcement action could lawfully require the claimant to return to the use which was lawful before the intensification.
4. Section 57(4) of the Town and Country Planning Act 1990 enabled resumption of the last lawful use. Incremental increases in noisy activity in 1998 or 1999 could not themselves have acquired ten-year lawfulness by the relevant date.
5. The inspector’s approach was distinguishable from that criticised in Thurrock BC v Secretary of State for the Environment and Transport and the Regions [2001] EWHC Admin 128. In the present case he had clearly identified and answered whether intensification during the ten-year period amounted to a breach. His reasoning was intelligible, applying the standard identified in South Bucks BC v Porter (No 2) [2004] UKHL 33.
6. The complaint about the form of the enforcement notice could not succeed as a freestanding ground after the other grounds had failed. The planning authority’s evidence explained the relationship between the historic agreement and the technical limits in the notice.

The claimant appealed to the High Court against an inspector’s dismissal of its appeal following an enforcement inquiry held in October and November 2009. The High Court allowed the appeal only to the agreed extent concerning express protection for activities authorised by the 1993 planning permission, and dismissed the remaining grounds.