Hertfordshire County Council v Secretary of State for Communities and Local Government & Anor

Intensification of an existing use constitutes a material change of use only when its nature or degree changes the definable character of the land’s use. The question is one of fact and degree, assessed by considering whether the increased activity has produced materially different planning circumstances.

Off-site effects are relevant because the impact of a use forms part of its character. They must, however, be considered together with what is happening on the land rather than in isolation.

An enforcement notice under Town and Country Planning Act 1990 section 173(1) must identify the matters alleged to constitute the breach. An authority cannot sustain the notice on materially different contributing factors introduced only during a subsequent legal challenge.

The local planning authority issued two enforcement notices concerning a long-established scrap-metal yard. The principal notice alleged that an almost twofold increase in annual throughput had materially changed the use’s nature and character. Following a public inquiry, an Inspector allowed the operator’s appeals under section 174 of the Town and Country Planning Act 1990, finding that no material change of use had occurred.

Ouseley J dismissed the authority’s statutory appeal in [2012] EWHC 277 (Admin). The authority appealed to the Court of Appeal, arguing that intensification and its effects, including explosions and early-morning lorry noise, established a material change of use. It sought during reply to amend its grounds to challenge the Inspector’s conclusions about the relationship between increased operations and those effects.

The central issues were whether the Inspector had applied the correct test for material change of use and whether the authority could rely on contributing factors which the notices had not identified.

1. Appeal dismissed unanimously. The Inspector had applied the correct legal test. Intensification is capable of amounting to a material change of use, but only where its nature or degree produces a change in the definable character of the land’s use. The inquiry is whether the increased scale has created materially different planning circumstances and, as a matter of fact and degree, changed that character.

2. The Inspector was entitled to find that the substantial increase in throughput had not crossed that threshold. She considered noise, explosions, lorry movements, dust and the other effects collectively. Although operations had increased and some effects on neighbours were serious, the land remained in use as a scrap yard on a larger scale. The conclusion that the planning situation and definable character had not materially changed was a lawful planning judgment.

3. Off-site effects may be considered when deciding whether intensification has changed the character of a use. The assessment must consider both what occurs on the land and its effects elsewhere. Impact is integral to character, but an adverse effect cannot be treated in isolation from the activities conducted on the land.

4. The authority’s application to amend its grounds was refused. Section 173(1) of the Town and Country Planning Act 1990 required the enforcement notices to state the matters appearing to constitute the breach. The notices and the case before the Inspector relied on increased throughput. If changes in the proportion of gas bottles and canisters, drivers’ hours legislation or altered lorry-arrival patterns were said to contribute independently to the material change, they should have been identified in the notices.

5. Pill LJ questioned parts of the Inspector’s reasoning about the relationship between throughput, explosions and other effects. Increased throughput might logically have produced more gas bottles and therefore more explosions. Those possible flaws did not justify quashing the decision because the additional causes were outside the breach alleged. In any event, the Inspector had relied on further relevant considerations, including the intermittent and short-lived nature of explosions and the general increase in unrelated traffic. Toulson and Munby LJJ agreed.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1473, unanimously dismissed the local planning authority’s appeal and refused its late application to amend the grounds.

2. Administrative Court: Ouseley J dismissed the authority’s appeal from the Inspector in [2012] EWHC 277 (Admin).

3. Secretary of State: The Inspector allowed the operator’s appeals under section 174 of the Town and Country Planning Act 1990, holding that the alleged material change of use had not occurred and that there was no breach of planning control.