Compton v Secretary of State for Communities and Local Government & Anor

In determining whether a material change of use has occurred, the relevant planning unit must first be identified by applying the Burdle categories. The unit is ordinarily the whole unit of occupation unless a physically and functionally separate use justifies treating a smaller area as a separate planning unit. The question is one of fact and degree. Once the planning unit is established, the court must assess whether its use has materially changed, including whether activities previously ancillary to agriculture have become functionally independent. A change in the scale or character of activities may constitute a material change even where the land remains in agricultural use. An inspector’s factual conclusions will not be disturbed where they are reasoned and rationally open to the evidence.

The appellant challenged an inspector’s decision upholding an enforcement notice concerning land formerly used for pig rearing and for the processing, storage and distribution of animal by-products. The inspector found that the whole agricultural holding remained the relevant planning unit. In 1998, the processing activities had been ancillary to the primary agricultural use. By the relevant later period, pig rearing had ceased and the animal by-product operation had become functionally separate, creating a mixed use. The appellant argued that the change had occurred before the ten-year enforcement period and that the current use was the same as that considered in 1998. The central issues were the proper planning unit, whether there had been a material change of use, and when that change occurred.

1. The appeal was dismissed. The inspector had identified the whole agricultural holding as the planning unit. The buildings were not physically separated from the remainder, depended on it for access and servicing, and shared facilities.
2. The three broad categories in Burdle provided the applicable framework. A single main use may include ancillary activities; a composite use may comprise activities that are not ancillary to one another; and physically separate areas used for substantially different purposes may constitute separate planning units. The application of those categories is a question of fact and degree.
3. The 1998 decision had found that the use was primarily agricultural, with the industrial processing activities ancillary to it. The appellant could not reframe that successful case by treating the earlier activities as an independent or mixed use while also maintaining that the planning unit remained the whole holding.
4. The inspector was entitled to find that, by about 2008, the importation and transfer of animal by-products were no longer related to agricultural use. The operation had become functionally separate, and the different character and odour of the activity supported the conclusion that the change was material.
5. The inspector was also entitled to conclude that the change had not occurred before the end of 2000. Evidence that pig rearing continued in 2001, together with the continuing intention to restock and the ancillary purpose of collecting the material, supported the finding that the primary use remained agricultural at that time.
6. In planning terms, a use may subsist even when activities are temporarily absent. Agricultural land within an agricultural unit could therefore retain an agricultural use despite the cessation of pig rearing. The inspector’s conclusions were reasoned findings of fact and degree and were not irrational.

Judgment was entered for the first respondent and the appeal was dismissed.

The judgment does not state a prior judicial appeal. It concerns a statutory enforcement appeal determined by an inspector appointed by the Secretary of State.