A4 Metal Recycling v Secretary of State for Communities And Local Government & Anor

A challenge under section 288 of the Town and Country Planning Act 1990 proceeds on ordinary judicial-review grounds. The court will not revisit an inspector’s lawful planning judgment or the weight given to material considerations. In an appeal against refusal of planning permission, the inspector must assess the reasonable fallback position, but need not determine conclusively whether an unauthorised use has become immune from enforcement. That question belongs principally to the certificate procedure under section 191. The statutory definition of a scrap-metal dealer in the Scrap Metal Dealers Act 2013 is confined to that Act’s licensing regime and does not retrospectively convert car-breaking into general scrap-metal dealing. A change from car-breaking to a mixed use involving imported general scrap metal may therefore constitute a material change of use.

The claimant operated a metal-recycling and car-breaking site within an Area of Outstanding Natural Beauty. It challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision dismissing its appeal against refusal of retrospective planning permission.

The application concerned the existing metal-recycling and car-breaking activities, buildings, and resurfacing of an access bridleway. A 2005 certificate of existing lawful use identified certain car-breaking-related uses but excluded vehicle crushing. A later application for a certificate covering vehicle crushing was refused. The inspector treated the certified uses as the fallback position, found that the current activities involved a material change of use, and dismissed the appeal because of noise, effects on the bridleway, and loss of tranquillity in the AONB.

The central issues were whether the inspector adopted the correct fallback position, whether the current activities amounted to a material change of use, and whether he properly applied the relevant planning policies and balanced the competing considerations.

The claim was dismissed. The inspector’s decision disclosed no error of law, irrationality, failure to take account of a material consideration, or reliance on an immaterial consideration.

1. Fallback position. The appropriate fallback was a matter of the inspector’s assessment and judgment. In a planning appeal the inspector was not required to decide conclusively whether uses had become lawful through lapse of time. That issue could be pursued through a certificate under section 191 of the Town and Country Planning Act 1990, or raised in enforcement proceedings. The inspector was entitled to rely on the granted 2005 certificate, particularly in view of the refused later certificate, and was not required to treat uncertified uses as lawful.
2. Scrap-metal legislation. Sections 21(1) and 21(2) of the Scrap Metal Dealers Act 2013 define activities for the purposes of that Act’s licensing regime. They do not alter ordinary language, operate retrospectively, or deem a person carrying on one statutory category of activity to be carrying on another. The 2005 certified car-breaking uses therefore did not include general scrap-metal dealing or vehicle crushing.
3. Material change of use. The importation of metal onto the site other than in the form of cars was a new use. General metal recycling had become the primary material stream, while car-breaking remained a non-negligible activity. The inspector was entitled to find a new mixed use and, as a matter of planning judgment, a material change of use.
4. Policies and planning balance. The waste policy identified the site as suitable only subject to access from the north. Because that access was unavailable, the policy did not create an unconditional presumption in favour of the proposal. The inspector also considered the development plan, the NPPF presumption, noise, bridleway use, and the AONB. His conclusion that the harm outweighed the benefits was a planning judgment for him.
5. The arguments concerning the bridleway’s surface had not been raised before the inspector and, in any event, the evidence did not establish that the existing surface was immune from enforcement. The claim therefore failed in its entirety.

The claimant appealed to an inspector against West Berkshire District Council’s refusal of retrospective planning permission. The inspector dismissed the appeal on 29 November 2013. The High Court dismissed the claimant’s statutory challenge under section 288.