Innes v Secretary of State for Communities and Local Government

A planning permission to re-site operational plant does not ordinarily authorise a permanent change of use of the land. The right to operate the permitted plant ends when that plant is dismantled; later replacement plant requires its own planning permission.

In identifying a planning unit, an inspector may weigh functional and physical separation, occupation, access and the relationship between activities. A conclusion based on planning judgment will not be disturbed merely because another conclusion was possible. An enforcement notice is sufficiently certain if the owner or occupier can identify with reasonable certainty the steps required to remedy the breach.

The claimant challenged an Inspector’s decision dismissing two appeals concerning certificates of lawful use or development for mortar production and dismissing an appeal against an enforcement notice. The challenges concerned the construction of a 1957 planning permission, the identity of the relevant planning unit, permitted development rights under the Town and Country Planning (General Permitted Development) Order 1995, and the certainty of the enforcement requirements.

The decision arose from appeals determined by the Secretary of State’s Inspector following a public inquiry. The central issues were whether the 1957 permission authorised an enduring use of the land and whether the Inspector’s conclusions on planning unity, permitted development and enforcement notice certainty were legally arguable.

1. Section 288 challenge refused. The 1957 permission was correctly construed as authorising operational development, namely the re-siting of a mortar mill. It did not authorise a permanent change of use of the land under the Town and Country Planning Act 1990 (paras [14]–[18]).
2. The permission carried an implicit or derivative right to operate the permitted plant. Once that plant was dismantled in 2002, the right to operate it departed with it. The later mortar mills were unauthorised developments and did not themselves establish a lawful use of the site. Iddenden [1972] 3 All ER 883 was helpful by analogy, but was not the complete answer (paras [17]–[18]).
3. The Inspector applied the relevant planning judgment in determining the planning unit. He considered the site’s functional difference, separate occupation, physical separation, access and relationship with the wider mineral-working land. His conclusion that the site formed part of a mixed or composite planning unit was open to him and was not arguably perverse or based on a material misdirection. Burdle v Secretary of State for the Environment [1972] 3 All ER 240 was materially considered (paras [19]–[23]).
4. Any arguable difficulty in the Inspector’s alternative reasoning about whether the land was in or adjacent to, and occupied together with, a mine did not affect the result. The evidence established that the existing plant materially differed in bulk and appearance and exceeded the relevant permitted development limits. The proposed certificate was also insufficiently specific to enable a lawful determination (paras [24]–[27]).
5. The freestanding section 289 challenge was not finally determined. The requirement to remove concrete surfacing so as to restore the land to its condition before the works at the end of 2010 was sufficiently certain. The applicable threshold was whether the notice was so hopelessly ambiguous or uncertain that the owner or occupier could not identify with reasonable certainty what had to be done. Hattingh v Secretary of State for the Environment, Transport and the Regions & Hertsmere Borough Council [2001] EWHC 539 (Admin) was applied (paras [28]–[30]).
6. The final order on the section 289 challenge was adjourned pending the outcome of any appeal concerning the section 288 challenge (paras [31]–[33]).

• Secretary of State’s Inspector: dismissed the appeals against refusal of the certificates and determined the enforcement notice appeal following a public inquiry.
• High Court (Administrative Court): refused permission for the section 288 challenge and adjourned the final decision on the section 289 challenge.