Matsons Ltd & Ors v Leicester City Council

Whether land is being used as a builder’s merchant is ordinarily a question of fact for the court, not a matter requiring expert planning evidence. The relevant question is the nature of the use during the material period. The prosecution need not distinguish every trade sale from every retail sale, prove a minimum number or volume of sales, or treat an individual test purchase in isolation. The court may assess the evidence overall, including sales equipment, actual transactions, advertising and the history of the site. An advertisement may materially support an inference that the site continued to be used for both wholesale and retail sales. A material change from storage and distribution to use as a builder’s merchant with ancillary sales may therefore be established by cumulative evidence.

The appellants had been convicted of using land in Leicester in breach of an enforcement notice which prevented its use as a builder’s merchant, including ancillary sales, without planning permission. The Crown Court dismissed their appeal after finding evidence of building-material sales, sales equipment, a test purchase and website advertising. The Crown Court stated a case after the Administrative Court ordered it to do so on judicial review of the refusal to state a case.

The questions concerned the admission and characterisation of evidence, whether the meaning of the prohibited use was a matter of fact or expert judgment, whether the evidence established wholesale and retail sales and a continuing material change of use, and whether the advertisement was relevant evidence.

1. The court answered all four questions in the affirmative and dismissed the appellants’ claim.
2. Whether premises were being used as a builder’s merchant with ancillary sales during the relevant period was a question of fact. Expert evidence could not determine that issue. The planning-law background concerning use and change of use was for the Crown Court to consider without being bound by the views of planning experts.
3. The evidence of the planning officer was properly admitted as factual evidence, not expert evidence. His opinion on whether the premises were a builder’s merchant was irrelevant and did not form the basis of the Crown Court’s decision.
4. The Crown Court was not required to distinguish each sale as wholesale or retail, or to establish a particular number or volume of sales. The distinction could be imperceptible, as recognised in R (C W Young Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 141. The proper approach was to assess the evidence overall.
5. The Crown Court was entitled to rely cumulatively on the site’s history, the enforcement notice, previous non-compliance, the test purchase, cash register, point-of-sale equipment, card machine, barcodes, and the website advertisement. That evidence established sufficient wholesale and retail sales and supported the conclusion that sales were ancillary to the unauthorised builder’s-merchant use rather than merely storage and distribution or a de minimis activity.
6. The prosecution had to prove a material change of use from B8 storage and distribution. The evidence was sufficient to do so. The advertisement was relevant and had to be taken into account because it identified the Gwendolen Road site as a builder’s merchant and advertised both wholesale and retail sales.

1. Crown Court: dismissed the appellants’ appeals against their convictions for breach of the enforcement notice.
2. High Court (Administrative Court): following an order requiring the Crown Court to state a case, answered all four questions in the affirmative and dismissed the claim.