Lee v Surrey Heath Borough Council

On an appeal by case stated, the High Court is confined to the facts and conclusions identified in the case stated. It must not second-guess factual findings or examine evidence outside the permitted materials. Whether material is “waste” is fact-sensitive and depends on the circumstances and evidence before the fact-finding tribunal; it is not answered by an abstract rule that particular material is always, or never, waste. A conviction for breaching a Stop Notice remains safe where at least one proved breach is unaffected by the grounds of appeal. Issues not raised below, including challenges to the underlying change of use, may be barred by the statutory scheme. A de minimis defence cannot be introduced where the Stop Notice contains no such qualification.

Thomas Lee appealed by case stated from the Crown Court at Guildford, which had dismissed his appeal against convictions for breaching a Stop Notice issued by Surrey Heath Borough Council under the Town and Country Planning Act 1990. The Stop Notice prohibited specified storage, skip hire, waste handling, spreading and disposal activities on land at Bagshot.

The Crown Court found several breaches, including permitting a skip hire business, storing building materials, handling waste and storing a damaged caravan. The case stated asked five questions concerning road planings and tarmac, bricks, lamp posts, logs and branches, and the location of the caravan. The central issues were the proper scope of an appeal by case stated, whether the questions disclosed errors of law, and whether any answer could affect the safety of the conviction.

1. Disposition. The appeal was dismissed in substance. The Court answered the five questions, but held that the conviction was safe and that there were no arguable errors of law.

2. Scope of the appeal. An appeal by case stated is confined to the facts and conclusions identified in the case stated. The appellate court may consult the judgment, Stop Notice and plan, but it must not second-guess factual findings or inspect selective evidence that is not properly summarised or appended. The failure to serve the draft case stated deprived the Council of the opportunity to correct irrelevant or misconceived questions.

3. Waste. The question whether tarmac or road planings are “waste” depends on the facts and circumstances. Material may remain waste despite having commercial value or potential for reuse. Relevant considerations may include its origin, the purpose of spreading it, storage, timescales, condition, environmental circumstances and waste documentation. On the case stated, the Crown Court was entitled to find that the road planings were waste. The second limb of question 1 therefore did not arise.

4. Bricks and change of use. The Crown Court’s finding that there was a large pile of bricks was factual and could not be revisited. A de minimis argument had no real prospect where the Stop Notice prohibited storage of building materials without qualification. The challenge to change of use was not open on the appeal against conviction, having not been raised in the enforcement-notice appeal and being restricted by sections 285(1) and 174(2)(b) of the Town and Country Planning Act 1990.

5. Other questions. The Crown Court had found no adverse facts concerning logs and branches, so question 4 did not arise. Lamp posts could rationally be treated as building materials, but the Crown Court’s alternative finding that they were waste independently supported the result. The Crown Court was entitled to find that the damaged caravan was within the Stop Notice area; the alleged contrary evidence was speculation rather than a basis for an error of law.

6. In any event, the conviction could not be overturned because the unchallenged findings that Mr Lee permitted a skip hire business and stored underground cabling were sufficient breaches. Costs were summarily assessed; the Court indicated that, had the Council’s costs been greater, indemnity costs would have been appropriate.

1. High Court (Administrative Court) — [2021] EWHC 1211 (Admin): appeal by case stated dismissed in substance; the conviction upheld.
2. Crown Court at Guildford — dismissed Mr Lee’s appeal against conviction and upheld the conviction for breaching the Stop Notice.
3. Staines Magistrates’ Court — convicted Mr Lee of failing to obey the Stop Notice.