Beware Intensification

Members of chambers acted for Metal and Waste Recycling Ltd (M & W) the successful party in Hertfordshire County Council v Secretary of State for Communities and Local Government and Metal and Waste Recycling Ltd  (decision of Ouseley J delivered on01/02/2012).

This is an important planning case in the High Court concerning the scope of the doctrine of material change of use by intensification, and the proper interpretation of Part 8 of the General Permitted Development Order 1995.

Hertfordshire County Council had issued two enforcement notices in respect of the use of a site by M & W as a scrapyard. The site had an effectively unrestricted planning permission for this use. The first notice alleged that there was a material change of use by virtue of an increase in throughput of scrap material and the second notice alleged unlawful development in that a fragmentiser and various buildings had been erected at the site without planning permission.

M & W appealed against the enforcement notices which resulted in an 8 day inquiry, reported in the Journal of Planning law at [2010] JPL 1175.

The Inspector found in relation to the material change of use notice that taking into account all the  consequences which were due to the increase in throughput she was unable to find that there had been a material change in the definable character of the land, and that the increase had not had such materially different planning consequences as to take the activity, as a matter of fact and degree, beyond the normal fluctuations experienced by the business.

In relation to the operational development the Inspector found that the replacement of the fragmentiser benefitted from permitted development rights under Class B of Part 8 of the GPDO, and that the other buildings erected on site should be given planning permission to remain.

Hertfordshire challenged the Inspector’s decision on three grounds. It was argued that:

• the Inspector had wrongly excluded from her consideration any impacts of the company’s activities on the site that were not caused by an increase in throughput,
• the replacement of the fragmentiser did not enjoy the benefit of GPDO Part 8 rights as these rights only applied where  the site was used for an ‘industrial process’.  Under the Use Classes Order 1987 scrap yards were expressly excluded from Use Classes B1 and B2 and this should be applied to the application of the GDPO .   The definition of ‘industrial process’ is the same in both Orders.
• the permitted development rights were in any event not applicable because by virtue of the material change of use which Hertfordshire maintained had occurred the existing use was not lawful and could not therefore carry any permitted development rights.

M & W raised a broader point arguing that:

• intensification giving rise to material change of use was a flawed concept,
• there was no decided case in which the court had upheld an inspector’s decision that an intensification had given rise to a material change of use.
• this was a case of ‘pure’ or ‘mere’ intensification because the only matter relied on in the enforcement notice was an increase in throughput with no change in any of the activities or processes  and that a material change of use could not occur in such circumstances.

The challenge came before  Ouseley J who held that :

• The Inspector’s decision was unsurprisingly taken wholly within the framework of the case set by the allegation made in enforcement notice and as argued before her by the parties, ie  that it was the increase in throughput which had caused a material change of use.
• She had excluded from her consideration any off site impacts arising from the use of the site which were not related to the throughput, but the real question was whether that was the wrong approach to take.
• She had not taken the wrong approach. The main task of the Inspector was to decide whether the matters alleged in the enforcement notice constituted a breach of planning control.
• The “before” use in the notice was the scrapyard at its previous throughput level, and the “after” use in the notice was the scrapyard at its increased throughput level. The only change of use relied on in the notice was the increase in throughput. The reasons for serving the notice were based on the alleged environmental impacts of the increase in throughput.
• The decision was therefore within the framework set by the notice and the arguments addressed to her by the parties at the inquiry, and the inspector’s decision cannot be challenged on the basis that she did not adopt a different approach in her decision.
• In any event he was not satisfied that factors not caused by the increase in throughput were material considerations that the Inspector should have taken into account. The concept of material change of use by intensification requires an increase in scale of some or all of the activities on site and whether the consequences of that increase has brought about any change in the use
• In judging whether the increase in activity is such a scale as to have caused a material change of use, those activities which did or could have occurred in the absence of the increase cannot be attributed to any intensification.
• As to M & W’s broader point, although a material change of use by intensification could arise in theory, it has proved elusive in practice.
• The change relied on has to result in a material change of use of land, and it can only do that if it brings about a definable change in the character of the land.
• Although significant effects of an increase in throughput on and off site may support the conclusion that a material change of use has occurred, Ouseley J did not see how the increase in throughput could of itself constitute a material change of use, as Hertfordshire CC had argued. The consequences of the impacts caused by the increase in activity had to result in a definable change in the character of the use of the land.
• The judge was careful to add a note of caution about Planning Authorities relying on a claim of change of use by intensification as a substitute  for imposing proper planning conditions. Although earlier authorities (Fidler v First Secretary of State [2004] EWCA Civ 1295 and Lilo Blum v SSE & LB Richmond [1987] JPL 2) had treated the principle of material change of use by intensification as well established, the fact remains that there is no decided case in which it had been found to have occurred. This was the position in Brooks and Burton Ltd v SSE & another [1977] WLR 1294, had been referred to by Sullivan J (as he then was) in R v Thanet District Council & Kent International Airport Plc  Richard Tapp & David Britton [2001] PLCR 2, and remained true today.
• All of the above reflects how unlikely success is on an allegation of material change of use by intensification.   The cases all say that you need to be able identify a definable change in the character of the land, which you cannot do by reference to impacts of the use alone.
• In relation to the permitted rights issue, although Parliament had taken scrap yards outside the scope of the use classes for the purpose of the Use Classes Order there was no similar provision taking them outside of the scope of the definition of industrial process for the purposes of the GPDO. There was nothing before him to suggest that this was an accidental omission rather than a deliberate decision.
• There were sound reasons why Parliament would wish to prevent a change of use to a scrap yard by existing industrial sites, but there was a real difference when it came to deciding whether existing scrap yards should have the benefit of permitted development rights.
• Having upheld the inspector’s decisions on material change of use there was no need to consider Hertfordshire’s final argument.

It is suggested that the following points of importance arise from this thorough and carefully reasoned judgement:

• Where consideration is being given alleging a material change by intensification, or where such a notice is issued,  particular care must be taken to identify with precision the material change of use that is alleged
• Where the allegation is material change by intensification, any impacts caused by the increase in activity may be relevant to whether there has been a material change of use, but any impacts associated with the ‘after’ use not caused by intensification are unlikely to be relevant.
• Increased impacts associated with an activity would not of themselves give rise to a material change of use, something more is required. If some other relevant change can be identified the impacts will be relevant in judging if is a material change of use.
• Although the judge was not prepared to exclude altogether the possibility of material change of use by intensification, he clearly considered it was one which should be used with great care and not as a substitute for properly imposed conditions.
• Caution must be exercised in deciding whether to bring an appeal against an inspector’s decision where the inspector made the decision within the framework set by the enforcement notice and forming the basis of the arguments advanced by the parties before the Inspector .
• The provisions of the Use Classes Order which make certain uses ‘sui generis’ can not be read across so as to limit permitted development rights under the GPDO.

Anthony Dinkin QC and Clare Parry acted for Metal and Waste

The above summary was taken from Counsel’s note of judgement, in case of doubt please consult with the full transcript of judgement.