Earlier Findings Consistent with Whole Site having Established Planning Use against Enforcement Action

In Gazelle Properties Ltd, R (on the application of) v Bath and North East Somerset Council & Ors [2014] fuller’s earth had been extracted from a large area of land at Combe Down, Bath.

The processing of fuller’s earth in the buildings on the site began in the 1890s. The mineral was extracted on Combe Down. No working took place under the buildings. How close it came to the buildings was unclear. Until the 1960s all of the material processed in the buildings was extracted locally and carried to the buildings on trams. After that fuller’s earth extracted elsewhere in England and abroad was brought in by road (but also locally from Sow Hill). In about 1980 mineral extraction was suspended and in 1986 the buildings’ use for processing stopped. The machinery was removed, but the buildings remained.

The site was owned by Gazelle Properties Ltd. (“Gazelle”). It was Green Belt, in the setting of a World Heritage Site.

So the application site had always been used for some form of industrial process and since the early 60s had formed a separate and distinct planning unit in its own right.

It was common ground that the extraction operation under Sow Hill did not form part of the same planning unit and this was based on its physical separation from the application site.

The current claim for judicial review required the court to interpret several passages in a decision letter issued by the Secretary of State on 1 August 2003. He had then refused Gazelle’s application for planning permission for the redevelopment of its site by adapting and extending the buildings for office use and “work at home” accommodation but had also considered whether Gazelle could, as a fallback, resort to general industrial use.

The current claim challenged a later planning inspector’s ruling on Gazelle’s appeal against three enforcement notices subsequently issued by Bath and North East Somerset Council (“the Council”) against an alleged unauthorized change of use. In his ruling the inspector rejected Gazelle’s contention that the Secretary of State’s decision had concluded that the fallback applied to the whole of its site. Gazelle said the inspector had got it wrong.

So the issue was “the extent of the land considered by [the Secretary of State] in August 2003 to be covered by Use Class B2 of the Town and Country Planning (Use Classes) Order 1987 (as amended) as a fallback position on a proper construction of the 2003 [decision letter].”

The preceding inspector had found that a fallback position could be relied upon if there was a real likelihood that the B2 (general industrial use) would continue. It was Gazelle’s firm intention to continue and intensify that use in the event (which we have seen occurred) that planning permission was refused. An aggregates re-processing operation occupied part of the site. A number of potential occupiers had an interest in using the site for various industrial purposes, including a concrete batching plant. There was a continuing demand in the Bath area for sites for the dirtier type of industrial use.

Such dirtier type of industrial use would have an appreciably greater impact than the proposed office and residential use.

However the Secretary of State’s consideration of the lawful use of the site arose in the context of the “very special circumstances” put forward both by Gazelle and the Council in urging him to grant planning permission, as a justification for permitting “inappropriate development” in the Green Belt.

The Secretary of State had neither needed nor purported to make, any formal determination of the lawful use of any of the application site which might have been final and binding here.

The High Court’s task in this case wasn’t to decide whether the Secretary of State was right in what he said about the lawful use of the site, but only to work out what he meant.

Without determining this question formally, the Secretary of State had not doubted the existence of a lawful Class B2 use on the whole of the site. To that extent Gazelle were right.

It follows that the enforcement appeal inspector’s ruling on the preliminary issue had to be quashed.

However the extent of “the [Class] B2 fallback” was not finally determined by the decision of the Secretary of State but would be at Gazelle’s enforcement appeal.

This blog has been posted out of general interest. It does not replace the need for bespoke legal advice in individual cases.