Ainscough Crane Hire Limited, Stockley S Spinney, Rugby Road, Princethorpe, CV23 9PN

Reference number: R10/0545 Site address: Ainscough Crane Hire Limited, Stockley’s Spinney, Rugby Road, Princethorpe, CV23 9PN Description : Lawful development certificate for an existing use for transport/unspecified heavy vehicles depot and yard, ancillary workshops and offices, caravans sales and repairs (heavy vehicles comprise all commercial types including mobile cranes) Case Officer Name & Number: Richard Holt – 01788 533687

Description of Site: The site is located outside any defined settlement boundary within the West Midlands Green Belt. It is approximately 1km east of Princethorpe along the B4453 and approximately 1.5km south of Stretton on Dunsmore.

The site is approximately 1.5 hectares in size and is triangular in shape. It is bound by a mix of trees and hedging to all sides with the majority of the buildings and structures on site located towards the southern end (front) with the northern section (rear) being primarily a hard surfaced yard.

Description of Proposals: The application is for a certificate of lawfulness for an existing use for transport/unspecified heavy vehicles depot and yard ancillary workshops and offices, caravan sales and repairs. There is also a note on the forms that ‘heavy vehicles’ comprise all commercial types including mobile cranes. The applicant’s consider that the use has subsisted for more than 10 years from its commencement and that the applicant’s much later tenure did not constitute a material change of use.

The applicant’s agent has submitted a supporting statement with a significant number of appendices, including previous decisions, photographs and two separate sets of Counsel advice.

Relevant Planning History: The site has an extensive planning history dating back to the mid 1950s. Key applications included the following: Erection of temporary bungalow Approved 03/04/1956 Change of use of temporary bungalow to assembly bay Approved 13/05/1957 Industrial buildings and offices Approved 20/04/1964 Workshops and an additional access were approved in 1964 & 1965. Office extension & internal alterations to premises in connection with haulage business Approved 18/01/1971 Use of part of existing building & land for sale & servicing of caravans, sale of accessories and external display of caravans Approved 20/10/1993 Use of premises for temporary Class B2 use with open storage, erection of aggregate bays, waste bin, low level mixer & replacement building for use by staff Approved 27/05/1998 Waiver of Condition 1 of 1998 permission re temporary permission Approved 16/12/1998 Appeal lodged to make permanent Appeal Allowed 24/06/1999 Waiver of Condition 17 of 1998 permission re manufacture & storage of concrete products only Approved 08/09/1999 Certificate of Lawfulness for use as transport/unspecified heavy vehicles depot & yard, ancillary workshops & offices & caravan sales & repairs Refused 20/05/2009

Technical Consultations: WCC Highways Comments No evidence to establish commencement of use of site.

Environmental Services Comments No relevant documentation on their system, advise consulting Health & Safety Executive.

Report Sheet Health & Safety Executive No comments received to date.

Third Party Consultations: Neighbours (3) Object industrial site inappropriate in rural setting; visual pollution; damage to road surface – costly repairs; abnormally wide & cause damage to verges; verge opposite site – destroyed; cranes leave day & night disturbing neighbours with noise & vibration; industrial use of site not continuous; use intensified to present day levels; Class B2 use does not cover crane hire depot; Rural ‘B class’ road unsuitable for heavy vehicles; previous application refused in May 2009; previous Planning Inspectorate’s decision cannot be overturned; Site in 2002 was clearly identified as Class B2; Not aware of permission for current heavy vehicle use & repairs on site – therefore, applicants not met criteria for Lawful Development; and reference to previous letters, company timeline & petition raising concerns in relation to open countryside location, noise, heavy traffic, lights, visual amenity, road damage, not agricultural diversification and caravan sales & repairs.

Princethorpe Parish Council Comments Refer back to their previous comments of 2005 where they had received complaints regarding movement of cranes in early hours of morning; Concerns also received regarding erection of jibs, disfiguration of verge & traffic hold-ups; residents complaints reiterated in 2008 suggesting regulation of working times may alleviate problem in early hours; Opening of Western Relief Road could worsen situation.

Relevant Planning Policies & Guidance:

Circular 10/97 Annex 8 – Lawfulness & The Lawful Development Certificate

Assessment of Proposals:

This application is for a certificate of lawfulness and not a planning application. Therefore, the only material consideration is whether or not it is judged that on the balance of probability the use has occurred continuously for a period of 10 years or more. The previous certificate of lawfulness was refused in 2009 on the grounds the based on the information submitted the use had not been as a transport/unspecified heavy vehicles depot and yard, ancillary workshops and offices and caravan sales and repairs for a continuous period of more than 10 years.

Whilst Section 191(4) of the Town & Country Planning Act, 1990 (as amended) refers to the Local Planning Authority being satisfied of the lawfulness of the use at the time of the application, case law has held that the 10 year period does not have to relate solely to a 10 year period immediately prior to the date that the application was submitted. Therefore, a use can exist for 10 or more years and then the site can fall vacant and provided that there has been no enforcement action, no abandonment of use and no breaks in the use via a fresh planning application, the use would remain lawful. Section 171B(3) of the Act confirms that no enforcement action may be taken after the end of the period of ten years beginning with the date of the

Report Sheet breach and not just the 10 year period immediately prior to the date of the application. This approach has been clarified by the Local Planning Authority’s Counsel.

There does appear to be no record of a planning permission for a transport depot and haulage business at the site, however, in 1971 permission was granted for an office extension together with internal alterations to the premises in connection with the haulage business. The applicant’s were Ellis Greaves who were a transport contractor that included general & heavy haulage and industrial & commercial removals.

A planning appeal decision in June 1999 referred to the vacant site as a former transport and removal contractor’s business, but the inspector stated that it remains that a renewed [haulage] operation could be run at a more intensive level. In October 1993 planning permission was granted to use part of the site for the sale and servicing of caravans, sales of accessories and the external display of caravans. From the Council’s records this use was implemented, possibly prior to the issuing of the actual permission, and was known as Princethorpe Caravan Supplies Limited. This use was restricted to the south-western section of the site, but did not override the haulage operation use from the site as this could start up again as referred to by the Planning Inspectorate 6 years later. This was also reconfirmed within the Council’s records in May 2005.

Planning permission was granted in 1998 to use the site for a Class B2 (General Industrial) use with open storage, erection of aggregate bays, waste bin, low level mixer and replacement building for use as a staff mess room. Although this permission was never implemented two conditions were waivered in 1998 and 1999. Ainscough Crane Hire Limited purchased the site in January 2005 and moved on to the site shortly after. Between the period of the haulage operation and caravan business ceasing and Ainscough purchasing the site, it is understood the site was used for horticultural purposes, but this did not receive planning permission and happened for a relatively short period of time, so did not automatically extinguish any previous uses which could be considered lawful.

The onus of proof is firmly on the applicant and the relevant test is on the balance of probability. The applicant’s evidence does not have to be independently corroborated and if the Local Planning Authority has no evidence of its own or from others to contradict or otherwise make the applicant’s version of events less than probable, then there is no good reason to refuse the application, provided that the applicant’s evidence is sufficiently precise and unambiguous.

The Council’s own records clearly show that Ellis Greaves were on the site between 1971 and 1998. On the 1993 planning application form the use at that time is described as road haulage, repair, service, storage of vehicles and trailers and that this use commenced in 1971. In 1998 when an application was made to change the use of the premises from haulage and removal contractors and sales of and service of caravans and accessories to Class B2 with open storage etc. the Princethorpe Parish Council comments of April 1998 refer to the number of staff and the level of commercial vehicle movements from the site being minimal. The planning officer’s report at that time also refers to an existing commercial premises. Whilst the site at that time was apparently licensed for 15 heavy goods vehicles (HGVs) and 51 trailers, the report also refers to the business being effectively wound down from September 1997.

The intensification or reduction in the level of activity of the same type of use at a particular at a site does not necessarily result in a material change of use. Therefore, whether there was one HGV or 15 HGVs operating from the site did not result in the actual planning use changing.

Therefore, on the balance of probability the site was continually being used by the transport contractors, Ellis Greaves, that included general & heavy haulage and industrial & commercial removals, between 1971 and 1998. This period of 27 years clearly exceeds the 10 year period sought as referred to in Section 171B(3) of the Act. As detailed above, planning permission was granted for the use part of the site for the sale and servicing of caravans, sales of accessories and the external display of caravans. Photographs on file indicate the presence of Princethorpe Caravan Supplies Limited in 1998 and 1999 (albeit at a reduced level of activity).

Based on the passage of time and existing planning permissions in place, the Local Planning Authority consider that in 1998 the lawful use of the site could be argued to be a mix between the caravan sales and servicing element and the haulage business. Therefore, what is key is what occurred after this date prior to the occupation of the site by Ainscough in 2005.

Report Sheet According to Companies House, Ellis Greaves Transport (Coventry) Limited was dissolved in February 2000 with Princethorpe Caravan Supplies Limited following shortly after in June 2000. In December 2003 the Council did receive an enquiry from a concrete company regarding the suitability of the site for their purposes. This indicated that the site was possibly being marketed at that time. The only other record the Council has during 2000 and 2005 is that the site was used briefly for horticultural purposes, but as stated above this did not receive planning permission and happened for a relatively short period of time.

On the basis, that there does not appear to be any other evidence regarding activities on the site between 2000 and 2005, it is considered that on the balance of probability the mixed use of caravan sales and servicing and haulage could commence again as highlighted in the Planning Inspectorate’s decision of 1999. Therefore, the applicant’s version of events together with the documentation held by the Council would justify the grant of a certificate of lawfulness for a transport/unspecified heavy vehicles depot and yard with ancillary workshops and offices as it has operated for in excess of 10 years and the use has not been extinguished by the serving of an enforcement notice, an intervening planning permission or abandonment of the use in the terms of planning legislation.

The applicant’s agents accept the primary use of the site has been as a transport depot with a small area for caravan sales and servicing. The red lined plan which has been submitted as part of the certificate of lawfulness runs around the entire site, but included in the description is caravan sales and repairs. The 1993 planning permission was only to use part of the site for the sale and servicing of caravans, sales of accessories and the external display of caravans and not the entire site. The submitted evidence together with the Council’s records does not demonstrate that this particular use occurred across the entire site for 10 or more years. On this basis, the Council considers it necessary to refer to Article 35 (13) of the Town & Country Planning (Development Management Procedure) (England) Order 2010 and modify the submitted site location plan to distinguish between the transport depot and the caravan sales and servicing uses for the avoidance of doubt and to limit any potential ambiguity. The applicant’s agent has agreed to accept this proposed amendment.

On the application form the applicants have stated that the definition of heavy vehicles should comprise all commercial types including mobile cranes. Evidence on the Council’s files do show photographs of Ellis Greaves lorries attached to low loader trailers with large cranes sat on them, therefore, this form of heavy haulage was transported by the company. Heavy haulage is generally determined as the business of carrying and transporting goods of great weight, such as coal and steel by road or rail. The Development Control Practice publications indicate that haulage uses are considered to be a sui generis use which is accepted by the applicant’s agent and that cranes/hoists are often a feature of haulage yards.

Ainscough Crane Hire specialise in providing the petrochemical, energy, infrastructure, construction, and oil & gas industries with general and heavy cranes for use. They include a mix of heavy mobile, truck mounted and all-terrain cranes. Owing to the size of these units it is not considered that they would fall within the scope of general plant hire or equipment where both the trade and public could generally visit the site to hire such products. On this basis, it is accepted that the current occupiers of the site are not materially different to the sui generis use of the Ellis Greaves transport depot and removal contractor’s business that operated on the site.

The Council’s legal department has confirmed that following the submission of further information, including Counsel opinion and a re-evaluation of the case, including the associated legislation, on the balance of probabilities a certificate of lawfulness as outlined above cannot be reasonably withheld, subject to amending the site plan in relation to caravan sales and repairs.

Recommendation:

Issue a Certificate of Lawfulness for an existing use for transport/unspecified heavy vehicles depot and yard, ancillary workshops and offices, caravan sales and repairs (heavy vehicles comprise all commercial types including mobile cranes) with a slight amendment to the site location plan.

Report prepared by: Richard Holt 22/10/2010

Report Sheet