Appeal Decision 4/11 Eagle Wing Temple Quay House 2 the Square Temple Quay Inquiry Held on 31 March 2010 Bristol BS1 6PN

The Planning Inspectorate Appeal Decision 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 31 March 2010 Bristol BS1 6PN 0117 372 6372 email:[email protected] by Derek Thew DipGS MRICS ov.uk Decision date: an Inspector appointed by the Secretary of State for Communities and Local Government 16 April 2010 Appeal Ref: APP/V4250/X/09/2108937 Land rear of 247-255 Tyldesley Road, Atherton, Manchester, M46 9AD • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC). • The appeal is made by Mr C Ince against the decision of Wigan Metropolitan Borough Council. • The application ref. A/09/72615, dated 10 March 2009, was refused by notice dated 5 May 2009. • The application was made under section 191(1)(a) of the Town and Country Planning Act 1990 as amended. • The uses for which a certificate of lawful use or development is sought are: (a) parking and storage of private and light commercial vehicles; (b) storage of building materials; and (c) garage workshop used for running repairs to fleet of vehicles; within Use Class B1(c). • Oral evidence at the inquiry was given on oath. Decision 1. I dismiss the appeal. Reasons Legal Background 2. The application for a certificate of lawfulness was submitted on 10 March 2009. For this appeal to succeed it needs to be demonstrated, on the balance of probability, that the uses for which a certificate is sought commenced 10 years or more before that date, continued thereafter for an unbroken period of 10 years, and had not been replaced by any other use at the date of the application. The onus of proof is on the appellant. The Site 3. The site is an area of former allotments situated to the rear of terrace housing on Tyldesley Road. The appellant’s evidence refers to the site having an area of about 0.08 hectare. It accommodates two domestic-size garage buildings: one is single vehicle size and the other large enough for two vehicles. There are areas of concrete hardstanding in front of the garages, between them and to their rear. On the north western side of the single garage there is a sizeable area of gravel hardstanding. The remainder of the site, to the rear of the garages and gravel hardstanding, is mostly covered with grass. Appeal Decision APP/V4250/X/09/2108937 The Oral Evidence of Mr Ince 4. He acquired a lease of the land in 1986. In November 1987 planning permission (ref.A/28985/87) was granted for the erection of the double garage which currently stands on the site. This building was put-up soon after the consent was obtained and used thereafter for vehicle repair work. His company was known as CT Autos and undertook all types of repairs, including bodywork and paint spraying. The single garage was erected after the double garage and has always been used for storage purposes. The area of gravel hardstanding beside the single garage was used to store or park vehicles awaiting repair. CT Autos ceased trading in 2003. 5. In about 1996 he started a property company, which used to trade as Ince Holdings but now trades as Hesketh Bank Property Developers Ltd. Since 2003 the double garage has been used mainly for the storage of building plant and machinery used in his property work. The garage is also used to carry out any repairs on vehicles he owns either as part of his business or personally. 6. In 2006 he started a drain and sewer clearing company, A1 Drainage, which is run in partnership with his son, Simon. That business owns one large sewage clearing vehicle and 3 or 4 vans. Vehicles used by that company are sometimes parked on the gravel hardstanding or the forecourt to the garages. 7. The open land to the rear of the site has always been used for the open storage of building materials left over from any particular building project. 8. This evidence is in part supported by a statutory declaration sworn by Mr Ince on 18 November 2008. Written & Photographic Evidence 9. Three identically worded letters from local residents state that the writers have witnessed Mr Ince working from the rear of 255 Tyldesley Road for over 20 years. A number of photographs, apparently taken around 1989, show a classic car (in varying stages of renovation) situated both inside and outside the double garage. 10. Two letters from Mr & Mrs Mather of 249 Tyldesley Road state that they have lived in their house since 1992 and, for several years after that, the father of Mr Ince had a well-kept allotment to the rear of their house. The appellant seemed to do vehicle repair work from one of the garages, but it was not for a continuous period of 10 years. Machinery used in the repair work caused a great deal of noise, but fumes from spraying were worst of all. When Mr Ince moved away from Tyldesley Road work in the garage stopped. Around this time one of the garages was let to an ex-neighbour for a few years. Consideration of the Evidence 11. In this case the Council has no evidence of its own with which to contradict or otherwise make the appellant's version of events less than probable. 12. The application site is a fairly small area of land which since 1986 has been occupied only by Mr Ince and his son for a variety of business purposes. The land is not physically sub-divided into distinct parcels and I consider the site to be a single planning unit. 2 Appeal Decision APP/V4250/X/09/2108937 13. From the available evidence it appears that between 1988 and 2003 the principal commercial use of the site was by CT Autos for all forms of vehicle repairs. The use of the double garage as a workshop for repairs that included bodywork and paint spraying is likely to have had some adverse effect upon residential amenity by reason of noise and fumes. I draw support for this view from letters submitted by the occupiers of 249 Tyldesley Road. Such a use, therefore, probably constituted a general industrial use within Class B2 of the Town & Country Planning (Use Classes) Order 1987. 14. Mr Ince disputed the claim of neighbours that for several years after 1992 his father had an allotment on the area that is now a gravel hardstanding. He stated that when CT Autos was operating, this area had always been used for the storage or parking of vehicles awaiting repair. As Mr Ince gave his evidence on oath then it carries more weight than views expressed in a letter. However, and irrespective of when the gravel hardstanding was formed, any use of that area for the parking and storage of vehicles awaiting repair would have been ancillary to the primary use of the site for vehicle repair work. There is no substantial evidence to show that whilst CT Autos was trading the parking and storage of vehicles took place as a separately distinguishable use of the site. 15. It is not clear to what extent building materials were stored on the land during the period when CT Autos was trading. There are no photographs of the land to show how extensively it was so used and the evidence of Mr Ince provided no details of the quantities of materials stored there at any one time. Mr Ince spoke at the inquiry of the open land to the rear of the garages being used to store any materials left over at the end of a building project. But no part of his evidence included details of sufficient precision for me to conclude that such storage has ever taken place across all this open area for a continuous period of ten years. Furthermore there are no details before me as to precisely how the single garage was used during the period up to 2003. 16. In such circumstances it would appear that between 1988 and 2003 the only identifiable commercial use of the site was for vehicle repairs within Class B2 of the Town & Country Planning (Use Classes) Order 1987. Even so, the evidence before me is insufficiently precise for it to be concluded, on the balance of probability, that such a use continued uninterrupted throughout this 15 year period. 17. From 2003 onwards I understand the double garage has been used mainly for the storage of builder’s plant and machinery. Mr Ince may have continued repairing his own vehicles on the premises, but he provided no substantial evidence to suggest that such repair work was a principal use of the site. The use of the garage for the storage of builder’s plant and machinery is a use materially different from its use for all forms of vehicle repair. 18. On this basis, it seems that in 2003 Mr Ince made a decision to cease using the site primarily for vehicle repairs and to use it thereafter in a manner somewhat akin to a builder’s yard. Building equipment and materials have been stored there, and vehicles associated with that business have been parked on the hardstanding and sometimes repaired in the double garage. From the limited evidence before me it appears the changes that occurred around 2003 resulted in material change in the use of the land and effectively opened a new chapter in the planning history of the site.

Load more