Appeal Decision Hearing and site visit held on 14 May 2013 by Clive Kirkbride BA(Hons) DipTP MSc MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 16 July 2013

Appeal Ref: APP/U1105/X/12/2186016 Highview, Smallridge, Axminster, Devon, EX13 7JJ • 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 B Wood against the decision of East Devon District Council. • The application Ref 12/0016/CPE, dated 1 January 2011, was refused by notice dated 17 May 2012. • The application was made under section 191(1)(a) of the Town and Country Planning Act 1990 as amended. • The use for which a certificate of lawful use or development is sought is the use of the land as a scrapyard.

Decision

1. The appeal is dismissed.

Procedural matters

2. Although the application form is dated 1 January 2011 it is clear that it should have been dated 1 January 2012.

3. The site location is shown as ‘Highview’ on the application form and as ‘land south of Mayfields’ on the application plan and the Council’s decision notice. It was agreed at the hearing that a more accurate description of the site location was “Land adjoining Highview, Smallridge, Axminster, Devon, EX13 7JJ” and this is the site location I refer to in my decision.

4. The hearing was adjourned on 14 May 2013, so that missing and late correspondence could be considered. It was closed in writing on 9 July 2013.

Background

5. The site has a long and complicated planning history and I have provided a summary of this by way of background. Planning permission was originally granted in 1957 for car breaking and repairs to agricultural machinery subject to a condition requiring those uses to cease on or before 31 December 1963. An application to renew this permission was made on 9 January 1964. There is no evidence of any decision notice being issued; however, there is evidence that the Council informed the applicant in writing that the continued use of the site for car breaking and repairs would not be tolerated beyond 31 December 1964.

6. On 27 May 1966 the Council issued an enforcement notice requiring discontinuance of the use of the land and buildings for car breaking and repairs

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to agricultural machinery, the removal of all associated materials from the land and the restoration of the site to it previous condition. Insofar as the Council is concerned the notice requirements were complied with and this was also confirmed in writing by the occupant’s solicitors on 1 December 1967 1. The Council no longer has a copy of this enforcement notice.

7. Planning permission was granted on 16 June 1969 for the construction of a building for the repair and hire of agricultural machinery. The Council considers that this permission was never implemented, an opinion it set out in writing to the occupant on 20 October 1991 2. There is no evidence before me that the Council’s opinion was challenged at the time. During the course of the hearing Mr Bagwell claimed to have constructed the building “somewhere in the upper field” but then went on to state that the building no longer exists.

8. In 1987 an enforcement notice was issued in respect of the use of the land as a scrapyard and for the breaking of motor vehicles 3. The use was still continuing in October 1991, as evidenced in the Council’s letter referred to above. However, the Council was eventually satisfied that the alleged uses did cease and the notice requirements complied with as it confirmed these matters in writing in a letter to the occupant dated 17 November 1994 ( Document 2 ). That same letter also drew the occupant’s attention to the fact that the retention of three caravans on the land may require planning permission and advised him either to remove them or apply for planning permission.

9. In October 1992 an outline application was submitted for the construction of three bungalows on the land which was refused. That refusal was subsequently appealed but the appeal was then withdrawn.

10. In 1997 there is evidence ( Document 5) that the Council investigated the use of the land by a tenant, Mr Reed, who it described as an agricultural worker using the land for grazing and harvesting and the storage of associated machinery and vehicles. It was concluded that no action was necessary but that the situation would be monitored.

11. Nothing else of note is recorded by the Council until it wrote to the current owner (the appellant) on 16 April 2009 about his future intentions for the use of the land 4. The letter concerns various items being stored on the land, the lawful use of the land (which the Council deemed to be agricultural) and that its use for the storage of plant or machinery or workshop would require planning permission. The Council wrote to the appellant again on several occasions during 2011 advising him either to remove the unauthorised materials being stored on the land or to apply for planning permission to regularise the matter. The outcome was an application for a LDC in 2012 for use of the land as a scrapyard, the refusal of which resulted in the current appeal.

12. The Council advised me during the hearing that three new enforcement notices would come into effect after the determination of this appeal ( Document 6 ). One notice relates to the erection of a pole barn and metal shed; a second to the extension of an existing building, referred to by the appellant as a tool shed, and the third to, amongst other matters, three caravans.

1 Appendix 10 to the Council’s Statement of Case refers 2 Appendix 4 op cit 3 Appendix 5 op cit 4 Appendix 7 op cit www.planningportal.gov.uk/planninginspectorate 2 Appeal Decision APP/U1105/X/12/2186016

13. The appellant is seeking to retain the buildings, extension and caravans as part of his current appeal, as identified on appeal Drawing No 2428-01. The pole barn is labelled as building 3, the metal shed as building 2, the extended tool shed as building 2 and the three caravans as A – C. The same drawing also shows two other buildings (4 and 5) and several areas of hardstanding.

Main issue

14. The only issue for consideration is whether the appellant is able to demonstrate, on the balance of probabilities, the continuous use of the land as a scrapyard in the 10 year period immediately prior to the date of his LDC application.

Reasons

15. The appeal site is an extensive area of land containing a number of buildings and structures. The site rises gradually in a north westerly direction and is accessed from Smallridge Road at a point adjacent to Honeysuckle Cottage.

16. The land is described by the appellant as comprising upper and lower fields, or yards. I noted that the former is generally overgrown to such an extent that it was difficult, if not impossible, to confirm whether the often impenetrable thickets of brambles concealed various items of scrap, although I have no reason to doubt the appellant’s evidence on this matter. Building 5 and touring caravans B and C are shown on the appeal plan as being located within this part of the site. The lower field, or yard, is described by the appellant as the core area of the scrapyard business where most of the activity has always been carried out and where the four other buildings and static caravan referred to are located.

17. It is evident from the statutory declarations submitted by the appellant, the numerous letters from interested persons and the Council’s own submissions that the land had been used as a scrapyard over a long period of time. That use commenced in the 1950s and would appear to have fluctuated in intensity with generally low periods of activity interspersed with occasional spikes, as the appellant puts it.

18. However, the appellant cannot provide any documentary evidence relating to the use of the land as a scrapyard between 2002 and 2012 save for evidence of business rates relating to “Workshop and premises” which is inconclusive, and a number of invoices relating to purchases made by Pilsdon Autos’ during the period July 2007 to October 2008. According to the previous owner, Mr Bagwell, this is because the business operated for many years by word of mouth and on his father’s reputation; he kept neither books nor records and had no need to advertise.

19. What is evident is that two enforcement notices have been issued relating to the use of the land as a scrapyard; one in 1965, which the Council no longer has a record of, and a second issued in 1987. Even though the Council may have been satisfied, at one point, that the requirements of the 1987 notice had been complied with, the notice itself has never been withdrawn and remains extant, a matter which the appellant appears to have ignored. The notice plan includes the whole of the current appeal site with the possible exception of a small area of land in the extreme northern corner.

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20. I accept that it took a number of years for Mr Bagwell to comply with the requirements of the 1987 notice and that the Council has since failed to pursue what may be described as persistent continuing breaches of the notice. From his evidence, Mr Bagwell appears to have been under the impression that the notice only required him to tidy up the land. However, the 1987 notice requirements did not just require the land to be tidied up; they required the use of the land as a scrapyard to cease and all scrap materials to be removed from the land. As Mr Bagwell confirmed during the hearing that he never actually ceased using the land as a scrapyard, although he did tidy it up, it is a matter of both fact and law 5 that the any use of the land as a scrapyard after 15 October 1987 represented a continuing breach of the 1987 notice.

21. Section 191 of the 1990 Act as amended relates to Certificates of lawful use or development. Subsection (2) states that for the purposes of the Act uses and operations are lawful at any time if “(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.” It is self evident that the application for a LDC and this appeal had no prospect of succeeding as the continued use of the land as a scrapyard cannot be immune from enforcement action, given that it constitutes a contravention of the requirements of the 1987 notice.

22. Insofar as the small corner of the site which may not be subject to the 1987 notice is concerned, I noted that this includes the collapsed remains of a former corrugated iron and timber building (building 5 on the appeal plan). By the appellant’s own admission, it has not been used for any purpose during the time he has owned and occupied the site, that is, since 2009, and its present condition suggests it had probably not been used for many years prior to 2009. Therefore, the appellant is unable to demonstrate, on the balance of probabilities, that this corner of the appeal site has been in continuous use, including the dilapidated building located on it, for the required 10 year period prior to the date of the LDC application.

23. With respect to the various other buildings for which an ancillary use is claimed, the Council’s photographs show these as all being in a state of severe disrepair or partial collapse prior to 2011. This was not the case at the time of my site visit when I noted that:

• building 1, the metal shed, is a new building clad in metal profile sheeting attached to a much older building which still shows evidence of former agricultural use;

• building 2, referred to as a small block and tiled tool shed, has been extended and re-roofed, the original roof having effectively collapsed 6;

• building 3, the pole barn, is in the course of being rebuilt and currently comprises a skeleton timber framework incorporating new and salvaged timbers.

24. Attached to Mr Smith’s statutory declaration is a quotation for “new buildings” which he provided for the appellant in December 2010. Mr Smith’s firm specialises in the repair and maintenance of farm and industrial buildings. In relation to the buildings known as 1 and 3 the quotation was for the supply of materials and labour for the erection (my italics) of the buildings. The

5 Section 181 of the 1990 Act as amended 6 Robert Francis Bagwell’s and Mark Wasley’s Statutory Declarations www.planningportal.gov.uk/planninginspectorate 4 Appeal Decision APP/U1105/X/12/2186016

quotation in respect of building 2 was for the cost of supplying and fitting wooden timbers for re-roofing, stabilising block work and re-tiling.

25. The appellant claims that the work carried out to these three buildings comprised nothing more than maintenance repairs to make them good and were small-scale in nature. However, I am satisfied from the evidence before me that the scale of the work carried out since the Council’s visit in 2011 goes far beyond small-scale maintenance and repair work and amounts to operational development requiring planning permission which has neither been sought nor granted.

26. The other building (4) on site is referred to as the cow shed with attached old dairy. There is no roof to the cow shed; only the walls are still standing within which I noted car body parts were being stored. The attached old dairy is used by Peter Reed as a tool shed. In his statutory declaration Mr Reed describes his business as the “care, maintenance and management of trees, woodlands and forests and the production and processing of wood and timber products” and states that he has been operating from the appeal site since 1988. None of these matters is disputed by the Council.

27. Insofar as the three caravans are concerned, I noted that all three are in a dilapidated condition and incapable of use without major refurbishment and it is fanciful of Mr Bagwell to suggest that the caravans have been regularly repaired and are still in relatively good condition. I am satisfied from the evidence before me that any claimed former ancillary residential or office use of the caravans associated with the use of the land as a scrapyard last occurred some years ago; certainly there is no evidence of any use of these caravans since the appellant acquired the land from Mr Bagwell in 2009. In any event, I have found that the use of the land as a scrapyard is not immune from enforcement action and any ancillary structures such as caravans associated or formerly associated with that use would not be immune from enforcement action either.

28. I heard no evidence from either the appellant or the Council relating to the various areas of hardstanding shown on the appeal drawing. However, I note that these areas are not subject to the requirements of either the 1987 notice or the new enforcement notices.

Overall conclusions

29. I conclude from the evidence before me that there is an extant 1987 enforcement notice which requires the use of the land as a scrapyard to cease and all scrap materials to be removed. This, in itself, was always going to be fatal to the application for a LDC for the use of the land as a scrapyard and the success of the current appeal.

30. Even if this were not the case there is no substantial evidence to demonstrate, on the balance of probabilities, any continuing use of the land as a scrapyard for the requisite 10 year period immediately preceding the LDC application. The evidence that has been submitted confirms the historic use of the land as a scrapyard, not its recent use and certainly not since the appellant’s occupation of the land which dates back to 2009.

31. I have also found that of the five buildings claimed to have been used for purposes ancillary to the use of the land as a scrapyard, one has been completely rebuilt, another has been extended and a third is a new building

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under construction. In all cases the work carried out amounts to operational development for which planning permission is required.

32. Insofar as building 4 is concerned, part of this (the old dairy) has been used by an agricultural contractor in connection with his business for many years and the adjoining section (the former cow shed) is reduced to a series of low walls. Building 5, in the northern corner of the appeal site, has collapsed in on itself and the appellant admits to not having used it since occupying the land. Indeed, it is incapable of use in its current condition and would appear to have been in a dilapidated state for many years.

33. Even if the appellant had been able to demonstrate that he had been using the former cow shed and building 5 for storing scrap, I have found that the use of the land as a scrapyard is unauthorised by virtue of the extant 1987 enforcement notice. Therefore, the use of any building or structure on the land for purposes ancillary to the alleged use of the land as a scrapyard would not be lawful either.

34. For all of the above reasons, I conclude on the evidence before me that the Council’s refusal to grant a certificate of lawful use of development in respect of the use of the appeal site as a scrapyard was well-founded and that the appeal should fail. I have exercised the powers transferred to me in section 195(3) of the 1990 Act as amended accordingly.

C.S.Kirkbride

INSPECTOR

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APPEARANCES

FOR THE APPELLANT:

Nigel Whitehead, BA(Hons) The appellant’s agent and planning consultant

Brian Wood and Donna Sorrell The appellant and his partner

Bob Bagwell The previous owner and occupier of the land

FOR THE LOCAL PLANNING AUTHORITY:

Jenna George Planning Officer, East Devon District Council

Charlie McCullogh Senior Planning Officer, East Devon District Council

David Cocker Enforcement Officer, East Devon District Council

INTERESTED PERSONS:

Mr and Mrs M Bamberger Local residents

DOCUMENTS

1 Copy of the Council’s Hearing notification letter dated 08/04/13 2 Copy of letter dated 17/11/94 to Mr Bagwell confirming the requirements of the 1987 enforcement notice and the Council’s satisfaction that these had been complied with, and drawing his attention to the fact that the retention of 3 caravans on the land may require planning permission (submitted for the Council) 3 Copy of undated letter received from Mr Bagwell by the Council on 13/06/95 referring to the keeping of 3 empty caravans on the land and confirming that they would be used for storing animal feed stuffs (submitted for the Council) 4 Copy of officer report recommending refusal of an application Ref 7/74/92/P1904/150 for the construction of 3 bungalows on land at Frogwell Lane, Smallridge which refers to the reappearance of stored vehicles on the appeal site in contravention of the 1987 enforcement notice (submitted for the Council) 5 Copy of note of site visits made during May and October 1997 by the Council’s Enforcement Officer, including his conversation with the tenant, Mr Reed, whom he met by appointment (submitted for the Council at the appellant’s request) 6 Copy of 3 new enforcement notice prepared by the Council, dated 14/09/12 and due to take effect following the determination of the current appeal, relating to (i) the removal of the pole barn and metal shed; (ii) the demolition of the extension to the tool shed and (iii) the removal of all caravans, other waste materials and a tractor from the land (submitted for the Council) 7 Letter from Michael and Rosemary Bamberger to the Council dated 20/02/12 relating to the use of the appeal site in response to the appellant’s LDC application (submitted by the Council at the authors’ request) 8 Copies of rateable value details, charges and payment details relating to Workshop & Premises, Frogwell Lane, Smallridge, Axminster, Devon, EX13 7JL (submitted for the appellant) 9 Bundle of missing correspondence (submitted post-event for the appellant) 10 Bundle of previously withheld correspondence from interested persons and parties relating to the appellant’s LDC application (submitted post-event by the Council) 11 The appellant’s response to the previously withheld correspondence from interested persons and parties (submitted post-event for the appellant by email dated 03/06/13)

PHOTOGRAPHS

1 Bundle of photographs of the appeal site taken on 25/02/13 (submitted for the Council)

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