Appeal Decision

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 www.planningportal.gov.uk/planninginspectorate Appeal Decision APP/U1105/X/12/2186016 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. www.planningportal.gov.uk/planninginspectorate 3 Appeal Decision APP/U1105/X/12/2186016 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.

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