Appeal Decisions - Planning Jungle · Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North...

www.planningportal.gov.uk/planninginspectorate

Appeal Decisions Inquiry held on 14, 15, 16, 17, 21 and 22 May 2013 and 25, 26 and 27 June 2013

Site visits made on 20 May 2013 and 1 July 2013

by George Mapson DipTP DipLD MRTPI

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 6 September 2013

Appeal 1 - Ref: APP/E2001/X/12/2189090

Appeal 2 - Ref: APP/E2001/C/12/2189093

Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North Humberside, YO25 8EG

• The appeals are made by Mr Michael Kirkwood against the decisions of the East Riding

of Yorkshire Council; firstly, to refuse to grant a certificate of lawful use or development (LDC); and secondly, to issue an enforcement notice.

• Appeal 1 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 an

LDC. • The application Ref 11/05411/CLE dated 9 November 20111 was refused by a notice

dated 24 April 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 is sought is described on the application form as: “Class

B2 – General industrial 2.”

Summary of decision: Appeal 1 is dismissed.

• Appeal 2 is made under section 174 of the Town and Country Planning Act 1990 as

amended by the Planning and Compensation Act 1991 against an enforcement notice. • The notice, Reference EN/10/00989/UNUSE, was issued on 8 November 2012.

• The breach of planning control as alleged in the notice is: “Without planning permission, a. Material change of use of the land from use for agriculture to a mixed use for

agriculture and for General Industrial B2 Use (animal feed mill) and associated

servicing, storage, deliveries, parking, sales and distribution; and b. Construction of hard standing for the parking of associated HGVs, plant and vehicles”.

• The requirements of the notice are: “a. Cease the use of the land for B2 General Industrial Use (animal feed mill) and all associated servicing, storage, deliveries,

parking, sales and distribution activities and remove all associated vehicles, plant and machinery from the land (save as to vehicles plant and machinery used in association

with the lawful use of the land for agriculture; and b. Remove from the land the feed mill installation (not the building housing the feed mill installation) and all other

machinery and plant associated with the feed mill installation and not being associated

with the lawful use of the land for agriculture (except for the weighbridge).”

1 The Council takes the view that the notice was submitted on 14 November 2012 and that this should be the

relevant date for establishing the correct 10 year period. I shall go by the date that appears on the application

form. In this appeal, nothing of consequence turns on the precise date.

2 Town and Country Planning (Use Classes) Order 1987 (as amended) [the UCO] defines Class B2 ‘General

industrial’ as “Use for industrial process other than one falling within class B1 (excluding incineration purposes,

chemical treatment or landfill or hazardous waste).” This is the definition in its revised form, as summarised by

the Planning Portal.

Appeal Decisions APP/E2001/X/12/2189090; APP/E2001/C/12/2189093

www.planningportal.gov.uk/planninginspectorate 2

• The periods for compliance with the requirements are: “Six months in the case of

cessation of the B2 Industrial Feed Mill use and all associated activities described in the breach of planning control alleged; and Nine months in the case of removal of the feed

mill installation and plant and machinery associated with the feed mill installation.” • The notice contains a Note which states: “For the avoidance of doubt, this Notice does

not require the removal of the hard-standing but it does require the cessation of the use of the hard-standing for the unauthorised purposes described above. This Notice does

not require the removal of the weighbridge or the building housing the feed mill

installation.” • At the outset of the inquiry the appeal was proceeding on the grounds set out in section

174(2) (a), (b), (d), (e), (f) and (g) of the Town and Country Planning Act 1990 as amended. Ground (e) was withdrawn following the Council’s agreement to submit a

revised enforcement notice plan.

Summary of decision: Appeal 2 is allowed and the enforcement, as corrected, is quashed.

APPLICATION FOR COSTS

1. At the inquiry an application for costs was made on behalf of the appellant, Mr Michael Kirkwood, against the East Riding of Yorkshire Council. This application is the subject of

a separate Decision.

PRELIMINARY MATTERS 1: THOSE RELATING TO THE INQUIRY

EVIDENCE ON OATH

2. All the oral evidence at the inquiry was taken on oath. On behalf of the witnesses it

was affirmed that the facts set out in their written evidence were true to the best of their knowledge and belief when they made them and remain true.

PRELIMINARY MATTERS 2: THOSE RELATING TO THE LDC APPLICATION AND APPEAL 1

GENERAL PRINCIPLES RELATING TO LDC APPLICATIONS AND APPEALS3

The purpose of an LDC

3. An LDC enables owners and others to ascertain whether specific uses, operations or other activities are or would be lawful4. Lawfulness is equated with immunity from

enforcement action, so if a use is immune it is lawful.

4. A certificate is not a planning permission. The issue of a certificate depends entirely on

factual evidence about the history and planning status of the building or land in question and the interpretation of any relevant planning law or judicial authority. The

planning merits are not relevant in deciding an LDC application or appeal and are not

therefore an issue for me to consider.

The burden of proof

5. The burden of proof regarding decisive matters of fact rests on the applicant, now the appellant. He has asserted firstly, that the land in question constitutes a single

planning unit; and secondly, that this use is lawful because it commenced more than ten years before the date of the LDC application and has continued actively since to the

extent that the Council could have taken enforcement action against it at any time had it wished to do so. He must therefore adduce enough relevant, clear and unambiguous

3 This section is included for the benefit of the members of the public who attended the inquiry and who may be

unfamiliar with the LDC process.

4 Circular 10/97 Annex 8, paragraph 8.11.



evidence to demonstrate the truth of those assertions. The relevant test of the

evidence is ‘the balance of probability’ (i.e., that it is more probable than not).

Describing the ‘existing use’

6. An LDC application should contain a clear and concise statement of the applicant’s full case and the reasons why they consider the operation or use in question to be lawful.

The accompanying documents should describe the operation or use sufficiently clearly to enable a determination to be made.

7. A section 191 application must relate to the actual use that was in existence at the

time it is made. A use identified solely by reference to a use class under the UCO is unlikely to be sufficient. For example, an application for ‘B8 Storage and distribution’

must also give a description of what is being stored, and an application for ‘B2 General industry’ must give a description of what is being manufactured.

8. Section 191(4) of the 1990 Act allows the local planning authority (and the Secretary of State or his Inspector) to modify the terms of the application, giving a certificate in

somewhat different terms so as to accord with the facts and evidence, rather than issue an outright refusal5.

THE EXISTING USE FOR WHICH THIS LDC IS SOUGHT

9. Prior to the inquiry, and again at the opening, I sought the views of the parties on whether the existing use should be described as: “Use for the manufacture of animal

feed and associated servicing, storage, deliveries, parking, sales and distribution.”

10. The Council’s advocate rejected the suggestion, arguing that the Council had prepared

its case to rebut the appellant’s proposition that a “Class B2 – General industrial” use had gained immunity through the passage of time and was thus lawful.

11. The appellant’s advocate accepted the suggestion, with one proviso; that “(Class B2)” be inserted after “feed”. Having carefully considered both arguments, I propose to

determine the appeal on that basis.

PRELIMINARY MATTERS 3: THOSE RELATING TO THE ENFORCEMENT NOTICE AND APPEAL 2

CORRECTIONS TO THE ENFORCEMENT NOTICE

The plan attached to the notice

12. The Council conceded that the plan identified, within the land edged red, two small

areas which had been included in error. A revised plan, Plan 1 (see page 21), shows a reduced area of land to which the notice should properly relate. I shall correct the

notice by substituting Plan 1 for the one attached to the notice. Subject to this correction, the appellant’s advocate confirmed that Appeal 2 on ground (e) would be

withdrawn.

Section 4: ‘Reasons for issuing the notice’

13. Having regard to the judgment in Murfitt6, the Council altered its stance on the alleged

unauthorised operational development. The thrust of Murfitt is that an enforcement notice directed at a material change of use may require the removal of works integral

5 However, the power does not extend to allowing an LDC to be granted for something totally different from that

described in the application.

6 M J Murfitt v SSE and East Cambridgeshire DC [1980] JPL 598. In this case land was used for the parking of

heavy goods vehicles. The enforcement notice directed against that use was upheld on appeal. The appeal decision

was challenged, but dismissed. The Court held that: (1) where ancillary operational works have been carried out

in connection with an unauthorised use of land, an enforcement notice may, where the works are part and parcel

of the use, require the removal of those works, even though the allegation did not make specific reference to

them; and (2) such operational development cannot acquire “immunity” from enforcement action under the 4-year

rule.



to and solely for the purpose of facilitating the unauthorised use, even if such works on

their own might not constitute development, or be permitted development, or be immune from enforcement.

14. The Council’s view is that the construction of the hard standing, for parking associated HGVs, plant and vehicles, facilitated the unauthorised material change of use of the

land and was clearly ancillary operational development to which the 10 year rule applied. I was asked to correct the first sentence of Section 4 to make that clear. The

appellant’s advocate raised no objection to this correction.

15. As corrected, the first line of Section 4 of the notice reads: “It appears to the Council that the above breach of planning control has occurred within the last ten years.” The

words: “in the case of the material change of use and 4 years in the case of the operational development” are deleted.

Section 3: ‘The breach of planning control alleged’

16. The notice alleges that a mixed use of the land has occurred, comprising “agriculture

and for General Industrial B2 Use (animal feed mill) …”. Before the inquiry opened, and again during the inquiry, I explained my concerns about the wording of the

allegation. This is because it is an established planning principle that all mixed,

composite, and dual uses are outside any use class (with the single qualified exception specified in Article 3(4) of the UCO of a mixed B1 and B2 use, which does not apply

here).

17. Circular 03/2005 (paragraph 13) makes this clear. It explains that “Where the primary

use of land or premises is a mixture of different uses, such mixed use does not fall into any of the classes set out in the amended Order. The use will therefore be sui generis.

18. Paragraph 14 goes on to explain that “Planning Permission is not always required for the change of use from one mixed use to another. The question is whether or not the

change of use is material, in planning terms. Where the change of use does not amount

to a material change, there will be no development, and no need to obtain planning permission.”

19. The Council’s advocate remained of the view that the breach is correctly expressed and that it could include reference to a B2 use as one component of a mixed use. In her

submission, there does not appear to be any case law which indicates otherwise. However, as I explained, there is case law to indicate a contrary view to the Council’s

stance. This is the judgment in Belmont Riding Centre7. Footnote 5 (below) provides the background to this case.

20. An important part of that judgment, as it relates to the present appeal, was the Court’s

rejection of the appellant’s argument that there was no material change if one component of the mixed use fell in Class D2 and was replaced by another D2 use. The

7 Belmont Riding Centre v FSS & Barnet LBC [2003] EWHC 1895. This appeal arose from a LDC application under

s.192. The proposal was to use an existing riding centre as a health and fitness centre, on the basis that both

uses fell in the same use class - Class D2 (Assembly and leisure) - of the UCO. The Inspector dismissed the

appeal on the grounds that there had been no continuation of the riding centre use; it no longer existed.

Following his site visit, he found that the main use of the building seemed to be for the stabling of horses, which

did not involve ‘assembly’ or ‘leisure’. The appellant challenged the Inspector’s decision under s.288 on the

grounds that he had adopted an irrational approach to whether the use had ceased, and had failed to consider

whether the proposed use would have involved a material change. In dismissing the challenge, the Court held,

among other things, that even if the Inspector had been wrong to find that the former use no longer existed, his

alternative basis for dismissing the appeal was unassailable. It was common ground between the parties that the

riding centre use had been part of a mixed use of a wider planning unit for residential, equestrian and agricultural

activities. Such a mixed use did not fall within the UCO, and could not benefit from the exception in s.55(2)(f).

The appellants’ argument, that there was no material change if one component of the mixed use fell in Class D2

and was replaced by another D2 use, was unsustainable; the focus must be on the mixed use as a whole and not

on individual components.



Court held that that argument was unsustainable, and that the focus must be on the

mixed use as a whole and not on individual components.

21. The central theme of the Council’s argument - that the mixed use of the site changed

from agriculture/Class B18 to agriculture/Class B2 - flies in the face of that judgment. It too is unsustainable.

22. Put simply, an enforcement notice that alleges a mixed use should not refer to the component uses being within any particular use class, but should simply describe the

use. In this case, the component of the mixed use with which the Council is concerned

is the use for the manufacture of animal feed. That being the case, the following correction to the allegation is required:

“Without planning permission, (a) the material change of use of the land from use for agriculture to a mixed use comprising use for agriculture and use for the

manufacture of animal feed, and associated servicing, storage, deliveries, parking, sales and distribution; and (b) operational development to facilitate that mixed use,

comprising the construction of a hard standing for the parking of associated HGVs, plant and vehicles”.

Section 5: ‘What you are required to do’ (the requirements of the notice)

23. With any enforcement notice the alleged breach of planning control and the requirements to remedy that breach (or any harm caused by it) should match one

another. In view of the proposed correction to Section 3 of the notice, a correction to the requirements in Section 5 is also needed. It should be corrected to read:

“(a) Cease the use of the land for the manufacture of animal feed and associated servicing, storage, deliveries, parking, sales and distribution and remove all

associated vehicles, plant and machinery from the land, other than vehicles, plant and machinery used in association with the lawful use of the land for agriculture;

and (b) Remove from the land the animal feed mill installation and all other

machinery and plant associated with the animal feed mill installation and not being associated with the lawful use of the land for agriculture (but not the building that

houses the animal feed mill installation and not the weighbridge).”

Section 6: Time for compliance’

24. I propose to correct the text of Section 6 of the notice to read:

“Six months in the case of requirement (a). Nine months in the case of requirement

(b).”

IMPLICATIONS OF THESE CORRECTIONS

25. I am satisfied that these corrections would not cause injustice to any party.

APPEAL 1: THE LDC APPEAL

MAIN ISSUE

26. An LDC appeal is confined to reviewing the Council’s decision to establish whether the refusal to grant an LDC was well-founded.

27. The nub of the issue in this appeal is whether the LDC application site is a planning unit in its own right with a distinct single primary use for the manufacture of animal feed, or

whether it is simply part of a larger planning unit (the land to which the enforcement notice applies) which has a mixed use, one component of which is the manufacture of

animal feed.

8 Class B1 use, in its revised form (as summarised by the Planning Portal), is: “offices (other than those that fall

within A2), research and development of products and processes, light industry appropriate in a residential area.”



REASONS

Identifying the correct planning unit

28. Both sides accept that the lead case on determining the correct planning unit is

Burdle9. That judgment established that there are three criteria to consider in determining a planning unit. First, when an occupier uses their land for a single main

purpose to which secondary activities are incidental, the unit of occupation can be taken as the planning unit. Second, when a variety of activities - none incidental or

ancillary to the other - take place, again the entire unit of occupation is the planning

unit. Third, when there are two or more areas occupied for substantially different purposes, each area so used is a separate planning unit.

29. In De Mulder10 it was held that a local planning authority cannot arbitrarily divide a planning unit and serve notices directed at different parts or different elements of an

overall use if this would achieve a more restrictive effect than one notice directed at the whole activity on the whole unit. The same broad principle applies to appellants, in

the sense that a planning unit cannot be arbitrarily divided to make the case that one component of a mixed use of the whole planning unit is lawful on part of it.

30. The judgement in Church Commissioners11 confirmed that the assessment of the

planning unit is a matter of fact and degree.

The parties’ cases

31. The appellant’s contention is that the LDC application site constitutes a distinct planning unit that is physically and functionally separate from the rest of Manor Farm.

The Council disputes that assertion and argues that if the appellant has not identified the correct planning unit in the application then the LDC appeal must fail. The main

points of each party’s case are as follows.

The gist of the Council’s case

32. The farm and the mill that is used for the manufacture of animal feed are both run

from Manor Farm. The functions of the animal feed manufacturing business are carried out in a variety of different locations in and around Manor Farm, including a significant

number of locations outside the red line that defines the LDC application site.

33. Those functions have actually been carried out over that wider Manor Farm area ‘on the

ground’, as a matter of fact, and have relied on the close relationship between MFF and R J Kirkwood and Sons; both companies being effectively owned and managed by the

same person, Mr Michael Kirkwood.

34. In the Council’s view, the appellant has failed to identify the correct planning unit and

has failed to demonstrate that the land has had the character or impacts of a B2 use

for 10 years. He has not, therefore, discharged the onus of proof placed upon him.

The gist of the appellant’s case

35. The feed mill building and weighbridge were built in 1985 on a land which was formerly an agricultural field. In 1996 Manor Farm Feeds (MFF) began to pay business rates on

the animal feed mill and undertook physical alterations to the mill building.

9 Burdle v SSE [1972] 1 WLR 1207. The Court held that the unit of occupation should be assumed to the

appropriate planning unit, unless some smaller unit can be identified as the site of activities that amount to a

separate use, both physically and functionally. 10 De Mulder v SSE [1973] 27 P&CR 379

11 Church Commissioners v SSE and Gateshead MB [1996] JPL 669. The issue in this case was the definition of

the planning unit in a large enclosed shopping centre, the Metrocentre in Gateshead. The Inspector had stated in

his decision that when considering the planning unit the freehold ownership is an irrelevance. The decision was

challenged, but the Court dismissed the challenge.



36. From the outset, ingredients for the animal feed were imported and the product was

sold and transported to customers. This is an industrial process which exists in its own right and is operated by MFF. It has never been ancillary to the agricultural activities

that were undertaken at Manor Farm by R J Kirkwood and Son.

37. The appellant argued that the Council’s reliance on ownership as a determinant of the

planning unit is flawed. Although the appellant owns all the land in question – the LDC application site and the farm – each part is a separate business entity. Land ownership

is irrelevant in determining a planning unit, as the judgments in Rawlins12 and Church

Commissioners makes clear.

My assessment and conclusions

Physical separation

38. The appellant argues that some buildings, or parts of buildings, are used exclusively for

the animal feed manufacturing operations and that this would be obvious even to someone with only limited knowledge of the LDC land and the animal feed mill use.

39. However, looking at the circulation space around those buildings, it is evident that there is no physical separation within the Manor Farm site to distinguish the animal

feed manufacturing operation from the rest of the site.

40. The appellant confirmed that the LDC site could be physically separated from the rest of Manor Farm by a wall or other means, without it having any adverse effect on the

ability of the mill to function, but to date no physical separation exists.

41. Were such a physical separation to take place it would hamper the operation of the

animal feed mill. At present, two of the company’s lorries that are no longer used on the public highway are used within the Manor Farm site to transport grain from the

grain store (Building B on Mr Calvert’s plan C13) to the intake pit of the mill. These lorries have blower units to discharge grain into the intake pit. The lack of a physical

separation between the LDC site and the remainder of Manor Farm is necessary to

facilitate the movement of grain from Building B to the mill. For these reasons, I find, as a matter of fact and degree, that the LDC land does not form a physically separate

planning unit.

Functional separation

42. The grain store (Building B): This building, within the wider Manor Farm site, is essential to the proper functioning of the animal feed manufacturing operation. I

appreciate that much of the grain used in the milling operation is brought directly to the LDC site by lorry. It is taken to the weighbridge, weighed and quality assured by

staff there before being sent to the mill building where it is unloaded into the grain

intake pit. Some of the grain - as many as 2 or 3 deliveries each week, I was told – is rejected. Some hauliers deliver grain to Building B rather than to the mill directly.

43. A milling operation that, at times, runs throughout the day and night, requires a constant supply of good quality grain in order to maintain production and fulfil orders.

Building B provides a ready supply of grain when it is needed. The evidence was that since 1996 this building has been used to store grain used in the milling operation.

44. Mr Rivis (of Woodhouse Farm, Arnold – some 10 miles/16km from Manor Farm) said that it was ‘taken as read’ that MFF could, and did, use his own grain when required.

This arrangement was documented. A monthly balance was produced to show how

12 Rawlins v SSE [1980] JPL 439. The Court held that a planning unit can comprise land in several different

ownerships.

13 Plan C (Drawing No. 2003.001.Rev C, dated 10/04/2013) was produced by the appellant’s planning witness, Mr

Chris Calvert, and used as a reference throughout the inquiry. The buildings within the Manor Farm site as a

whole are referenced A-Q. Of these buildings K, M, N, O, P and Q are within the LDC application/appeal site.



much grain had been taken by MFF, for which a payment was owed, and how much of

his grain remained in Building B. Mr Rivis said that he was aware that other farmers had a similar arrangement with MFF.

45. Miss Sleight (the office manager of Manor Farm) confirmed that Building B had always been used as a grain store and that grain from it was regularly used in the feed mill.

46. The farm office (Building E on Mr Calvert’s plan C): Although the animal feed manufacturing process takes place within the mill building, in order to function it has

required administrative staff and offices to accommodate them. The administration

and management of MFF is undertaken at the farm office, which is outside the LDC application site. In evidence, the appellant said that he spent most of the office

dealing with milling business and the farm. Administrative and ‘nutrition’ staff work in the farm office and park their vehicles beside it rather than within the LDC application

site.

47. The weighbridge: The weighbridge is located within the LDC site, but is a public

weighbridge and is used for wider agricultural purposes, rather than exclusively for the manufacture of animal feed. The weighbridge staff work in a small office (Building O on

Mr Calvert’s plan C) within the LDC application site, but their roles are not exclusive to

the animal feed manufacturing operation.

48. Washing facilities: The equipment used for the washing of all vehicles, including

agricultural vehicles, is shown to be within the LDC land, but this is an activity that is carried out in respect of Manor Farm as a whole.

49. For these reasons, I find, as a matter of fact and degree, that the LDC land does not form a functionally separate planning unit.

Other matters raised by the Council: the EP Regulations14

50. The EP regulations apply to certain types of factory and other activities, including the

manufacture of animal feed, and enable the local authority to regulate them to reduce

any pollution that they may cause. In the law, the premises are known as ‘installations’. An ‘installation’ comprises (i) a stationary technical unit (STU) where the

activities are carried out; and (ii) any other location within the same site where other directly associated activities (DAA) are carried out.

51. In August 2010 MFF applied for an environmental permit, which was granted on the basis of the information supplied at the time. Mr Philip Hill (the Council’s Senior

Environmental Health Officer) told the inquiry that, in the light of the evidence given by the appellant and some of his witnesses, he now takes the view that the boundary of

the ‘installation’ should be reviewed. In his opinion, there is a ‘technical connection’

between activities at the mill (the STU) and activities at the grain store (Building B), which he now regards as a storage facility15 for raw materials used at the mill.

52. The loading, unloading and transportation of grain into and out of the grain store are capable of producing emissions in the form of dust. That being the case, the grain

store, and the transportation of grain between it and the mill, satisfies the definition of a DDA. Mr Hill concluded that, for the purposes of the EP regulations, the boundary of

the ‘installation’ must be re-defined and the grain store and the on-site transportation route must be included in a permit.

14 The Environmental Permitting (England and Wales) Regulations 2010.

15 The Environment Agency’s publication ‘Regulatory Guidance Series, No RGN 2 - Understanding the meaning of

regulated facility’ (April 2010) explains (at paragraph A2.11) that “Storage facilities may be technically connected.

For example, many activities have a store of materials that is designed to allow the operation of the Installation to

be uninterrupted despite short-term variations in supply. Stores at the same location are normally technically

connected, and as their operation can give rise to pollution, either locally or at the Activity, they are likely to be

DAAs.”



53. Although the EP Regulations are primarily concerned with matters that fall outside the

scope of the Planning Acts and do not have a direct bearing on my assessment of the correct planning unit, Mr Hill’s evidence reinforces my view that the LDC application

site is not functionally separate from the rest of the Manor Farm complex.

CONCLUSIONS ON APPEAL 1

54. Taken as a whole, the evidence indicates to me that the land to which the LDC application relates is not a physically and functionally separate planning unit. I find, as

a matter of fact and degree, that the correct planning unit within which MFF functions

is the wider Manor Farm complex; that shown on the enforcement notice land.

55. I conclude that the Council’s decision to refuse to grant an LDC was well-founded and

accordingly, Appeal 1 is dismissed.

APPEAL 2: THE ENFORCEMENT NOTICE APPEAL

APPEAL 2 ON GROUND (b)

MAIN ISSUE

56. An appeal on ground (b) is that the matters alleged in the notice (in this case, as corrected) have not occurred as a matter of fact.

REASONS

57. The appellant’s case is that there is no ‘mixed use’ of the land covered by the enforcement notice. There are two distinct uses – use for agriculture and use for the

manufacture of animal feed (a Class B2 use) - which operate over physically and functionally separate planning units. The appellant’s case in Appeal 1, against the

Council’s refusal to grant an LDC, was predicated on the same proposition and in view of my findings on that appeal, it follows that the appeal on ground (b) must fail.

APPEAL 2 ON GROUND (d)

MAIN ISSUE

58. An appeal on ground (d) is that, at the time the notice was issued, it was too late to

taken enforcement action against the matters alleged in the notice (again, as corrected).

59. Ground (d) cases involving a material change of use require a comparison to be made between the use at the date the notice was issued, and the use as it existed 10 years

before. However, in some cases it may be necessary to go further back in history to determine when the relevant breach of planning control took place and work forward

10 years. The section 171B(3) test explicitly refers to action not being able to be taken after the end of the period of ten years “beginning” with the date of the breach and not

“ending” with the date of issue of the notice.

REASONS

The gist of the Council’s case

60. The Council argued that prior to 2008 there were two possible scenarios. The first scenario is that when the mill was first erected the manufacture of animal feed was a

Class B1 use forming a component of a mixed use of the planning unit (agricultural use and Class B1 use). After 2008 that mixed use became an agricultural use and Class B2

use.

61. The second scenario is that when the mill was first erected the manufacture of animal

feed was ancillary to the agricultural use and there was no material change of use of

the land. The milling operation was done in the course of an agricultural trade and agriculture remained the lawful primary use of the planning unit.



62. That situation changed in 2005 when Mr Kirkwood ceased his pig rearing business

(GMK Pigs). With no direct link between the animal feed that was produced on the holding and the pigs that required that feed, the manufacture of animal feed became a

component of a mixed use. At that time it had the characteristics of a use that would fall within Class B1.

63. In the 1987 UCO a B1 was described as “a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise,

vibration, smell, fumes, smoke, soot, ash, dust or grit.” Between 2005 and 2008 the

type of operation that was taking place was one which could have been carried out in any residential area without those harmful effects.

64. In 2008 a further change in the characteristics of the use occurred. The use had tangible harmful effects on the living conditions of some local residents, in terms of the

noise, disturbance and odours to which they were, and still are, subjected. As such, the mill component of the mixed use was of a type that would fall within Class B2

(General industry).

65. There was no explicit argument that the change of use that was alleged to have

occurred in 2008 was a material change of use by way of intensification. The Council’s

argument throughout the enforcement appeal was that a material change of use of the whole site had occurred because the non-agricultural component of the mixed use had

changed from Class B1 to Class B2.

The gist of the appellant’s case

66. The appellant argued that the erection of the mill building in 1985, and its use for the manufacture of animal feed, was clearly a departure from the previous use of the land

on which it stood, which was agricultural land. If it is held to be part of a mixed use of a planning unit that equates to the land to which the enforcement notice relates, then

that mixed use commenced in 1985 and has continued unchanged since that time. It

is immune from enforcement action.

67. The manufacture of animal feed was never ancillary to the agricultural use. The

business imported raw materials – including molasses, fish meal, crushed crisps and biscuits - and purchased grain from third party suppliers. It manufactured a product

which was then sold to customers on the open market.

68. The capacity of the mill, and the manufacturing process, have remained unchanged.

The use was never of a type that would fall within Class B1. It was, and remains, clearly of a type of use that would fall within Class B2. The only change that the

Council can identify is that in 2008 the mill became busier than in previous years. The

tonnage manufactured increased, but that was a reflection of the fact that the appellant has been successful in producing more of the same basic product.

69. The Council has confused the ordinary meaning of ‘intensification’ with its meaning in planning parlance, which means “to change to something different” (See RB Kensington

and Chelsea v SSE and Mia Carla Limited16 and Lilo Blum v SSE17). Since the use of the mill began it has not changed to something different.

16 RB Kensington and Chelsea v SSE and Mia Carla Limited [1980] JPL 50. On ‘intensification’ generally, it was said

that there was unlikely to have been a material change of use unless the use before and after ‘intensification’

could be stated.

17 Lilo Blum v SSE [1987] JPL 278: Mere intensification, if it fell short of changing the character of the use, would

not constitute a material change of use. That would be a case of penalising the land owner for making a

commercial success of the use of the land and would be an undue restriction.



My assessment and conclusions

The alleged change from a Class B1 use to a Class B2 use

70. The Council’s reliance on identifying the non-agricultural component as a B1 use at one

time and a B2 use at later time is flawed. As I explained in paragraph 20 above, where a material change of use is alleged the focus must be on the mixed use as a whole and

not on individual components (Belmont Riding Centre). The Council’s case on that basis could not succeed.

Intensification

71. The Council did not run an ‘intensification’ argument in respect of the enforcement appeal18, but it is necessary to consider whether there are any grounds for concluding

that a material change of use by intensification of the mixed use as a whole could have occurred here.

72. The judgment in Wipperman19 is authority for the view that a material change of use by intensification could occur if one of the uses of a former mixed-use site expands in area

and scale to the exclusion of the other uses. But that situation has not occurred here.

73. The basic principle on ‘intensification’ is that there may come a point when an increase

in a use results in a marked change in the character of that use, giving rise to such

materially different planning consequences that, as a matter of fact and degree, it constitutes a material change of use requiring planning permission.

Is there objective evidence that a material change of use occurred at Manor Farm at some time between November 2002 and November 2012?

74. Some local residents told the inquiry of their perceptions of changes in the characteristics of the use, such as increases in dust and odour emissions, noise

impacts, and traffic movements (HGVs), but there was no clear consensus on when these perceived changes occurred.

75. Some people noticed changes from as early as 2003/2004; others said the changes

became noticeable in 2004/2005, 2006, 2007, 2008 and 2009. The Council’s stance is that there was a noticeable change in the characteristics of the use in 2008, because

that is when it received an increased number of complaints about activities at Manor Farm.

76. I have no reason to doubt the integrity or reliability of the local residents that gave evidence to the inquiry. I appreciate that all of them were genuine in their attempts to

recollect events accurately and describe their perceptions of the changes that they felt had occurred. Their evidence included mainly direct eye-witness accounts, but some of

it was hearsay.

77. That said, it seems to me that few of the complaints made to the Council have been borne out by objective evidence. The Council’s planning witness conceded that when

considering the ‘cause and effect’ relationship, he could identify no obvious ‘cause’ – in the sense of changes to the animal feed mill manufacturing process – that could be

attributed to the ‘effects’ that the residents claimed to be experiencing.

78. Dealing first with dust and odour emissions, Mr Hill accepted the appellant’s evidence

that there had been no significant changes in the manufacturing process, or in the ingredients used, which would account for the increase in complaints about emissions

that were made in April 2012. He confirmed that these matters were covered by the

environmental permit and that he had no concerns about the mill use from a

18 The decision to refuse to grant the LDC rested, in part, on an ‘intensification’ argument.

19 Wipperman and Buckingham v Barking LBC [1965] 17P&CR 225



‘permitting’ perspective. In his opinion, MFF was less odorous than other mills that he

had inspected. From my own observations, at the site and in the surrounding area, I found no dust or odour emissions at a level that I would consider to be harmful to the

living conditions of nearby residents.

79. Turning next to noise, Mrs Ward’s evidence listed occasions that she visited the area,

the readings and recordings that she took, the characteristics and intrusiveness of different noise impacts from the mill she heard. Her evidence was that the noise

impacts of the mill are unreasonably interfering with the living conditions of local

residents.

80. The difficulty I find with her evidence is that the Council has not established baseline

noise conditions against which to judge noise levels before 2008. Noise measurements taken in 2013 by Mr Pennell (the appellant’s witness on environmental noise) showed

that these were well below the level of ambient noise that is likely to give rise to ‘lowest observed adverse effects’ (LOAEL20). Although the residents of the nearest

dwelling, Dunnington Manor, perceived noise from the mill as intrusive and harmful to their living conditions, those effects were not borne out by my own observations or by

any robust empirical evidence.

81. Finally, on traffic generation, the Council has not established baseline conditions against which to judge traffic levels before 2008. Mr Worledge (the Council’s highways

witness) accepted that the evidence of Mr Owen (the appellant’s highways witness) to the inquiry demonstrated that there was no change in HGV movements to and from

MFF when a comparison was made before and after 2008.

82. The Council and local residents have assumed that HGV movements must have

increased because the tonnage of animal feed produced has increased in recent years. But there is no evidence to support that assumption. Mr Kirkwood’s unchallenged

evidence was that MFF had more customers in previous years than it does now, even

though far more feed is produced by the mill. Delivering feed to a greater number of customers would have required more HGV movements than delivering a greater overall

tonnage of feed to fewer customers. The changes that residents have perceived in recent years may be accounted for by the closure of competitor animal feed mills in the

wider locality and MFF taking up the slack in the market.

83. The evidence suggests that there is no capacity issue on the highway network and no

clear evidence that an increase in HGV movements, if that has occurred, has resulted in damage to roadside verges. There is no evidential basis for concluding that local

highway works, which were carried out in 2011, were necessitated by HGV activity

associated with MFF.

CONCLUSIONS ON APPEAL 2

84. I have taken account of all the matters raised at the inquiry and in the written representations, including all the reported cases that were brought to my attention. I

find no clear evidence that a material change of use of the site requiring planning permission occurred at any time during the relevant period (November 2002 to

November 2012).

85. I find, as a matter of fact and degree, that Manor Farm had a mixed use comprising

use for agriculture and use for the manufacture of animal feed, and associated

servicing, storage, deliveries, parking, sales and distribution for a period exceeding 10 years when the enforcement notice was issued. This mixed use is therefore immune

from enforcement action. Accordingly, the appeal succeeds on ground (d) and the enforcement notice, as corrected, is quashed.

20 LOAEL - This is the level above which adverse effects on health and quality of life can be detected. Source:

Defra’s ‘Noise Policy Statement for England (NPSE)’ March 2010. The NPPF (at paragraph 123) says that planning

decisions should aim to “avoid noise from giving rise to significant adverse impacts” and refers to the NPSE in

footnote 27.



86. The corrections to Sections 3 and 4 of the notice (see paragraph 85 below) deal with

the appellant’s case on ground (a) in respect of the hardstanding, and the appeal on ground (f) does not need to be considered.

FORMAL DECISION

APPEAL 1 - REF: APP/E2001/X/12/2189090

87. The appeal is dismissed.

APPEAL 2 - REF: APP/E2001/C/12/2189093

88. The enforcement notice is corrected by:

1) the substitution of Plan 1 annexed to this decision for the plan attached to the enforcement notice.

2) the deletion of the text of Section 3 of the notice in its entirety and the substitution of the words: “Without planning permission, (a) the material change of use of the

land from use for agriculture to a mixed use comprising use for agriculture and use for the manufacture of animal feed, and associated servicing, storage, deliveries,

parking, sales and distribution; and (b) operational development to facilitate that mixed use, comprising the construction of a hard standing for the parking of

associated HGVs, plant and vehicles”.

3) the deletion from the first line of the text of Section 4 of the notice of the words: “in the case of the material change of use and 4 years in the case of the operational

development”.

4) the deletion of the text of Section 5 of the notice in its entirety and the substitution

of the words: “(a) Cease the use of the land for the manufacture of animal feed and associated servicing, storage, deliveries, parking, sales and distribution and

remove all associated vehicles, plant and machinery from the land, other than vehicles, plant and machinery used in association with the lawful use of the land for

agriculture; and (b) Remove from the land the animal feed mill installation and all

other machinery and plant associated with the animal feed mill installation and not being associated with the lawful use of the land for agriculture (but not the building

that houses the animal feed mill installation and not the weighbridge).”.

5) the deletion of the text of Section 6 of the notice (but not the NOTE) and the

substitution of the words:

“Six months in the case of requirement (a). Nine months in the case of requirement

(b).”

89. Subject to these corrections the appeal is allowed and the notice is quashed.

George Mapson

INSPECTOR



APPEARANCES

FOR THE APPELLANT:

Alison Ogley Solicitor, Walker Morris

(the appellant’s legal advisors) She called:

Mr Michael Kirkwood The appellant

Mrs Gillian Ellis Partner, RW Ellis and GM Ellis Farm, Lund Farm, Easingwold

(witness on matters of fact)

Mr Robin Rivis Director, Woodhouse Pigs Limited (witness on matters of fact)

Miss Jennifer Sleight Office Manager, Manor Farm, Dunnington (witness on matters of fact)

Mr Philip Owen

BA(Hons) MICE MCIHT

Director, Optima Highways and Transportation Limited

(the appellant’s highways consultant)

Mr Richard Pennell BEng MSc DipANC MIOA

Managing Director, Environment Noise Solutions Limited (ENS)

(the appellant’s noise consultant)

Mr Christopher Calvert

BSc (Hons) MA MRTPI

Planning Director, Pegasus Group Limited

(the appellant’s planning consultant)

FOR THE LOCAL PLANNING AUTHORITY:

Megan Thomas Of Counsel, instructed by the

Head of Legal and Democratic Services, East Riding of Yorkshire Council

She called:

Mr Edwin Maund DipTP MRTPI

Development Services Manager (East) East Riding of Yorkshire Council

(the Council’s planning witness)

Mr Patrick McVeigh Planning Enforcement Officer, East Riding of Yorkshire Council

(the Council’s enforcement witness)

Ms Dorothy Hesp Local resident


Mr David Linfoot Local resident (witness on matters of fact)

Mrs Ursula Linfoot Local resident


Mrs Marygold Baines Local resident




Mr Paul Worledge HNC (Civil Eng)

Team Leader, Highway Development Management Team,

East Riding of Yorkshire Council (the Council’s highways witness)

Mr Philip Hill

BSc (Hons) PGC

Senior Environmental Health Officer,

East Riding of Yorkshire Council

(the Council’s witness on environmental permitting)

Mrs Johanne Ward BSc (Hons)

Environmental Health Officer, East Riding of Yorkshire Council

(the Council’s noise witness)

DOCUMENTS, PLANS, PHOTOGRAPHS SUBMITTED TO THE INQUIRY

1. SUBMITTED BY THE APPELLANT

DAY 1: 14 MAY 2013

1.1 Opening statement on behalf of the appellant. 1.2 Appearances for the appellant.

1.3 Errata Sheet with bundle of documents (appendices to Mr Kirkwood’s proof of evidence):

1.3.1. MK27 replacement 1.3.2. MK41

1.3.3. MK42 1.3.4. MK43

1.3.5. MK44 1.3.6. MK45

1.3.7. MK46 1.3.8. MK47

1.4 Replacement Appendix Q to Mr Owen’s proof of evidence. 1.5 Transcript: Hertfordshire CC v SSCLG and Metal and Waste Recycling Limited

[2012] EWHC 277 (Admin) - Ouseley J; 1 February 2012. 1.6 Transcript: Hertfordshire CC v SSCLG and Metal and Waste Recycling Limited

[2012] EWCA Civ 1473 2012 WL 4888788 - Pill LJ, Toulson LJ & Munby LJ; 15 November 2012.

1.7 Reported case (Estates Gazette Planning Law Reports 1993 Volume 1): Blight & White Ltd v SSE and Another [1993] 1PLR 2 12 June 1992.

1.8 Transcript: David Bryan Millington v SSETR AND Shrewsbury & Atcham BC 1999

WL 477821 (CoA) – Butler-Sloss Lady Justice; Schiemann LJ and Mantell LJ 25 June 1999.

1.9 Reported case: Burdle and Another v SSE and Another [1972] 1 WLR 1207 – Widgery CJ, Willis J and Bridge J.

1.10 Reported case: Case comment (JPL 1992) on Salvatore Cumbo v SSE [1992] JPL 366 - Grassland farm; agricultural building; mixed agricultural/residential use;

enforcement notice. 1.11 Transcript: *93 Assessor for Grampian Region v Union Grain Storage (Aberdeen)

Ltd 1988 SC 93 – Jauncy L, Clyde L and Coulsfield L 22 January 1988.

1.12 Extract from the Town and Country Planning (Use Classes) Order 1987, as amended – Class B1 and Class B2.

1.13 Letter (27 February 2012): Marygold Thomas Baines to Peter Ashcroft (Head of Planning, County Hall, Beverley), with black & white photocopy of photograph



taken on 23 February 2012 (annotated “MFF lorry leaving shed in the yard

claimed as not used by the mill”). 1.14 Bundle of documents with covering letter (24 February 2010): Marygold Thomas

Baines to Members of ERYC, Council, County Hall, Beverley) – objection to planning application DC/10/00351/PLF.

1.15 Statement of Common Ground – Noise. 1.16 Email (8 April 2011): Robert Lee (Principal Development Control Officer, ERYC)

to Paul Butler (Ullyott Butler).

Day 2: 15 MAY 2013

1.17 Site visit list: a hand-written list produced by Mr Calvert. It identifies the uses to

which various buildings and structures on the appellant’s land holding are put on his plans C and D.

1.18 Plan C (Drawing No. 2003.001 Rev D) – Scale 1:1250 @ A3. 1.19 Letter (dated 15 May 2013): Mr Ian Banks of Dunnington Grange, Dunnington to

Inspector (letter of support for the appellant).

1.20 Draft s.106 Unilateral Undertaking made by Mr M Kirkwood (unsigned/undated) Version 1.

1.21 Photograph taken by Mr Baines (undated) annotated “This is the gateway to the office and the grain store”.

Day 3: 16 MAY 2013

1.22 Draft s.106 Unilateral Undertaking made by Mr M Kirkwood (unsigned/undated)

Version 2.

1.23 Bundle of documents relating to the current and former delivery vehicles that are owned by R J Kirkwood & Son and operated by Manor Farm Feeds; confirmation

of ownership of all the land and buildings by Mr M Kirkwood; confirmation of rental agreement and sub-letting agreements between Mr M Kirkwood, R J

Kirkwood & Son and Manor Farm Feeds. 1.24 Bundle of documents (invoices) relating to vehicle and staff recharges raised by

R J Kirkwood & Son between 31/07/1999 and 31/12/2009. 1.25 Purchase Contract Confirmation document (dated 30 April 2013) from Nidera UK

Ltd (purchaser) to R & C M Rivis, Woodhouse Farm, Arnold, Hull (seller) for

Assured Grain [Document Ref. RR2 - handed in by Mr Rivis]. 1.26 Document Ref. MK48 – Reference to the words ‘taken over’ in Mr M Kirkwood’s

proof of evidence (at paragraph 5.1). 1.27 Extract from Manual for Streets (page 90) relating to standard sight distances

(SSDs) [handed in by Mr Owen].

Day 4: 17 MAY 2013

1.28 Extract from Manual for Streets (page 91, paragraph 7.6.6) relating to assumed

eye heights from 1.05m (for car drivers) to 2m (for lorry drivers) [handed in by Mr Owen].

1.29 MFF site access/Billings Lane Manual Speed Survey Note [prepared by Mr Owen on 13 May 2013].

1.30 MFF site access/Billings Lane Manual Speed Survey Note [prepared by Mr Owen on 17 May 2013].

1.31 Manor Farm Feeds Remittance Advice (dated 5 October 2006) to R J Kirkwood & Son.

1.32 Bundle of non-domestic rate demands from ERYC to RJK& Son - charges for the

periods 2006/07; 2007/08; 2008/09; 2009/10; 2010/11; and 2011/12. 1.33 Bundle of non-domestic rate demands from ERYC to R J Kirkwood & Son -

charges for the periods 2012/13 and 2013/14, and RV amendments for 01/04/12 – 10/04/12 and 11/04/12 – 31./03/13.



DAY 5: 21 MAY 2013

1.34 Appellant’s comments on the relevance of the Magistrate’s memorandum of

reasons. 1.35 1st spiral-bound bundle of reported cases and other documents referred to by the

appellant’s advocate.

1.35.1. Brooks and Burton v SSE [1977] 1 WLR 1294 (Court of Appeal).

1.35.2. RB Kensington and Chelsea v SSE and Mia Carla Ltd [1980] JPL 50. 1.35.3. Hertfordshire CC v SSCLG and Metal Waste Recycling Ltd [2012]

EWHC 277. 1.35.4. Hertfordshire CC v SSCLG and Metal Waste Recycling Ltd [2012]

EWCA Civ 1473. 1.35.5. WT Lamb Properties Ltd v SSE and Crawley BC [1983] JPL 303.

1.35.6. Extract from JPL; Ministerial Planning Decision – Determination whether development requiring planning permission involved – Use of

laundry premises for metal fabrication: change of use from Use Class

III to Use Class IV (Ref. APP/5284/C/76/665-7; 28 February 1977). 1.35.7. Blight and White Ltd v SSE and West Devon BC [1993] 1 PLR 1.

1.35.8. Burdle and Another v SSE and Another [1972] 1 WLR 1207. 1.35.9. David Bryan Millington v SSETR and Shrewsbury & Atcham BC [1999]

WL 4777824 (CoA). 1.35.10. Salvatore Cumbo v SSE [1992] JPL 366.

1.35.11. Assessor for Grampian Region v Union Grain Storage (Aberdeen) Ltd [1988] SC93.

1.35.12. Westminster CC v SCLG and Mr Julian Cordani [2013] EWHC 23

(Admin). 1.35.13. Circular 10/97, Annex 8.

1.35.14. WJ & JB Eastwood Ltd v Herrod (Valuation Officer) [1971] AC HL.

1.36 Clarification comments on proposed s.106 Unilateral Undertaking. 1.37 Extract of development plan policies: Paragraphs 3.5 - 3.5.45.

1.38 Extract of development plan policies: Paragraphs 2.3 - 2.3.57. 1.39 Original draft of Statement of Common Ground (with covering email from

Johanne Ward dated 29 April 2013).

1.40 Letter dated 20 May 2013 from Andrew Sharp and Kris Cammidge (employees of Manor Farm Feeds) to Inspector.

1.41 Mr Marshall’s additional invoices. 1.42 Bundle of documents (consultation responses) relating to the LDC application

Ref. DC/11/05411/CLE/EASTNE. 1.43 Suggested amended wording for the requirements of the enforcement notice

EN/10/00989/UNUSE.

DAY 6: 22 MAY 2013

1.44 Email dated 20 January 2011 from Ursula Linfoot to Johanne Ward (ERYC) [PCN

response] - Page 1. 1.45 Email dated 19 July 2011 from Lucie Igoe to Vincent Blake-Barnard (ERYC).

1.46 Letter dated 21 June 2012 from Alison Ogley (Walker Morris) to Dianne Hayden (ERYC).

1.47 Aerial photograph of Manor Farm Feeds (with annotations) – referred to at the site visit of 20 May 2013.

DAY 7: 25 JUNE 2013

1.48 Extract from ‘Enforcing Planning Control – Good Practice Guide for Local Planning Authorities (DETRA 1997): Chapter 3, pages 20, 21, 28 and 34.



1.49 Bundle of documents containing (i) Letter dated 8 December 2011 from ERYC

(Thorfinn Caithness) to Pegasus Group Planning (Chris Calvert); (ii) Reply letter dated 6 January 2012 from Pegasus Group Planning to ERYC; (iii) Email dated 10

February 2012 from Thorfinn Caithness to Mr Calvert. 1.50 ‘Dunnington Lane (West) ATC Note’ prepared on 17 June 2013 by Phil Owen

(Optima Intelligent Highways Solutions), with email dated 17 June 2013 from Carl Hughes (Transport Date Collection) to Phil Owen.

1.51 Note on the difference in the noise climate with the mill doors opened and closed

(extract from Mr Pennell’s evidence). 1.52 Extract from Circular 10/97 ‘Enforcing planning control: legislative provisions and

procedural requirements’. 1.53 The Town and Country Planning (Use Classes) Order 1987.

1.54 The Town and Country Planning Act 1990, Part III Control over development. 1.55 Transcript: Hertfordshire County Council v SSCLG and Metal and Waste

Recycling Limited: Neutral citation Number: [2012] EWHC 277 (Admin) 1 February 2012.

DAY 8: 26 JUNE 2013

1.56 2nd spiral-bound bundle of four documents (transcripts and reported cases) and four additional loose documents (reported cases) referred to by the appellant’s

advocate.

1.56.1. Harrods Ltd v SSETR and RB Kensington and Chelsea Neutral citation Number [2002] EWCA (Court of Appeal).

1.56.2. Rawlins v SSE [1989] JPL 439.

1.56.3. Church Commissioners for England v SSE and Gateshead MBC [1996] 71 P&CR 73.

1.56.4. Westminster City Council v British Waterways [1985] 1 AC 676 (HL). 1.56.5. Williams v MHLG [1967] 18 P&CR 514.

1.56.6. Jennings Motors Ltd v SSE (CA - 27 November 1981) [1982] JPL 181. 1.56.7. Duffy, Zetterlund and Forsyth-Saunders v SSE and Westminster City

Council [1981] JPL 811. 1.56.8. Lilo Blum v SSE and LB Richmond upon Thames [1987] JPL 278.

1.57 Extract from ‘Night Noise Guidelines for Europe’ page 108 and 109. 1.58 Handwritten Note of the cross-examination of Chris Calvert: ‘What would MK

have to do [in order to relocate to another site]?’

DAY 9: 27 JUNE 2013

1.59 Closing Statement of behalf of the appellant. 1.60 Grounds of application for costs

SUBMITTED AFTER THE INQUIRY AT THE INSPECTOR’S REQUEST

1.61 Letter of 3 July 2013 from Walker Morris (Alison Ogley) to The Planning Inspectorate setting out the appellant’s comments on the Council’s rebuttal of

the costs application.

2. SUBMITTED BY EAST RIDING OF YORKSHIRE COUNCIL

DAY 1: 14 MAY 2013

2.1 The Council’s letter of notification of the appeal and public inquiry.

2.2 The list of people notified of the appeal and inquiry. 2.3 Opening Speech for ERYC.



2.4 Reported case: W T Lamb Properties Limited v SSE and Crawley BC [1983]

JPL 303. 2.5 Reported case: Blight & White Ltd v SSE and West Devon BC [1993] JPL 463.

2.6 Ministerial decision reported at [1978] JPL 781. 2.7 Ministerial decision reported at [1993] JPL 1184.

2.8 Planning application form (dated 28 January 2010) made by R J Kirkwood & Son, and covering letter (dated 28 January 2010) sent by the company’s agent,

Ullyott & Butler, seeking planning permission for “The retention of an all weather

canopy over grain pit”. 2.9 Bundle of documents (correspondence from third parties) that accompanied the

Council’s Questionnaire relating to these appeals [handed in by Miss Ogley].

Day 2: 15 MAY 2013

2.10 Statement of Common Ground – Planning. 2.11 Statement of Common Ground – Highways and Transportation Matters Final

Version (dated 10 May 2013).

2.12 Enforcement Notice 1st Amended Plan (15 May 2013) [superseded by Doc. 2.26]. 2.13 Statement of witness Dr Stephanie Kelly (dated 16 May 2011).

2.14 The Council’s graph to show tonnage of animal feed produced by MFF between 1994 and 2012.

2.15 Planning application form (dated 29 June 2011) made by Miss Jennifer Sleight (agent, Ullyott & Butler) seeking planning permission for “Change of use of an

existing means of access from agriculture to private means of access”.

DAY 3: 16 MAY 2013

2.16 Mr Marshall’s plan (date stamped 15 Nov 2011 by Customer Service

Development Control coloured). 2.17 Letter (dated 15 July 2011) from Lucie Igoe, of Walker Morris, to Vincent Blake,

of ERYC, regarding Manor Farm Feeds’ annually payment to R J Kirkwood & Son.

DAY 4: 17 MAY 2013

2.18 Magistrate’s judgment and reasons (dated 24 April 2013) relating to the

prosecution brought by ERYC against MFF for an alleged breach of a s.80 Environmental Protection Act 1990 abatement notice.

2.19 Submissions to Magistrate’s Court (MFF Abatement Notice case). 2.20 Bundle of letters, including one dated 23 January 2009 from Graham Stuart MP

to Mr Nigel Leighton, Director of Environment and Neighbourhood Services, ERYC, and one from Marygold Thomas Baines to the Members of the

Environment and Transport Committee (dated 19 January 2009) and appended photocopies of photographs.

DAY 5: 21 MAY 2013

2.21 Extract from the Encyclopedia of Planning Law (Revision 153; June 2006) pp 38771 – 38774 (Town and Country Planning (Use Classes) Order 1987. Paras.

3B-968 (Business Class B1); paragraph 3B-968.1 “any residential area”. 2.22 Extract from the Encyclopedia of Planning Law (Revision 151; December 2005)

page 38764, paragraph 3B-961.1 (Interpretation of “industrial process”).

DAY 6: 22 MAY 2013

2.23 Aerial photograph of Manor Farm Feeds (Google; 2003).

2.24 DL4 – 4th appendix to Mrs Linfoot’s statement. 2.25 DL4 Plan – the plan that accompanies the 4th appendix to Mrs Linfoot’s

statement.



DAY 7: 25 JUNE 2013

2.26 Enforcement Notice 2nd Amended Plan (24 June 2013) [supersedes Doc.2.12].

2.27 Alternative wording of breach of planning control on enforcement notice (as suggested by the Council).

2.28 Document entitled ‘Philip Hill – Supplementary evidence; Extent of the Permitted Installation at Manor Farm Feeds’

2.29 Transcript of Court of Appeal judgment: Robert Fidler v FSS and Reigate and

Banstead BC Neutral citation number [2004] EWCA Civ 1295. 2.30 Letter dated 21 December 2011, with attachments, from Marygold Thomas

Baines to ERYC (Robert Lee).

DAY 9: 27 JUNE 2013

2.31 Bundle of four documents submitted by Mr Worledge: 2.31.1 ‘Manual for Streets’; pages 12 and 13.

2.31.2 TD 42/95: ‘Geometric Design of Major/Minor Priority Junctions’ (January

1995); pages 7/ and 7/4. 2.31.3 TD 22/81: ‘Vehicles Speed Measurement on All Purpose Roads’ November

1981); pages 4/1, 5/3, A4/1 and A4/2. 2.31.4 TD 9/93: ‘Highway Link Design’ (June 1993); page 1/3.

2.32 Bundle of aerial photographs of the appeal site (2003, 32005, 2007 and 2011).

2.33 Closing submissions for the Council.

SUBMITTED AFTER THE INQUIRY AT THE INSPECTOR’S REQUEST

2.34 Supplementary Note. The points refer to the appeal on ground (f).

2.35 Reported case: John Rice v Hertfordshire CC [2010] JPL 1180; containing an extract from an enforcement appeal decision (PINS Ref. APP/M1900/C/09/

2107106) Inspector Wendy McKay). 2.36 Reply to costs application from the appellant.


Plan 1 This is the amended enforcement notice plan referred to in my decision dated:

06.09.2013


Land at: Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North Humberside, YO25 8EG

Appeal 1 - Ref: APP/E2001/C/12/2189090

Appeal 2 - Ref: APP/E2001/X/12/2189093

Scale: NTS

This plan relates to Appeal 2. It is the final version, dated 24 June 2013, and supersedes the plan that was

attached to the enforcement notice. The relevant area of land is edged red.


Plan 2 This is the LDC application plan referred to in my decision dated:06.09.2013


Land at: Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North Humberside, YO25 8EG

Appeal 1 - Ref: APP/E2001/C/12/2189090

Appeal 2 - Ref: APP/E2001/X/12/2189093

Scale: NTS

This plan relates to Appeal 1 and is attached for reference purposes only. The relevant area of land is edged red.

Appeal Decisions - Planning Jungle · Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North...

Documents

Transcript of Appeal Decisions - Planning Jungle · Manor Farm Feeds, Manor Farm, Dunnington, Driffield, North...