Certificate of Lawfulness , use intensification or change of use?

Planning Advisory Service (PAS)

Open group | Started - July 2012 | Last activity - Yesterday

Former Member, modified 14 Years ago.

Certificate of Lawfulness , use intensification or change of use?

This site was granted Cert of Law Use for landscape gardening business including storage and horticulture.In hindsight the description was not tightened up enough and probably should have said incidental storage. The use of the site at the time was landscape gardening business and a small amount of stone was stored on site which was used in landscape contracts. Several months later a huge amount of stone appeared and is regularly loaded onto HGVs(there is no turning area so they have to back out onto road) the owner advertises as stone merchant and cuts stone on site. Served a PCN and he said 90% of stone stored on site is used in landscape business. All neighbours and Councillors have submitted petition wanting something done about it. It is actually green belt so a use such as this would not have been permitted in normal circumstances. Most complaints are Env Health based, noise dust so dont involve enf. However I have drafted an Enf Notice but am having trouble with requirements. Can I require him to remove stone given that he has storage use within his Cert of Law. Also case law seems to point out that to be a change of use it has to be more than intensification of a similar or same use ? Anyone have any ideas of what I can put requirements as. Photos attached below

Former Member, modified 14 Years ago.

Re: Certificate of Lawfulness , use intensification or change of use?

Photos of site

Former Member, modified 14 Years ago.

Re: Certificate of Lawfulness , use intensification or change of use?

A lot will depend on the nature of the use that existed at the time the certificate was issued. Does it state any particular use class, or was it a mixed use. Intensification within the same use class is unlikely to require planning permission. With a mixed use, if one element of the use has intensified to the exclusion of the others then a material change of use may have occurred. It is very difficult to establish a change of use through intensification and professional legal advice will probably be required. It may also be useful to look at the primary use of the land, as the primary use of the land may have changed from that in the certificate and constitute a change of use in that respect, as there doesn't seem to be much horticulture on the site now and the word "garden" in landscape garden business seems a bit of a misnomer. The company is registered as a wholesale business

Former Member, modified 14 Years ago.

Re: Certificate of Lawfulness , use intensification or change of use?

I agree with Alan that whilst pure intensification is unlikely to amount to a metrial change of use, the intensification of a lawful ancilliary or incidental use to such an extent that it has become the primary use would be material. This seems to be what has happened in your case. A storage use that was incedental to a lawful use has now become (if not the primary use) at lease a major componant of a new mixed use. As such a new chapter in the planning history of the site has begun and, if it does not have permission, it will be unauthorised. That could be the basis of the allegation in your notice. There is no reason why that harm could not relate to noise, dust, effect on residential amenity etc. as there is considerable overlap between planning and environmental healt in this area. As to the requirements you could under-enforce so as only to takle the unacceptable element of the mixed use, i.e. the stone cutting? Have you considered a TSN to stop the stone cutting whilst the enforcement notice comes int effect?

Former Member, modified 14 Years ago.

Re: Certificate of Lawfulness , use intensification or change of use?

Thankyou Mr Hyde and Mr Kendall. I will just allege a change of use then as i think the retail sale of stone and cutting has become primary use. It was just the requirements of the notice i was struggling with. What i wanted to say was , cease the use of the site for cutting, storage and retail sales of stone. This would stop the noise and help with visual aspect. However it would be reasonable that some stone would have to be on site to be included in his Cert of Law use a landscape gardeners and I couldnt therefore require removal of all stone on site, but can i say in the Notice , "remove all stone not associated with landscape contracts". Probably not as how do you distinguish?

Former Member, modified 14 Years ago.

Re: Certificate of Lawfulness , use intensification or change of use?

Surely, when an unauthorised use (with or without a certificate of lawfulness) ceases or changes use to something else, the lawful use ceases to exist ,as discussed in Panton & Farmer 1998, as the breach would be at an end, and a later breach would constitute a fresh breach. "In accordance with long established principles, such an accrued planning use right could only be lost in one of three ways, by operation of law. First by abandonment, second by the formation of a new planning unit, and third, by way of a material change of use (whether by way of implementation of a further planning permission, or otherwise)" It seems to me that, if a material change of use has occurred, action could possibly be taken against the whole use, and any steps would merely need to be reasonable and proportionate. By the way, I don't like the sound of Mr Hyde and Mr Kendall, it's like some out of a horror movie.