The appellant’s case was that the appeal site had been used continuously for a B2 use in connection with the limeworks all through the 1980s and 1990s and that use became lawful. Since then there had been no material changes of use, or if there had, they had not led to the lawful B2 use being lost. The council argued that in fact there had been several material changes of use and several changes to the planning unit that had led to a loss of any lawful use rights that might have accrued over time.
The parties differed in their interpretation of two specific legal matters. Firstly, whether rights granted by an LDC could subsequently be lost through a material change of use and secondly whether the use of land for storage of waste materials, while it was being or about to be processed, fell under the ambit of s55(3)(b) of the Planning Act, which says, "the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if— (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site". On the first point, the inspector referred to Cynon Valley BC v Secretary of State for Wales, 1986 and agreed that existing lawful use rights could be lost if there was a material change of use. On the second matter, he felt the issue depended on whether the import of waste was an end in itself or just ancillary to the primary use.
In considering the history of the site, the inspector held there was evidence to suggest that the appeal site had been used for 10 or more years consecutively for B2 purposes from the 1990s. But then in 2008, the whole of the appeal site was leased and part of it was used for the dumping of waste wood. This episode, the inspector held, enacted s55(3)(b) as above, and represented a material change of use and a new chapter in the planning history of the site. On this basis he concluded the accrued B2 rights from the 1990s were lost when the deposit of waste triggered a material change of use, despite the existing B2 use. There was another material change of use when a mixed use was instituted through the storage of HGVs and another material change of use and change to the planning unit when the appeal site was absorbed as part of the associated former limeworks. Each of these junctures was a new chapter in the planning history and any accrued use rights were lost at each change. Therefore, a lawful development certificate could not be issued.
Inspector: Simon Hand; Inquiry