Council used wrong starting point in LDC refusal

A lawful development certificate for a mixed-use scheme including 75 caravans for human habitation, residential dwellings, office, industrial and open storage uses was refused in a settlement in West Sussex for lack of evidence regarding the extent of the open storage and caravans at the site as primary uses.

The council had, subsequent to the appeal, granted an LDC for the office use and residential dwellings at the site, which the inspector had reservations about in terms of split decisions on a mixed use, but nevertheless went on to consider the other aspects of the proposal.

The council had previously issued an LDC for the mixed use at the site in 2017 but had not specified the precise level or scale of the uses found to be lawful with no reference to the number of caravans for human habitation or the extent of the open storage area. The inspector held that the council was wrong in refusing the current proposal for up to 75 caravans by "looking behind" the previously granted certificate as they were attempting to assess the change in character of the land from the wrong starting point which was then four to six caravans. He referred to Broxbourne BC v Secretary of State for the Environment [1980], in which it was held that, as long as an Established Use Certificate persists, it precludes the necessity of investigating events which may have occurred many years before as to what was the established use as at the date of the issue of the certificate. He felt up to 75 caravans would comply with the wording of the previously granted certificate which was for an unspecified number. However, he went on to determine from his site visit that the area of land set aside for open storage on the application drawing could not possibly accommodate all the open storage at the site that he witnessed, and this then left the area for accommodating up to 75 caravans reduced and open to question. On the balance of probability, the inspector was not satisfied that the primary uses of open storage as well as the caravans could be accommodated and therefore the whole mixed use proposal had to fail, but not for the reason the council had suggested.

Inspector: Paul Freer; Hearing

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