Growing recycling businesses can find themselves facing enforcement notices asserting 'material changes of use' at their sites which do not have planning permission. Michael Krantz, Head of Waste and Renewables, looks at how companies can get out of the planning jungle.
Roaring Recycling's managing director is in his office, feeling pleased with himself. He has invested in new equipment, substantially increased waste throughput, found new outlets for it and recruited additional employees. Then a knock at the door wipes the smile from his face. The visitor announces: "I am an enforcement officer from the council. The expansion of your business is not popular, and there have been complaints due to an increase in lorry movements and a lot more noise arising from your site." The managing director protests: "That is the inevitable consequence of our business becoming more successful." "We don't see it that way," the officer replies. "The intensification of the use of this site is a breach of planning control against which the council is entitled to take enforcement action."
This exchange may be one of fiction but it is certainly realistic. Many waste management facilities operate with the benefit of certificates of lawful use or relatively old planning permissions. The former cannot, and the latter often have not, imposed conditions restricting activity. Consequently, local planning authorities (LPAs) sometimes resort to the concept of material change of use (MCU) in an attempt to plug the gap. Generally speaking, planning permission is required for a MCU of land. But there is much debate as to whether mere intensification of use can amount to an MCU.
While it is generally accepted that just doing more of the same cannot of itself amount to an MCU, it is not so clear whether that is the case if it results in greater impact on the neighbourhood. This issue was at the heart of a planning battle between Hertfordshire County Council and Metal and Waste Recycling, which ended with a judgment in the Court of Appeal in October 2012. In May 2009, the council served two enforcement notices, the essence of which was the allegation that a scrapyard in Hitchin, which had the benefit of a 1972 permission, had increased its throughput so much that an MCU had taken place because the increase had caused more noise, vehicles and dust. The company successfully appealed against the enforcement notices, and the council's subsequent challenge to the inspector's decision was dismissed by the High Court and the Court of Appeal.
Although at first sight that outcome was positive for the waste industry, in fact, while the rejection of Hertfordshire's case was clear and emphatic in the High Court, the decision in the Court of Appeal was less so. The council's case in the Court of Appeal was summarised by three propositions relevant here:
- that there can be an MCU merely by intensification of use<
- an MCU can be established merely by reference to the impact of the use on nearby properties
- it is immaterial whether that impact results from actions of the operator or those of third parties, including government requirements.
I consider each of those propositions to be preposterous, and the third one, frankly, outrageous. The first two were rejected by both courts. The decisions affirmed that intensification of use can only amount to an MCU if it results in a definable change in the character of the use. In any future case, I would focus on a telling phrase used by the inspector and upheld by the courts. The inspector concluded that the increase in throughput was not "beyond the normal fluctuations in activity that could reasonably be expected to be experienced by the business".
If there is no relevant change of on-site use, then increased impact off-site cannot itself amount to an MCU.Tb determine otherwise would be to confuse 'a change of use' with 'a change in the effect of the use'. But then the judgment in the Court of Appeal took a detour by referring, with apparent approval, to a 2005 decision where a judge suggested that the impact of a particular use is an integral part of its character, with the consequence that there may be an MCU by reason of its impact off-site, even though the use on-site has not changed other than by mere intensification.
The apparent approval of that concept involves a disconnect with reality. Just because, in order to run a business at a certain level one needs a certain number of lorries to visit the land, and if one increases the turnover one needs more lorries to visit the land, this supplies no information at all on the character of the use or any alleged change of that character. In addition, emphasis on off-site impact risks error. Additional effects may occur off-site not by reason of an MCU of the relevant land but because of a change in the neighbourhood's character.
Paragraph 123 of the National Planning Policy Framework published in March 2012 advises that planning decisions should "recognise that development will often create some noise, and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established".
Regrettably, the Court of Appeal left open the third proposition for another case. In an appeal of which I had the conduct, I obtained an agreement from Hertfordshire that the fact that authorised treatment facilities are required by regulation to de-pollute vehicles before crushing them cannot amount to an MCU. But the council decided to argue differently. The idea that the introduction of changes to a use in order to comply with regulations can be enforced against as a breach of planning control, even if such compliance results in greater neighbourhood impact is, I believe, repugnant.
The better view remains that mere intensification, even if it does result in greater neighbourhood impact, is insufficient. Businesses should not be penalised for becoming more successful. So it is unfortunate that the Court of Appeal has left the door ajar for LPAs to argue otherwise.
Fortunately for most waste recycling businesses, there is a way out of this planning jungle. It is well settled law that a change of use by intensification cannot occur where the use is defined in the Use Classes Order (UCO). There is case law which supports the conclusion that waste recycling is a 'B2 general industrial use'. Although that conclusion is not universally accepted, I contend that it is the correct one because it is derived from the definition of 'industrial process' in the UCO. So if a planning officer comes knocking at the door, complaining that recycling has intensified and amounts to a breach of planning control, the best defence is to contend that the activity is a B2 use, with the result that any alleged intensification is irrelevant.
ScrapTards and the breaking of motor vehicles are uses which are excluded from the UCO and so are sui generis. Therefore, proprietors of metal recycling businesses are the celebrities who remain in the planning jungle.
WHEN TO SEEK ADVICE
Specialist advice should be taken before doing any of the following:
- Amalgamating two sites, each with its own previously separate lawful use
- Subdividing a single site with a lawful use
- Ceasing one element of a mixed use
- Increasing one element of a mixed use at the expense of another
- Adding a new activity to the existing business
- Adding a new waste stream, even if included in your permit
- Modernising the lawful use by changes in working practices and/or the installation of new plant
Previously published by Materials Recycling World, 25 May 2013
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.