Appeal Court certificate of lawful use

A recent Appeal Court ruling has clarified the circumstances in which an enforcement notice (EN) can override a certificate of lawful use (CLU).

The case involved land in a rural area at Holton in Staffordshire which was originally in agricultural use but had subsequently been used as a plant hire contractor's yard.

Stafford Borough Council granted the site a CLU in 1994. The uses included the storage, distribution and general trading of materials recovered from demolition and construction sites.

Previously the county council, as waste planning authority, had served an enforcement notice on the owner because he had breached planning controls over the scale and manner of allowable excavation work at the site. The EN included a requirement to cease importation of waste material.

In 1995 the borough council wrote to the owner pointing out that "waste disposal which includes recycling is a planning function of the county council" and stressed it had no power to grant a CLU for a waste process.

In 1996 the county council refused to grant a CLU relating to most of the land for the importation, storage, sorting, treating, processing, reclamation and recycling of soils, bricks, concrete and other demolition and construction materials, together with distribution and general treating of such materials.

In 1997 the county council issued an enforcement notice claiming there had been a breach of planning control as a result of the site's change of use to "a waste transfer station from agriculture". The EN required the cessation of waste importation and the "handling, sorting, screening, storage, treatment and disposal, or any of these, of waste materials and soils".

The site owner appealed the EN. After an inquiry the EN was upheld, although the terms were modified.

Subsequently, in 2001, the county council began criminal proceedings over the breach of the EN. This was not, in the event, pursued. Later, in 2002, the county council was granted an interim injunction by the County Court to restrain the owner from using the land for importing, handling and treating waste.

In 2003 the county council took direct action to remove materials from the site and then went to the county court to recover their costs, put at nearly £250,000 plus interest.

The site owner challenged this in the High Court where the judge found against the county council after arguing that the prohibition on challenging an enforcement notice in sec. 285(1) of the 1990 Act did override the conclusive nature of the CLU.

Staffordshire CC was also told that the costs of the direct action could not be recovered as the county council was unable to allocate those costs to materials that had been brought onto the site in breach of the enforcement notice and those that had not.

However, when the case was considered by the Court of Appeal, it held that the judge had erred in regarding the activities covered by the 1994 CLU as being exempt from the 1997 enforcement notice. The latter would prevail if there was a conflict, ruled three Appeal Court judges who argued that it had been long established that lawful use rights would be lost if an enforcement notice were served.

Their judgement pointed out that the issue of CLU rights was not raised in the enforcement appeal. The Appeal Court also found that the respondents were liable for the costs of removal of the waste materials.