Contact Officer: Mary Thompson, Environment & Economy Tel: (01865) 815901
ITEM PN5
PLANNING & REGULATION COMMITTEE – 14 FEBRUARY 2008
APPLICATION FOR A CERTIFICATE OF EXISTING USE OR DEVELOPMENT (CLEUD) FOR THE USE OF LAND AND STRUCTURES FOR THE FOLLOWING PURPOSES: (1) LANDSCAPE CONTRACTORS YARD INCLUDING GROUNDWORKS CONTRACTORS YARD, WITH ANCILLARY OFFICES AND DEMONSTRATION/DISPLAY AREAS, ANCILLARY PLANT AND VEHICLE MAINTENANCE HIRE AND REPAIR; AND FOR THE IMPORTATION, SORTING AND PROCESSING, STORAGE AND RE-USE/RECYCLING OF WASTES (CONSTRUCTION AND DEMOLITION WASTES AND GREEN WASTES) (2) USE OF LAND FOR THE PARKING AND OPERATION OF PLANT AND THE STORAGE OF PLANT, EQUIPMENT AND MATERIALS INCLUDING WASTES, WITH NO RESTRICTION ON HEIGHT OF STORAGE Report by Head of Sustainable Development
Location North-West, Central and Nursery Access areas, Hickman Bros Landscapes Ltd, Shipton Hill, Fulbrook Applicant Hickman Bros Landscapes Ltd. Application Number 07/1774/P-CLE District Council Area West Oxfordshire District Council
Introduction
1. This application seeks a Certificate of Lawfulness of Existing Use or Development (CLEUD) under section 191 of the Town and Country Planning Act 1990 as amended by section 10 of the Planning and Compensation Act 1991. 2. CLEUD applications are not normally decided at Planning & Regulation Committee as the Constitution delegates their determination to the Director of Environment and Economy jointly with the County Solicitor. This is because the decision rests on the examination of evidence and not matters of planning judgement, planning merit or planning policy. 3. However in this case, the local County Councillor has asked that the application be decided by the Committee.
4. The application was to be considered on 26 November 2007, but was withdrawn from that meeting at the request of the applicant to enable further information to be provided.
The Site (See Plan 1 (download as .doc file) and Affidavit Reference Plan (download as .doc file))
5. Hickman Brothers Landscapes Ltd. (HBL) site is located on the A361 Burford to Chipping Norton road. It lies 2 km (1.3 miles) north of Burford and 0.5 km (0.3 miles) north of the village of Fulbrook (see Plan 1.).
6. The HBL site covers 2.7 hectares in all, but this application relates to the ‘Central’, ‘North-West,’ and ‘Nursery Access’ areas only, as shown on the Affidavit Reference Plan.
The Claimed Uses
7. The application refers to two uses described as follows:
(a) use of land and structures for the following purposes: landscape contractor's yard including ground works contractor's yard, with ancillary offices and demonstration/display areas, ancillary plant and vehicle maintenance hire and repair; and the importation, sorting and processing, storage and re-use/recycling of wastes (construction and demolition wastes and green waste); and
(b) use of land for the parking and operation of plant and the storage of plant, equipment and materials including wastes, with no restriction on the height of storage on the central area.
8. However, these uses can be broken down into a number of elements:
(a) use as a landscape/groundworks contractor’s yard with ancillary activities as described;
(b) importation, sorting and processing, storage and re-use/recycling of wastes (construction and demolition wastes and green waste);
(c) use of land for the parking and operation of plant and the storage of plant and equipment; and
(d) use of land for the storage of materials including wastes, with no restriction on the height of storage on the central area.
The Submitted Evidence
9. The applicant claims that the land has been in its current use for over 10 years, and has submitted 7 sworn affidavits, 4 aerial photographs, other photographs, invoices for plant hire and purchase, waste processing and a waste carrier’s licence with the application to support this claim. The affidavits are summarised in this report. 10. The applicant has subsequently supplied a Supplementary Report principally relating to the amount of waste imported and stored which comes from third parties and not from the applicant’s landscape contracting operations, and an explanation of the circumstances in which vehicles, plant and equipment have been hired out.
11. Wastes include soils and topsoils, hardcore/rubble, timber and green wastes and incidental wastes such as metals, stone, slates, tiles and plastic.
12. A copy of the submitted information, including the application, supporting statement and Supplementary Report is in the Members’ Resource Centre.
The Approach to Consideration of the Application
13. As noted above, the decision on the application rests on the examination of evidence and not matters of planning judgement, planning merit or planning policy.
14. The key points to note are as follows:
o The application seeks a certificate that an existing use is lawful.
o A use is lawful if either
(a) it has planning permission; or
(b) cannot be enforced against.
o If the use is already lawful, its planning merits are not relevant.
o Whether a certificate should be granted is a matter of fact and law, not planning merit.
o The evidence to be considered will essentially relate to
(a) the existence of planning permission; or
(b) a continuity of use over a statutorily prescribed period such that enforcement action can no longer be taken.
o In this application, which contains elements of both use and breach of condition on a planning permission, the statutory period is 10 years preceding the date of the application.
o Guidance in Circular 10/97 advises that:
o it is for the applicant to prove that the claimed use is lawful;
o however this has to be proved only on the basis of the balance of probability, i.e. that the evidence available makes it more likely than not that the use is lawful. It does not have to be proven beyond reasonable doubt;
o the applicant may be best placed to produce information about present and previous activities on the land, especially about the history of the unauthorised activity;
o if the council or others have no evidence to make the applicant's version of events less than probable, there is no good reason to refuse the application provided the applicant's evidence is sufficiently precise and unambiguous;
o a certificate should state the limits of the lawful use at any particular date. Examples of limits might be traffic movements, types of vehicles, sources of materials etc. These limits provide a benchmark against which subsequent changes can be assessed to see whether a material change of use has taken place from the lawful use.
o A certificate may be granted for a lesser amount of land or for some but not all of the uses applied for if the evidence does not support a certificate for all of the land or uses.
Background Information and Planning History
15. Planning permission for a landscape gardener’s yard, store shed, bays, office and wood cutting business was granted by West Oxfordshire District Council (WODC) for the Central Area in 1985 ( W.1403/85.U).
16. In 1998 a retrospective permission was issued for the change of use of the North-West area (W97/1866) to a landscape contractor’s yard.
17. The Nursery area provides a connection between these two areas.
18. Further applications on parts of the application site were permitted for the erection of a workshop and store (1529/90) and an office (1530/90). Permission for a replacement office and parking was granted under reference W2001/1299.
19. A retrospective application was made for planning permission to authorise waste-related activities on the entire HBL site and also to construct a waste transfer building and replacement workshop. This was considered at the meeting of the Planning & Regulation Committee on 17 October 2005, following a site visit by Members. The application was refused on the grounds that it would have a negative impact on the AONB and there was no overriding need for the development to be situated in the open countryside. A subsequent appeal was made but later withdrawn.
20. This CLEUD application, unlike the application for permission that was refused by Planning & Regulation Committee, does not include a waste transfer building or new workshop and does not include the entire HBL site.
21. The HBL site has been the subject of an on-going planning enforcement investigation by Oxfordshire County Council. However enforcement action has not yet been taken because of the possibility that the planning breaches on site could be resolved through the submission of planning or CLEUD applications.
Evidence Submitted by the Applicant
22. The seven sworn affidavits submitted with this application are summarised under the heading ‘Affidavits’ below. The applicant also submitted aerial photographs showing the site in 1994, 1996, 1999 and 2004. The decision notices for the planning consents affecting the land have been provided including conditions and related correspondence. Photographs show the site and the lorries with loads including waste and storage of materials such as pallets, reclaimed stone, mulch, fencing, piping, hardcore, rubbles and soils. Most of the photographs are undated but those that are dated were taken in 2006. Also submitted in support of the application are a waste carrier’s licence issued in 2001 and invoices for machinery hire and purchase and invoices for scrap metal income from 2004 and 2006.
23. The applicant subsequently supplied further information about the waste materials that have been brought back from other sources, including three letters from third parties confirming that they had taken waste to the site, and also collected recycled materials from the site.
24. The applicant also supplied a Supplementary Report in January 2008, providing further supporting information relating to the importation and storage of waste, the processing of materials, and the hire of plant, vehicles and equipment.
Evidence Submitted by Third Parties
25. The District Council, Parish Council and Environment Agency were invited to submit any evidence that they held to prove whether the use claimed had or had not been ongoing for a period of ten years.
Fulbrook Parish Council (FPC)
26. The Parish Council believes there is a conflict of interest in Oxfordshire County Council determining the CLEUD application while the HBL site is on the long list of sites to be considered for the new minerals and waste plan (local development framework). Due to the timescales involved this response has not been discussed at a meeting of the Parish Council and instead represents the view of three of five Councillors. One Councillor declared an interest and the other stated that ‘the CLEUD is a reasonable way forward.’ FPC states that this is not a suitable site for waste management. It is accepted that as part of the established business surplus materials have always been returned to the site for re-use. The waste business effectively commenced in 2003 and prior to that surplus material from the existing landscaping business was returned to the site for re-use and sorting, but not waste materials from other sources. Significant management of waste did not start until 2000 at the earliest when the screener/shredder was purchased. The large escalation occurred in 2003 with the hire of a concrete crusher, purchase of a skip lorry and advertisement of skip hire to public. The fact that a waste management licence was applied for in 2003 is evidence that prior to that HBL did not consider their activities to be significant. FPC provides the response to the 2005 planning application. FPC supplies two aerial photographs taken in 2007 showing the impact of the development on the countryside and that the area of the site given over to growing and storing plants has declined in the last three years.
Local Resident
27. A resident at a nearby property wrote in 2005 to complain of the activities which breached the planning consent and had only then started comparatively recently. These activities included crushing and the burning of fires. There was no waste disposal activity 10 years ago or, to his knowledge, skip hire. He has been consistent in raising concern about the breaches of consent.
West Oxfordshire District Council Planning
28. No additional information. Of the view that the use probably has been ongoing for over ten years. Checked the files and there is no mention of the purpose of the planning applications they dealt with being for, or relating to, waste.
Environment Agency
29. Do not have any conclusive evidence either to demonstrate or disprove continuous use for the last 10 years. Their database of incidents was begun seven years ago. Consider that the listed uses were present when Environment Agency staff visited the site at Hickman Brothers request in November 2003.
The Submitted Affidavits
30. The Affidavits are summarised below, each was submitted with an Affidavit Reference Plan. A copy of this plan is attached to this report. As noted above, copies of the affidavits are in the Members Resource Centre.
1. Thomas Hickman – Hickman Bros Landscapes Ltd
In 1985 I took over the land now being used, with my brother Fred to run as a landscaping and ground-works contracting business. Landscape contracting involves clearing sites and then landscaping them after development. There is usually a great range of waste to be cleared off the site such as bricks, concrete, green waste, wood. What can be re-used is taken back to the site and other material to landfill. In some cases the waste is put into bins by other contractors on the site. Other wastes are taken from other sources from time to time for example spent mushroom compost, sawdust from sawmills. In some cases wastes are taken direct to landfill rather than returning to Shipton Hill. The business has a number of items of heavy plant and hires in other plant form time to time; and has hired its own plant out over the past ten years. The scale of the business has been about the same for over ten years. Various items of waste can be seen on the aerial photographs. Waste Haulage Licences have been held since 1990. Hardcore crushing has taken place by running plant over it or by hiring a crusher in a number of places including the north-west and central areas. A screener was purchased in 2000; before that soil screening was done manually. Various items have been stored in heaps and bays even as high as 5 metres.
2. Thomas Hibberd
I have worked for Hickman Brothers Ltd for 11 years. When waste material came back I had to sort the reusable material in the north-west area and stack it on to pallets. The remainder would be taken to the southern area and stored until it was screened. Before the screener came in 2000 we used a portable frame screener which fitted over the 7.5 tonne lorries. I can remember Fred Hickman used to drop off a bin at Blenheim Estates sawmill and collect it when it was full. About 5 years ago I took my HGV licence and subsequently went out in lorries to deliver materials and usually returned with various waste materials.
3. Mr Fred Hickman
My brother and I started a landscaping business in 1978. We purchased Shipton Hill in the early 1980s and moved operations there. It was second nature never to throw anything away which could be re-used. As the landscaping business grew the amount of reusable materials also grew and by the 90s became an integral part of the business. Waste from employees such as old furniture, kitchen units and garden refuse has always been brought on site. Would often take odds and ends as above to be helpful including from local landscape contractors.
4. Robert Brian Johnson
I have been employed by HBL since 1993. I have attached a schedule of contracts [these relate to landscape business use] together with the types of waste generated. On large contracts with large volumes of waste particularly where over 60 miles away waste is often removed by other contractors, although on occasions we bring a back-load of recyclable materials. On smaller contracts or projects with multiple trips it is stored on site for collection with equipment or surplus materials. Multiple skips on site to sort waste is in many cases impractical. Leaving skips overnight brings problems of unauthorised tipping. The logical way to operate is to bring waste back to the site.
5. Colin Martin Blackwell
I have worked for HBL since it was formed 29 years ago. The storage and reuse of soils has occurred since I started working at HBL. I have seen a variety of items returned to the yard for reuse or disposal. These include trees, leaves, lawn cuttings, hardcore, concrete, pipework, manhole covers, plastic sheets, window frames. Often we would clear the remaining building waste from sites because landscapers are always the last in.
The northwest area has been used for over 10 years for parking of lorries and their loading and unloading. Waste has been taken off them and sorted out. The central area has also been used in the same way. I recall many times, waste coming in from other sources in particular green waste, soils and sawdust.
The southern area and central intermediate area have been used for at least 10 years for the storage, sorting, processing etc of waste materials
6. Terry Keith Hickman
I have been employed in my father’s business since leaving school and have managed the yard for ten years. Ten years ago the north west area was used as a dumping ground but over the next years was used for parking and unloading of lorries, the sorting of waste and storage. Waste materials have also been tipped in the central area for sorting and storage. The nursery access has also been used for tipping and storing waste. Offered a free tip for hardcore and concrete for demolition companies and have brought in wastes, for example building wastes. The southern area has been in use for many years for dumping, sorting, processing and storage of wastes, and the parking of vehicles, plant and machinery.
7. Edward Henshaw
I have worked for HBL for 15 years and in that time I have brought waste back. Employees have brought their own building and garden waste. Waste also comes to the site from other companies such as builders and landscape contractors. Tipping has occurred in the North West area, the Nursery Access area and the Southern area. Lorries are parked all over the site. The north-east area has been used mostly for growing on of shrubs and trees, also for storage of different materials. The southern area has been used for storage (including the storage of redundant vehicles), screening and crushing. Waste also comes into the site from employees and other companies.
Comments of the Director of Environment and Economy
31. I will address each of the claimed uses as set out above in turn.
(a) Use as a landscape contractor’s/groundworks contractor’s yard with ancillary offices and demonstration/display areas, ancillary plant and vehicle maintenance hire and repair
32. The first issue to be considered in any CLEUD determination is whether the use is development at all (if it is not development at all then clearly it is lawful provided it is not in breach of a condition on a planning permission). However, this use is clearly development within the meaning of the Town and Country Planning Act 1990 and would not be lawful in the absence of permission unless enforcement action could not be taken against it.
33. The next issue is whether it is authorised by any of the existing permissions. The use of the Central area of the site as a landscape gardener’s yard is authorised by the 1985 permission. The use of the North West area as a landscape contractor’s yard is authorised by the 1997 permission. Therefore use of those areas as a landscape/groundworks contractors’ yard and any ancillary uses are considered to be lawful and can be covered by a CLEUD.
34. The Nursery Access area is not covered by an existing permission. However, it seems to have been used in conjunction with the landscape contractor’s business for over ten years.
35. Ancillary activities such as those referred to in the claimed use would also be authorised by the existing permissions. The provision of an office was permitted by the 1985 permission and a workshop and store was permitted in 1990 (1529/90). A new office building and car parking was permitted in 2001 and the permission has been implemented. The office and car park, demonstration/display areas, ancillary plant and vehicle maintenance and repair are ancillary to these and the main permissions and can be covered by a CLEUD in these areas.
36. The evidence provided is that vehicle and equipment hire has not taken place as a separate activity. Rather it has taken place when items ordinarily used as part of the landscape contracting business are not needed at that particular time.
(b) Importation, sorting and processing, storage and re-use/recycling of wastes (construction and demolition and green waste)
37. Again, this is development within the meaning of the 1990 Act and would not be lawful in the absence of permission unless enforcement action could not be taken against it. The existing permissions do not refer to any form of waste management. However, any permission includes ancillary uses so the issue to be considered is whether the claimed use is capable of being an ancillary use, and if so, whether the scale is such as to make it a use in its own right or otherwise to make a material change of use from the permitted use.
38. Storage of wastes is discussed in a later section of this Report.
39. The evidence suggests that on the balance of probability this site has been used for the importation, sorting and re-use/recycling of these types of waste for a period of ten years. The evidence submitted by third parties does not contradict this view. The Parish Council acknowledge that surplus materials have been brought back to the site for a period of 10 years. Technically, these materials would be classed as waste. The definition of waste used by the applicant is material that, ‘the holder discards or intends to discard,’ and I think this is an acceptable definition for the purposes of this case.
40. However, the evidence suggests that the level of waste activity was ancillary to the operation of the permitted landscape contractor’s yard. The affidavits state that waste from the landscape contracting jobs has been brought back to the site and sorted and stored for 10 years, as the Parish Council acknowledge. There is also evidence of the importation of waste from third parties for use in the business, for example spent mushroom compost.
41. The applicant has stated that it is difficult to provide detailed evidence of the levels of this activity because invoices only arise when the company asks for money, but with many wastes this is not the case. Also the applicant says that records are not usually kept for a ten year period. The applicant has had a waste carriers licence since 1990 and will be familiar with the waste transfer regime which requires a demonstrable chain of waste transfer notes to show source and destination. It is therefore somewhat surprising that no such notes have been provided to support the claim that third party waste has been dealt with.
42. The evidence is more ambiguous for the processing of waste in the application area for a ten year period. Waste processing involves a further operation that produces a useable product. The affidavits refer to the processing of green waste (including wood chipping) and hardcore.
43. The FPC state that a shredder and crusher has been introduced to the site in the last ten years. Plant used for the processing of hardcore is now located on an area not the subject of this CLEUD application. The affidavits state that the screener was purchased in 2000; Tom Hickman’s affidavit says that earlier in the period crushing was done by running plant over hardcore or hiring in a crusher. On the balance of probabilities, there is insufficient evidence of mechanical crushing of hardcore on the application site for a period of 10 years or of the use of the screener/shredder. Although a portable frame screener was probably used on the application site, it has not been used for 10 years as the replacement screener is used in an adjacent area.
44. The 1985 permission authorised the wood cutting business and the evidence appears to support the processing of green waste over the application area (except of course within the area permitted in 2001 for office and car parking).
(c) Use of land for the parking and operation of vehicles and plant and the storage of plant and equipment
45. This is development and would not be lawful in the absence of permission unless enforcement action could not be taken against it.
46. Condition 4 of the 1990 permission issued by WODC for the erection of workshop and store (ref 1529/90) states that: “no plant, machinery or motor vehicle shall be stored, operated or parked on the land except within the proposed building.”
47. HBL wrote a letter to WODC to explain that this condition was impossible to comply with. WODC replied on 4th April 1991 stating, “Notwithstanding the terms of the planning permission granted under ref 1529/90 on the 14th January 1990, my council approves the following: the parking of lorries, plant and commercial vehicles in accordance with your letter/plan dated 20th March.”
48. Regarding this aspect of the CLEUD application I have come to the view that the use as approved by WODC in their letter dated 4th April 1991 is covered by the existing permission.
49. Parking and the operation and storage of plant outside the approved area is not covered by existing permissions. The aerial photographs show consistent vehicle parking within the approved area. They do show vehicles in other areas, but very few and with no consistent location. The applicant’s Supplementary Report provides evidence that parking and storage of vehicles and plant has taken place within a defined area within the Central Area. Therefore, a CLEUD is only justified for these uses within the area permitted by WODC for parking associated with planning permission 1529/90 and the area identified in the Supplementary Report.
50. It is accepted that plant is likely to have been operated over the majority of the application area.
(d) Use of land for the storage of materials including wastes, with no restriction on the height of storage in the Central area
51. One of the conditions of the 1985 permission restricted outside storage to storage within approved storage bays and to a height not exceeding 2 metres. The available evidence indicates that, in practice, outside storage of materials has taken place outside the bays and to greater heights for a period of over ten years. There is no evidence to contradict the assertion in Tom Hickman’s affidavit that materials have been stored higher than 2m (contrary to the condition of the 1985 permission) and sometimes to a height of 5 metres.
52. This use is development and would not be lawful in the absence of permission unless enforcement action could not be taken against it.
53. Outside storage would be ancillary to the use as a landscape contractor’s yard. It would be expected that materials would be stored over the area with permission for the landscape contractor’s yard, with the exception of the areas used for offices, workshop or parking.
54. There is an express condition limiting such outside storage. However, development in breach of condition cannot be enforced against after 10 years and therefore, this is use is lawful within planning permission W.1403/85.U and can be covered by a CLEUD.
55. The applicant has provided some evidence to indicate the amount of material that has been stored on site, and this can be incorporated in any CLEUD. However, since much of the imported material has been stored on the southern area, which is not part of this application, the amount of stored material recognised by a CLEUD will be less than the amount imported to the entire HBL site.
RECOMMENDATIONS
56. It is RECOMMENDED that the Head of Sustainable Development be authorised to approve application 07/01774/P-CLE for the following uses, subject to such limitations and exclusions as he considers appropriate on the basis of the evidence provided:
(a) use as an office and for the parking of cars as authorised by permission W2001/1299; and
(b) use of the remainder of the application area as a landscape contractor’s yard including the following uses so far as ancillary thereto:
(i) use as a groundworks contractor’s yard;
(ii) the importation, sorting, storage and re-use/recycling of construction demolition and green wastes and other landscaping materials;
(iii) the processing of green waste and hardcore;
(iv) demonstration and display areas;
(v) outside storage of plant, equipment wastes and other landscaping materials;
(vi) incidental hire of plant, vehicles and equipment;
(vii) operation of plant and equipment;
(viii) vehicle and plant maintenance and repair; and
(ix) parking of plant and equipment.
CHRIS COUSINS Head of Sustainable Development Environment & Economy
Background papers: File 8.5/2613/3 Application for a Certificate of Lawful use for the use of land for the importation, sorting, processing and storage of waste for a period exceeding ten years as defined in the description.
February 2008
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