Some comments on the application for a certificate of lawful use at Berth 31.

 

 

Introduction

These comments are from DIAG and are the observations of members of the public who do not profess to have specialist knowledge but are very interested in the town and its environment.

 

We begin by listing the various areas of planning law relevant to the situation. We will then deal with each area in a shorthand way by referring to the heading only.

 

TCPA 1990

The Town and Country Planning Act 1990

Planning use classes

In order to control how land is used for business purposes, there are different categories such as A (shops) B (business). If a company wants to change the use of their land, they might have to apply for ‘change of use’. This is an important safeguard for the public – if planning permission is needed then people get the chance to comment or object if they think the change of use is inappropriate for the area. The change of use rules can help protect people from a corner shop turning into a takeaway, or an office down the road turning into a noisy workshop.

The two use classes we’re looking at are:

B8 use

Storage or distribution. Premises are used for storage or as a distribution centre.

 

B2 use

General industrial use of the land and use for the carrying on of an industrial process other than one falling within class B1 or within classes B3 to B7. The important element that distinguishes this from B8 above is the ‘industrial process’. This can include such processes as shredding wood on site.

 

(see the case of Sefton produced by the applicant).

 

GDPO

Town and Country Planning (General Permitted Development) Order 1995.

 

Class B of this Order (not the same as class B in TCPA – see above)

Refers to a Dock, pier, harbour, water transport, canal or inland navigation

 

The organisation that owns/runs any of these is called the statutory undertaker.

 

For example

Barry Docks – ABP is the statutory undertaker

 

The Order permits ABP to carry out development on its land in certain circumstances. This means that ABP does not need to apply for permission from the Vale of Glamorgan Council to carry out certain uses on its land. These uses will usually involve using the dock to load and unload cargo etc.

 

This is known as permitted development, it is lawful use and is defined as:-

Permitted development

Development on operational land by statutory undertakers or their lessees in respect of dock, pier, harbour, water transport, or canal or inland navigation undertakings, required-

(a) for the purposes of shipping, or

(b) in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour, or with the movement of traffic by canal or inland navigation or by any railway forming part of the undertaking.

 

The issue – continuous use as storage for more than 10 years?

The issue under discussion relates to whether there has been unlawful use of Berth 31 equivalent to Use Class B8 for a continuous period of 10 years.

This means 10 years when the Vale of Glamorgan Council (the applicant claims) has not bothered to stop the unlawful use. If the applicant manages to prove 10 years uninterrupted unlawful use then there is no argument, they can use the Berth 31 area as a distribution centre.

 

It means they will have a certificate of lawfulness and the effect of that is that although there has been no official investigation via planning permission into whether the use is appropriate for the area, it cannot be enforced against by the Council.

 

The Applications

 

July 2017

The applicant initially applied under the GDPO on the basis that this was port business but was told by the Officers that they could not claim under the GDPO.

 

January 2018

The applicant then submitted a completely different application that might be thought to be inconsistent with its initial submissions claiming that there has been unlawful B8 use for in excess of 10 years.

 

Although the Council needs to be convinced on the balance of probabilities before granting the certificate of lawfulness, it is very important to remember that the applicant has the burden of proving its case on balance. A failure to prove it means the application is refused.

 

It is DIAG’s view, having given this considerable thought, that the application must fail as its first submissions were partly correct and sets out some of the reasons why their application is fatally flawed.

 

Issues arising on the Officer’s Report to Committee

 

1. More analysis and investigation is required

A first and very important point to make is to disagree with the assertion by the author of the report before the Committee that:-

 

“As this is an application for a Certificate of Lawfulness and is not a Planning Application, only the evidence submitted by the applicant to prove the use is lawful has been considered and assessed.”

 

It doesn’t take much thought to conclude that this cannot be correct. This statement implies that when the Council receives information from an applicant, it merely has to see if the applicant has ticked all the boxes and then the application can be passed, even if some simple analysis would have resulted in refusal. It cannot be correct that Officers and the Committee must only look at the application from the applicant’s perspective without any further careful analysis or investigation.

 

It should be the task of officers to ensure that proper enquiry is carried out to make sure the ‘facts and arguments’ asserted by an applicant and the implications of law arising, are accurate. In this case we believe there are reasons why the application should be refused and/or some or (better) investigation is required. The Council Officers are meant to be investigators and check for themselves if, for example, it is true that they failed to enforce for 10 continuous years and that the application is therefore a good application.

 

DIAG sees parallels in this case with the advice given to Committee in 2015 when Committee was considering the application for planning permission for the incinerator where discussion by Committee was severely restricted on Officer’s advice. The passage of time demonstrates the significant errors made on that occasion. Hopefully we do not see the same thing happening again.

 

2. An unexplained assertion by the planning officer’s report

It is a matter for the Planning Committee to decide but the officer’s report makes it clear that the committee should not be interested in the plan submitted by the applicant and what is recorded as on site. That is a rather strange assertion because immediately after the officer’s recommendation we see the declaration/proposed condition that:

 

“Please note that this consent is specific to the plans and particulars approved as part of this application….”

 

This might indicate to some people that if the certificate is granted then the buildings etc shown on the plan are also permitted with no consideration as to their importance for a B8 use. We mention this point in case it is an inconsistency but Councillor members of the Planning Committee will decide for themselves. At the very least the assertion by the officer seems strange.

 

3. Some other possibly relevant issues

 

Buildings

Within the amended application for a certificate of lawfulness dated 10 January 2018 we note that at box 8 it is asserted that the proposal does not include the carrying out of building or other operations. This is different from the previous completed form dated 28 July 2017. The assertion in the latest form seems to be at odds with the plan that is on the planning portal and with assertions in the original letter of 28 July 2017.

 

Single User – multiple users

Is it relevant that the site is argued as B8 on the basis of single user historically but now is proposed as multiple occupation?  Are these matters the officer needed to cover in his report?

 

4. The re-wording of paragraph 5

We note the officer’s report makes reference to the (inadequate) paragraph 5 in the Statutory Declaration made by Mr Windeatt but puts an unnecessary and inappropriate spin/rewording on the content of paragraph 5 by claiming:

 

“From June 2013 onwards the berth has continued to be used for storage for general cargo shipped in and out of the dock…”

 

The officer could and should have simply repeated the actual words but seems to have strengthened the impact of the evidence slightly. A brief comparison with the schedule produced would have convinced the officer that, if anything, paragraph 5 already tends to a situation that is too rosy for the applicant. The easily available Google Earth images[1]are the icing on that cake.

 

5. Is the applicant relying on GDPO or B8 use?

At present on the planning portal it could appear that both bases in support of the application for a certificate might be extant. The applicant might be arguing both bases still.

 

6. Important correspondence is missing from the portal

Contained on the planning portal is a letter from WYG, who are acting for the applicant, dated 28 July 2017 which is the original application submitted for a certificate of lawfulness. It is not now clear whether that letter and the detail contained within that letter is relied upon by the applicant. Perhaps the missing letter of 7 November 2017 makes it clear? This has been kept from the public by council officers. There is no clue as to why the officers decided to leave that off the portal.  In any event, the earlier letter is an item available to the Planning Committee containing information/evidence/argument that may need to be taken account of when considering the application. We will be developing that point later in this document as it is considered by DIAG to be important.

 

We suggest that the July 2017 letter from WYG is a clear pronouncement that following the abandonment of the site by the scrapyard the use made by ABP was, as indicated on behalf of the applicant, under the GDPO – with no intention or need to continue any B8 use. In fact it seems that the application was initially put on the basis that the use by JM Envirofuels was an extension of the GDPO 1995 use rather than a separate B8 use.  This is something for the Council to take account of, analyse and see what assistance it gives. The report to Committee makes nothing of the argument even though it appears the applicant raised it and officers must have thought about it due to advice officers gave to the applicant that caused the applicant to amend its basis of claim.

 

7. Failure to include other material relating to this application on the planning portal

 

1. The Sefton Case

We do not have access to the full report on the Sefton[2]case where a small section has been added to the portal. We do not believe that this document will be an important point for the applicant but it does appear to us to make points against the applicant. Unfortunately, on what is disclosed, it is not at all clear what all the issues were in the Sefton case and how the inspector dealt with everything. On the other hand, it is the applicant’s decision not to share that information assuming that the Vale of Glamorgan officers have added all the documentation to the planning portal. If the officers have accessed the full report perhaps they could have added the full report on the planning portal. If the officers have not accessed the full report, why not?

 

1. Berth 31 was subject to enforcement visits yet these reports are withheld from the planning register

A further failure of disclosure on the planning portal became apparent when viewing the officer’s report to Committee. Surprisingly, this arises due to some investigation actually carried out by the officers and is referred to in the report to Committee. It is perhaps unfortunate that there is nothing on the planning portal to inform the public even though it was considered important enough to be reported upon.

 

The interesting paragraph in the officer’s report tells us that officers attended at this site in 2009 and 2011 to consider planning enforcement issues. No proceedings were taken and the officer’s report accepts that B8 use was noted.

 

What appears in the officer’s report for the Planning Committee might be considered by some to make no sense and is in need of better disclosure and/or some explanation.

 

The officer fails to acknowledge that on the face of it the B8 use was a breach of planning control and enforcement shouldhave been taken. There must be a reason why enforcement was not taken. The Council (officers) must have decided that the use fell within the GDPO (1995) which would mean that it is not B8 and not unlawful use. This suggestion might very well be supported by the Sefton case that the applicant relies upon.

 

It seems to follow that the officers decided back in 2009 that the scrapyard at Berth 31 was not in breach of planning control. The likelihood is that the officers concluded that the scrapyard was operating under the GDPO back in 2009 and there was no B8 use that the present applicant can rely upon. An officer might for example have noted the use would be B8 save for the use within the GDPO which might explain the lack of enforcement. Alternatively the Sefton case might have the answer to this dilemma and support the view that the use in 2009 was indeed pursuant to the GDPO and was not an unlawful B8 usage.

 

1. The Fire Prevention and Management Plan

One of the documents that is available to the Council and the Council’s officers is the Fire Prevention and Management Plan (FPMP) submitted by the applicant to Natural Resources Wales in the middle of 2017 and updated during 2017. The FPMP confirms that the applicant not only meant to store wood fuel for the incinerator but also to shred wood. Such activity would take the use outside B8 into B2[3]. We will deal with the relevance below.

 

This document is important yet is not available on the planning register. It may have been provided by the applicant or not. The failure to have relevant information on the planning portal makes it impossible for any member of the public to be sure that they know the full relevant details of the application so that they are able to make investigations and comments.

 

 

 

Back to the main issue – was the land used continuously for industrial storage only for the last 10 years?

 

Pre-2004

The assumption is that ABP made use of the land under the GDPO. Nobody suggests anything different and the use was lawful.

 

2004 – 2011

The site is occupied by Dunn Brothers for scrap metal. Provided their use is consistent with B8 (the Sefton case tells us) this use would be permitted under the GDPO and not therefore unlawful. Officers from the Vale of Glamorgan inspected the operation in 2009 and took no action against them. This would seem to support the view the officers were satisfied that the use came within the GDPO.

 

What the Sefton case appears to tell us is that if the scrap is on the Berth for transport by sea and there is no (or no significant) processing then it comes within the GDPO. Put another way, if the use could be B8 and if the scrap is leaving by ship then the GDPO permits it.

 

The relevance of this is that the applicant cannot rely on occupation by Dunn Brothers to prove the land is entitled to a lawfulness certificate for B8 use.

 

2011 – 2013

It looks as if the Dunn Brothers scrap business was taken over by SIMS. They checked with the Vale that the use of the Berth was lawful, the officers attended again in 2011 and confirmed this to be the case. If the business was being operated as a B8 business for planning purposes the officers would not have advised SIMS the operation was lawful. However, if the business was equivalent to a B8 and the material was leaving by ship then the officers would have confirmed the operation was lawful as permitted under the GDPO. See comments above re the Sefton case.

 

The relevance of this is that the applicant cannot rely on occupation by SIMS to prove the land is entitled to a lawfulness certificate for B8 use.

 

If the Committee disagrees with that analysis the Committee needs to consider whether SIMS abandoned B8 use when it vacated the site. We would say that it is obvious that it did and that decision would have meant that B8 use up that point cannot be relied upon by the applicant. Abandonment brings to an end such unlawful use. The evidence submitted by the applicant and attached to their account tends to show that any B8 use was effectively abandoned by SIMS much earlier than when the lease was finally handed in. There appears to have been no scrap moved by ship for some months prior to the handing in of their lease.

 

If we are correct then the application fails on this point. There is no evidence at all that ABP intended to keep any B8 use alive and there is no evidence of any agreement with SIMS to achieve this. Far from it.

 

2013 – 2017

The letter of 28th July 2017 from WYG makes reference to Part 17 GDPO which is another very useful indicator that there was a break in the continuity of any B8 use and that the 10 years continuous use is not made out. Officers should have considered this as a significant admission by the applicant. It was their first basis for a claim, it was presumably considered to be their best basis for a claim for a certificate of lawfulness with their second basis having to be created when their best was shown to be deficient. In short, the applicant’s initial representations tend to show that this period now being considered could not be unlawful B8 use.

 

ABP did not need B8 and has probably never asked for such a facility. There is no evidence to the contrary. (We will be commenting on the use made by ABP shortly).

 

As a statutory undertaker ABP would have noted that there was no planning permission for B8 use and would have sought to formalise the position if they needed it. They did not need it. Indeed we can extrapolate from the officer’s report that ABP relied on the GDPO for its general cargo handling prior to 2004 so why, we ask rhetorically, would they rely upon what was at best an unlawful B8 use? ABP would not and did not proceed with B8.

 

Any use by the Statutory Undertaker (ABP) will have been permitted under the GDPO and will not therefore have been B8 use. ABP will have worked under the GDPO for years and would continue to do so.

 

Use of Berth 31 by ABP during the relevant period:

 

In case it is still relevant we now turn to the use made by ABP during this period relying on the evidence produced by the applicant: –

 

1              We do not see any admission by Mr Windeatt on behalf of ABP that ABP has used Berth 31 relying on unlawful B8 use. We assert that this is a fatal omission by the applicant. We also assert that the reason this is not included is obvious – there was no such use. The applicant knew it was important to include this in the evidence but they could not obtain such an admission. The omission is important. In fact, Mr Windeatt makes it clear that ABP made use of Berth 31 as a “common user, general cargo terminal”. If ever there was a declaration of GDPO use and not B8 use then that surely is it;

2              The applicant shows uncertainty within the Statutory Declaration of Mr Windeatt in the final paragraph. ABP would like to have more cargo through its port as that is how it makes its income but its comment about loading and unloading is only a wish on ABP’s part and clearly inappropriate. A ship is not going to be loaded with the fuel for delivery just down the road especially as the amount that the incinerator can receive in one go is limited and the incinerator has to check and weigh all fuel received. The final paragraph of this report is at odds with discussions and investigations the officers have had direct with the applicant as the report to committee makes it clear

“As referenced above, the proposal initially sought to rely on the provisions of Part 17, Class B of the GPDO, which relates to Dock, pier, harbour, water transport, canal or inland navigation undertakings and the applicant contended that this would comprise a permitted Dock use. However, following consultation with the Council’s legal officer, the applicant was advised that the Local Planning Authority do not consider the use would benefit from these permitted development rights, principally because the majority of the material would be arriving by road.”

3              there is a distinct lack of material in the statutory declaration of Mr Windeatt when it comes to the use of Berth 31 by ABP following the surrender of the lease in 2013. The statutory declaration contains no real detail on which it can be said that on balance of probabilities any particular use was carried on at any particular time. In any event the use described is clearly use under the GDPO and not B8. For some reason this does not seem to have been considered by the officers in their report to the Committee. Bearing in mind there was an obligation on the applicant to prove continuous B8 use it is very telling that the applicant has skirted over this period of time.

4              The applicant has supplied a table of ship movements from 4 March 2013 to 22 December 2017. Examination of this document leads you to question its provenance. The schedule does not give any indication that it relates to Barry docks nor that it is limited to Berth 31. Let us first of all address this schedule on the assumption that it does relate to Berth 31 only.

1. The schedule tends to show that there was no loading or unloading of scrap from the beginning of March 2013 onwards. This would tend to show that the abandonment of any B8 use by SIMS could have been earlier than June 2013 (as asserted by Mr Windeatt). This is an anomaly that the applicant should have dealt with. The applicant chose not to deal with it and any inferences to be drawn should be drawn against the applicant. At the least it tends to show a gap in the period of any B8 use.
2. From at least 4 March 2013 until 19 September 2013 there appears to have been no loading or unloading at berth 31. This is a period in excess of 6 months. There is no explanation as to why the schedule begins on 4 March 2013 but we would suggest that the council should not assume that that was the beginning of the period when there was no movement of goods from Berth 31. The council should therefore take this schedule as indicating that for a period in excess of 6 months the evidence shows there was no activity that comes close to B8.
3. The schedule then deals with the following period of approximately 50 months. During that period of 50 months there was a maximum of 13 incidents involving cargo ships. At least 7 of these appear to relate to the use by GLJ Recycling who started business in June 2017 at Berth 31. Prior to the scrap metal business the amount of cargo on each visit was very low. This would tend to demonstrate that the description given in the statutory declaration as to the use made of Berth 31 by ABP was kept particularly brief with the problem that it might tend to give an impression of greater use. Bearing in mind what is shown by the schedule relied upon by the applicant it is quite clear that the applicant must have been aware that this part of the statutory declaration needed to be better drafted to give an accurate picture of what was happening at berth 31 at the relevant time. The applicant chose not to give the necessary information to the council and therefore any inferences must be drawn against the applicant’s interest. The lack of use together with the lack of detail should not have the impact of the council filling in gaps and doing so in a way that assists the applicant when the applicant has decided not to fill in the gaps for itself. The inference has to be drawn that there was insufficient, if any, use by ABP that involved storage etc during the period between 2003 and 2017.

There are available on Google Earth two images of the site that are of some assistance and which are included at Appendix 1. These show the condition of the site in July 2013 and August 2016. It is submitted that these are more consistent with an abandonment of any B8 use rather than any form of continuation. These images help to illustrate the point made above that no B8 use was ongoing during that period.

 

2017 – 2018

The only period that the applicant might rely upon post the abandonment by SIMS is that period during which the present scrapyards occupy the site and of course the occupation by the applicant.

 

However, if there has been a break in continuity of any B8 use the application fails. The present scrap use appears to be similar to the use made in the period 2004 – 2013 and therefore it is GDPO. The evidence submitted on behalf of the applicant tends to support that view due to the level of export of scrap metal that has been taking place during this period.

 

It follows from all that we have said that throughout the period the only use made of Berth 31 that involves possible unlawful planning use is the area and period occupied by and used by the applicant. That does not get close to qualifying for a certificate of lawfulness.

 

Present use by the applicant:

The applicant appears to have made it clear in 2017 that shredding is an intended (and perhaps necessary) use at this site. That seems to be the basis of its occupation. If that is the business plan underpinning the occupation then the applicant has already abandoned any B8 for the area it occupies in favour of B2. If it is abandoned then it may be that it is no longer entitled to revert to any B8 as a route to seeking to achieve authorised B2 at a later date. This would appear to apply even if no shredding has actually taken place yet.

 

Looking at the applicant’s intention is an important tool to decide the basis on which the applicant has occupied and is occupying the site. The council officers do not appear to have checked this point which, on the face of the public material, is there to be considered and decided. If, as appears may be the case, the applicant’s occupation is as set out in the FPMP then the applicant has not only opted for B2 use but by implication has abandoned any B8 use. The effect of this, if it has occurred, is not dealt with anywhere in the report put to the Planning Committee. The assumption is that the officers have not carried out this basic research or if they have they have not shared any analysis with Councillors.

 

This is where we believe the case report of Sefton is important as it seems to deal with the issue and to assist to demonstrate the real nature of the use being put to the land by the applicant. It might be that the shredding is also an element of the occupation that (according to the case of Sefton) takes it outside any possible GDPO use. Officers have not suggested this but they may not have looked at the FPP in connection with this analysis.

 

The FPP was clearly available at the time of the submission of the application for a Certificate of lawfulness; the applicant will have known that this needs to be addressed by it as the applicant took expert advice throughout the relevant period; the failure of the applicant to deal with this point should mean that the issue is taken against the applicant and that consideration is given to this application on the basis that the present use is not B8 but B2 and this is the situation since the applicant took possession. Yet another reason why the application should fail.

 

In the report to Committee the officer asserts:-

 

“the proposal relates to the use of the land and not operational development.”

 

It might be that this assertion, that might be accurate in many similar applications, has been taken too literally by the Officers. The officers may be wrong to assert that operational development is irrelevant for the determination of this application but, with respect, that leads the officers down the path of error as looking at what has happened on the land and what other submissions have been made in relation to the land is what gives officers the opportunity to test what is being asserted by the applicant. What is said in their FPMP needs to be investigated because of its possible direct impact on this application.

 

SUMMARY

 

The application for a certificate of lawfulness must fail. There is no continuous use of B8 for 10 years. The evidence tends to show that

1              there was no unlawful use up to the end of the use by Dunn Brothers and then SIMS in about 2013;

2              if there was unlawful B8 use up to about 2013 this was abandoned by SIMS at least by March 2013. That brought to an end the period that was counting for any B8 certificate;

3              After that abandonment there was a period of at least 6 months with no loading or unloading at berth 31 which tends to support the view there was no commercial activity at the site for that whole period which is further evidence of abandonment of any unlawful B8 use.

4              The use of the berth 31 by ABP was under the GDPO 1995 and not a continuation of any unlawful B8 use.

5              The FPP produced by the applicant and submitted to NRW tends to support the view that the applicant has abandoned B8 in favour of B2 due to the processing of wood.

6              The only unlawful use on this site is by the applicant and that does not amount to sufficient for a certificate of lawfulness.

 

APPENDIX 1

 

This is a view of the site as at 11^thJuly 2013

This is a view of the site as at 20^thAugust 2016

 

 

[1]See the appendices and below

[2]This was a planning appeal involving the Metropolitan Borough of Sefton where the applicant has supplied a short extract.

[3]B2 is similar to B8 but includes processing of the material.