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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Innes v Secretary of State for Communities and Local Government [2016] EWHC 1104 (Admin) (06 April 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1104.html Cite as: [2016] EWHC 1104 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6 April 2016

1. MR JUSTICE DOVE: There are two applications before the court today. They both relate to challenges to an appeal decision which was reached on 27 January 2016. Firstly, there is a statutory challenge brought under section 288 of the Town and Country Planning Act 1990 in relation to the dismissal of two appeals against the refusal of two applications for certificates of lawful use or development. The first of those was made by way of an application dated 7 November 2013 and refused on 21 February 2014. The Inspector's summary of that use or development which was sought is "the re-siting of an existing ready mixed mortar mill". The second certificate of lawful use or development was applied for again on 7 November 2013 and again refused on 21 February 2014. The Inspector's summary of the development involved was "the use of the land for the stationing of a mobile mortar plant".
2. The wider area of land with which this case is concerned was granted planning permission in 1949 for the winning and working of sand. Three pits were identified as part of that application, denoted as pits A, B and C. Pit C was subsequently expanded by the further grant of planning permission. Those mineral planning consents were the subject of an application under the Environment Act 1995 for a review of the old mineral planning permissions and consent was granted in January 2001 for a revised scheme of modern mineral planning conditions to apply to the consents and an end date was imposed for the working of 2033. As is rightly pointed out by Mr Jonathan Clay, who appears on behalf of the claimants, that process did not create any new planning permission.
3. Following that, in 1957, a further planning permission was granted. That was on the basis of an application which identified the development proposed as being "alternative site for an existing ready mixed mortar mill to be moved from site A in the interests of the restoration of the sand pit". The permission which was granted identified the development as being "re-siting of existing ready-mixed mortar mill". It was made subject of two conditions which are not pertinent to the matters before me.
4. It appears that that mortar mill continued in use until it was replaced in between August and October 2002. In around July 2002 a new lease had been granted in relation to the area of land on which the mortar mill was sited. They occupied the site and brought a new mortar mill onto it in order to undertake the production of mortar which remained there until 2010. Following that a third occupant moved onto the area of land concerned in order to continue to undertake production of mortar, they in their turn bringing onto the site yet another new mortar mill.
5. The local authority, in addition to refusing the certificates of lawful use in relation to the application which had been made before them, also issued an enforcement notice dated 30 September 2014. That identified as the breach of planning control the construction of a concrete surface and erection of fencing, storage bays and other fixed infrastructure (formerly used in connection with a mortar plant since removed) shown in a position which was identified on a plan attached to the notice. The requirements of that notice included the removal of the storage bays and fencing together with the removal of concrete surfacing and concrete walling from the land denoted on the plan attached to the notice. Alongside the appeal against the refusal of the lawful use and development certificates the claimant also launched an appeal against the enforcement notice which I have just described. All three of those appeals came before the Secretary of State's Inspector and were determined following a public inquiry in the decision letter published on 17 January 2016.
6. It is important to appreciate that the wider area of land which I have described as having the benefit of the 1949 and then 2001 permissions is far greater in its extent than that which was the subject of the application and the enforcement notice. The land which was the subject of the certificate applications and the enforcement notice, and which was therefore in effect the appeal site, is a far smaller triangular area. That area has been let out separately from the larger land holding. It has been let out regularly and used for the purpose of the production of mortar over the years in the manner which I have set out above. It is adjacent to land to the north which has the benefit of a lawful use certificate issued by Tandridge District Council for the use of that more northerly parcel of land as a tile manufacturing facility.
7. It is against that background that the Inspector came to form conclusions, firstly in relation to the lawful use certificates. It is important, of course, to appreciate that there is an interrelationship between the issuing of the certificates and the making of the enforcement notice and the respective appeals in relation to them. Clearly, the appeal under section 174 of the Town and Country Planning Act 1990 upon Ground (c) turned on the question of whether or not the development was lawful. That in turn engaged the same questions which the Inspector had to deal with in respect of the lawful use certificates. The Inspector, having set out the history of the matter in a little more detail than I have summarised above proceeded to analyse the submissions which he had received on both sides of the argument as to whether or not it was lawful for either of the activities proposed in the certificate to proceed. His conclusions in relation to those matters merits setting out at some length in order to understand both the conclusions themselves and also the arguments which I have heard ranged before me today. His conclusions were as follows:

"24. Looking at the submissions made by the appellant, and taking into account all the evidence presented at the Inquiry, there is no doubt that the 1957 permission was a full permanent permission but in my view it was for an operational development not a use of land. Nowhere in the application form or in the decision is there any mention of the words 'use of the land' be that for mortar production or anything else.

25. Whilst plant and equipment, even if it is comprised in a building, is not a building (by virtue of the definition in s336 of the Planning Act) and not a building operation, it can be an engineering or other operation that results in a structure being erected on a site which can then be used for the purpose for which it was designed (subject to any planning conditions). As cited by the Council and set out in Iddenden [1972] 3 All ER 883 by Buckley LJ, when a building is demolished any use rights are then lost. I agree with the Council that the same would apply to a structure and once the mortar mill had been removed in 2002 so did the use. There was no mortar mill there, so no mortar production activity could take place.

26. Whether an operation or a use of land was involved in setting up the mortar mill on site is a matter of fact and degree and could only be determined if details of the structure(s) comprising the mortar mill were provided but there was no evidence that could be examined put forward from either side on this point. The only evidence was a black and white 1981 aerial photograph from which it was impossible to determine anything about the nature of that original mortar mill.

27. The onus in a LDC appeal is firmly on the appellant to prove his case (albeit on the balance of probability) and in my view nothing was put forward to support the claim that in 1957 a use commenced on site rather than an operational development had taken place. The appellant referred to the most recent occupier of the site and argued that his mortar mill was a mobile piece of equipment that was brought to the site on a lorry and simply swung upright and used so no operational development was involved.

28. I will come back to this point later in considering the possibility that what took place in 1957 was a change of use rather than operational development but do not need to comment on that proposition at this point other than to say that what may have been put on the site in 2010 has no bearing in determining what might have transpired in 1957. There have been many and varied advances in technology since the 1950s and considerable changes in this type of apparatus/machinery.

29. Turning to the claim that the appeal site became a separate planning unit when the 1957 permission was implemented, I agree that a different activity took place to what was occurring on the remainder of the application site land in the ownership of the Titsey Estate Company. It was an industrial use and therefore functionally different but it was not physically separated from the rest of the land. It was only very recently that a fence and gates were erected and before that access into the site from the haul road was free and open. Vehicles transported sorted and washed sand directly to the site from elsewhere on the larger site although there was no connection between the companies involved.

30. Using the tests in Burdle v SSE [1972] 3 All ER 240, which were referred to by the appellant, it seems to me that there was a composite (mixed) use on the site rather than two separate planning units. Whilst there was functional separation there was no physical separation (the site being accessed directly off the track to Pits B and C) and neither activity (the mortar production and the sand extraction) was ancillary to the other.

31. Dealing with the other point made by the appellant concerning the planning unit, I do not agree that the implementation of the 1957 permission extinguished what was permitted in the 1949 permission; as set out above no separate planning unit was formed that would, in the appellant's submission, result in that. More importantly, using the appellant's own argument, a later permission has been granted (the 2001 permission on the 1998 ROMP application) that shows the land being restored to agricultural use once extraction has finished.

32. Here the ROMP permission is inconsistent with the 1957 permission but mineral operations continue on the basis of the 2001 permission and the owner has not yet had to decide between the two. Even if I am wrong regarding the planning unit and the appeal site is a separate planning unit, the owner can still carry out what is in that 2001 permission where it relates to the appeal site (it is to be restored and used for agricultural purposes) as he owns all the land.

33. In my view, there are, therefore, two planning permissions that co-exist on the appeal site; the 1957 permission to site plant and machinery there (to produce mortar) and the 2001 permission (on the 1998 application) to extract sand (even though the actual appeal site was not an area from which sand was likely to be extracted). As cited by the Council, Lord Scarman in Pioneer Aggregates (UK) Ltd v SOS [985] 1 AC 132 said 'It is of course trite law that any number of planning permissions can validly co-exist for the development of the same land, even though they be mutually inconsistent …'. The landowner is not precluded from implementing the most recent permission when he chooses to do so.

Main Conclusions on Appeals B and C

34. In summary, from the evidence and submissions put forward, I conclude firstly, that the 1957 permission was for an operational development, not a material change of use of the land. Secondly, the only 'use' permitted was by virtue of the mortar mill being used for its intended purpose i.e., the equipment could be used for the production of mortar whilst it was on the appeal site. Thirdly, the appeal site did not become a separate planning unit but was part of a mixed or composite use of all of the land included in the 1949 permission (and later the 2001 permission); use for mineral extraction and use for mortar production. Fourthly, permission to site a mortar mill on the site ended in 2002 when what had been put there in 1957 was removed. Fifthly, the mortar mill put on the site in 2002 and the one put there in 2010 were unauthorised developments."

8. On the basis of these conclusions the Inspector formed the view that the appeals against the lawful use or development certificates should be dismissed. That had obvious knock-on consequences for the enforcement notice for the reasons which I have set out above.
9. Notwithstanding this conclusion, the Inspector went on to address an alternative argument in the event that he might have been wrong based on whether or not there would have been permitted development rights to undertake that which was comprised in the certificates. He expressed himself in relation to that alternative contention as follows:

"36. Even if I am wrong in my conclusions set out above and, as the appellant claimed, (i) there was a permission for a General Industrial (Class B2) use of the site in 1957 (see para 28 above), and (ii) the site did become a separate planning unit at the time that permission was implemented, I still consider that the decisions were well founded. In my view the development would not have been lawful by virtue of being 'permitted development' not requiring planning permission, as submitted by the appellant.

37. The Council acknowledged that if the 1957 permission was for a use there had clearly been continuous use for the production of mortar (a Class B2 - General Industrial use) for in excess of ten years. It was also accepted that the use had not been abandoned even though the site was unused from 1995 to 2002.

38. The appellant submitted that in those circumstances the development would be lawful by virtue of Part 8, Class B of the Town and Country Planning (General Permitted Development) Order 1995 (GPDO); that was the Statutory Instrument in force at the date of the LDC applications and issue of the enforcement notice. That 'Part' of the GPDO allows development carried out on industrial land for the purposes of an industrial process subject to a number of restrictions.

39. There are several restrictions that need to be satisfied in that respect. Firstly, the development permitted by Part 8, Class B does not apply to land 'in or adjacent to and occupied together with a mine'. Secondly, it is not permitted if it would materially affect the external appearance of the premises of the undertaking and thirdly, it is not permitted if it would exceed a height of 15 metres above ground level or the height of anything replaced whichever is the greater.

...

43. The proper interpretation, in my view, is that 'within a mine' is within the site area covered by the red line on the application and this site is within the area contained within the 2001 ROMP permission (and was within the 1949 site). In this instance even if the appeal site was a separate planning unit it is also still adjacent to that red line area which virtually surrounds it. Adjacent (which is not defined in the GPDO) is something that should be given its everyday meaning. That does not necessarily mean touching. Something that is close to or near to something else can be adjacent to it. This has been settled by the courts in considering first abutting and then adjacent as it applies in Part 2, Class A of the GPDO (whether a fence, wall or other means of enclosure is adjacent to a highway used by vehicular traffic). It is a matter of fact and degree and the circumstances pertaining to the case to be determined.

44. Looking at this site, only an access separates the eastern boundary of the appeal site from Pit A. The access track to Pit C adjoins the south western boundary and walking away from the appeal site going to the north west, one only has to go about 40 metres to be in Pit B which is still being used to process the sand extracted from Pit C. From what I saw at my visit I would describe the appeal site as adjacent to the mine both to the north west and to the east. The fact that a track is between the site and Pit A does not, from what I saw on site, mean it is not adjacent to Pit A and, therefore, the mine.

...

47. There are two requirements (as set out in para 39 above). Looking at the photographs produced by the Council, which show the previous mortar mill put on site in 2002 (a photograph taken in 2010 shortly before its removal) and the most recent one (put there in 2010) which was removed shortly before the LDC applications were submitted, the appellant cannot satisfy those requirements.

48. From the information put forward in evidence, the recent mortar mill and its associated silos far exceeded the height of what was there before even if the silos did not exceed 15 metres above ground level) thereby complying with that subsection). Further, the bulk and overall appearance of the mortar mill and tall silos is, in my view, materially different to what was there before. The external appearance of the site is, therefore, materially affected wherever one views it from with the equipment on the site appearing much larger, much taller, and covering more of the site area. Appeal B (for an existing use) therefore does not, in my view, meet the restrictions in Part 8, Class B.

49. On Appeal C (proposed lawful use) there was no actual scheme before the Inquiry. The appellant argued that any mortar plant that met the restrictions in Class B would be lawful and the limitations of the Class could be spelt out in the Certificate but that would [be] the same as granting a certificate for an extension to a house and then listing all the various restrictions it would have to comply with. That will not suffice; the application must be specific enough for the decision maker to determine whether or not what is being applied for is lawful. In this instance that has not happened. If the intention was that the occupier who recently vacated the site would return then I have already concluded that his mortar mill would not be lawful."

10. The Inspector, having reached the overall conclusion on his alternative basis as well as on the principal basis that the lawful use or development certificates should be dismissed, went on to consider the enforcement notice. As I have explained above, the conclusions in relation to the Ground (c) appeal against the enforcement notice were, in effect, parasitic upon the conclusions on the certificates.
11. There were, however, freestanding arguments in relation to the elements of the development against which enforcement action was taken, including in particular the concrete pad or surfacing at the site in respect of which enforcement action had been taken. There was an appeal under Ground (f) in that respect and in particular it was contented that the requirements which were specified in the notice as to what needed to happen to bring the site back within planning control were inaccurately and imprecisely drawn so as to be uncertain and inappropriate.
12. The Inspector acceded to that appeal to the extent that he reworded the notice and deleted words within it and replaced them with "remove the concrete surfacing to restore the land to its condition prior to the concreting works carried out at the end of 2010". His justification for doing so was contained in the following reasoning within the decision:

"77. The concrete surfacing that was put there at the end of 2010 should be removed. I acknowledge that in these circumstances there is always a problem in knowing precisely what was there before the unauthorised works were undertaken but there is photographic help in this instance and there may be more photographs that were not put before the Inquiry to aid further in resolving how much of the concrete surfacing was already there.

78. This is not unusual in such cases and it will be a matter for the parties to agree. Clearly the Notice cannot require the appellant to remove any surfacing that was lawful. Whilst there was no appeal on ground (g) and it was not discussed at the Inquiry I consider that the extra time set out in the requirements (16 weeks rather than the 8 weeks set down for compliance with all other matters) regarding the removal of the concrete surfacing is adequate to enable that agreement to be reached."

13. The challenge to the decision letter is advanced by Mr Clay on a number of footings. It is important, in my view, as he did, to start with the matters which are raised under the section 288 challenge to the certificates.
14. The first argument or ground of challenge that is raised is that the Inspector erred as a matter of law in his construction of the 1957 consent and its effects. I accept, and it is trite law, that the construction of that planning permission is a matter of law and that the court therefore has a jurisdiction to exercise as to whether or not the conclusion that the Inspector reached was indeed the correct construction. In my view, I am entirely satisfied that the Inspector was correct to identify that the permission which had been granted in 1957 was for operational development in the form of the engineering operation involved in re-siting the plant which was used to manufacture mortar and did not embrace within it a change of use of the application site. I have reached that conclusion, as he did, on the basis of what is set out on the face of the consent document. It talks specifically, as set out above, about "re-siting" the mortar mill plant. It does not in any way refer to any change of use of the land on a permanent footing.
15. The question which then arises is as to whether or not that conclusion having being reached it has the consequences which the Inspector identified in paragraphs 24 to 34 of his decision that I have set out above. Firstly, it is submitted by Mr Clay that as a matter of principle the removal of the plant could not have the consequences which the Inspector found, namely that the ability to use the site for mortar production had ceased. Secondly, he submits, and in any event, the reasoning which the Inspector deploys in order to explain his conclusions in this respect are unclear, opaque and inconsistent.
16. In my view, it is sensible to start with that second submission. I was during the course of argument, and remain to some extent, a little concerned in relation to the strength of the Inspector's reasoning in terms of its clarity and consistency. However, applying the commonsense approach to construing a decision letter and its reasons, I am satisfied that it is not arguable that those reasons are so inadequate or unclear as to justify the grant of permission in and of itself. Concerns relate, for instance, to the use of the language in paragraph 25 about use rights being lost. Similarly, the expression at paragraph 33 as to the 1957 and 2001 permission co-existing in the present tense seem to me to have been clumsy but not in any way arguably unlawful. Paragraph 34, which was the subject of detailed examination during the course of argument, gives, in my view, a clear understanding of the Inspector's conclusions as to the effect and proper legal impact of the 1957 permission and then the removal from the site of the mortar mill.
17. Clearly, when permission was granted to re-site the mortar mill, that included as implicit within it, or (as Mr Williams submits on behalf of the defendant) derivative from it, the right to press the start-up button (or whatever similar mechanism there may be for putting that plant in motion) and then allowing it to produce mortar. However, in my view, the Inspector was right to conclude that once that plant was dismantled, the right to operate it clearly departed with it. Any further use for mortar extraction could not occur without the grant of further planning permission on the basis that the planning consent that had been granted in 1957 was, as I have set out above, clearly operational rather than engaging a permanent change of use in the land. Further, the Inspector in paragraph 34 makes clear that once the mortar mill had left in 2002 the right to operate it left with it and the subsequent mortar mills which were placed on site in 2002 and then 2010 were unauthorised development. Those unauthorised developments did not themselves give rise to a lawful change of use in the land. Thus his conclusions are clear, in my view, in paragraph 34, that whilst the operation of the plant granted permission in 1957 was lawful up until that plant was dismantled in 2002, thereafter the subsequent iterative erection of new mortar mills did not give rise to any lawful use of the site. Whilst the Inspector placed reliance on the case of Iddenden, that is not four square an answer to the point. The point is, in my view, perfectly clear from the planning permission and whilst Iddenden is undoubtedly helpful by way of analogy in any event as a matter of principle the only use which that consent brought with it was a right, as I have set out above, to use or operate the plant itself. When the plant went, the right to use that plant departed with it.
18. It follows that I am satisfied that the conclusions as to the effect of the 1957 consent are robust and also the reasoning provided by the Inspector is not arguably either inadequate or legally inaccurate.
19. The next ground of challenge is based upon the Inspector's conclusions as to the planning unit and the fact that there was a wider planning unit than the appeal site itself and one which had, certainly between 1957 and 2002, a mixed or composite use as described in paragraph 34. Mr Clay complains that the Inspector does not deal adequately or appropriately with the tests as to the definition of the planning unit, set out in particular in the case of Burdle v Secretary of State for the Environment [1972] 3 All ER 240. He draws attention to the fact that in that case Bridge J (as he then was) placed particular emphasis on the unit of occupation as being the starting point for the purpose of analysis. At page 1212D, Bridge J sets out three non-exhaustive but potential categories of distinction which relate in particular to "the whole unit of occupation". In that respect, Mr Clay contends that the Inspector misdirected himself in that he does not address the question of how the site had been let and the fact that it had been occupied separately and for a particular use, namely for the production of mortar, from at least 1957. He therefore submits that there was a material misdirection of law and/or a perverse outcome to the Inspector's assessment of the appropriate planning unit.
20. Having considered those submissions, in my view they are not arguable. It is clear from paragraph 30 that the Inspector has had clearly in mind the leading case of Burdle, having received submissions about it further to him reaching his conclusions. I accept that the proof of that particular pudding is in the eating, and the question of whether or not he has properly applied the planning judgment necessary in order to identify the correct planning unit should be examined, but when one examines paragraph 29 it is clear that the Inspector had firmly in mind the functionally different use of the land but reached his conclusion on the basis of physical separation which he identifies qualitatively in terms of the means of enclosure and the use of the haul road. In my view, those were matters which were open to him on the basis of exercising his planning judgment. Whilst it is a conclusion which is unacceptable to the claimant, it is not one which bespeaks, in my view even arguably, a failure to probably direct himself to the relevant issues which he had to take account of in resolving the issue. He is clearly in paragraph 29 alive to the fact that the site was not only functionally different but also occupied separately from the remainder of the land ownership.
21. There is a further subsidiary point which is raised by Mr Clay in relation to the question of fairness. This arises because in a draft statement of common ground the mineral planning authority who had refused the certificates and issued the enforcement notice appeared ready to sign up to the proposition that the appeal site was a separate planning unit. They did not in fact execute that statement of common ground but nevertheless in the course of cross-examination it is evident from Mr Clay's closing submissions the council's witness accepted that there was no evidence that the council could provide in order to gainsay the proposition that it was a separate planning unit. On this basis it is submitted that the Inspector departed along an avenue down which he was signposted neither by the appellant nor the council and that he could should not and could not properly have done so without providing the opportunity in fairness for there to be an adequate response to those concerns.
22. The difficulty, in my view, with that submission is fully addressed in Mr Williams' response, namely that in full and detailed closing submissions Mr Clay, on behalf of the appellant (as they then were), set out fully the nature of his case in respect of the planning unit and had a full opportunity, which he took, to make representations on the point notwithstanding the equivocation of the council. In those circumstances, I do not consider that it is arguable that there has been any unfairness in the way in which the matter was addressed.
23. That deals with the contentions which are raised in relation to the principal way in which the Inspector concluded that the appeal should be dismissed. I am satisfied for the reasons which I have set out above that there is no arguable basis upon which the Inspector's conclusions could be challenged.
24. In any event, Mr Williams is right to point out that the claimant in this case would need to demonstrate not only that their propositions in respect of the first element of the Inspector's conclusions from paragraphs 24 to 34 were arguably wrong but also that his alternative analysis set out in paragraphs 36 to 49 was also wrong. Those conclusions are articulated by the Inspector on the basis that he may be incorrect in his earlier assessment that the council were, for the reasons they had given, correct to refuse the certificates. It is therefore necessary for Mr Clay, to challenge the Inspector's conclusions in respect of the permitted development rights points, and he does so.
25. In my view, there is, at least arguably, a difficulty with the Inspector's approach to whether or not the appeal site was one which was industrial land on the presumptions set out in paragraph 36 and in particular the second presumption that it did become a separate planning unit at the time when the 1957 planning permission was implemented. It is, in my view, troubling that the Inspector concluded that on that assumption the land would be in or adjacent to a mine. If the land had become a separate planning unit, it is difficult to envisage how that conclusion could properly have been reached. Further, and in any event, as Mr Clay points out, the Inspector does not appear to have grappled with the cumulative requirement that the land should also be "occupied together with a mine" when the suggestion that it was a separate planning unit would again be inconsistent with any such finding.
26. Were that where the matter were to end I would regard that aspect of the case as arguable. However, this is another situation where the Inspector went on to assess the question of the alternative position even if he were wrong in particular as to the two additional requirements which it is necessary for permitted development on industrial land to pass before it can be properly identified as permitted by the GPDO. His conclusions in the case of both of the certificates are, in my view, entirely unassailable. Firstly, in paragraph 48, dealing with the question of the certificate for the existing use, he had evidence before him which he sets out in paragraph 48 to demonstrate that what had been on the site was in terms of its bulk and overall appearance materially different from what had been present previously and also that it exceeded the height within which permitted development has to be constrained. In so far as the proposed lawful use certificate, which was the second certificate appealed, in paragraph 49 he reached an entirely defensible and sustainable conclusion that it would be pointless for him to grant any certificate which merely specified what was already in the GPDO and, further, that in the absence of any specific identification of the scheme which was being complied with such that the decision maker could make a definitive determination the appellant had not proved its case in that respect.
27. I do not consider, therefore, that whatever may be the shortcoming of the Inspector's conclusions as to the land being industrial land there is any arguable flaw in the conclusion in which he reached in respect of the other requirements for permitted development in the relevant part of the GPDO. Thus, on the alternative basis there is no arguable flaw in the Inspector's conclusions.
28. I turn then to the single freestanding point raised under the section 289 challenge to the enforcement notice appeal decision on the basis that my earlier conclusions effectively dispose of the parallel points raised in the section 289 challenge as to the Inspector's conclusions on the lawfulness of what was proposed in the certificates and the Ground (c) appeal.
29. The freestanding point raised, as will be obvious from the extracts of the decision which I have set out above, pertains to Mr Clay's contention that the way in which the enforcement notice's requirements were recast leaves it uncertain and thus a nullity. He submits that requiring the removal of the concrete surface to the condition which it was in at the end of 2010 is uncertain and the Inspector's reliance upon such photographs as there might be or agreement between the parties does not provide a sufficiently certain or appropriate basis upon which to reach a conclusion.
30. I am not satisfied that those contentions reach the threshold of arguability. In order to demonstrate that the requirements in the notice were legally flawed and thereby a nullity it would be necessary for the claimant to be able to demonstrate, in accordance with the case of Hattingh v Secretary of State for the Environment, Transport and the Regions & Hertsmere Borough Council [2001] EWHC 539 (Admin), that the provisions of the notice were so hopelessly ambiguous and uncertain that the owner or occupier would be unable to identify with reasonable certainty what steps needed to be taken. I do not consider that that threshold is approached, let alone passed, by the submissions which have been made. It is clear that the Inspector having concluded that there were elements of the concrete surfacing which had been implemented in breach of control some means of establishing the extent of the breach had to be identified. I do not accept that in paragraphs 77 and 78 he is effectively conceding that it is uncertain and ambiguous as to what the state of the concrete surfacing was in 2010. Clearly there were some photographs before him. He was entitled to advert to the possibility that there may be other evidence upon which reliance could be placed. Ultimately, it is, in my view, sufficiently and reasonably identified in his alterations to the requirements as to what needs to be undertaken: that is the removal of concrete surfacing so as to restore the land to the condition prior to works carried out at the end of 2010. There was already some evidence in relation to that. Even if there were no other, that is a sufficiently clear requirement to enable, firstly, the claimant to understand what needs to be done in order to rectify the breach of control and, secondly, the council, if they are able to do so, to identify the extent to which they could demonstrate beyond reasonable doubt for the purposes of any prosecution that such requirements have not been complied with. I am therefore unsatisfied in relation to the freestanding point under section 289 that permission should be granted.
31. Mr Clay has raised in the particular circumstances of this case a somewhat anomalous position based on the fact that we have conjoined here a section 288 challenge in relation to which in the light of my conclusions he will be entitled to invite the Court of Appeal to reach a different view and a section 289 challenge in which my views in relation to whether or not permission should be granted are final.
32. It seems to me that there is some substance in his complaint that it may add to the legal complexity if in the circumstances of a case such as this he were to succeed ultimately in his section 288 challenge and be left with no redress in relation to the enforcement notice. Although in the course of argument I expressed the view that it seems to me that that is not an insoluble position, at least in theory, it seems to me that for the sake of good order it would be sensible, notwithstanding the fact that I have expressed views about the section 289 challenge, to adjourn the conclusion in terms of any order following this hearing to a point in the future after which any appeal in relation to the section 288 has been exhausted. If the Court of Appeal share my view that the section 288 challenge is unarguable, then at that stage an order can be drawn which will dispose of both challenges. If on the other hand the section 288 proceeds then my conclusions in relation to the section 289 challenge will be able to remain in limbo pending the outcome of those proceedings.
33. So for the purposes of today the order which I would invite the parties to draw up will reflect that conclusion, namely that permission is refused in relation to the section 288 challenge and that a final decision on the section 289 challenge be adjourned until the outcome of the section 288 proceedings are known, following which any final order can then be drawn up. So I think that leaves Mr Williams with the responsibility of drawing the order.