I'm A Car Breaker: Get Me Out Of Here

Growing recycling businesses can find themselves facing enforcement notices asserting 'material changes of use' at their sites which do not have planning permission. Michael Krantz, Head of Waste and Renewables, looks at how companies can get out of the planning jungle.

Roaring Recycling's managing director is in his office, feeling pleased with himself. He has invested in new equipment, substantially increased waste throughput, found new outlets for it and recruited additional employees. Then a knock at the door wipes the smile from his face. The visitor announces: "I am an enforcement officer from the council. The expansion of your business is not popular, and there have been complaints due to an increase in lorry movements and a lot more noise arising from your site." The managing director protests: "That is the inevitable consequence of our business becoming more successful." "We don't see it that way," the officer replies. "The intensification of the use of this site is a breach of planning control against which the council is entitled to take enforcement action."

This exchange may be one of fiction but it is certainly realistic. Many waste management facilities operate with the benefit of certificates of lawful use or relatively old planning permissions. The former cannot, and the latter often have not, imposed conditions restricting activity. Consequently, local planning authorities (LPAs) sometimes resort to the concept of material change of use (MCU) in an attempt to plug the gap. Generally speaking, planning permission is required for a MCU of land. But there is much debate as to whether mere intensification of use can amount to an MCU.

While it is generally accepted that just doing more of the same cannot of itself amount to an MCU, it is not so clear whether that is the case if it results in greater impact on the neighbourhood. This issue was at the heart of a planning battle between Hertfordshire County Council and Metal and Waste Recycling, which ended with a judgment in the Court of Appeal in October 2012. In May 2009, the council served two enforcement notices, the essence of which was the allegation that a scrapyard in Hitchin, which had the benefit of a 1972 permission, had increased its throughput so much that an MCU had taken place because the increase had caused more noise, vehicles and dust. The company successfully appealed against the enforcement notices, and the council's subsequent challenge to the inspector's...