Case No. UKUT-00192-(AAC)

13. A case worker employed by the OTC prepared a summary of the issues and competing arguments for the TC. That included the following observations and recommendation:“Mr Smith [that is an intended reference to Mr M Clark] explains that the land in question has been granted a Certificate of Lawful Use which gives a list of activities that are immune from law enforcement. One of these activities is the storage of civil engineering/commercial vehicles and building materials. He states, “Mr Pedal already has the right to deliver and collect from the site, this also includes deliveries to the site from suppliers of building materials so the activities are already legitimately being carried out without the need to apply for planning. There is little or no difference between storage and logistically removing a stored vehicle from storage to put to use so as it then becomes operational. To grant the operator’s licence would have no further detrimental effect on the surrounding area as the activities are being carried out on this site already and are lawful.The Council later confirmed that whilst they are aware the site benefits from a Certificate of Lawfulness for the storage of commercial/civil engineering vehicles and building materials, it is considered that amending this use to that of an HGV operators centre requires planning permission as the latter use is “sui generis” (within a class of its own) and as such permission is required to amend the use of the land. It is not considered by the Council that Mr Pedal’s application can be modified in a manner which would overcome their concerns. Mr Smith [Mr Clark] disputes this and states that the use of storage falls clearly within the defined limits of Class B8 and therefore cannot be sui generis”.“Harrogate Borough Council object to the grant of this application on the grounds of suitability and lack of planning permission. They believe a planning application would be refused by the local authority due to the close proximity of the adjacent SSSI. Their objection was received in time, copied to the applicants, and signed by a person authorised for that purpose, therefore I recommend it is ruled valid.There is an ongoing dispute between the council and the site owner Matthew Smith [Clark]. The site has been issued with an enforcement notice although not in relation to the use of HGV’s. At present no planning application has been submitted by the site owner. He believes planning approval is not required as the site has been granted a Certificate of Lawful Use which allows the storage of civil engineering/commercial vehicles on his land. The intended use of the site has been explained to the council, who confirmed the CLU does not allow the operation of goods vehicles and that a planning application for this use is required.Guidance confirms that a site is available pending a full determination by the council, however the site must be available at the point of determination. The site owner is not prepared to submit a planning application therefore it does not appear that the site can be considered as available. For this reason, I recommend that the application is refused under Section 13C (5) of the Act.”14. The TC, at that stage, suggested the parties be approached with a view to attempting to reach some form of agreement. However, the OTC’s subsequent attempt to encourage agreement foundered. The appellant indicated he did not seek to have the matter considered at a Public Inquiry and the TC, as confirmed in a letter of 29 December 2020, decided to refuse the application. In explaining why, he said this:“This is a planning issue and there is dispute over whether or not the owner of the site has sufficient permission for the site to be used as an operating centre. Therefore, at present I am not assured as to the availability of the site for this purpose. The STC guidance is clear that a Traffic Commissioner should not become embroiled in planning disputes. It is clear that there are contradictory interpretations of what constitutes the action of commercial vehicle storage and operation of the site. I do not feel that this is an issue that a Traffic Commissioner should be asked to resolve, and the dispute should be considered by planning law experts in the first instance, through the civil courts if required.Statutory Document Number 4 explains how a Traffic Commissioner should interpret the law in relation to operating centres and stable establishments. Section 51 of the document confirms: “Traffic Commissioners cannot and should not become involved with matters of planning law or consent. A site is available, pending a final determination, but it must actually be available at the date of determination not a date set in future. The Transport Tribunal has stated that Traffic Commissioners should not be invited or expected to investigate or resolve outstanding questions of property law”.15. The reference to “STC Guidance” and “Statutory Document Number 4” is a reference to Guidance issued by the Senior Traffic Commission for Great Britain under Section 4C(1) of the Public Passenger Vehicles Act 1981 and by reference to section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995. Its stated purpose is to provide information as to the way in which the Senior Traffic Commissioner believes that Traffic Commissioners should interpret the law though it does not, of course, bind the Upper Tribunal. The reference to the “Transport Tribunal” is a reference to the predecessor of the Upper Tribunal with respect to this jurisdiction.