appeal decisions - planning jungle€¦ · dismantling of cars, vans, lorry’s, plant and...

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Appeal Decisions Inquiry opened on 11 January 2011

Site visits made on 10 January 2011, 6 December 2012 and 7 February 2013

by Pete Drew BSc (Hons), Dip TP (Dist) MRTPI

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 10 December 2013

Appeal A Ref: APP/Y3940/X/10/2128884

OS 7400, Hicks Leaze, Chelworth, Cricklade, Wiltshire SN6 6HJ

• The appeal is made under section 195 of the Town and Country Planning Act 1990 (hereinafter “the Act”) as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC).

• The appeal is made by Mr Robert Cooper against the decision of Wiltshire Council. • The application No. N/09/01315/CLE, undated but stamped as having been received by the Council on 29 September 2009, was refused by notice dated 16 December 2009.

• The application was made under section 191(1) (a) of the Act. • The use for which an LDC was sought was described as: “use of land for storage and dismantling of cars, vans, lorry’s, plant and machinery for export and recycling; siting of caravan for residential use”.

Appeal B Ref: APP/Y3940/C/12/2173623

Land at Chelworth [also known as “Hicks Leaze” and/or “the Gallows”

and/or “the Gallons” and/or “land adjoining the Gallons”], Lower Green,

Cricklade, Wiltshire SN6 6HJ

• The appeal is made under section 174 of the Act. • The appeal is made by Mr Tony Cooper against an enforcement notice issued by Wiltshire Council.

• The Council's reference is 11/435/ENF. • The notice was issued on 17 February 2012. • The breach of planning control as alleged in the notice is: Without planning permission the material change of use of the Land from an agricultural use to a mixed use for the following unauthorised uses: a) the stationing of caravans (some of which have been used from time to time for residential purposes and one of which at the date of issue of this notice is being used continually for residential purposes); and b) the storage of motor vehicles, HGV’s, coaches, cars, vans, caravans, lorries, horse boxes, trailers, containers, commercial storage containers, plant, machinery, vehicle parts, vehicle tyres; and c) the breaking up and dismantling of motor vehicles, HGV’s, coaches, cars, vans, caravans, lorries, horseboxes, trailers; and d) the recycling of motor vehicles, coaches, cars, vans, caravans, lorries, horse boxes, trailers, containers, plant, machinery, vehicle parts, vehicle tyres in connection with the scrap metal and commercial salvage business; e) a scrap metal and commercial salvage business; and f) an import and export business in relation to the unauthorised uses listed at paragraphs 3. a) and 3. b) and 3. c) and 3. d) above; and g) a business selling used/second hand horseboxes, coaches, caravans, cars, HGV and other motor vehicles including the display of such caravans, cars and vehicles for sale; and h) the stationing of a caravan on the Land for use as an office in relation to the unauthorised uses on the Land; and, i) the storage of demolition materials, hard core and building materials.

• The requirements of the notice are: a) permanently cease to use the Land for the stationing of residential caravans; and b) permanently cease the residential occupation of all caravans on the Land; and c) permanently remove all caravans occupied for residential purposes from the Land; and d) permanently cease to use the Land for the storage of motor vehicles, HGV’s, coaches, cars, vans, caravans, lorries, horse boxes,

Appeal Decisions A & B: Ref APP/Y3940/X/10/2128884 and APP/Y3940/C/12/2173623

http://www.planning-inspectorate.gov.uk 2

trailers, containers, commercial storage containers, plant, machinery, vehicle parts, vehicle tyres; and e) permanently cease to use the Land for the breaking up and dismantling of motor vehicles, HGV’s, coaches, cars, vans, caravans, lorries, horseboxes, trailers; and f) permanently cease to use the Land for the recycling of motor vehicles, coaches, cars, vans, caravans, lorries, horse boxes, trailers, containers, plant, machinery, vehicle parts, vehicle tyres; and g) permanently cease to use the Land as a scrap metal and commercial salvage business; and h) permanently cease to use the Land for an import and export business in relation to the unauthorised uses listed at paragraphs 3. a) and 3. b) and 3. c) and 3. d) above; and i) permanently cease to use the Land for a business selling used/second hand horseboxes, coaches, caravans, cars, HGV and other motor vehicles including the display of such horseboxes, caravans, cars and vehicles for sale; and; j) permanently cease to use the Land for the stationing of caravans used for office purposes; and k) permanently cease the occupation of all caravans used for office purposes on the Land; and l) permanently remove all caravans used for office purposes from the Land; and m) permanently cease to use the Land for the storage of demolition materials, hard core and building materials; and n) permanently remove from the Land all motor vehicles, HGV’s, coaches, cars, vans, stored caravans, lorries, horseboxes, trailers, containers, commercial storage containers, plant, machinery, vehicle parts, vehicle tyres, tools and equipment; and o) permanently remove from the Land all scrap metal and all materials, debris, plant and equipment relating to the Scrap Metal and Commercial Salvage Business; and p) permanently remove from the Land all demolition materials, hard core and building materials; and, q) permanently remove from the Land all demolition materials, debris, plant materials, tools, equipment and associated fixtures and fittings resulting from compliance with the requirements of this notice.

• The period for compliance with the requirements is 6 months. • The appeal is proceeding on the grounds set out in section 174(2) (a), (d) and (g) of the Act, ground (f) having been withdrawn by the Appellant.

Appeal A: Decision

1. The appeal is allowed and attached to this decision is an LDC describing the mixed use which is considered to be lawful on land at OS 7400, Hicks Leaze, Chelworth, Cricklade, Wiltshire SN6 6HJ.

Appeal B: Decision

2. The enforcement notice is corrected by:

i) the deletion of the phrase “and/or “the Gallows” and/or “the Gallons”” in paragraph 2 of the notice;

ii) the deletion of paragraph 3 of the notice and its replacement as follows: Without planning permission the material change of use of

the Land from an agricultural use to a mixed use for the following

unauthorised uses: a) the stationing of a caravan for residential

purposes; and b) the storage of motor vehicles, HGV’s, coaches,

cars, vans, caravans, lorries, horse boxes, trailers, containers,

commercial storage containers, plant, machinery, vehicle parts,

vehicle tyres; and c) the recycling of motor vehicles, coaches, cars,

vans, caravans, lorries, horse boxes, trailers, containers, plant,

machinery, vehicle parts and vehicle tyres; and d) an export

business in relation to the unauthorised uses listed at paragraphs

b) and c) above; and e) a business selling used/second hand

horseboxes, coaches, caravans, cars, HGV and other motor

vehicles; and f) the storage of demolition materials, hard core

and building materials.

Subject to these corrections the appeal is allowed and the enforcement notice is quashed.



Procedural matters

3. It was agreed at the Inquiry that because the LDC application form is undated it would be appropriate to take the date of the application to be the date upon which it is stamped as having been received by the Council. It was further agreed that whilst the answer to question 7 on the application form might suggest that the LDC also relates to “existing building works”, this is not the purpose of the application. I propose to deal with Appeal A on this basis.

4. The evidence given by all witnesses at the Inquiry was taken on oath. The Appellant stated on oath, according to my note of the Inquiry on 27 April 2011, that he traded as Commercial Salvage on OS field parcel No 8316 and as Shinal Motors on the appeal site. He said they were separate businesses and that because breaking vehicles was untidy that this activity was done away from the caravan. He said that breaking and dismantling was all done in the bottom field, i.e. OS parcel No 8316, and that use of the appeal site comprised the storage of vehicles and parts, including the export of complete vehicles and components. On this basis the Appellant agreed to amend the description in Appeal A to exclude dismantling. For the avoidance of doubt the revised description is “use of land for storage of cars, vans, lorries, plant

and machinery for export and recycling; siting of caravan for residential

use”. Subject to my findings of fact I shall deal with Appeal A on this basis.

5. The Inquiry sat for a total of 34 days on 11 January 2011, 26, 27 and 28 April 2011, 6, 7 and 8 December 2011, 24 January 2012, 22, 23, 24, 25, 26, 29, 30 and 31 October 2012, 1 and 2 November 2012, 18 and 19 December 2012, 16 and 17 January 2013, 1 and 7 February 2013 and 15, 16, 17, 18 and 19 July 2013, 22, 23, 24 and 25 July 2013 and 5 September 2013. There were also 2 Pre-Inquiry Meetings ahead of co-joining Appeal B.

6. In addition to the list of documents submitted at the Inquiry I have collated a list of Core Documents, as set out at the end of this decision, comprising appendices and documents attached to the submitted proofs of evidence. The following abbreviations are used in this decision: core documents by the term “CD”, other listed documents by the symbol * and numbers in [square] brackets refer to earlier paragraphs in this appeal decision.

7. At the Inquiry an application for a full, or in the alternative, partial award of costs was made by Mr Robert Cooper against Wiltshire Council and an application for a partial award of costs was made by Wiltshire Council against Mr Robert Cooper. These applications are the subject of separate decisions.

Appeal B: Welfare enquiries and the validity of the notice

8. Paragraph 2.19 of Annex 2 to Circular 10/97 “Enforcing Planning Control:

Legislative Provisions and Procedural Requirements” says: “The personal

circumstances, including such matters as health, housing needs and welfare,

of persons suspected of acting in breach of planning control must be taken

into account when deciding whether to take enforcement action. (See R v

Kerrier DC, ex parte Uzell [1996] 71 P & CR 566)”. Paragraph 7.1 of the first enforcement report [* 48.1] that authorised issue of the enforcement notice referred to this paragraph but the Appellant’s personal circumstances were not fully set out in that report. The closest one gets is in paragraphs 5.5 and 5.6, which set out factual matters with regard to where the Appellant said he was living and where he was registered for the Electoral Roll. Nevertheless the enforcement notice authorised by this report was



withdrawn and, at the very least, I consider the Council can be said to have purported to take enforcement action at that time.

9. The second enforcement report [* 48.2] that authorised the enforcement notice subject of Appeal B is more comprehensive than the first. Section 7 of the enforcement report is entitled “The status of Mr Cooper” and examines his claimed gypsy status. Section 8 of the report is entitled: “Human Rights

and Equalities” and examines whether issue of an enforcement notice would be, amongst other things, proportionate. Section 9 of the report examines the availability of alternative sites. Section 10 of the report is entitled: “Mr

Cooper’s personal circumstances…”. Paragraph 10.1 records that: “Mr

Cooper appears to be in good health and has not given any evidence to the

contrary”. It records that evidence had been given on oath at the Inquiry that Mr Cooper lives alone and neither his wife nor children still live on the appeal site. Paragraph 10.4 suggests: “…that Mr Cooper has several places

of residence registered and available to him to live in”. Even if paragraph 10.5 is wrong in asserting that a mobile home at The Gallons is an option, paragraph 10.6 appears to be right in saying the Appellant owns the café and flat at 42 High Street, Cricklade [hereinafter referred to as No 42] and the assertion that he has a legal interest in the traveller site at Flowers Farm, Minety has not been challenged at any stage.

10. In these circumstances I consider that the second enforcement report did expressly take into account the personal circumstances of the Appellant as required by Circular 10/97. I reach this conclusion notwithstanding Mr Brown’s concession at the Inquiry that no welfare checks as such were made. The enforcement report that he appears to have written took such factors into account prior to the duly authorised officer, presumably Mr Smith, authorising issue of the second enforcement notice. R v Leeds

City Council, ex parte Maloney [1999] HLR 552 held that inquiries as to need are a safety net and that it is crucial for a public authority to ensure that none of the occupiers has some pressing need which would make it inhumane to proceed with an adverse decision such as eviction or, as in this case, issue of an enforcement notice. By the date on which the second enforcement report was written the Appellant had given evidence on oath as to his personal circumstances and evidence that this was taken into account prior to the issue of the enforcement notice is apparent from the face of the officer’s report. In the circumstances I accept that this broadly mirrors the situation in Maloney where the Council already had information and knowledge of the occupiers’ personal circumstances. I further accept the submission that the Appellant has not given any information that would lead me to find that, had it been provided to the Council at any earlier stage, it would have made a difference to the decision that was taken to issue an enforcement notice.

11. For the above reasons I find no basis on which to conclude that the decision to take enforcement action was unlawful or, as a consequence, that the enforcement notice is a nullity. Moreover I question whether such a judgement is within my jurisdiction because this is not a consideration that is relevant to any statutory ground of appeal. In line with Gazelle Properties

Ltd & Another v Bath & North East Somerset Council [2011] J.P.L. 702 this argument falls to be considered by the High Court. Lindblom J held [at paragraph 55] “…section 285 leaves for the court, on a claim for judicial

review, grounds of challenge to the decision of a local planning authority to

take enforcement action which are not within the compass of a statutory



appeal as provided in section 174”. I appreciate that personal circumstances would fall within the scope of ground (a) but that ground does not enable me to form a view as to whether such considerations were taken into account prior to issue of the enforcement notice. It must be common ground that no judicial review proceedings were brought in pursuit of the alleged failure to take the Appellant’s personal circumstances, including health, housing needs and welfare, into account when deciding whether to take enforcement action. In these circumstances I find no basis to conclude that the notice is invalid.

Appeal B: Corrections to the notice

12. The description of the Land in paragraph 2 of the enforcement notice includes reference to: “and/or “the Gallows” and/or “the Gallons””. Based on evidence given to the Inquiry I am satisfied that OS field No 7400 no longer forms part of The Gallons which, the Inquiry was told, might have originally been called The Gallows. In these circumstances I propose to correct the notice by deleting these names. However as well as being called “Hicks

Leaze” the appeal site does appear to have been called “land adjoining the

Gallons” and so this description remains applicable. I am satisfied that this correction can be made without injustice to either of the main parties.

13. It was agreed at the Inquiry that the allegation in the notice subject of Appeal B should be corrected as follows: “Without planning permission the

material change of use of the Land from an agricultural use to a mixed use

for the following unauthorised uses: a) the stationing of a caravan for

residential purposes; and b) the storage of motor vehicles, HGV’s, coaches,

cars, vans, caravans, lorries, horse boxes, trailers, containers, commercial

storage containers, plant, machinery, vehicle parts, vehicle tyres; and c) the

recycling of motor vehicles, coaches, cars, vans, caravans, lorries, horse

boxes, trailers, containers, plant, machinery, vehicle parts and vehicle tyres;

and d) an export business in relation to the unauthorised uses listed at

paragraphs b) and c) above; and e) a business selling used/second hand

horseboxes, coaches, caravans, cars, HGV and other motor vehicles; and

f) the storage of demolition materials, hard core and building materials”. Neither party made submissions in closing as to why such a correction would cause injustice and in those circumstances I consider that it would not. Consequential corrections to the requirements of the enforcement notice would have been necessary had I decided to uphold the notice. I propose to deal with Appeal B on this basis.

Background to the appeals

14. It appears to be common ground that there is no planning history associated with the appeal site, although Planning Contravention Notices [PCN] appear to have been served over the years, which I examine elsewhere. However the LDC application was accompanied by a plan, actually a plan derived from one of the Council’s PCNs, which shows the appeal site edged red and adjoining land, i.e. OS field parcel 8316, edged blue. Field parcel 8316 has a significant and material planning history that I set out and examine below:

(a) Enforcement notice Ref E 487(a): An enforcement notice was issued by North Wiltshire District Council [NWDC] on 5 February 1988 in relation to 8316 that alleged: “The construction of fixed buildings being former

vehicle bodies, placed in and cemented into concrete foundations and

floors”. The notice was subject of an appeal, which I examine below;



(b) Enforcement notice Ref E 487(b): An enforcement notice was issued by NWDC on 5 February 1988 in relation to 8316 that alleged: “The

removal and mounding of top soil, the tipping of waste material, the

laying of hardcore, tarmacadam and concrete and the construction of

hardstandings”. The notice was subject of an appeal, identified below;

(c) Enforcement notice Ref E 487(c): An enforcement notice was issued by NWDC on 5 February 1988 in relation to 8316 that alleged: “The

making of a material change in the use of the land from use for the

purpose of agriculture to use for that purpose and in addition, the storage

of building materials, sectional buildings, commercial vehicles, motor

cars, trailers, van bodies, caravans, machinery and associated parts”. The notice was subject of an appeal, which I examine below;

(d) Appeal decision [Ref T/APP/C/88/J3910/8-10/P6] dated 30 Jan

1989: The appeals against all 3 notices were heard at one Public Inquiry on 15 November 1988. As was the practice at that time the decision letter is addressed to Mr Pratt at The Gallons. Paragraph 11 says: “To

the north, east and south-east of Mr Cooper’s land is generally open

farmland. To the south-west is the main part of the former Blakehill

airfield… This area also has a generally open, rural, appearance…”. Paragraph 12 continues: “Mr Cooper bought the appeal site from you and

took possession of it early in 1987. At that time it was a grass field.”. Noting that the Inquiry was convened in 1988 I attach significant weight to this near contemporary record in terms of date. Paragraph 16 purports to summarise the Council’s case and says that OS field parcel 8316: “…was being used as a large vehicle, machinery and plant store in

connection with Mr Cooper’s vehicle breaking business being carried on at

another site nearby.” Paragraph 24 purports to summarise Mr Cooper’s case and says that OS field parcel 8316: “…was very heavy and poorly

drained.” Paragraph 41 records: “…Mr Cooper said that he was not

interested in using the land as a scrap yard and that all of the vehicles

could go. I accept the sincerity of his intentions on the matter”. The decision quashed the first notice (a) and granted planning permission for the retention of the buildings subject to conditions, which included one requiring landscaping. There was a split decision in relation to the second notice (b) and planning permission was granted for a track and area of hardstanding subject to conditions, which again included one requiring landscaping. Both landscaping conditions were discharged by NWDC in 1993. The second notice was otherwise upheld, subject to corrections and variations. The third notice (c) was upheld, subject to corrections and variations, the upshot of which is that there is an extant notice on 8316 that precludes anything other than agricultural storage and requires the “…commercial vehicles, motor cars, trailers, van bodies,

caravans, machinery and associated parts” to be removed from the land;

(e) Appeal decision [Ref T/APP/J3910/A/89/142381/P5 and

142382/P6] dated 15 Mar 1990: These appeals by Mr Cooper were against the failure of NWDC to determine 2 planning applications, Nos N.89.2432.F and N.89.2508.F, respectively, on 8316, for (i) the retention of 3 agricultural buildings; and (ii) the erection of an agricultural building. The first appeal was allowed with no conditions and the second was dismissed. Paragraph 3 describes, at the date of the site inspection on 5 March 1990, the track from the road, the vicinity of the buildings, which is referred to as the animal compound, and the L shaped grassed bank



to the south of the compound. In that context it says: “Your client’s

adjoining land is mainly grassed but, particularly in the vicinity of the

compound and alongside the access track, it contains a large number of

old abandoned vehicles, parts of vehicles, piles of excavated materials

and several excavators” (my emphasis). Read in the context in which it was made I consider this is a reference to vehicles and materials stored on 8316 rather than 7400 and I reject the submission this is evidence of the use of the appeal site. Paragraph 7 continues: “Even allowing for the

large number of old vehicles and the piles of materials, there was still a

sizeable proportion of your Client’s 8 ha (20 acres) of land available for

grazing”. The site area might suggest this included OS field No 7400;

(f) Appeal decision [Ref T/APP/W3900/A/90/161356/P3] dated 25

Jan 1991: The appeal by Mr Cooper against decision No N.89.2690.F of Wiltshire County Council, at that time the County waste authority, to refuse permission for land restoration and improvement, was dismissed. Paragraph 6 says: “Most of the appeal site is now clear of the abandoned

vehicles and spare parts referred to in the appeal decision in 1989; a few

vehicle bodies/ parts remain on the western side of the land”. That is not wholly inconsistent with my finding on paragraph 3 of the 1990 appeal. Paragraph 9 says: “A report from ADAS on the appeal site and further

land to the south indicates that the soil is generally heavy clay, offering

poor quality permanent pasture. The agricultural quality of the land is

said to be Grade 3b at best, and Grade 4 where it is poorly drained” (my

emphasis). The reference to further land to the south would appear to be OS field parcel No 7400. Paragraph 11 says: “I note that the landscaping

requirements of the 1989 permission have not been complied with”;

(g) Application No N.90.2427.F: This application, for “Erection of one

cattle shed one covered yard and one hay store/retention of one hay

store” was refused by NWDC in a decision notice dated 14 January 1991. No appeal appears to have been lodged against that decision; and,

(h) Application No N.92.0066.F: This application, for “Erection of

agricultural buildings” was approved by NWDC in a decision notice dated 20 December 1993. A condition was imposed to require landscaping.

15. The Council searched for the files that gave rise to the enforcement notices issued by NWDC on 5 February 1988. The efforts made to find them have been documented [* 7], but those files could not be found. A bundle of redacted documents in relation to complaint file E.97.150 were submitted [* 9], but these appear to relate to The Gallons. The only letter that has any bearing on these appeals is one dated 23 April 1997 from Mr Pratt to Cricklade Town Council. It says: “The truth of the matter is that field OS

7400 has never been used for the storage of vehicles…Robert Cooper does

not own OS 7400. It is mine”. I shall return to this below but it is worth recording that these documents do not appear to have been expressly taken into account in reaching the decision to refuse the application for an LDC.

16. The Statement of Common Ground [* 21] lists the above planning history but it is then stated that the Appellant does not agree that it represents a complete planning and/or enforcement history. I have examined NWDC’s plotting sheet [in the bundle at * 9] and the only other annotation that appears to relate to 8316, there being nothing on 7400, is Ref “88.812ENF”. However that is the reference on NWDC’s acknowledgement letter dated 6 April 1988 [* 8.1] entitled “Proposal: APPEAL AGAINST ENFORCEMENT”.



As such it is clear that this reference relates to the 1988 Inquiry and the appeal decision. In these circumstances I have no reason to find that this list does not represent a complete record of the planning history of both fields. As a PCN does not constitute taking formal enforcement action it might not be recorded on the plotting sheets or be revealed as part of the planning history and this might be an explanation for the disagreement between the parties.

Appeal A: Key dates

17. The application subject of Appeal A is dated 29 September 2009. To make out his case the Appellant must demonstrate on the balance of probability that the use of the land for the mixed use claimed commenced prior to 29 September 1999 [hereinafter “the first material date”] and has continued.

Appeal B, Ground (d): Key dates

18. On 28 December 2011 the Council issued the first enforcement notice, later withdrawn, in similar terms to that which is now the subject of Appeal B. In the circumstances I consider that the provisions of section 171B (4)(b) of the Act apply in that the Council took, or as I have found at the very least purported to take, enforcement action on that date. This means that to make out his case in Appeal B, the Appellant has to demonstrate on the balance of probability that the mixed use alleged in the corrected notice commenced 10-years before the date of issue of the first withdrawn notice, i.e. by 28 December 2001 [hereinafter “the second material date”], and continued.

Both appeals: What is the correct approach to these appeals?

19. In closing for the Appellant it was submitted [paragraph 3.1.2, * 82] that the approach to be adopted is to look at the second material date and ask whether the breach had commenced by that date and continued. It was submitted that it would be useless to go to the LDC because the first material date has been rendered obsolete following service of the notice.

20. In contrast the Council point out that Appeal A remains valid. However it points to the commentary at paragraphs P195.03 and P191.05.4 of the Encyclopedia of Planning Law and Practice, which say: “The appeal is

confined to the narrow remit of reviewing the local planning authority’s

decision”. On this basis the Council submits the Inspector’s remit is limited to a review of the evidence before the Council when it made its decision.

21. With respect I disagree with both approaches. Section 171B (3) of the Act says in the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach (my emphasis). In the absence of a single base year it is therefore necessary to try and pinpoint the date of the breach and to consider whether that mixed use has continued or whether there has been a material change. On this approach if the first material date post-dates the date of the breach and the mixed use continued then Appeal A would succeed and an LDC should be issued. I accept that Appeal B would also be likely to succeed in this scenario, but only if the Appellant demonstrated that the mixed use had continued. My view on the correctness of this approach is confirmed by Mr Lockhart-Mummery QC, sitting as a Deputy Judge, who, in

Panton and Farmer, held that the Inspector: “…should have started at the

inception of the material change of use (or uses) and looked forward”1.

1 Source of quote: page 11 of the substantive transcript with which I am provided, which is in the bundle at * 80; unfortunately the paragraphs are not numbered in this version but the quote is reported at 1999 [J.P.L.] 469.



22. However the commentary in paragraph P171B.15 of the Encyclopedia of Planning Law and Practice2, to which the Council referred me [paragraph 31, * 81] is apposite. It says: “Pinpointing the date of breach is often difficult.

Change of use frequently is a gradual process, involving fluctuations in

intensity and shifts in precise location. In such cases, the only effective test

is to compare the present use with the previous use, or the use in the base

year (i.e. normally 10 years prior to taking enforcement action) and assess

whether there has been any material change”. Nevertheless this does not persuade me that it would be appropriate to, as it were, ignore the LDC subject of Appeal A. It must be my starting point because that is the earlier date. The lesson from that commentary in the Encyclopedia of Planning Law and Practice on Panton and Farmer is to verify that there has been no further material change of use and not assume it is a once and for all time event. Without prejudice to my findings it is conceivable that Appeal A might be dismissed and Appeal B might succeed if I pinpointed the date of the breach between the first and second material dates. As Appeal A has not been withdrawn I am charged with dealing with it, which the Appellant’s approach would not necessarily allow because I could not assume that success in Appeal B would necessarily mean Appeal A must also succeed.

23. Section 195 of the Act refers only to the refusal being well-founded or not well founded, which is the decision itself rather than the reasons for it. The Council refers me to Cottrell v SSE and Tonbridge and Malling BC [1982] J.P.L. 443. It held that the Secretary of State cannot be compelled to issue a certificate when he is of the opinion that one should not be granted. Conversely, for the LPA to argue that only evidence put to them as part of the application should be considered denies the purpose of the LDC procedure which is to arrive at an objective decision based on the best facts and evidence available at the time the decision is taken. In this case if I were to adopt the Council’s suggested approach the practical effect would be that I could not take into account the oral evidence that was given on oath in Appeal A, or conceivably at all if the notice had not been issued. That cannot be right as it would defeat the purpose of holding a Public Inquiry. No useful purpose would be served by considering the LDC only on the basis of the evidence submitted with the application if subsequent evidence had come to light that proved the case advanced on the balance of probability.

24. I acknowledge that there is a contrast between the wording of section 79 of the Act and section 195 of the Act and that this essentially mirrors the contrast in the equivalent provisions of the 1971 Act. In giving judgement in

Cottrell, Woolf J comments on the “marked difference” between the wording of those statutory provisions and that could still be said to be true today. However the judgement goes on to examine a scenario where a certificate3 was granted in respect of part of the land and an appeal was made in respect of the remainder of the land. Whilst section 36 of the 1971 Act [and now section 79 of the Act] allowed the Secretary of State to deal with a planning application as if it had been made to him in the first instance, the Secretary of State had no power to revoke the certificate granted by the Council. In that sense the Secretary of State’s powers are more limited.

25. Notwithstanding the above I consider it is appropriate to build up the picture of what has taken place on the appeal site by looking at items of evidence in turn. I note that the closing submissions for the main parties adopted this

2 As at close of Inquiry; it has subsequently been updated. 3 Cottrell was concerned with an old established use certificate rather than an LDC.



approach to some extent. On this basis I consider that it is appropriate to make a distinction between what was before the Council at application stage and what has been submitted, both in writing and orally, at appeal stage.

Appeal A: Review of what was before the Council when it made its decision

26. In this section I examine the written evidence that was before the Council when it reached its decision to refuse the LDC application, the subject of Appeal A. In each case, in addition to a brief resume of the evidence, I shall attribute the weight that I attach to each piece of evidence and give reasons for that judgement. I take the order, initially, from the bundle at CD 1.1 and laterally the bundle of documents submitted at the Inquiry [* 75]:

(a) D Norman: The letter dated 22 August 2009 refers to buying spare parts and selling vehicles to “Commercial Salvage” on “land at The Gallons” for about the last 25 years. Although the land is said to be OS field parcel Nos 7400 and 8316 I accept the Council’s submission that it is not land at The Gallons [12]. The letter does not refer to a residential use, which is a material component of the single mixed use claimed, is not sworn and refers to both field parcels rather than just the appeal site. Moreover 25 years back from 2009 takes me to 1984, but the conveyance of the land [* 10] is dated 29 September 1986, some 2 years later. For all of these reasons I attach the letter from Mr Norman very limited weight;

(b) G Locke: The letter dated 24 March 2009 refers to visiting the site 20 years ago, 1989, and says there were vehicles and materials “over

both fields OS7400 and OS8316”. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. Moreover in 1991 the Inspector recorded that landscaping had not been done and the conditions were not discharged until 1993. For these reasons I attach the letter from Mr Locke very limited weight;

(c) Roger Newman: The letter dated 22 December 2008 does just refer to OS 7400 and says Mr Newman carried out business with Mr Cooper on the site since the mid 1980’s. Although more specific as to location, the nature of the business is not specified and since the letter does not refer to a residential use and is not sworn I attach it very limited weight;

(d) Paul Kelly: The letter dated 10 September 2009 says that the writer has been trading with “Cooper Salvage” “since March 1984”. My comment about the date of the conveyance applies. The letter says: “I am told the

location co-ordinates are OS 8316 and OS 7400, I know it as the site

adjacent to the Galleons formerly owned by Bill Pratt”. This does raise a wider concern about the extent to which the author of this and perhaps other letters knew which site they were referring to. The author does call Mr Cooper “very honest”. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach this letter from Mr Kelly very limited weight;

(e) George Smith: The letter of 9 February 2009 refers to doing business, i.e. purchasing commercial vehicle spares, with “Commercial Salvage” and visiting OS 8316 and OS 7400, which the author of the letter says have been used for vehicle storage and dismantling for more than 20 years. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach the letter from Mr Smith very limited weight;



(f) A Valler: The letter dated 16 February 2008 refers to OS field parcel Nos 7400 and 8316 and says “we” have “collected personally” cars and “over

the last 20 years have visited the land in question to buy parts”. The letter continues: “There has always been a large quantity of lorry’s, cars

etc on both of these pieces of land” and “I have witnessed dismantling of

vehicles which I believe through speaking to Mr Cooper are destined for

export”. The author does call Mr Cooper an “honest and straight forward

chap”. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach this letter from Mr Valler very limited weight;

(g) Richard Morse: The letter dated 21 January 2009 refers to conducting business, i.e. buying commercial vehicle parts, with Mr Cooper for the past 30 odd years, including 10 years at Hay Lane before he moved to “his yard at Cricklade”. The author does call Mr Cooper “reliable and

conscientious”. The letter does not refer to a residential use, is unsworn and does not expressly identify the appeal site. For these reasons I attach the letter from Mr Morse very limited weight;

(h) Paul Booth: The letter dated 10 March 2009 confirms that Mr Cooper has been operating as “Commercial Salvage” from OS field parcel Nos 7400 and 8316 for in excess of 20 years. The letter does not refer to a residential use, is not sworn and does not distinguish between the fields. For these reasons I attach the letter from Mr Booth very limited weight;

(i) R Cleaver: The letter dated 14 October 2008 says that Mr Cooper has supplied spare parts for machinery since the 1980s and confirms that he has operated his business from OS field parcel Nos 7400 and 8316. The letter says: “Mr Cooper lives in a caravan on OS Ref 7400”, but that sentence is in the present tense and so cannot be taken as any indication as to when that use commenced. The letter is not sworn and in terms of the business use it does not distinguish between the fields, and so in the circumstances I attach the letter from Mr Cleaver very limited weight;

(j) C A Rose: This undated letter bears the application reference “09”, which would indicate that it was received, if not written, in 2009. The author is a mobile mechanic who says he has been regularly called out by Mr Cooper to “repair and weld his vehicles at his fields at Chelworth” over a 14-15 year period. The letter does not refer to a residential use, is not sworn and does not identify which fields the repairs have been conducted on; even if I assume the reference to “his fields” includes the appeal site no distinction is made between the respective fields. For these reasons I attach the letter from Mr Rose very limited weight;

(k) D J Robinson: The letter dated 3 September 2009 says that the author, as proprietor of Minety Motors from 1971 to 2005, regularly bought lorry spares and a lorry from Mr Cooper firstly at his site near the circus and, from 1987, at the two fields nearby. However the fields are not identified and so whilst the author says he can remember trekking across the fields to remove spare parts, it is unclear if this was the appeal site. For these reasons I attach Mr Robinson’s unsworn letter very limited weight;

(l) Paul Savory: The letter dated 30 January 2009 says the author has been selling and buying scrap waste from Messrs R Cooper & W Pratt on field Nos 7400 and 8316 over the last 25 years. My earlier comments regarding the conveyance do not apply because Mr Pratt sold the land to Mr Cooper. Nevertheless the letter does not refer to a residential use, is



not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach this letter from Mr Savory very limited weight;

(m) Rodney Bond: The letter dated 23 September 2009 says the company, FG Bond & Son, “have purchased spare parts and also sold lorries etc to

Commercial Salvage”. The author says he has examined OS maps to confirm that the business operates on two fields, OS 7400 and OS 8316. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach the letter from Mr Bond very limited weight;

(n) Derek Warwick: The letter dated 26 November 2008 confirms that Mr Cooper has operated his business on OS field parcel Nos 7400 and 8316 since the mid 1980’s. The letter says: “Mr Cooper sells lorries and

spare parts and lives in a caravan on OS Ref 7400”, but that sentence is in the present tense and so cannot be taken to be any indication as to when the residential use commenced. The letter is unsworn and in terms of the business use it does not distinguish between the fields, so in the circumstances I attach the letter from Mr Warwick very limited weight;

(o) A Berry: The letter dated 25 August 2009 says Mr Cooper took over Mr Pratt’s business in the mid 1980s “…and has been operating on the

land at the Gallons and two parcels of land further down the road where

Mr Cooper lives in a caravan, I have recently run a coach business and

have sold buses to Mr Cooper and purchased tyres and spare parts etc

from him at Chelworth where he dismantles and exports lorries and

machinery on land OS 7400 and OS 8316” (my emphasis, note typos are

corrected). This sentence is ambiguous and, amongst other concerns, it does not say that Mr Cooper has lived in a caravan on the appeal site and appears to conflate The Gallons with the two parcels of land. That part of the sentence relating to residential use is in the present tense and so cannot be taken as any indication as to when that use commenced. The letter is unsworn and in the circumstances I attach it very limited weight;

(p) Alan Ward: The letter dated 19 March 2009 says Mr Cooper has supplied spare parts for vintage tractors and lorries from vehicles stored in fields OS 8316 and OS 7400 for over 20 years. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach the letter from Mr Ward very limited weight;

(q) James Brough: The letter dated 10 February 2009 says that the author “bought and sold skip trucks, tipper trucks, generators, 100’s of engines

& gear boxes from Commercial Salvage” for approximately 25 years from “both fields next to the gallons”. Despite the qualification “approximately” my earlier comments regarding the conveyance apply. The letter does not refer to a residential use, is not sworn and refers to both fields, with no further qualification, rather than just the appeal site. For these reasons I attach the letter from Mr Brough very limited weight;

(r) Mr Ritchings: The undated letter bears the application reference “09”, which would indicate that it was received, if not written, in 2009. The author says “we”, presumably Oak Commercials, have sold lorries and purchased spares from “Commercial Salvage” and confirms that the business has been run for at least the last 20 years on field Nos OS 8316 and OS 7400. The letter does not refer to a residential use, is not sworn



and refers to both field parcels rather than just the appeal site. For these reasons I attach the letter from Mr Ritchings very limited weight;

(s) Pete Cremin: The undated letter bears the application reference “09”, which would indicate that it was received, if not written, in 2009. The author says he had a building company for 40 years and says he has known Robert Cooper “…the owner of the local vehicle breaker company,

on the Chelworth Industrial Estate, for about 20 years”. The letter does not refer to a residential use, is not sworn and refers to the industrial estate, with no further qualification, distinct from the appeal site. For these reasons I attach the letter from Mr Cremin very limited weight;

(t) Michael Austen: The author of the letter of 11 March 2009 says he has known Mr Cooper, who has supplied Austen Brothers Circus with second hand vehicle parts and has dismantled many vehicles, for 36 years. The letter says Mr Cooper has traded from his own premises at Chelworth for over 18 years and says he is an “honest and hard working man full of

integrity”. The letter does not refer to a residential use, is not sworn and refers to Chelworth, with no qualification, rather than just the appeal site. For these reasons I attach this letter from Mr Austen very limited weight;

(u) M Owens: The letter dated 9 February 2009 refers to doing business, i.e. buying lorries and selling lorries, spare parts, engines and tyres, with Mr Cooper for about 20 years, and confirms the business operates from fields OS 8316 and OS 7400. The letter does not refer to a residential use, is not sworn and does not distinguish the appeal site from OS 8316. For these reasons I attach the letter from Mr Owens very limited weight;

(v) DMH Cirencester Ltd: The letter dated 28 January 2009 says “we” and has not been signed, merely “pp”, have dealt with “Commercial Salvage” on field Nos 8316 and 7400 buying second hand parts and disposing of commercial vehicles. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach the contents of this letter very limited weight;

(w) Bob Stimpson: The letter dated January 2009 is written with regard to Mr R Cooper trading as “Commercial Salvage” in fields “Ref OS 7400”. The writer confirms that he has traded with Mr Cooper from this location since approximately 1989. The letter does not refer to a residential use, is not sworn and whilst it does refer to the appeal site the fact that it says fields [plural] gives rise to a contradiction on its face. For these reasons I attach the letter from Mr Stimpson very limited weight;

(x) Dean Saunders: The letter dated December 2008 says the author has been doing business with Mr Cooper at Hicks Leaze for the past 20 years. It says that during that time Mr Cooper has been operating from 2 fields “…one adjacent to the main road and the other by the old airfield at Blake

Hill”. The letter does not describe the business use, does not refer to a residential use and is not sworn. Although the description of the 2 fields might be said to apply to the appeal site in part, it is imprecise. For these reasons I attach the letter from Mr Saunders very limited weight. In closing for the Council it is said that this is Mr Cooper’s son and that he gave evidence but neither claim appears to be correct. Tony Cooper [Junior] gave evidence, which I shall examine in due course, but I have no record of it being shown that Mr Saunders is even Mr Cooper’s son;



(y) E Keogh: The letter dated 16 December 2008 says: “We have rented a

part of O/S 7400 from Mr R Cooper of Commercial Salvage, 42 High

Street, Cricklade, Wilts. For storage of plant, machinery, vans, building

materials etc since the late 1980’s” [sic]. I agree with the Council’s oral closing that this is an astonishing claim, which is not supported by the aerial photographs but I comment on this further in due course. The letter does not refer to a residential use and is not sworn, and for these reasons I attach the letter from Mr Keogh very limited weight;

(z) Julian Read: The letter dated 12 March 2009 from Mr Read says he is a former Councillor on North Wilts District Council. It records that he has been contacted by Mr Cooper with reference to land owned by him, namely OS 7400, but also refers to appeal correspondence from 1988, which presumably relates to OS 8316 rather than the appeal site. The claim the “…past enforcement order placed upon the land has never been

enforced…so Mr Cooper has continued trading throughout this period of

time” would again presumably relate to OS 8316 rather than the appeal site. The letter does not suggest that the author has visited the appeal site, does not refer to a residential use, is not sworn and given its contents I cannot be sure that it relates solely to the appeal site. For these reasons I attach the contents of this letter very limited weight;

(aa) Dale Vince OBE: The author of the letter dated 3 February 2009 says that he has known Robert Cooper for over 20 years and first met him in the mid 1980’s when “I lived at his place in Hicks Leaze” and worked for him. The letter says that the work comprised “the preparation of engines

and other major components for export” as a result of which the author confirms the land at OS 8316 and OS 7400 has been used for business purposes for over 20 years. The author describes Mr Cooper as “a rare

kind of person”, “a man of great integrity”, who’s “word is his bond” and that he is “held in high regard by the people who know him”. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. For these reasons I attach the contents of this letter from Mr Vince very limited weight;

(bb) Peter Woolway: The author of the letter dated 7 March 2009 was a policeman with a specific responsibility as a gypsy liaison officer and says that Mr Cooper’s documentation was always in good order. It says Mr Cooper, who he describes as “…trading as Commercial Salvage, Shinal –

Cricklade”, left Hay Lane in approximately 1985 and set up in business on “two fields at Chelworth…and is still there”. The author describes Mr Cooper as “a good, honest and genuine man, a pillar of society and a

man I am proud to know”. The letter does not refer to a residential use, is not sworn and refers to both fields rather than just the appeal site. For these reasons I attach the contents of this letter very limited weight;

(cc) Henry Symonds: The letter of 25 January 2009 says “we”, presumably Henry Symonds Catering, “…have been purchasing spare parts for our

vehicles from commercial salvage”. The author confirms the business has operated for at least 20 years from field parcel Nos 8316 and 7400. The letter does not refer to a residential use, is not sworn and refers to both fields rather than just the appeal site. For these reasons I attach the contents of this letter from Mr Symonds very limited weight;

(dd) Eddie’s Taxis: The undated letter bears the application reference “09”, which would indicate that it was received, if not written, in 2009. The



author says he has known Mr Cooper for the last 14 years and he has collected car parts, and tyres, from “…the back field where most of the

cars are stored”. The letter does not refer to a residential use, is not sworn and it is unclear whether it relates to the appeal site. For these reasons I attach the letter from Eddie’s Taxis very limited weight;

(ee) Jason Price: The author of the letter dated 12 February 2009 says he has bought lots of spare parts from Commercial Salvage over the past 18 years. It says: “Commercial Salvage was run from his fields near an

old airfield…”. The letter does not refer to a residential use, is unsworn and given the site description it is unclear if it relates to the appeal site. For these reasons I attach the letter from Mr Price very limited weight;

(ff) Rod Hibberd: The letter dated 22 June 2009 says that his company, Alexcars Ltd, have been purchasing commercial spares from Mr Cooper for in excess of 25 years and that Mr Cooper has been “…trading on plots

8316 and 7400 during this time”. The letter does not refer to a residential use, is not sworn and refers to both field parcels rather than just the appeal site. Moreover 25 years back from 2009 takes me to 1984 and so my earlier comments regarding the conveyance apply. For these reasons I attach the letter from Mr Hibberd very limited weight;

(gg) Roger Giles: The author of the letter dated 6 March 2009 was a police sergeant who says Mr Cooper’s documentation was always in good order. It says Mr Cooper, who he describes as “…T/A Commercial Salvage -

Shinal Motors Cricklade”, left Hay Lane in the mid 1980s and set up in business on “two fields at Chelworth…that are the fields he still operates

from today”. The author describes Mr Cooper as “a man for whom I have

considerable respect…who is known for his honesty and integrity” and is a “…fair and just gentleman, and a person in whom I would have no

hesitation in placing my trust”. The letter does not refer to a residential use, is unsworn and refers to both fields rather than just the appeal site. For these reasons I attach the contents of this letter very limited weight;

(hh) Mr Cooper’s letter to the Council dated 26 July 2006: This letter to Mr Pescod refers on its face to another letter sent in March that year with “…a proposal that utilised OS parcel 7400 which has a current and

continuing use involving the storage and processing of vehicles since

1986” (my emphasis). Receipt of the 26 July 2006 letter is confirmed by the Council’s letter dated 1 August 2006, from Allan Brown, which found no record of the 4 March 2006 letter. However the fact that Mr Cooper was writing to the Local Planning Authority [LPA] in 2006 and asserting a continuing use is in my view significant. The flip side is that Mr Cooper’s letter does not refer to a residential use and the correspondence address is No 42 rather than the appeal site. On balance I attach this exchange of correspondence limited weight but it does tend to support the claim as to the longstanding nature of the appeal site’s commercial use;

(ii) Anonymous letter dated 6 March 1997: The anonymous letter is date stamped received by “Development Control” on 10 March 1997 and so I have no doubt that it was sent to and received by NWDC. It says “Some

12 years ago development started on some fields bordering the C70, OS

No 7400, this was apparently illegal and one read in the press of various

enforcements which had been imposed. All apparently to no effect.” The reference to field No 7400 is precise but the context might suggest that this is a complaint about the activities on OS parcel 8316, because that



field borders the C70, the road, whereas field 7400 does not, and 8316 was subject to enforcement action, whereas field 7400 was not. In the circumstances, despite the reference to 7400, I am far from convinced that this is a complaint about the activities on the appeal site and so I am only able to attach it very limited weight;

(jj) Mr Cooper’s letter to the Council dated 1 July 2009: This letter was submitted to the Council in connection with the LDC and makes reference to a number of attachments, which I consider elsewhere. The letter head is entitled “Commercial Salvage”, gives a landline and fax number, and a VAT registration number. It letter head describes Mr Cooper as “Dealers

in Commercial Vehicles, Construction Plant & Machinery, Generators and

Vehicle and Plant Engines & Spares”. As it is essentially a covering letter it adds little to the case and in that sense I attach it very limited weight;

(kk) What is said to be an enforcement notice dated 29 September

1988: What Mr Cooper’s letter to the Council of 1 July 2009 describes as an enforcement notice, labelled “1”, is in fact notice of the appeal [Ref APP/C/88/J3910/5-10]. It is common ground that this relates to OS field parcel No 8316 rather than the appeal site and so this notice of appeal does not support the Appellant’s claim in relation to the appeal site;

(ll) What is said to be a PCN and a letter from the Council dated

10 March 1997: What Mr Cooper’s letter to the Council of 1 July 2009 describes as a PCN from March 1997, labelled “2”, is not produced. The only PCNs that have been provided with the appeal documents4 are dated 25 April and 19 May 2003, and both bear the same file reference [No 03/00130/PCN]. The PCN map is dated “25/4/2003” and so relates to the first of these PCNs, but the other page, which sets out the Schedules, including the allegation, is undated and so it is unclear which PCN it relates to, because the reference is the same. However the suspected breach of planning control, in Schedule 2 thereof, is “Use of land to store

vehicles, lorry bodies and lorries, scrap plant and equipment”. On the balance of probability such a use was subsisting on the appeal site in 2003 although it is unclear from this whether this was a suspected or actual breach of planning control. Moreover it is material to note that the allegation in the PCN makes no reference to residential use of a caravan;

(mm) Reply to PCN: What Mr Cooper’s letter to the Council of 1 July 2009 describes as the reply to the PCN, labelled “3” and “March 1997”, is labelled elsewhere “25th April response”, which ties in with the PCN of that date from 2003. Dr Murdoch confirmed that he had not labelled it “25th April response”. The letter says: “It is a well known fact that

vehicles have been stored on this land since 1985. NWDC discussed this

matter at length on or around 10th March 1997 following which numerous

Planning and Enforcement Officers have visited and viewed this site over

the many years of occupation…Following these visits it was clearly

decided by the NWDC that no action was to be taken. Therefore I am

somewhat surprised you have issued a Planning Contravention

Notice…From time to time over the years the site’s vehicle population

increases and decreases in line with business for instance in the early

1990’s there was little business going on whereas today it is a little more

4 Mr Cooper’s letter dated 1 July 2009 records that a PCN was provided at application stage and whilst it is unclear whether the 2003 PCNs were before the Council when it made its decision, because they are not stamped with the application reference, these are the only PCNs with which I have been provided. The reply to the PCN was before the Council when it made its decision and in an attempt to date that it is appropriate to consider the PCNs here.



encouraging” (my emphasis). Given the conflicting labels it is not clear when this letter dates from but, adopting a balance of probability, I consider that the above quotation might suggest it is a reply to the PCN dated 25 April 2003 on the basis that it suggests numerous officers had visited the site over many years following March 1997. The label on the second copy of this PCN would support this conclusion. The fact that Mr Cooper was writing to the LPA, by 2003 at the latest, and asserting a vehicle storage use is quite significant. The flip side is that Mr Cooper’s letter does not refer to a residential use. On balance I attach this letter moderate weight as it does tend to support the Appellant’s claim as to the longstanding nature of a vehicle storage use on the appeal site;

(nn) Maps in bundle at * 75: The maps record the line of the Public Right of Way through the appeal site and that a site notice was erected at the gate on 14 October 2009, which do not advance the Appellant’s claim;

(oo) Comment from Miss Graham at * 75: This is an observation that questions whether the Public Right of Way has been blocked, which has no bearing on the issues arising in these appeals;

(pp) Letter dated 5 November 2009 from E Foley at * 75: This is essentially a comment on the planning merits of the development, which have no relevance to the issues arising in these appeals;

(qq) Email dated 4 November 2009 from Vince Foley at * 75: This too is essentially a comment on the planning merits of the development, which have no relevance to the issues arising in these appeals;

(rr) Letter dated 31 October 2009 from Mr P Owen at * 75: This too is essentially a comment on the planning merits of the development, which have no relevance to the issues arising in these appeals. However it is worth recording that the letter describes the: “…helpful nature and

kindness shown by Mr Cooper to myself/my family”;

(ss) Email from Councillor Peter Colmer at * 75: The email forwards a message from the Town Council that appends aerial photographs from Get Mapping with the comment that “…the attached should go someways

towards disproving the fact that the land has been used for 10 years”. I express no view at this stage on what the aerial photographs showed. However the fact is that the Council, in its reason for refusal of the LDC application, makes express reference to aerial photographs;

(tt) Comment from Cricklade Town Council at * 75: This is essentially a comment on the planning merits of the development, including planning policies, which have no relevance to the issues arising in these appeals. The only evidential point refers to “aerial maps”, which would appear to be the aerial photographs referred to above;

(uu) Site Inspection notes at * 75: These are not the most comprehensive site visit notes I have ever seen but they record the existence of vehicles, caravans and “lots of grass” on the appeal site. They record reference to letters from the Council in 1997, 2003 and 2006, which suggests that the visit was accompanied and this information gleaned orally because plainly such letters would not have been a feature of the site itself; and,

(vv) Other photographs in the bundle at * 75: Again, beyond recording that there are a number of photographs on the file I am not going to analyse the aerial shots at this stage. The fact is that the Council, in its refusal reason of the LDC application, makes reference to photographs.



However Mr Smith, who was the Planning Officer who dealt with the LDC application, conceded in cross-examination that the ground shots are taken in the lower field although in one photograph there is a view of cars parallel to the hedgerow, which might be stored on the appeal site.

27. Finally the LDC application form itself is also worthy of analysis under this head. Section 1 (optional) records the company as Commercial Salvage, but this contradicts what the Appellant told the Inquiry on oath [4]. Section 4, in addition to the reference to Messrs Pescod and Brown from 1 August 2006, refers to “C Burkey 21.05.2002”. However it would appear from the information before me that the letter from Mrs Burkey was not placed before the Council when it made its decision on this application5. Sections 9 and 10 of the application form both assert that the use commenced in 1985.

Comments on what was before the Council when it made its decision

28. With respect to Mr Cooper what was placed before the Council when it made its decision was wholly inadequate to justify issue of an LDC. There was no sworn statement, even from Mr Cooper himself. The letters of support, individually and cumulatively, could not make up for that basic deficiency. This was not a planning application. The onus of proof demands evidence, whether that is from primary sources, e.g. invoices, photographs or similar, or sworn statements. Whilst I acknowledge that the Council does not appear to have published guidance on its website6 as to what documents it expects to accompany such an application in my experience it is normal to expect statutory declarations to be provided. Thus although the Appellant identifies a contrast between the Council’s handling of this application and one at Cowleaze Farm [application No 11/03423/CLE] the fact is that 3 statutory declarations were submitted in support of that application [CD 8.15]. This leads me to find a material distinction between the respective applications.

29. The mix of existing uses sought in the LDC application was very specific, i.e.: (i) the storage, and (ii) the dismantling of, generically, vehicles; and (iii) the siting of a caravan for residential use. As I have already noted the second component, dismantling, has been withdrawn [4]. Most of the letters of support that were submitted at application stage simply failed to mention the residential use at all and the few that did mention it did not clearly and unambiguously state when such use commenced. Indeed my analysis has shown they did no more than acknowledge it subsisted [26 (i), (n) and (o)].

30. Moreover my review of the letters that were submitted has shown that the vast majority conflated the appeal site with the lower field [OS 8316] and treated the whole as one site. However the use of OS 8316 for, amongst other things, the storage of vehicles cannot be lawful because of the extant enforcement notice [12 (d)]. The vast majority of the letters of support that were submitted at application stage were highly ambiguous in this respect and as a result I raised the planning unit issue when opening the Inquiry.

31. I appreciate Mr Cooper met Mr Smith on site during the application process and I have no reason to doubt that there was some elaboration of what had taken place by reference to features of the site. However neither this nor the admitted error in relying on Mr Brown’s ground shots [26 (vv)] make up for the basic deficiencies in the manner in which the application was

5 Mr Smith confirmed when giving evidence in chief that this letter was not before him when he made his decision, which is consistent with the appeal documentation with which I have been provided. 6 I asked Mr Smith about this and after checking it was concluded that the Council has no published guidance on its website.



submitted. Although there was some criticism of Mr Smith in terms of what enquiries he made following that meeting I consider this misrepresents the onus of proof that Circular 10/97 places on the Appellant. As paragraph 8.12 of the Circular makes clear it is not for the Council to make extensive enquiries on behalf of an Applicant, merely to make its records available. There is no reason to find it withheld them as part of the application process.

32. For these reasons I find that the refusal of the LDC application, subject of Appeal A, was entirely justified, I would go so far as to say inevitable, on the documentation that was before the Council when it made its decision. In this context paragraph 8.12 of the Circular appears to be pertinent in saying “The fact that a LDC may be refused because the onus of proof is not

discharged by the applicant does not preclude the submission of a further

application if better evidence is subsequently available”.

Both appeals: Review of documents submitted at appeal stage

33. In this section I shall examine the written documents that were provided at appeal stage, but not those which formed the basis of evidence that was given on oath, which I consider in a separate section below. I appreciate that some of the authors of these letters wanted to attend the Inquiry. I was initially given a number of other names of those who would attend, but the Inquiry was advised that certain people could not do so, amongst other things, by reason of work and child care responsibilities7. However that is not an explanation for the form of the following correspondence, which mainly comprises letters rather than statutory declarations. In each case, in addition to a brief resume of the evidence, I shall attribute the weight that I attach to each piece of evidence and give reasons for that judgement:

(a) Cricklade Town Council letter dated 14 April 1997: The anonymous letter of complaint [26 (ii)] was copied to the Town Council, which is evident from its face. This letter from the Town Council to the NWDC Enforcement Officer says: “We have had an anonymous letter from the

public concerning use of land OS no 7400 at Chelworth”. So although I have given reasons for finding that the anonymous letter did not relate to the appeal site [26 (ii)] that is the way it was interpreted by the Town Council, who asked for NWDC to investigate the use of that field. The letter is therefore evidence that the Town Council did lodge a complaint with the LPA about the use of the appeal site in 1997;

(b) Development Control Committee “North” – 20 December 1993: The Committee report would appear to relate to planning application No N.92.0066.F, granted on this date [14 (h)], but it would appear to have some internal contradictions. It says the applicant, Mr Cooper: “…was carrying on a vehicle dismantling business from the site although

this has now ceased”. The site for this purpose appears to include both fields as it says: “The land at Hicks Leaze comprises 19.3 acres of land

which is owned and occupied by the applicant, Mr Cooper”. However elsewhere it says Mr Cooper: “…is engaged outside agriculture dealing

with lorries, scrap etc”. It also says, in comments attributed to the Council’s Director of Property Services, that: “There is no dwelling

accommodation on the land. It is understood that Mr Cooper lives in a

mobile home at The Gallons”. I appreciate that the Appellant says that this report is correct insofar as it says that he was living in a mobile home but wrong in saying that was at The Gallons. However even the

7 Mr Cooper’s evidence to the Inquiry on 22 October 2012.



basis for that understanding is unclear. In the light of all that I have heard the accuracy of the report to the Committee is questionable and I consider that very limited weight can be attached to these quotations in terms of their factual correctness;

(c) Letter from NWDC to Mr Cooper dated 21 May 2002: The letter, which is signed on behalf of Charmain Burkey records that a site visit was convened on 16 May 2002, which was also attended by the Environment Agency. It records concern “…about the intensification of the use and the

expansion of the site, not only into the fields as discussed with

Mrs Burkey, but also the “main site””. It continues: “I understand that

you discussed a 6 month time period in which to clear the fields of the

parked car and other scrap. Given that this would take us into November

when the fields are likely to be too wet…” (my emphasis). I find this letter unclear. It does not define what is meant by the main site or the fields. It refers to car in the singular. It is written in the first person “I” but the first 2 sentences of the third paragraph might suggest that the writer is retracting from a position that she adopted at the meeting. It is of course possible that the main site is 8316 but, if this is correct, why would 7400 be referred to as fields [plural]? In the circumstances this letter is inconclusive. It probably does, but I cannot even be sure that it relates to OS field parcel No 7400 given the ambiguity of terminology;

(d) Kenneth Anns: The letter dated 11 January 2011 [* 4.5] says that the author has done work for Mr Cooper since the late 1980’s. It confirms that: “Mr Cooper keeps some cars, lorrys, etc in both fields at Chelworth,

and his caravans are in the top field, where he lives to keep watch on

cars etc stored there”. That part of the sentence relating to residential use is in the present tense and so cannot be taken to be any indication as to when that use commenced. The letter is not sworn and refers to both fields. In all of the circumstances I attach it very limited weight;

(e) B D Huband: The letter dated 21 March 2011 [CD 2.3] records that the author first met Mr Cooper in the mid 1980s and worked for him in the early 1990s. It says: “In all the time I have known him he lived in a

caravan on the site” and that he “…understood that he continued to live

and work on the site”. In contrast to all of the correspondence, over 50 items, that I have reviewed so far this is the first letter that suggests a residential use has taken place over a significant period of time. However the letter does not identify the site to which the author is referring, gives no indication of the work activity and the letter is unsworn. For these reasons I attach it very limited weight. A second letter dated 12 July 2012 [CD 4.10] repeats the same errors in failing to clearly identify the land and whilst this does refer to Mr Cooper’s business as the export of car and truck components it is unclear if it is said that this was undertaken on the appeal site. Again, because this letter is unsworn, I attach it very limited weight;

(f) M C Taxis: This correspondence [CD 2.4] is undated and so its reference to collecting him from his caravan near the Gallons cannot be quantified. It continues: “Mr Cooper has lived there since the 1980s”, which again suggests a residential use has taken place over a significant period. However the letter does not clearly and unambiguously identify the site to which the author is referring, does not mention a business activity and the letter is unsworn. For these reasons I attach it very limited weight;



(g) Michael Keel: A proof was submitted on behalf of this gentleman but it is not signed or sworn. Mr Keel did not attend the Inquiry. In these circumstances, whilst I have noted its contents, I am only able to attach very limited weight to this unsworn proof of evidence;

(h) N Durnford: The author of the letter dated 31 July 2012 [CD 4.2] is said to be the former Gypsy Liaison Officer for Wiltshire County Council. The letter confirms that Mr Cooper lived on the Hay Lane gypsy site from approximately 1979 to 1984 and was required to leave as the scrap business outgrew the Council’s site. The letter says Mr Cooper moved to land near Chelworth “some of which” was behind Mr Pratt’s bungalow and that Mr Durnford visited him there. However the letter does not identify the precise site to which the author is referring, gives no indication that Mr Cooper was living and working on that site and the letter is not signed let alone sworn. For these reasons I attach it very limited weight;

(i) Mrs D Avenell: The undated letter [CD 4.4] says that Mr Cooper has “always had his business in Cricklade at Chelworth” but refers elsewhere to him having been at his site in excess of 25 years. She recounts an incident from 1993 when the fire service had to break into “the top end of

the site” to extinguish a fire. She also says she has been supplied with block pavers from the top field. However the letter does not clearly identify the site, to which the author is referring, e.g. is the top end of the site the appeal site? The broken lock could have been to get into the lower field. The reference to always having a business there is confusing as no such claim is made. The letter gives no indication of residential use and is unsworn. For these reasons I attach it very limited weight;

(j) P Owen: The author of the letter dated 20 June 2012 [CD 4.5] says that he owns property within 100 yards of Mr Cooper’s land and has lived in Chelworth since 1977, having known Mr Cooper from the 1980s. Mr Owen says he has dealt with Mr Cooper on the lower field and bought “several loads of Cotswold stone, old bricks and wood” from field 7400 where Mr Owen said he saw it and where some is still stored. The letter gives no indication of residential use, which is surprising given he is a close neighbour, and is unsworn. As such I attach it very limited weight;

(k) B Oram: The undated letter [CD 4.6] confirms that Mr Cooper runs different businesses from his land and has lived in a caravan on his land at Chelworth since he came back to Cricklade in the 1980s. However the letter does not clearly and unambiguously identify the appeal site distinct from any other field and as it is unsworn I attach it very limited weight;

(l) R Matthews: The undated letter [CD 4.7] claims that Mr Cooper carried on Mr Pratt’s business from the same fields. The author says he did a lot of welding at Hicks Leaze and that Mr Cooper has lived in a caravan on OS 7400 for about 20-25 years. However no claim is made that welding has been done on the appeal site. As the letter is unsworn I am only able to attach the claim regarding residential use very limited weight;

(m) Kenneth Irving: The letter dated 29 July 2012 [CD 4.9] refers to Mr Cooper’s two businesses and says: “Shinal Motors is on OS 7400 and

deals in lorries, horseboxes, cars etc, etc for resale in this country”. However the LDC application expressly refers to export. The letter also refers to building materials and “his caravans”. However the letter does not expressly say that Mr Cooper lives on the appeal site and as the letter is unsworn I am only able to attach it very limited weight;



(n) M Curtis: The letter dated 12 July 2012 [CD 4.11] says Mr Cooper has a caravan on OS 7400, runs his business, Shinal Motors, from there and has been there for around 25 years. The letter is more precise than many of those I have reviewed above but because the letter is unsworn I am only able to attach its contents very limited weight; and,

(o) CS Bice: The author of the letter dated 11 June 2012 [CD 4.13] says he has known Mr Cooper for over 24 years and that Mr Cooper has carried out several house clearances for him. Although he refers to the different businesses being conducted from two fields, he then conflates the fields by saying that Mr Cooper lives in a caravan on the site. On this basis the letter does not clearly an unambiguously identify the appeal site, distinct from the lower field, and as it is unsworn I attach it very limited weight.

Comments on the extra documents placed before the Inquiry in connection

with the question of immunity

34. For the reasons set out above this unsworn correspondence adds little to the Appellant’s case in terms of immunity in either appeal, although I reject the Council’s submission that this correspondence should be given no weight because it must be a material consideration in these appeals. Arguably the most significant letter is that from the Town Council [33 (a)] that appears to have lodged a complaint about the use of OS 7400 in 1997. However I have already noted the terms of the contemporary letter from Mr Pratt to the Town Council [15]. Adopting a balance of probability, it would appear that NWDC approached Mr Pratt about the activities on his land as a result of that letter of complaint rather than investigating the appeal site. However I shall return to this point below in the context of the Appellant’s oral evidence.

35. The inference8 was made in closing that the sheer weight of correspondence submitted in this case means that collectively substantial weight must be given to the submitted documentation. It is submitted that this is particularly the case, as here, where the documents add and are consistent with the chronology and evidence given by witnesses who were called. However I cannot agree that it is appropriate to give significant weight to the letters that have been submitted at application and now appeal stage even though I acknowledge that in numerical terms they are significant. For the reasons that I have explored at length the submitted letters are imprecise and in many cases ambiguous. In my view it is the quality not quantity of evidence that is important in an LDC or ground (d). The submitted documentation that I have reviewed above is certainly voluminous but even when viewed cumulatively it is of very little value in progressing the Appellant’s claims.

Both appeals: Review of oral evidence for the Appellant at the Inquiry

36. Here I shall summarise the evidence that has been provided on oath by the Appellant and his witnesses, including by reference to documents submitted by each witness. In each case I shall attribute the weight that I attach to the oral evidence and give reasons for that judgement. It is important to stress that where a witness has given evidence on evidential matters, ground (d), and merits, ground (a), the following comments do not purport to be a summary of the evidence that any witness gave on planning merits.

37. The summaries are fairly full because, for most witnesses, there is little documentary record of their evidence. Even where witnesses have provided a proof or a letter a unique feature of this case is that a large amount of

8 The submission related specifically to unsworn witness statements but it seems to me that the point goes wider.



evidence was given on oath for the first and only time at the Inquiry. Given the duration of the Inquiry it will be evident that I am dependent to a significant extent on my notes of the proceedings. In an Inquiry of this length I suggest that it is inevitable that there will be minor discrepancies between my notes of the proceedings and those that were kept by the main parties. For this reason, in drawing conclusions, I make no apologies for focussing on ‘the big picture’ although I shall consider detail, for example where that has been identified in the parties’ closings as being in dispute.

38. Finally I have excluded Dr Murdoch’s evidence from this section of my report on the basis that he has no personal knowledge of the use of the appeal site over the 10-year periods at issue. I have also excluded Mr Olding’s evidence regarding aerial photographs from this section of my decision on the basis that this goes to interpretation of the Council’s evidence that was advanced to contradict the Appellant’s case. I shall therefore deal with it separately.

Robert Cooper [also known as Tony]

(i) Residential use

39. Mr Cooper said he first came to England in 1949 but came back permanently in 1977. He said that he had always lived in a caravan rather than bricks and mortar although he stayed the odd night in a room in London; he slept in the cab of his lorry in other parts of the country. He said that he had lived on the appeal site in a caravan since 1985 apart from a 3 month period in 1991 and a further week in the mid 1990s when he had been in hospital. He was adamant that he had never lived on the bottom field and also said that he had settled down rather than live on the side of the road. He said he had never hidden where he was living and that it should have been obvious. He did not understand why NWDC did not take enforcement action in respect of OS field parcel No 7400 and confirmed that the Inspector did not go on there during the 1988 accompanied site inspection when Mr Cooper said it was foggy. Mr Brown had never been restricted as to where he could go and in Mr Cooper’s view the Council knew he lived there. Mr Cooper explained that Mr Brown’s own photographs demonstrated he had been on the top field.

40. Mr Cooper gave details of his personal circumstances, which are in dispute and so, although I am conscious that this is a public document, they need to be set down. Although in his mid 70s Mr Cooper said he was happy to keep working and was not thinking of retiring. He said that he had lost count of the number of children that he had with 3 different mothers, but that 6 or 7 were close to him. He said that in addition to Tony Jnr, who gave evidence to the Inquiry, he had daughters in Watford, Samantha and Sarah, who he saw regularly. He said that he had 11 sons and that these included Raymond, in Wales, and Danny [Bane] and Billy, who was 2-years older than Danny, who had both lived with Mr Cooper at the Hay Lane gypsy site. He said that he took Danny from his mother in 1972 because he had not been allowed to see him. When Mr Cooper worked away he said his uncle had taken Danny to school at Great Somerford, as Danny had not seen his mother since he was about 3 or 4 years old, but his uncle had died in 1974.

41. Mr Cooper said he then took Danny back to Ireland for a couple of years and together they had travelled around England from 1977, including staying on a Caravan Club site in 1978/1979, before he first moved onto Hay Lane in 1979. Danny’s Aunt and 3 half sisters had looked after him at Hay Lane and so Mr Cooper could not remember which school Danny had gone to then. Mr Cooper said he settled in this area because of family connections and so that



Danny could get an education, but said Danny was working with Mr Cooper on tar spraying from the age of 12. In contrast Billy had not found out that Mr Cooper was his father until he was 14 or 15 and so lived with his mother and step father, which meant that Mr Cooper had not been his primary carer. Mr Cooper settled down and no longer travelled because he was too busy.

42. Mr Cooper said that he had initially lived on the appeal site with his wife and their baby son, Tony, who was later called to corroborate this, and that the family had lived in a big Carlight caravan. He said that he had split up with his wife after 5 or 6 years due to his drinking when his son was about 10 years old, probably when Mr Cooper had an accident and was unconscious and in hospital between March to May 19919. He said that when his wife left she moved to Cricklade, but later got a council house in Wotton Bassett. He said that was in the middle of his second 3-year term as a Town Councillor, but in October 2012 he said in cross-examination he had just been elected a Councillor in 1990 and did two 3-year stints on Cricklade Town Council.

43. In cross-examination Mr Cooper said that the residential caravan had been moved around the appeal site but that he could not say exactly where it had been, although for much of the time since 1999 it had been just inside the top gate close to the hedge. It was moved by hooking it up to a land rover. He was taken through a number of aerial photographs [CD 16.1-16.8] and could identify the caravan at the western end of the field in 1995 and 1999, but could not be certain where it was located in the 2001 or 2002 images.

44. Mr Cooper said that he had no receipts for either caravans or utilities. In cross-examination he said that he last changed his caravan 3 or 4 years ago10 when he had bought it from a demolition contractor for £700. When he gave evidence a second time he said he had been living in the same caravan for at least 3-years11 and all the caravans he lived in were broadly in the western half of the site. He said he had a big 20 foot twin axle Carlight caravan before that for about 5 years12. He said that about 8 years ago13 he had a proper mobile home. He had bought 3, one was on the top field, one his son had and the other was rented out on another site. The mobile home had a kitchen but he was unsure if it had a shower. All 3 of the mobile homes had been delivered one at a time on low loaders to Hicks Leaze. They had been bought for cash because they had little value without a site. He said that the mobile home had been put on the western end of the appeal site. Before that he had a tourer in the middle of the field. Mr Cooper said he had a reasonable memory over the last 10-years but it “fades before that”.

45. In cross-examination Mr Cooper was taken to photograph No AB/18 [in the bundle at CD 20.1a] and said that whilst he was not certain he thought that was the “Safari” caravan that he was living in at that time, i.e. 9 June 2005. He said that he kept the curtains drawn when he was not there and so this led him to think that he was living in it at that time. He said that the actual caravan was still on Hicks Leaze now. When it was put to him that he had not mentioned the “Safari” caravan in his earlier listing he said that he forgot and that there had been 5 or 6 different caravans over that period. He said the mobile home had gone by the time of Mr Brown’s visit in 2005, but he

9 However when giving evidence on 24 October 2012 Mr Cooper said his wife left in 1992. 10 Mr Cooper gave this evidence on 27 April 2011 and so this would take me back to 2007-2008. 11 Mr Cooper gave this evidence on 24 October 2012 and so this would take me back to 2009. 12 This would take me back to approximately 2002-2003; see the penultimate footnote. 13 Mr Cooper gave this evidence on 27 April 2011 and so this would take me back to 2003.



was able to identify it in the 2004 aerial photograph [CD 16.7] and said he moved into the “Safari” caravan after living in the mobile home.

46. When asked about the caravans in the context of the aerial photographs [CD 24.4-24.17] he could not make sense of them and could only say what he knew, which is that there had always been a caravan on the appeal site. He said that some of the caravans had a detachable tow bar and as the mobile home was brought on a low loader it too had no tow hitch. He also said, when recalled in October 2012, that he had lived in a converted horsebox. In the context of the 2002 aerial photographs [CD 24.14] he said there was a small chalet with a flat roof at point “B” but the tow bar was not visible. He said Ms Cox was wrong to assert that all caravans have a roof light.

47. Mr Cooper said he had no electricity on the appeal site at all and neither was the caravan connected to water. He used a generator in winter, which he chained to the bar of the caravan, and the rest of the time there was a lorry battery under the trailer that ran the lights for a week. He filled a 5 gallon water container up from the tap by the buildings on the lower field, put it on a lorry and drove up to the top field. Water was tipped from the container into a bowl, e.g. for washing, and the water was sometimes heated on a wooden fire. He took his washing to his daughter or a lady in Cricklade and had a shower in Swindon swimming baths or used someone else’s bath, not the bathroom at No 4214. He used Calor gas, which was disconnected during the day so that the cutters don’t take it. He said he usually had breakfast and lunch in the café at No 42 and an evening meal in a pub or restaurant in Cricklade, from which he often returned in a taxi. He ate things like bread and cheese, basic provisions, in the caravan and did not cook. He might use the toilet in the café but otherwise went outside or in the barn if he was working on the lower field. He suggested that this lifestyle might mean that his occupancy would not be evident in the aerial photographs. In this context he said that he might light a fire on a cold morning or to heat some water to wash a car or trailer down. He said he did not light a fire every morning but uses Calor gas, but there are regular fires on the bottom field, as a result of things being cut up, and he might contact Mrs Avenell to deal with it [33 (i)].

48. Mr Cooper was recalled in December 2011 to deal with various matters, which included Mr Brown’s photograph taken on 19 April 2011 [CD 21.5]. He thought that Mr Brown had taken those photographs from well outside the appeal site and that he had not entered his land on that occasion. Mr Cooper confirmed that he was definitely living on the appeal site on that date. Mr Cooper was also recalled in October 2012 to deal with this issue. He said he was not living in the Safari caravan at this stage15. Amongst other things he said that the container outside was a drum of diesel that was used to light fires. He said that he would take his wellington boots off and throw them underneath the caravan. He said there was a big red gas bottle in the gap at the front of the caravan and that there was a small one inside. He pointed out that Mr Brown’s plan [CD 23.3] edged the wrong field in red but from the next field it would not be possible to see if the step was dirty.

49. In cross-examination in October 2012 he said Mr Pratt died in approximately 2000 and that prior to this date he went to get water from Mr Pratt and get any post. He said that the track between OS field No 7400 and The Gallons was less prominent in later aerial photographs because Mr Cooper no longer

14 Note: this is a summary of evidence given in April 2011 and October 2012. 15 See final photograph, timed at 11:06 AM, at CD 23.2.



had cause to go to The Gallons. He said the track from 7400 to The Gallons had been blocked off “at least” 8 to 10 years ago to prevent joy riders gaining access. He had used a gate, tipper lorry, girders and tyres to block it although he could still climb over the obstruction if it were necessary.

50. In cross-examination Mr Cooper said that between circa 1999 and 2009 nobody had lived on the appeal site permanently except him, although he occasionally had female company. He said he stayed in the caravan most nights but this did not mean every night. He initially said that his employees did not stay in the caravan. However after being referred to his own letter [CD 1.3] he said that one of his sons or someone might stay in the caravan for security purposes but there had been no-one in the last year. My notes confirm that he told the Inquiry in chief on 27 April 2011 that when he went for a drink he would be collected in a taxi and might leave his son on site. Specifically he said that Mr Mundy had stayed in the caravan in the past and that other people had stayed on the lower field. These included Dale Vince many years ago, when there had been up to 40 caravans on the lower field. However he rejected the assertion that he only lived on the appeal site for reasons of security and said it was a quiet field away from the dismantling.

51. In cross-examination Mr Cooper was taken to the electoral roll records for No 42 [CD 18.17], which show that he has been registered there since 1998/99 for this purpose. He was asked why he swapped his registration from The Gallons to No 42 in 1998 but denied that he had ever registered to vote at The Gallons. The records show that since that date the number of people registered to vote at the property has increased such that from 2004 to 2006 there were 7 people registered to vote, including the Appellant and his son. In 2011, the most recent year for which records have been provided [* 13], there were 9 people registered to vote. Mr Cooper confirmed that he had filled out the form, evident from the signatures on the most recent return.

52. I have no reason to doubt that No 42 comprises 3 bedrooms on the upper floors in addition to the office above the café and so some of the names on the list, i.e. Mr Anns, Mr Rayner and Mr Conlon16, appear to reside at No 42. However it is unclear, and in my view unlikely, how 9 adults, who are plainly not a conventional nuclear family, could reside above this modest frontage café, which I inspected from the street. Mr Cooper’s explanation was that as his family are travelling they are registered at No 42 to vote and that he had taken responsibility for ensuring they could vote. I find this to be a complete and convincing explanation. I appreciate that the declaration contained on the form must be read in conjunction with the notes that say “People can

register only for the address where they are resident”. Nonetheless this evidence from the electoral roll does not lead me to find Mr Cooper has ever lived at No 42. Noting he was cross-examined about this in April 2012 and again in October I have no reason to doubt the Appellant’s firm answers that he does not live at No 42.

53. In cross-examination Mr Cooper was taken to the Council Tax records for No 42 [CD 18.22], which show that he has been registered there since 25 March 1994 for this purpose. Mr Cooper stated that he knew no different and was registered there for Council Tax purposes because he owned No 42. He said he paid Council Tax but that the 3 tenants, who had a shorthold tenancy, then paid him rent for the room that included sums for the electric, water

16 Mr Cooper gave evidence to this effect in cross-examination. He said that Mr Rayner and Mr Anns had both lived there for 10 years and that Mr Conlon had been there for 15 years but that because he has a lorry Mr Conlon only resides at No 42 at weekends.



and Council Tax. Again this strikes me as a perfectly reasonable and logical explanation as to why Mr Cooper’s name is on the Council Tax system for No 42. I note that the Council ultimately elected not to call Mr Barnes, the Revenues Visiting Officer, and so I attach very limited weight to his unsworn proof of evidence and, in particular, the claim that Mr Cooper is the owner of a caravan at The Gallons, which he strenuously denied on oath. Mr Cooper gave a convincing explanation of the circumstances surrounding that caravan which, he said, was occupied by Mr & Mrs Pearce before they moved to a property owned by Danny, No 77 Cherry Tree Road, who then occupied the caravan temporarily ahead of the completion of his house at The Gallons.

Robert Cooper

(ii) Business use

54. Mr Cooper said that he operated his business from Chelworth Park for a number of years but had to move from there after enforcement action was taken. The appeal decision [Ref T/APP/C/88/J3910/020/P6] dated 12 April 1989 [amongst the bundle at CD 23.4] records, paragraph 6, that Mr Cooper “…had been on this site for about 6/7 years”, which would take me back to 1982. Mr Cooper said he had operated both sites, which I take to mean Austen Bros’ Yard and Hicks Leaze, for between 4 and 6 years. Noting the 6 month period for compliance on the Chelworth Park enforcement notice that sounds about right. In that context I can understand why it was not an option for Mr Cooper to continue to operate out of Chelworth Park by 1990.

55. Mr Cooper said that after he started working at Chelworth Park he got to know Mr Pratt. He claimed that Mr Pratt had always had a “few” vehicles on OS field parcel No 7400. He had traded with Mr Pratt, who he said was a “strange old man” and initially got to know him because he gave Mr Cooper water. When he bought the land he paid cash for what Mr Pratt left on the land, which Mr Cooper said comprised a breakdown lorry, dustcart, 3 or 4 cars and some spare parts. When it was put to him that this was not much he said Mr Pratt had run the business down but stressed that there was 20 tonnes of spare bits and pieces, including some good wheels and tyres.

56. After acquiring the land Mr Cooper said he traded as separate businesses with “Commercial Salvage” on OS field parcel No 8316 and “Shinal Motors” on the appeal site. Shinal Motors was involved with the sale of repossessed cars in the UK but also exported complete vehicles and components. Mr Cooper said he stored good tyres and components, which had been stripped from vehicles in OS field No 8316, on the appeal site in containers. This pattern of storage and trading started when he first acquired the land and continued right up to the present day. In particular he specialised in Land Rovers and, whilst not all vehicles had their engines swapped, he might get Mr Maxfield to put a diesel engine in a petrol model and re-spray the vehicle, then export the petrol engine and export or sell the vehicle locally. He would sometimes take the vehicle to Middlesex because people came via Heathrow to acquire the vehicles. He maintained that he had done more business years ago when there was usually a lot of comings and goings and a lot there. He stressed that he did not sell anything on the top field. Nobody came to the top field to buy vehicles but he would advertise, in the local paper or on the Internet17, and then take the vehicle to the customer, most of whom were local. However he said that he had once taken a vehicle to Warrington and then caught the train back.

17 Mr Cooper said that someone would place it on the Internet for him and that he did not do that himself.



57. In chief he said that he had taken a crane onto the appeal site to take a horsebox off a chassis and the lorry had then been sold. For this reason he had put down an area of hardstanding in the vicinity of the gate between the respective fields at an early stage, which he estimated to be twice the length of the Council Chamber. He also stored Cotswold stone and saddle stones on the appeal site from an early stage. In cross-examination he was asked about the hardstanding and said it was repaired last summer [2010]. On that occasion he had just moved the vehicles around the appeal site, out of the way, whilst he used a JCB, from the bottom field, to maintain the track. However he said that he had not had his JCB or the crane as early as 1990.

58. When asked about the hardstanding in the context of the aerial photographs he said that grass grew through it. In the specific context of the 2002 aerial photograph [CD 24.14] he said it showed hardcore, i.e. bricks and rubble with scalpings on top, to point “J”. In the specific context of the 2005 aerial photograph [CD 24.16] he said this was the first photograph that clearly portrayed the track. He suggested that a lot of vehicles had gone out and that ruts were evident in the grass where the ground had got wet. In the specific context of the 2008 aerial photograph [CD 24.17] he accepted that the tracks were much clearer in this image but said that ruts grew over in winter and maintained that there would be no marks at all in dry weather.

59. Mr Cooper said that vehicle storage tended to expand outwards from the gate. He said the level of storage on the appeal site fluctuated significantly but that it ranged from 12, minimum, to a maximum of up to 100 vehicles. In cross-examination he said the numbers did “fluctuate all the time” and said there were “never less than 10” and were typically between 12 and 60. He said there was no correlation between the numbers of vehicles; it did not follow that there were more vehicles on 7400 when 8316 was busier. When he was recalled in October 2012 he said that the fewest number of vehicles stored on the top field was 15 but that there could be 100 vehicles there one day and back to 15 vehicles the next. When asked whether he kept records Mr Cooper said he “doesn’t put each vehicle down”. He said he knew what he had sold from the money but when asked whether he had tax and VAT files he answered “No”. When asked why no documentary evidence had been provided as part of the appeal Mr Cooper said he was “not asked for it”. He said that he could produce all of his books to show what had been sold.

60. In this context Mr Cooper was taken through a number of aerial photographs [CD 16.1-16.8] and, amongst other things, said in response to the claim that there were few vehicles in the 2001 photograph that the claim was “correct”. He suggested that there were 25 vehicles evident in the 2002 photograph [CD 16.6]. When it was suggested to Mr Cooper that the 2004 photograph [CD 16.7] provided evidence of a gradual increase he said that the numbers went up and down all the time and that the photographs showed there had always been vehicles there. Mr Cooper said that the top field had been covered in vehicles but that he had no proof. However he acknowledged that he could not see Mr Keogh’s machines in the 2004 aerial photograph. He agreed that the 2005 photograph [CD 16.8] was clearer and he said there were dumpers by the hedge, concrete mixers by the far fence and he said the box van was used to store hay for cattle on the lower field. When recalled in October 2012 he struggled to identify features in the other aerial photographs [CD 24.4-24.17] and thought it “ridiculous” that things such as vehicles could not be discerned due to the poor quality of the photographs.



61. He said there was always at least one caravan on the appeal site that he lived in but that there were usually 2 or 3 on there. He said there were typically 4 or 5 lorry bodies, or containers, kept on the top field within which parts were stored. He counted 10 on the most recent aerial photograph [CD 24.18]. He said that there were up to 6 lorries kept on the appeal site, which were also used for the storage of valuables. The vehicles would come and go, often because the lorry chassis was split up from the container, which was then placed anywhere on the site. This operation could involve undoing “U bolts” or attachments were cut with an oxy acetylene cutting gun and the body was removed using his 8 wheeled lorry with a crane or his JCB. However he said that, apart from the removal of tyres, this was the only operation that had been undertaken on the appeal site and he contrasted it with the cutting up of scrap that took place on the bottom field. He did not think coaches had been stored on the appeal site for many years. He added that he had once put the caravan in a curtain sided lorry because he was having problems with thieves, who he surprised when they returned and that he had sent them to hospital because they “fell over and hurt their head”.

62. Mr Cooper explained that the Police had brought him vehicles that they had seized, e.g. those that were untaxed or uninsured. If the owners did not pay the fine he kept the vehicles and if they were in good condition they were sold, if not they were moved to the bottom field to be dismantled. However all of the vehicles initially had to be held for 28 days to allow the owners to pay the fine and up to another fortnight to enable the paperwork to be sorted out. Accordingly they had to be kept safe and secure for a maximum of 6 weeks, during which time they were kept on the appeal site. He said the throughput of vehicles fluctuated but it could be 10 vehicles a week.

63. He said the owners had to pay a £100 recovery fee to obtain their vehicle. This was because the owner had to go to Titcombe or Greenmeadow Garage who would send someone out to collect the vehicle using a recovery truck in order to return the vehicle to the owner. Mr Cooper said that he kept no documentation, no record at all, and in any event he stopped doing this work a “couple of years ago”18 because the garages only gave him rubbish. However when he was recalled in October 2012 he said that the work only stopped because the site was not secure, which is why he was here. When I asked him about this he said this was a second reason for making the LDC application, in addition to the fact a further period had passed since 1997.

64. Mr Cooper elaborated on the distinction between the respective fields by saying that the breaking could be done elsewhere, i.e. it was not necessary for it to be done on the lower field, and this would not change the storage use that took place on the appeal site. He maintained that there was a clear distinction between the activities on the respective fields. His insurance certificate [* 11], which says “t/a Shinal Motors”, allows him to move good vehicles and there was no need to do this for vehicles on the bottom field.

65. Mr Cooper said that the agricultural activity was not a separate company but was restricted to the lower field. He said he did not dehorn his cattle, which were kept for beef, and they were not allowed on the appeal site for this reason as they could damage the better vehicles. Although they had broken through the fence on occasions they were not normally allowed up there. He acknowledged that horses had been kept on the appeal site and that in April 2011 he had moved horses onto field No 7400 from his son’s field at The

18 Mr Cooper gave this evidence on 27 April 2011 and so this would take me back to 2009.



Gallons. He said that valuable race horses had been kept on the top field for a couple of weeks at a time several years ago ahead of race meetings and he had taken horses in part exchange for vehicles. In re-examination he said that the box van that he used in connection with making hay [60] was not stored on the appeal site with hay in it. He said that when the box van had been stored on the appeal site that it had vehicle parts in it. Although I have some reservations about this answer on balance I am prepared to accept that it was a clarification of the answer given in cross-examination.

66. Mr Cooper said Mr Keogh had used part of the appeal site to store JCBs and other machinery, 4 or 5 years ago19 when Mr Keogh swapped them to the lower field. When asked why this plant and machinery did not feature in the earlier aerial photographs Mr Cooper said they would have been on hire during the day. In cross-examination the reason he gave for Mr Keogh swapping fields was that the appeal site was too wet. In answer to my question Mr Cooper said that Mr Keogh did continue to store some plant and machinery on the appeal site when it was dry in the summer. He said that rollers and small items of plant used on groundwork, including a generator, were kept on the appeal site. He had referred to another company “Shinal

Contracting” and said that this company was not based on the appeal site. However in answer to my question he said that company no longer existed and that it was only Mr Rogers who referred to that entity when introducing Mr Oram. He said it was a name from his tar spraying days many years ago. In re-examination he said that generators and “wacker plates” were stored in containers on the appeal site and would not be evident in photographs. When giving evidence in October 2012 he claimed that rollers, a concrete mixer, plant and machinery had been kept on the appeal site since 1985. Mr Cooper said he had only one JCB whereas Mr Keogh had about 10 JCBs.

67. Mr Cooper said under cross-examination that between approximately 1985 and 1995 that he had employed between 10 and 15 men. Of these 2 or 3 were lorry drivers, 3 or 4 were labourers, others drove vehicles back and forth, some did demolition [“Cook’s Demolition”] and tarmacing, and some bought and sold hay. He confirmed that these employees “worked in both

fields”. He said in April 2011 he just employed 2 full-time and 2 part-time employees almost exclusively on field 8316, although they did drive vehicles back and forth onto field 7400. When he was recalled in October 2012 Mr Cooper said he had done little business for the last 3 or 4 years whilst this, generically the planning issue, was sorted out. He said he only had one full-time workman now, Mr Mundy, but he did bring casual workers in at the weekend. Mr Cooper said he that his turnover was quiet now, in October 2012, and the amount of storage was average or slightly less than average because he had been selling, rather than buying, things for the last 2 years.

68. Mr Cooper said the main reason for the reduction in the level of employees was that the export business was not there any more. Mr Cooper said that at one time everything in the west of England came to him. However he clarified that good cars, such as Mercedes, Peugeots and the Japanese cars, and valuable commercial vehicles, such as Leyland, Bedford, and Ford Cargo, were still exported. He said a container for export, which could take up to 25 tonnes, cost £2,200 and that this included collection from the site and loading onto the ship via R T Shipping Co. The customer did their own documentation and most export was done in cash, with money paid up front. He kept a bill of loading and he had some somewhere. Apart from this he

19 Mr Cooper gave this evidence on 27 April 2011 and so this would take me back to 2006-2007.



said it was a similar transaction as for any other private buyer. He said that he mainly exported from the bottom field and from another site in Stanwell in Middlesex, but that had shut 2 years ago and he now had no other site.

69. Mr Cooper produced a trading and profit and loss account for Shinal Motors for year ending 30 April 2004, which is dated 23 December 2005 [* 17]. In the context of employment I note that the entries for subcontract labour and wages is small, £1,560 in 2003 and £1,892 in 2004. The entries appear to be inconsistent with the Appellant’s claims regarding the level of employment.

70. The accounts also contain entries for business rates of £2,462 in 2003 and £2,808 in 2004 whereas Mr Cooper acknowledged in cross-examination that he paid no business rates. His suggestion that this entry might be for the café appears to be inconsistent with his statement that it was a separate business. Mr Cooper said that he gave his Accountant all the papers once a year and did not understand why the entry for business rates was put in, so it was possible that the Accountant muddled things up. Although Counsel said the Accountant would be called to clarify the entry he was not called. In a letter from his Accountant [* 22] it is claimed that the figures for the business rates were provisional, but given the date of the accounts I cannot accept this explanation. Why, over 18 months after the end of the tax year, would one put in provisional figures for a known cost like rates? The figures are precise, which is wholly inconsistent with this explanation.

71. The unsigned letter from his Accountant also says “Mr Cooper’s accounts,

for presentation purposes in his self assessment tax return, show the two

businesses of Shinal Motors and Shinal Commercial Salvage as a combined

set of figures”. This too strikes me as an odd statement. The fact is that no other party has referred to the company as “Shinal Commercial Salvage”. That name is inconsistent with the company letterhead with its VAT number [26 (jj)]. I have not been provided with a copy of a self assessment tax return for any year. The trading and profit and loss account is expressly labelled to be for Shinal Motors rather than for Commercial Salvage and Mr Cooper confirmed on oath that the accounts were just for Shinal Motors.

72. In the circumstances I attach very limited weight to the trading and profit and loss account for Shinal Motors and the Accountant’s letter. I think that they raise more questions than answers and I am particularly sceptical of the Accountant’s letter, which does not even cite an address. When the Council asked whether the accounts could be relied on at all, Mr Cooper replied they were the records for the tax man and that most of his business was done in cash. This might be one explanation and might explain the low figures for labour and wages. The accounts, and generically the absence of documents, do not further the Appellant’s case. Mr Cooper’s letter dated 15 December 2009 [CD 1.3] refers to his official business records for the year 2001/2002 but these have never been produced, which is surprising.

73. Mr Cooper said scrap was not kept on the appeal site but he acknowledged that there were items that the Environment Agency [EA] considered to be scrap. He was taken through the EA’s photographs [CD 16.10] and said that the vehicles and parts thereof were not scrap. When it was pointed out that one vehicle [labelled “Exhibit EM02w” in the bundle at CD 16.10] had “scrap” written on its windscreen Mr Cooper said he had written that in yellow chalk and the vehicle was to go to be scrapped on the bottom field when the Police released it. He said that because of this label his workers would know what to do with the vehicle, which would be dismantled for export on the bottom



field. In relation to another photograph [labelled “Exhibit EM02x” in the bundle at CD 16.10] Mr Cooper said that this was a heap of stone, but I am satisfied this answer is incorrect in the light of other evidence before me20.

74. In relation to the last of these photographs [labelled “Exhibit EM02y” in the bundle at CD 16.10] Mr Cooper acknowledged that the vehicle was a shell and the engine and running gear had probably been removed for export. He claimed that the vehicle in this photograph was on its side as a result of a joy rider ramming it. He could not remember if it was taken for scrap. In re-examination he said that there had been an incident the day before the EA’s photographs had been taken in which vandals had turned these cars over. He maintained that none of the vehicles had been turned over by him and pointed out that there had not been any cars on their side at any of the accompanied site inspections that I had convened.

75. Mr Cooper explained that scrap from the lower field was taken to European Metal Recycling [EMR] in Swindon or else filled containers for export. In the 1980s the dismantled lorries were bought by the Mujahidin and exported to Afghanistan. In later years Mr Cooper took scrap to EMR first thing virtually every morning and he provided a sample of chits at the Inquiry that I was able to view in order to verify the times. He still exported scrap via EMR. Although the Council pointed out that all the chits were from 2010 and had No 42 as the contact address, I accept that just a sample was produced.

76. Mr Cooper said he bought the property at No 42 High Street approximately 15 years ago21. He maintains an office at No 42 above the café and all the businesses, including the café, were administered from there. The café was on a 3-year renewable lease and paid its own business rates. Prior to buying No 42 Mr Cooper said that the paperwork had been dealt with in his caravan on the appeal site. He said that just as the postman knew to take any post that was addressed to “Hicks Leaze” to No 42, so the landline telephone also goes through to No 42 and that he checks messages when he goes to No 42 for breakfast, mid-morning to get his post, for lunch and in the evening. He got rid of his mobile because international customers would telephone and wake him at night. To illustrate that all his correspondence goes to No 42 he pointed out that the PCN that was served in 2003 was addressed to No 42. This explains why the EMR chits contain the No 42 address. Prior to owning No 42 his post went to The Gallons and he would drive there to get it. He said that post comes to the office at No 42 for 30 other travellers as well.

Robert Cooper

(iii) Other miscellaneous matters

77. Mr Cooper said OS field parcel No 7400 was originally part of OS field parcel No 761 and part of OS field parcel No 777. This claim is not inconsistent with the plan attached to the conveyance [* 10] and the wording thereof, which defines the land as “part 7400”. He stated that Mr Pratt retained the northern part of field parcel 777. On this basis he asserted that Mr Pratt’s letter [15] was incorrect in respect of ownership but that he might have been talking about that part of OS field parcel No 777 that he had retained. Mr Cooper accepted that Mr Pratt was better placed to say what use was

20 See last paragraph of page 3 of 4 of the witness statement of Angie Wills [* 46], which says: “I saw a pile of aluminium at the far side of the field (Shown in Exhibit EM02x)”. 21 Mr Cooper gave this evidence on 27 April 2011 and so this would take me back to 1996, but in fact the Land Registry record [CD 18.18] shows that title absolute was registered in Mr Cooper’s name on 3 August 1994. When giving evidence in October 2012 Mr Cooper said he bought No 42 in 1994 and so there is no great discrepancy.



taking place on field No 7400 prior to the land being conveyed. In respect of the conveyance, although it is dated 29 September 1986, Mr Cooper drew attention to the date of “14th August 1985” on the last page. However, whilst I accept it is slightly confusing because of the page break, this appears to be part of “The Schedule” and the date on which the parties, including Lloyds Bank PLC, gave their assent, rather than a date of transfer.

78. Mr Cooper said because fields 7400 and 8316, together with The Gallons, was all once owned by Mr Pratt that the whole had originally been known as The Gallons. However local people know the bottom field as Hicks Leaze and if they ask where he is that is what he says. If the postman gets something addressed to Hicks Leaze he knows to take it to No 42. He said that it is his address for correspondence, so whilst I accept that No 42 was the address given on the application and appeal forms this is not conclusive of residency.

79. He said following the complaint in 1997 [33 (a)] that NWDC investigated Mr Pratt first [34] but then switched their attention to him and issued a PCN; he did not understand why the Council had been unable to produce it. He said that in his reply to that PCN he had said that he had been there for 12 years and was entitled to an LDC even at that stage. He said he went to get the LDC forms from NWDC in 1997 but did not proceed and laid low for another 12 years until he made the application that is now the subject of Appeal A. He said he had filled the form out himself without any assistance and posted it recorded delivery but that the Council had then denied receiving it.

80. There is no documentary evidence to support the Appellant’s claim that a PCN was served on him around this time in 1997 other than references in Mr Cooper’s own correspondence from a minimum of 12 years later. The Appellant’s treatment of his own letter, the original of which is undated [26 (mm)], suggests that this is not a reliable basis on which to conclude that it corroborates the Appellant’s version of events in 1997. However it remains entirely plausible that NWDC switched its investigation from Mr Pratt to him. In the Inquiry Mr Cooper showed me a requisition for information and said that was similar to what he received in 1997, so it is possible that he was served with a notice under section 330 of the Act rather than a PCN.

81. In chief he said that Mrs Burkey did not come onto OS field parcel No 7400, just onto OS field parcel No 8316 and that she had focussed exclusively on the lower field. However in cross-examination he conceded that he could not remember her going up there but agreed that it was possible. However in re-examination he again asserted that she had just looked through the gate. In my view this is an example of a point that is not capable of being recovered and so, on this narrow basis, it is possible she did go on the top field. He said that he was annoyed with Council Officers, whom he accused of having not been “dead straight” with him. He had suggested swapping the lower half of 8316 for 7400 and said he was unhappy with the lack of disclosure.

82. Mr Cooper was recalled to deal with Mr Brown’s notebook and said he had “never ever” seen it before and had never been asked to sign it as a record of the meeting with Mr Brown on 21 April 2004. Mr Cooper said Mr Brown’s claim that he had asked Mr Cooper to sign it was untrue. He denied the interview had been conducted under caution and said he would have wanted legal representation if that had been said. Mr Cooper could recall shrugging his shoulders to Mr Olding when Mr Brown had reminded him that he was under caution because Mr Cooper was not aware that he was under caution.



He claimed that Mr Brown had not made notes, but in cross-examination he agreed the notebook correctly recorded his date of birth. He said he would have been willing to sign it if the notes had been legible and would have offered to photocopy it in the office.

83. Mr Cooper said he did not expect Mr Brown that day although he did turn up regularly at different times; he claimed Mr Brown had been on site 10 times. On that day Mr Brown had been on site before they met near the entrance gate and he had gone elsewhere on the site after that. Mr Cooper said that he had not introduced Mr Olding as his legal representative and at no time had they gone to any brown and white caravan during that meeting. Mr Cooper said that the entire meeting was conducted within 20 feet of the front gate and that whilst they had moved to see some of the vehicles being referred to they had a good view of the lower field from where they were stood. However he said they could not see the brown and white caravan on the lower field from where they were standing, which was next to Shotgun’s green and white caravan, because there were a lot of obstructions, including trees. Although Mr Cooper raised some doubts about the accuracy of Mr Brown’s plan [CD 21.6] it would appear to show that the brown and white caravan was stationed a long way from the green and white caravan.

84. He claimed he said in that meeting that all correspondence was sent to No 42 and that he lived in a brown and white caravan on the appeal site. With regard to the brown and white caravan in the photograph22 on the bottom field he pointed out that the legs on the caravan in the photograph were not down; I accept this. He said that it had been dragged down from the top field onto the lower one because the roof was caving in and the front fell out because the wooden chassis had rotted; in my view this last point is self evident from that photograph [see last footnote]. Mr Cooper said that he took it for granted that Mr Brown knew that he lived on the appeal site. He also took exception to Mr Brown’s claim23 that he had looked in every caravan at Hicks Leaze in 2005. Firstly he said the doors would have been locked and the curtains closed so he would not have seen in. Secondly he said Mr Brown had never raised the issue of his use of a residential caravan orally with him.

85. In the context of the above he was asked why, when he had originally given evidence, he could not remember living in either the brown and white or green and white caravans. Mr Cooper said that the brown and white caravan had come from Ringwood before 1998 and that the green and white caravan that Shotgun lived in had been dragged down from the top field for security after some break-ins. In this context he said he “never spent one night in

the bottom field”. Mr Cooper said that he was only able to give this evidence now because of the focus on the caravans in the Inquiry. In re-examination he stated that the photographs had assisted in jogging his memory.

86. Mr Cooper said that Shotgun moved back and forth between the highway verge and the lower field when he was served with a notice to move by the Highway Authority [* 16]. He said that Shotgun had lived in the lay-by for 18 months at one stage and finally moved away in approximately 2007 when the lay-by had been filled over. His green and white caravan was near the entrance to the lower field when Mr Brown had conducted his interview. He said that he had moved Shotgun on after his sons started to misbehave.

22 Original image No 000_755.JPG in the bundle at * 5.1-5.802, reproduced at CD 21.4. 23 Paragraph 2.10 of Mr Brown’s enforcement proof of evidence.



87. Mr Cooper was asked why the application form had been completed in the name of “Commercial Salvage” and he said that it was one of his trading names. I acknowledge that Mr Cooper, as a layman, completed the application form with limited assistance24. However Mr Cooper knew that he was making an application that was restricted to the top field and in his evidence to the Inquiry he was extremely careful to make a distinction between the respective companies operating from the respective fields. The fact that the application form was completed in the name of “Commercial

Salvage” might be an elementary error, the significance of which was not realised at the time as Mr Cooper was unrepresented at application stage. Alternatively Mr Cooper might have been advised to make a distinction between the businesses to address the planning unit issue that I raised at the Inquiry. As I have noted the letters of support conflate the fields and rarely make any distinction between the respective businesses. Although I have no reason to doubt that Mr Cooper did not tell the authors of the letters what to say he does appear to have supplied both field numbers.

Robert Cooper

(iv) My observations on his oral testimony

88. In April 2011, I drew attention to what I saw as an anomaly in the following terms. Dale Vince, an Officer of the Order of the British Empire, gives Mr Cooper a powerful commendation in saying he is: “…a man of great integrity

and his word is his bond” [26 (aa)]. However paragraph 41 of the 1989 appeal decision records Mr Cooper as saying all the vehicles on the lower field could go [14 (d)] which plainly, 24 years later, has not happened.

89. In answer to my question Mr Cooper said that what the Inspector recorded was a conditional offer as he wanted to put up some farm buildings, but that is not the way it has been set out in the decision. Nevertheless Mr Woolway, a former policeman, also offers a glowing commendation in saying Mr Cooper is: “a good, honest and genuine man, a pillar of society and a man I am

proud to know” [26 (bb)]. Although Mr Brown said he did not believe a word Mr Cooper said, Mr Smith said Mr Cooper was a “gentleman”, a “nice person” and had been pleasant to him. I have to say that was also my impression over the long duration of the Inquiry and I consider that is material in an appeal such as this where the very credibility of a key witness is at issue.

90. When I stand back from the detail and look at the broad picture I ask myself whether it is credible that Mr Cooper could have invented such an intricate story and, as a layman, sustained them through several days of cross examination by not one but, even more remarkably, two expert, specialist barristers. In my view it is not. Mr Cooper chose to make the application now the subject of Appeal A. With some irony it is only after having done so that he was subject to enforcement action. All of these factors tend to support my finding that Mr Cooper is a credible witness and that his oral testimony should be given substantial weight. Although it has been claimed that parts of his evidence, specifically that given in April 2011, have been tainted by interruptions from Counsel I am not persuaded that his evidence was led to the extent that I am unable to attach it due weight.

91. At the other end of the scale the Council suggested in closing that Mr Cooper’s evidence regarding Danny going to primary school [40] “cannot

24 Mr Olding said that he drafted the answers on the application form in pencil and Mr Cooper said he can “sort of” read and write.



be correct”. Given his date of birth I accept on a balance of probability that he would have gone to school age 4, in 1972, and should have been there until 1979. Mr Cooper appears to have had responsibility for Danny from 1972, which ties in. However Mr Cooper was clear that following the death of his uncle, who took Danny to school, he, Mr Cooper, took Danny back to Ireland and did not settle on Hay Lane until 1979 at the earliest. So I agree that on this account Danny would not have attended this primary school for long but I am not persuaded that this discredits his account that Danny went to that school at the very least from 1972 to 1974 when his uncle died.

92. This is not to say that there are no anomalies in Mr Cooper’s evidence. Apart from the trading accounts and the tension with regard to the claims made regarding employees, on which I have already commented [72], a fairly innocuous example is the contrast as to when he said he stood as a Councillor in April 2011 and October 2012 [42]. The newspaper article dated November 27, 1992 records: “Mr Pratt’s neighbour, town councillor Rubert

Cooper…” [sic, my emphasis] and so this is clear evidence that he remained a Councillor at that time [* 24.1]. The second newspaper article dated May 11, 1990, is entitled “New councillors election speech” [* 24.2]. . This would tend to support the view that he was a Councillor from 1990-1996 but that is not what he said on oath in April 2011. At that stage he said he was unconscious in hospital in 1991 in the middle of his second term, and that whilst he carried on to the end of his term he did not go back after that.

93. There also remains a concern in my mind about the 1985 commencement date. I accept that the conveyance contains the date 14 August 1985 but the conveyance is dated 29 September 1986. Moreover the 1989 appeal decision records that Mr Cooper took possession of it in 1987 and I have given a reason for attaching this record significant weight [14 (d)]. Amongst other things I note that Mr Cooper is recorded by Mr Brown as saying in 2004 that he had owned the land since 1986 [* 15]. Mr Cooper has given no convincing explanation to support the date of 1985 that is set out in answer to the relevant question on the LDC application form [27].

94. Nevertheless focussing on the big picture neither these anomalies nor any other concern that has been flagged by the Council would lead me to find that Mr Cooper’s version of events is fundamentally flawed. To be fair Mr Cooper did say he had a reasonable memory over the last 10-years but that it “fades before that” [44]. The specific context was caravans but one can understand why it might be possible to identify minor inconsistencies over a longer timeframe on subsequent analysis. However that does not lead me to find the essential narrative of his version of events should be rejected.

Gary Robinson

95. Mr Robinson affirmed the contents of his letter of 10 January 2011 [* 4.2]. He said on oath that he had known Mr Cooper since the age of 18, which was almost 30 years before he gave evidence. Initially his first employer, a recovery company, had sent him to Mr Cooper to get parts, but 15 years ago25 Mr Robinson started his own business “Grab and Go”. As a result he kept up to 3 vehicles on the bottom field. He collected his lorry from 0500 hours, but more often around 0700 hours, and typically returned it at 1900 hours. He had a key to the gate into the lower field so that he could come and go. He worked most days and because it was local work he went back

25 Mr Robinson gave evidence on 26 April 2011 and so 15 years back would take me to 1997, but under cross examination he said he started his own company in 1995 after he finished working for a resurfacing company.



and forth to the site quite a lot and took his dog for a walk there. His operator’s licence gave Hicks Leaze as the base for his lorries and they were based on the lower field until the licence lapsed around 4 years ago. The work dried up and so the business ceased to trade in approximately 2007.

96. Mr Robinson said on oath that Mr Cooper was always there even in winter when he would see lights on in the caravan. When Mr Robinson came back late in his lorry he might go up and have a chat with Mr Cooper or have a beer with him. For these reasons he had knowledge of what was going on at the site. When he went into the caravan there was bedding on one side and so he would sit on the other. There was a television and clothes in the caravan, which was not used as an office. In cross-examination he said that he had become friendlier with Mr Cooper after he started his own company and would pop in for a cup of tea. The time of day that he visited varied depending on whether a vehicle broke down or needed parts. He said that the gate between the respective fields was always closed and he parked his lorries on the right by the beef cattle, which he never saw on the top field. He was asked not to touch things on the top field as it had to be processed and might need to be returned to its owner; there was no scrap up there.

97. Mr Robinson struck me as a reliable witness except that he gave no clear picture of the nature of the business activities taking place on the appeal site and his recollection of dates appears to be somewhat hazy. However I attach significant weight to his testimony as to the residential use of the caravan during the period from 1997, at the latest, to 2007 when he was operating his commercial vehicles from the lower field. Mr Robinson had good reason to come back and forth to the adjacent field at unsociable hours and so his testimony that Mr Cooper was always there, his recollection of lights in the caravan and his evidence about the bedding is in my view highly significant.

Norman Clark

98. Mr Clark affirmed his letter dated 10 January 2011 [* 4.4]. The letter says he worked for Mr Cooper until he retired 3 years ago, i.e. 2008, and that Mr Cooper lived in various caravans and had kept cars on the top field since the mid 1980s. However in chief Mr Clark said that he could not be sure when Mr Cooper started living there but he had an accurate recollection that he had been living there for 12 years, which would be back to 199926. He said the caravan had changed a few times and been moved around the field. He was in no doubt that Mr Cooper was living in the caravan and said it was his “main residence to my knowledge”. Mr Clark confirmed that he observed evidence that Mr Cooper slept there as he sometimes sat in the caravan and saw Mr Cooper’s bed and clothes. Mr Clark said the caravan had not been used as an office and he, Mr Clark, never stayed there and he was not aware others had done so.

99. In cross-examination Mr Clark said he worked for Mr Cooper intermittently between 1999 and 2008. He originally had his own lorry but when the work dried up he sold it to Mr Cooper and went to work for him. However Mr Clark admitted to serious health problems, including heart operations in 2002, from which he took 3 years to recover when he relaxed at home, and in 2010. He was unable to say with any certainty what was happening on the land during his periods of ill health, although he did visit the site a couple of times a week between 2002 and 2005 to chat with Mr Cooper or workmen, he mentioned Les, Stan and Richard, on the bottom field. This was where

26 Mr Clark gave evidence on 26 April 2011.



vehicles were cut up and dismantled, although if there was a valuable part it was moved back to the top field. When he worked it was from about 0900 to 1700 hours and he would wait at the entrance gate in the morning to be let into the site by Mr Cooper on his return from weighing in scrap first thing.

100. Between 2005 and 2008 he said he worked up to 4 days a week answering the telephone for both companies, i.e. Commercial Salvage, which he said operated in the bottom field, and Shinal Motors, which was on the top field. However during this later period it was not a paid job and whilst he did not do regular hours he was never there before 1000 hours and typically finished about 1500 hours when he was given a lift home. He said throughout the time that he knew the site good vehicles, he specifically mentioned those delivered by, or on behalf of, the police, were kept in the top field to stop theft and so that they were away from the scrap. The gates were always kept closed between the respective fields. He said that during the time he knew the site the intensity of use of the top field had been more or less the same, although it could fluctuate depending on what the police brought in. Little changed; the most exciting thing that happened was seeing a rabbit. He estimated that there were between 50 and 60 vehicles on the top field at any one time, including up to 12 lorries. The most valuable parts that were removed from vehicles in the bottom field were kept in the top field. He had only been there a couple of times since 2008 because of his poor eyesight.

101. I have no reason to find Mr Clark is not a reliable witness but his knowledge of the appeal site appears to be much more limited than his letter would suggest. I note that his letter is annotated: “…written for Mr Clark at his

request, owing to failing eyesight” and, in contrast to the terms of the letter, his evidence on oath would suggest his day to day knowledge of the site was essentially restricted to between 1999-2001 and 2005-2008. Nevertheless I attach significant weight to Mr Clark’s intimate knowledge of Mr Cooper’s living arrangements. I appreciate that it might be said that because Mr Clark never started work before 0900 hours that he would not see Mr Cooper emerge from the caravan to ascertain he slept there. However I am not convinced that this was essential to enable Mr Clark to form the view he had that the caravan on the appeal site was the Appellant’s “main residence”.

Alan Olding

(i) Background

102. Mr Olding has provided a number of proofs of evidence and the following summary relates to his oral evidence. He said he had been a Royal Marine between 1961 and 1969, and partnered Lord Ashdown as a member of the Special Boat Service. He was based in Poole from 1967 and set up his transport business, Silver Arrow, around that time. He first met Mr Cooper, who he then knew as Shinal, in 1969 when he sold him vehicles at the end of their life. From 1973/74 he obtained vehicle parts from Mr Cooper for this business and this relationship continued until around 1999 when his company ceased trading. During this time he or his employees had constant dealings with Mr Cooper to obtain parts, take off frames and refurbish bodies, and the business had grown to 60 vehicles kept at 3 depots.

103. Mr Olding said the business had employed over 20 people as mechanics and body builders, together with a sales team. He said that the mechanics might be down there on 2 or 3 days a week removing items, but at other times not go there for 6 weeks. However he still deals with Mr Cooper and, although at a lower frequency, gets parts and tyres for the vehicles on his farm in



West Wales. He estimated he visited Mr Cooper 5 or 6 times a year after 1999 and said he still had family in the area and stayed with them to see his grandchildren. In re-examination he estimated that he must have visited more frequently because he would visit 4 or 5 times a year for parts as well as socially and suggested he went to the appeal site up to 12 times a year.

104. Mr Olding first knew the appeal site in 1968, when he moved the business to Cricklade, through Mr Pratt, who kept “high value items from vehicles”, such as radiators and alternators, in containers and caravans on there. The area around Mr Pratt’s bungalow was used for breaking but over the years, from 1968 to 1985, the business spilled over onto OS field No 8316 and there was some dismantling by the sheds. However the appeal site was reserved for his most valuable items and Mr Olding used to have to wait by the side gate whilst Mr Pratt collected the item that was sought and returned with it. Mr Pratt never let anyone on his property, which was contained within barbed wire. He said the whole of Mr Pratt’s land was known as “The

Gallons”. In cross-examination he did however concede that Mr Pratt’s activities on the appeal site had not been at the level that Mr Cooper had expanded it to.

105. Mr Olding said that field parcel Nos 8316 and 7400, were sold to Mr Cooper on 27 September 1985 and he said from this time Mr Cooper had always lived on the appeal site. He said that initially Mr Cooper had lived just the other side of the side gate and Mr Olding recalls a small tourer parked next to the main static showman’s caravan with 2 containers to the right of this. He remembers his child being there but never saw Mr Cooper’s wife. He did go inside the caravan and said there were all the usual signs of occupancy.

106. Mr Olding said that the level of activity on the field expanded after Mr Cooper bought it and that since 1985 there had typically been between 10 and 60 vehicles stored on the appeal site, although this could be an underestimate as he did not count vehicles. One year he said the appeal site had been almost empty because Mr Cooper had resurfaced the access, putting shale down. When giving evidence in chief Mr Olding said that this was probably around 2000, but in cross-examination he said that it was in 2003.

107. Mr Olding said Shinal Motors were always on the top field and were involved in the collection, sale and engineering of quality cars as well as commercial vehicles, plant and machinery. He said vehicles that were recovered on behalf of the police were not kept in the lower field because they had to be kept in a secure location. Since 1999 he said that the number of vehicles on the appeal site changed each time he visited. In cross-examination he said on any measure, e.g. by area, number of cars, or accounts, Mr Cooper’s activities on the appeal site had expanded year on year. When the Council pointed out that only one set of accounts had been put in Mr Olding said that more could be entered, but none were.

Alan Olding

(ii) Correspondence and meetings

108. Mr Olding had become close to Mr Cooper over the years and regarded him as a “rough diamond”. He typed a number of letters for Mr Cooper, including CD 1.3, 1.4 and 1.5. The process involved Mr Cooper telephoning Mr Olding who would type up the letter and print off 2 copies so that Mr Cooper could sign one, send it and keep a copy. Letters such as that dated 14 March



2010 had been discussed in the café. Mr Olding had not been present when Mr Smith had visited and so there had been no letter sent subsequently.

109. Mr Olding was not a qualified lawyer but helped Mr Cooper with ‘legal ease’. He got involved because he had strong feelings and considered that Mr Cooper might not be treated fairly; if that meant he was not independent then “so be it”. He helped Mr Cooper because it was part of their evolving relationship and did not do it for financial reward. He was present when Mrs Burkey visited on 16 May 2002 and remembered that she was pregnant. She had tried to reach a compromise. He said that she saw the appeal site but he was unclear if Mrs Burkey actually went into the caravan. He helped to draft the response to the PCN the following year, 2003, and pointed out that no enforcement notice had subsequently been issued by NWDC.

110. Mr Olding recalled Mr Brown’s visit in 2004 and said Mr Cooper had asked him to attend on that occasion because the EA had notified Mr Cooper that they wanted to inspect the land. However they had not been expecting Mr Brown, who had not told Mr Cooper that he was coming or that he proposed to conduct an interview under caution. Mr Olding said that he had not been present on other occasions that Mr Brown visited. However he remembered the meeting in 2004 because he had come up specifically to meet the EA. He denied saying he was Mr Cooper’s legal representative.

111. Mr Olding confirmed he had seen the transcript [* 14] but did not recall the caution being administered. He remembered Mr Brown said “remind you

under caution” but at this stage he had glanced at Mr Cooper with a puzzled look. He did not recall it as a PACE interview and rejected the contention that he had not heard the caution. He said he did not recall Mr Brown making contemporaneous notes and Mr Brown’s photographs from that day showed the weather conditions were dry but he pointed out the notebook was wet. The notebook’s writing was neat and he thought that parts had not been written in the same ink, specifically between “offered” and “declined”.

112. In Mr Olding’s view, although the gist of the conversation that was recorded in the notebook was true, the pocket book entry had been written up at a later stage. Whilst Mr Olding accepted he had made no contemporaneous note of what Mr Brown said, he had listened to what had been said as he, Mr Olding, had said very little. In cross-examination however Mr Olding accepted that the question and answer session recorded in the notebook was an accurate record of what was said, subject to the confusion over the brown and white caravan. However he did not recall Mr Brown offering the notes to be signed. In cross-examination Mr Olding said the claim the notes had been offered to enable Mr Cooper and Mr Olding to sign them was “nonsense”.

113. Mr Olding said that Mr Cooper had never hidden where he was living and in conversation Mr Brown never raised the issue of where Mr Cooper was living. Mr Olding said that Mr Cooper had never suggested that he was living at No 42. He said that Mr Cooper was living in the Carlight caravan27 at the time of Mr Brown’s visit in 2004 [see photograph No AB/19 in the bundle at CD 20.1b] as they had a cup of tea in the caravan before they went down to meet the EA. However the brown and white caravan that Mr Brown asked about [page 59 of the agreed transcript at * 15] was a different caravan on the lower field. Mr Brown was confused. The end of the caravan on the lower field was ripped out and whilst Mr Cooper had lived in it, the caravan was not in a condition fit for human habitation by 2004. Accordingly

27 Although I should make clear that Mr Olding did not describe it in those terms merely by reference to the photo.



Mr Olding said that Mr Cooper’s answer amounted to an admission that he was living on the appeal site [see p 59 of the agreed transcript at * 15].

114. In cross-examination he was taken through some of the photographs that Mr Brown took that day [in the bundle at * 5.1-5.802] and agreed that they accorded with the transcript. Mr Olding rejected the claim that the transcript arose as they had moved around the site with Mr Brown pointing at caravans and asking about them. He said that Mr Brown had already been around the site with the EA and that when he and Mr Cooper spoke with Mr Brown they were stood to the south-west of Shotgun’s green and white caravan. With regard to the brown and white caravan, Mr Olding said that they had been talking at cross purposes and that it was preposterous to say Mr Cooper was living in that caravan because the front of it was knocked out.

115. Mr Olding’s claim that the front was knocked out of that caravan is evident from photograph numbers 755 and 791128. The first of these was taken on the date of Mr Brown’s visit on 21 April 2004 and even without using a zoom it is evident that the front window is falling out and that the panel below that window has fallen away. I appreciate that the second photograph, which shows a clear front view of that caravan, is taken later, on 14 June 2005, and so cannot be taken to be a record of the caravan’s condition on 21 April 2004 but it confirms the sorry state of the caravan. Although it is a side view, I am satisfied the first image is clear evidence that the front of the caravan was missing on 21 April 2004, such that the caravan was not in a habitable condition at the time of the meeting in 2004. The 2 photographs are consistent in showing the extent of the damage.

116. Mr Olding had some input to the application that is now the subject of Appeal A and filled it in in pencil. He was sure in his own mind that dismantling had taken place on the appeal site although he acknowledged that the activity that had taken place was different to that on the bottom field where vehicles were simply cut up with a blow torch. Mr Olding assisted in getting some of the letters of support by telephoning to chase the letters and collating them into a bundle. He could not explain why the application was in the name of “Commercial Salvage” and said it had not crossed his mind that it would be significant. He also lodged the appeal that is now the subject of Appeal A.

Alan Olding

(iii) Aerial photographs

117. Mr Olding explained when he first gave evidence29 that he had experience of analysing aerial photographs because the military had relied on it to plan their operations. With regard to the 2001 aerial photograph [CD 16.4] he said that the vehicles on the highway verge comprised a 40 foot long trailer, rather than Shotgun’s caravan, and 2 smaller vehicles. He said that the police would come and drop vehicles off when Mr Cooper was not there and he would come in and open the gates. In cross-examination he rejected the claim that the police leaving a vehicle in the lay-by was inconsistent with someone living on the top field because Mr Cooper left the site at 0530 hours to go to the metal recycling depot. He pointed to the times on the chits to substantiate this [75] and said it was only when Mr Cooper came back that

28 These are the original image numbers [000_755.JPG and IMG_7911.JPG] in the bundle at *5.1-5.802. 29 Mr Olding first gave evidence on 7 December 2011 before it was in prospect that Ms Cox might be called.



he would recover it. He said Mr Cooper would sometimes come back to find burnt out vehicles on the lay-by and would only move them at that stage.

118. Mr Olding was recalled to deal with the aerial photographs in October 2012. He said he was involved with photo reconnaissance for 8 years, including two 18-month periods in Borneo. He said that he had his own stereograph from Vietnam. For reasons already given I propose to consider his analysis of the aerial photographs that have been produced by Ms Cox when I turn to examine the evidence put forward to contradict the Appellant’s claims.

Alan Olding

(iv) My findings

119. Mr Olding struck me as a reliable witness as to fact although the discrepancy in his answers as to the date when the field was cleared might reveal a lack of precision and/or care in some oral testimony. However I think it would be wrong to overstate the importance of that point or to draw wider conclusions that went to his credibility. Amongst other things I have given reasons why I accept his claim about the brown and white caravan on the lower field at the time of Mr Brown’s visit, which makes his version of events credible. This tends to support the Appellant’s claim that he did not reside on the lower field. Mr Olding had good reasons to visit the appeal site throughout the period with which I am concerned and so I attach significant weight to his evidence regarding both the residential and business use of the appeal site. However I reserve judgment on his version of the meeting with Mr Brown in April 2004 pending my review of Mr Brown’s testimony.

Tony Cooper [Junior]

120. Mr Cooper swore his proof of evidence and so I propose to focus on his oral evidence. He said he was born in 1985 and said his first recollection was from when he was a toddler. When the Council suggested this might be from 1988 he agreed but qualified that by saying he could not be specific. He could not really remember individual caravans but said that his first recollection was of living in one in the corner, at The Gallons end, of the top field. He said he had probably lived in about 3 caravans in the first 6 years. Electric was taken from a lorry battery and water from a tap near the barn [on 8316], which was brought to the caravan in a stainless steel milk churn on the back of a truck. In the big static caravan the gas heated the water container to allow for a shower. He also recalled having camp fires. He could remember living in a green and white caravan and was adamant it was not on the bottom field; he said his Dad had never lived down there.

121. He said he stopped living in the static caravan when his parents split up and after that, which would have been the early 1990’s, his Dad had him every Sunday. He sometimes stayed overnight at the weekend until Monday when his Dad returned him to his mother in the morning as he did not go to school much. He has maintained regular contact with his Dad, including regular visits to the appeal site, and stated that his Dad had lived there all the time. He estimated the caravans were changed every 6 months, typically a couple of caravans a year, and whilst the static vans had an inside toilet the smaller caravans did not, when an external toilet, such as a portaloo seen on a builder’s site, was used. Mr Cooper said his father would dot caravans around the top field and move into different ones, as well as moving them around. He has not worked for his Dad other than to get something like a



bicycle when he was younger. He now works in a warehouse and lives around 8 miles away from the appeal site.

122. Mr Cooper said his Dad always had vehicles in both fields. Although he said in chief that there were a minimum of 15 and a maximum of 70 vehicles in the top field, when cross-examined he said he “…never really took much

notice of how many cars were there”. His reference to playing car driving, in his proof, meant learning to drive from the age of 12 with his brother, which I take to be his half-brother Danny, who now lives at The Gallons, sat next to him. The Council pointed out this would have been approximately 1997 and he emphasised that he was not driving fast and if the field had a lot of cars in it then he did not do it. He said the number of vehicles kept on the top field went up and down due to the nature of the business.

123. I have no reason to find that Mr Cooper [Junior] is not a reliable witness. His evidence regarding the Appellant’s occupation of a caravan on 7400 is compelling, given that he said he lived there for the initial years of his life and has had good cause to go back there regularly during subsequent years. For these reasons I attach significant weight to this aspect of his testimony. However Mr Cooper was either evading the questions that were put to him about the lack of vehicles evident in the aerial photographs or he really did not notice how many cars were kept on the top field. For this reason I attach very limited weight to his estimates of between 15 and 70, despite a valiant attempt to recover that aspect of his evidence in re-examination.

Len Mundy

124. Mr Mundy swore his proof and so I shall focus on his oral evidence. He said he knew Mr Cooper before he bought the land from Mr Pratt but got to know him better after he bought it. Mr Cooper was working “up top” when he asked if he could leave his banger racing car there, to which Mr Cooper agreed although it was made clear it was at his own risk. In addition to keeping his cars there he did mechanical work. Mr Mundy said he had worked at Hicks Leaze every working day since 1986, apart from Sundays or when sick, and does work on his own vehicles or for Mr Cooper. He does not pay rent but does work for Mr Cooper instead, although he also got paid for cutting up vehicles. He said that Commercial Salvage was involved in export and that Shinal Motors was “up top”. He said he worked for Mr Cooper for the last 2 or 3 years, such as converting things and changing engines, but unless he was working on his own vehicles this was done on the bottom field. It was only during this latter period that he was paid a wage by Mr Cooper.

125. Mr Mundy said in chief that Mr Cooper moved into a mobile home on the top field when he first bought the land. He stated that he always resided in the top field in a caravan and when shown a plan said the caravan had initially been sited in the north-west corner of the field. He said Mr Cooper kept the good stuff in the top field, where he lived, so that there was some security. When asked in cross-examination whether Mr Cooper had ever lived on the bottom field he was adamant that he had “never lived down there” and he confirmed that he had not lived at No 42. He said Mr Cooper owned the café building at No 42 but not the business and that other people lived there.

126. Mr Mundy was asked about an aerial photograph [CD 16.4] and stated, in respect of the number of vehicles on the photograph, that it was “slim what

there”. He said that vehicles seized by the police were kept on the top field, along the hedgerow, and that such vehicles came regularly but were gone



again within a month. Everyone knew not to touch what was stored on the top field for this reason. When the compound at Green Meadow Service Station was full they stored the vehicles on the field. Mr Mundy said he could not recall the year this arrangement started but speculated it was pre-1990. However in re-examination he stated that he was not good with dates.

127. Under cross-examination Mr Mundy confirmed this was his only source of earnings. He said he was not registered for VAT purposes and although he had tax records he did not know that he had to provide them. He said he was not senile and relied on his memory back to 1986 because he did not “document everything”. He estimated that there were between 50 and 70 vehicles on the top field in 1995 and whilst this fluctuated he said there were 70 at any one time. When asked about 2004 he said that Mr Cooper rotated the stock and that there could be 100-150 vehicles one day and then back to 50 the next day. He stated that refurbishment of his own vehicles, including mechanical work, had been undertaken on the top field. When asked why he had elaborated so much on the contents of his proof he said that nobody had asked him for the level of detail that he gave in oral testimony.

128. I have no reason to find that Mr Mundy is an unreliable witness in terms of his evidence regarding Mr Cooper’s occupation of the caravan on OS 7400. Given that he worked at Hicks Leaze throughout the period at issue, I find this testimony to be compelling. However I find his evidence regarding business use confusing. No claim is made that repair activity has been continuously undertaken on the appeal site, yet that appears to be his evidence. I note that Mr Cooper was clear that no repairs were done in the top field30. I comment elsewhere on the aerial photographs but record that his estimate of the numbers of vehicles on the appeal site appears to be very high. Although I have no reason to doubt that he worked there every day, by his own admission he is not good with dates and in this regard the tension between his start date and the date of the conveyance is a concern.

Paul Kelly

129. Mr Kelly affirmed the contents of his: (i) letter dated 10 September 2009 [26 (d)]; and, (ii) letter dated 23 March 2011 [CD 2.1]. With regard to the former he was cross-examined about the field numbers and said he was told them by Mr Cooper. He said he had assumed that 7400 was the larger of the 2 fields and that 8316 was the smaller top one. He said in chief that he first visited Hicks Leaze between 1984 and 1986, “around that time”. Under cross-examination he said that he started to deliver up to 150 bales of hay to Mr Cooper in 1985. He said he made up to 11 deliveries during the period from June to August. In 2010 he said he delivered hay to Mr Cooper 4 times and the year before that, 6 times. The hay was put in a lean-to or in his barn on the lower field. The gate between the respective fields was never open, he had to climb over it, and he had never seen animals in the top field.

130. Mr Kelly said his was a working farm and so he needed parts for vehicles and specifically mentioned Bedfords. He bought a white Nissan pick up from Mr Cooper for £700 in the mid 1990s, which was on the top field. He estimated that there were a couple of dozen vehicles on the top field at that time, including tractor units and box trailers, in a nucleus up from the gateway in the middle of the field. He said there were always a number of vehicles and trailers on the top field. He later sold the Bedfords through

30 Mr Cooper gave this evidence in chief on 22 October 2012.



Mr Cooper for export and so had less cause to visit him. He maintained that Mr Cooper’s trading name was “Cooper Salvage”, not “Commercial Salvage”.

131. When he went to Hicks Leaze Mr Kelly said he would go to where Mr Cooper was, whether that was in the top or bottom field. During the summer Mr Cooper was always there and whilst he had visited in winter his visits were less frequent. Under cross-examination he maintained that since 2006 he had gone to Hicks Leaze “numerous times” but when pressed he estimated he went there half a dozen times in total in 2009, mainly in the summer to deliver hay. He said that since he had sold the Bedfords he still went there for the odd wheel or tyre as this was easier than getting the tyre fitter out. He did not ask Mr Cooper to establish where the parts came from.

132. As well as operating a working farm, Mr Kelly said his main business was the importation of fertilisers. From about 1988 he helped Mr Cooper with export paperwork to enable him to export lorry parts to Nigeria. He said a typical load might be 60 to 70 Bedford engines in a container and that he would set out in a manifest what was in each container. However he stopped helping Mr Cooper with export papers in the late 1990s. In chief he said the caravan was just on the top field. Under cross-examination he was asked about the reference to “home and office” [in CD 2.1] in response to which he said Mr Cooper kept a “considerable amount” of papers in his caravan. In chief he said he knew Mr Cooper lived in the caravan as whenever he visited him Mr Cooper would always make him a cup of tea, so he knew he had a bed.

133. What Mr Kelly said about being supplied with the field parcel numbers gives, I suspect, an insight into the way that all the letters of support were drafted. It is a concern that Mr Kelly got the field numbers the wrong way round and given the date of the conveyance there remains a doubt about when he first went to the appeal site, as it would appear to be common ground that Mr Cooper had not acquired the land in 1984. Whilst I have no reason to doubt that Mr Kelly has regularly been to Hicks Leaze the extent to which he has regularly been onto the appeal site is unclear. Given his admission regarding 2009, the total number of visits in any year might not have been great.

134. The Council originally included the use of the caravan as an office in the allegation in the enforcement notice and the reason for this could have been Mr Kelly’s testimony. However I have already noted [76] that Mr Cooper told the Inquiry that he bought No 42 around 15 years ago and that before that he dealt with paperwork on site. Accordingly I find no conflict in what Mr Kelly had to say on this matter but in my view it does tend to reinforce the impression that Mr Kelly’s recent involvement with Mr Cooper has been more limited. To the extent that he went into the caravan and gave reasons for saying that Mr Cooper lived in it from, what must have been, an early stage, I attach this part of his testimony significant weight. Whilst noting the reason why the gate between the fields was kept shut, his evidence is much less precise with regard to the business activity and, in particular, the distinction in activities between the respective fields.

Michael Austen

135. Mr Austen affirmed the contents of his letter dated 11 March 2009 [26 (t)]. He said that his site at Chelworth Park was a lawful winter quarters for his circus, which originally traded as Austen Bros and later as Moscow State Circus, and that the site incorporated a dismantling area and an area where animals were kept. The circus travelled across the country and ran for 2 or



3 days in each of approximately 42 towns. He said that he left the business in 2008 and started doing seating for events. Mr Austen knew Mr Cooper from the early 1980s and bought vehicles and parts from him to maintain the fleet of vehicles for the circus. Around 1985, Mr Austen was not sure of the date, he offered some 12-14 year old vehicles from Jimmy Chipperfield’s circus to Mr Cooper who was at this stage operating out of Chelworth Park, before he moved to Hicks Leaze. Mr Austen knew OS 7400 before Mr Cooper bought it and said Mr Pratt had kept “one or two cars not many” on the field.

136. Mr Austen said Mr Cooper lived on the top field and nowhere else between 1985 and 2011, when Mr Austen gave his evidence31. He said that Mr Cooper originally lived in a Showman’s caravan at Chelworth Park, which he had moved to the appeal site and that it subsequently fell to pieces. He referred to a green and white caravan by the entrance and said that originally it had been sited in the top corner of the appeal site. In cross-examination he was taken to a photograph [CD 21.3] but could not be sure it was the caravan that he remembered as his short term memory was poor32. He remembered several caravans, “know he lived in one of them” and said he always lived in the top field. He remembered having tea in the caravan in the mid 1980’s. He said Mr Cooper had not sought to hide his residency. In re-examination he affirmed that he was not lying, specifically with regard to the caravan.

137. Mr Austen said that he had visited Hicks Leaze twice a week in winter when he was based nearby. However in the summer his visits had been less frequent as the vehicles were often some way away; it could be as little as once every couple of months. His visits were now less frequent and mainly for tyres and wheels as parts were cheaper. However he now kept items at Hicks Leaze in connection with his business, which included a generator and a Mann lorry. In the period since 2008 he had also kept aluminium sheeting, bricks and sand, and had a container on the top field. His estimate of the number of vehicles on the appeal site varied significantly. He initially said 20-30 vehicles, but said in the last 4-years there were a minimum of 12 and a maximum of 70. He then said 90 and that there was never less than 15.

138. I consider Mr Austen is a reliable witness in terms of Mr Cooper’s occupation of the caravan on OS 7400, given the frequency of his visits to Hicks Leaze throughout the time from when Mr Cooper first moved there. However his evidence with regard to the business activity is less convincing because it does not clearly distinguish between the activities on the respective fields. His estimate of the number of vehicles on the appeal site varied significantly and it is unclear precisely which period he was referring to.

Julian Read

139. Mr Read affirmed the contents of his letter dated 12 March 2009 [26 (z)]. He said he was a Councillor with NWDC from 2003-2007. He said he was familiar with the fields but admitted he was unclear whether 7400 was the top or bottom field. He said it was his understanding that Mr Cooper had lived and traded on the site for over 20 years and claimed it was common knowledge that Mr Cooper lived there, e.g. socially and from general chat in the pub. He said Mr Cooper had made no secret of where he was living and told Mr Read he was living on the site. He knew Mr Cooper was not living in

31 Mr Austen gave evidence on 6 December 2011. 32 He gave personal reasons for this, which I do not need to set out in a public document, but did emphasise that his long term memory was good.



No 42, which is where he had his office. However he admitted that the first time he knew Mr Cooper’s real name was in giving evidence at the Inquiry33.

140. Mr Read knew Mr Cooper as Tony Shinal when he had supplied a car to his son. He also went to Hicks Leaze for spares, but could not remember where the business activity was conducted. He said that he had been on the site 4 or 5 times but had not been in the caravan, although he had seen it in the top field because he had walked up there in the last 10-years; he said that the better vehicles were kept up there34. He said he had visited when he was a Councillor and he had become aware of the enforcement notice because Mr Cooper had told him and had shown him the letters. However he was not clear which areas were covered by the extant enforcement notice as he had not been on the Planning Committee when it dealt with this case.

141. In cross-examination Mr Read said he had “assumed it was one site” and had not appreciated the distinction between the fields. He was not sure whether he had seen the caravan on the field when he visited Hicks Leaze when he was a Councillor. He was challenged whether he had any direct knowledge of where Mr Cooper was living but maintained that he did from one occasion.

142. Mr Read’s evidence does not assist. His evidence with regard to Mr Cooper’s residency is based on little more than hearsay. His visits to Hicks Leaze were limited in absolute numerical terms. Mr Read admitted that he did not appreciate that there was a distinction between the respective fields in terms of the planning history. His evidence as to where the business activity was conducted was imprecise. The fact that he did not know Mr Cooper’s real name until he attended the Inquiry suggests that he does not know him well. For these reasons I attach Mr Read’s oral testimony very limited weight.

A Valler

143. Mr Valler affirmed the contents of his letter dated 16 February 2008 [26 (f)]. He admitted that, in terms of field numbers, he did not know which field was which. He said there was a Showman’s caravan of some size to the right of the entrance when he first visited in the mid 1980’s and that Mr Cooper was living there with his wife and child. There was a turnover of caravans but he did not go to Hicks Leaze to look at caravans but because he had an interest in collectable cars. Mr Valler is based in Coventry and so only dropped in when passing. He estimated that he went there for parts perhaps 2 or 3 times a year in the early days and once or twice a year in the 1990’s. Any business was done in the field or in the caravan where he might have a cup of tea. Last year [201035] he only called in for a couple of social visits, rather than for business. The caravans were always liveable, could seat up to 4 people and had a kitchen and a gas stove. He said that there was no doubt in his mind that Mr Cooper had “always lived on site”.

144. He was asked how he knew Mr Cooper lived in a caravan and said because he was living, cooking and eating in it. He claimed people working for Mr Cooper said that was where he lived. It was common knowledge. Mr Cooper “operated out of a briefcase” and the caravan was not used as an office. At no time did Mr Cooper boil a kettle on an open fire. He did not think anyone would live on the bottom field because of the scrap. He had only known Mr Cooper to live on the top field and that was where he found him. As far as he knew Mr Cooper lived and worked on site.

33 Mr Read gave evidence on 6 December 2011. 34 As Mr Read gave evidence on 6 December 2011 this takes me back to 2001. 35 Mr Valler gave evidence on 7 December 2011, which takes me back to 2010.



145. When he visited, Mr Valler estimated there were always between 20 and 30 vehicles on the top field; he said there was a maximum of 50 vehicles. He said there was “always a great number of cars there”, there was never no cars on the top field and that the cars were “mainly driveable vehicles”. He said dismantling was confined to the lower field and when referred during cross examination to a photograph of a part dismantled car [CD 16.10] he repeated that he had never seen cars dismantled on the top field but did suggest that parts were being taken off the cars that were not driveable.

146. The Council asked him about 1995 by reference to an aerial photograph [CD 16.1]. Mr Valler agreed that there were less than 20 vehicles evident in the photograph but maintained that he could see where the vehicles had been due to the disturbed ground near the entrance. In his view the photograph showed it was “obviously used” and the ground “worn back”. He said he ran a charity steam rally on his 100-acre farm and even after 3 days the marks were no comparison to what was shown in the photograph on the top field. In cross-examination he was asked about the 1999 aerial photograph [CD 16.2] and said there were a number of cars and a static van. In relation to the 2001 aerial photograph [CD 16.3] he said that he could see a caravan and a few more cars than in the 1999 photograph. He was also asked about another aerial photograph [CD 16.4] and said he could see a few more cars than in the earlier photographs, perhaps 15 in total. Asked whether the photographs were accurate he said that they showed fewer cars than when he visited but that the caravan was in the same area of the appeal site.

147. I have no reason to find that Mr Valler is not a reliable witness, but my key reservation with regard to his testimony is that whilst he appears to have visited regularly, throughout the time of Mr Cooper’s ownership, his visits have been infrequent, typically twice a year. In those circumstances I am rather sceptical about the extent to which Mr Valler is able to give reliable evidence about permanent residency and average numbers of vehicles. Hearsay evidence from workers is not a sound basis for finding someone lives in a caravan. Nevertheless I stress that I have no reason to doubt the veracity of what Mr Valler told the Inquiry, and so I attach moderate weight to his evidence both in terms of his observations about residency and his recollections as to the number of vehicles on the top field.

Roger Giles

148. Mr Giles affirmed the contents of his letter dated 6 March 2009 [26 (gg)] and his letter dated 21 March 2011 [CD 2.1] and so I shall focus on his oral evidence. Mr Giles was employed by Wiltshire Police for 30-years, latterly as the Police Garage Liaison Officer. When he retired in 1999 he was asked by Titcombe Garage to go and work there as their Regional Manager, which he did for around 2 years from August 1999. Mr Giles said that quite a number of the vehicles were not claimed and whilst the garage would hold on to some of the vehicles and try and sell them if they had a reasonable value, because it was frequently overstocked, many of the vehicles were taken to Mr Cooper. Pending a response from the registered keeper of the vehicle, typically 28 days but sometimes a further 14 days if the vehicle had been transferred to a new registered keeper, the vehicles could not be scrapped. As the vehicles belonged to someone else and might be retrieved by the registered keeper during that timeframe there was a need for the vehicles to be kept secure.



149. Once the arrangement to store the vehicles on the top field began Mr Giles said getting money out of Mr Cooper was “like extracting teeth”. For this reason Mr Giles tried to catch him early and went, unannounced, to the caravan at 0630 hours one morning, but Mr Cooper saw him coming and opened the door of the caravan with a bobble hat and a beard, eating a piece of toast. Mr Giles said that Mr Cooper “obviously occupied” the caravan on the appeal site, which he pointed out on an aerial photograph, and said he had gone to the caravan twice. Mr Giles said he went to the site every couple of months, but could not recall if it was the same scruffy caravan on the appeal site because it was moved around. Mr Giles did recall Mr Cooper coming out of a caravan on the lower field but understood he lived on the top field to keep an eye on the cars, which was all that Mr Giles was concerned about. He said in cross-examination that Mr Cooper seemed honest about living on the top field and so Mr Giles said he was sure Mr Cooper was “living on top field” in a caravan as his main residence from early 2000 and during 2001. The reason Mr Cooper had given him for living on the top field was security.

150. Mr Giles said that he had regular dealings with Mr Cooper from when he had first applied for trade plates. The Police Inspector had objected but he kept applying and ended up getting the trade plates through Reading. He said Mr Cooper was “a decent chap as far as I know” and that because of the service he gave to the police, in terms of moving vehicles to keep the roads clear, he was “worth looking after”. Mr Cooper was a “word of mouth man” because he could not write properly and that was the way they operated in business terms. Mr Cooper typically paid £60 to £70 per vehicle and so there was no paper trail apart from a receipt for the money that was sent by the garage to Mr Cooper. As they dealt in cash Mr Giles had no knowledge of the company set-up or any tax arrangements that Mr Cooper had.

151. Mr Giles said that when he first visited the appeal site there were a number of vehicles there, maybe 15, and he specifically recalled a pile of expensive tractor tyres. The first despatch of vehicles comprised 15 foreign cars and that after that the average was 3 vehicles a week, although it could be as many as 6. The cars were taken to OS 7400 on recovery vehicles and most were kept by the hedgerow. The vehicles had to be kept for 28 days but he did not care what happened to them after that as long as the papers were in order. He said the vehicles went swiftly after the car was emptied and the paperwork completed; the Police Garage Liaison Officer kept the vehicle’s documents. Under cross-examination he said that not may people have paperwork from 10 years ago and there was no reason to keep it after the garage went out of business. The police only required papers to be kept for 7 years.

152. As a retired Sergeant, with 30 years in Wiltshire Police, I accept that Mr Giles is, as he said in re-examination, telling the “absolute truth” and so I find his testimony to be compelling in terms of residency and business use. His recollection of the incident with the toast is the sort of detail that corroborates the Appellant’s claim that he was living in the caravan on the appeal site. Mr Giles did say that he saw Mr Cooper coming out of a caravan on the lower field but, when the Council latched onto this, he suggested ‘it was clutching at straws’. In my view his evidence is strongly supportive of Mr Cooper having lived on the appeal site during the period, from early 2000 and in 2001, that Mr Giles had cause to visit the appeal site.



153. Moreover I find the evidence of Mr Giles with regard to the vehicles robust. It gives me a clear basis to distinguish between the vehicles that were stored on the respective fields. His recollection that 15 vehicles were taken on in the first consignment to add to the 15 or so that were already on the top field is evidence of a significant increase in vehicle numbers on the appeal site, which must have been soon after August 1999 but not before. For all of these reasons I attach the oral testimony of Mr Giles significant weight.

Royston Smith

154. Mr Smith affirmed his letter dated 10 January 2011 [* 4.3] although he did say that someone wrote it for him. In chief he said he had sold Mr Cooper 2 or 3 cars a week since the 1980s up until about 3-years ago when he retired, but under cross-examination he said that he did not trade in cars after 2000. The vehicles were sourced by knocking on people’s doors to see if they had cars to sell. They had often failed their MOTs and were bought as they were, sometimes without documents. In the 1980’s there were no mobile phones and so he had to go up and see Mr Cooper. In chief he said nothing changed in the 1990s but in cross-examination he said he was 70-years old and could not remember the 1990s or say how many cars he had sold to Mr Cooper.

155. In the 1980s he said Mr Cooper had a caravan in the corner of the top field and that he used to visit him there and have a cup of tea. He said that Mr Cooper was married when he initially saw the caravan in the top field but that he did not recollect his son. He knew he had separated from his wife and was up there on his own as the caravan was “all he had to live in”. He did not know anything about the flat and had only known him live on the appeal site; he never recollected him living on the bottom field. They had been friends for a long time and known each other for years; he said Mr Cooper had been as “good as gold to me”. Throughout the 1980’s Mr Smith thought Mr Cooper had the same mobile home as far as he could recall and when it had rotted he put another old caravan up there and it too was rotten now. The mobile home he remembered had a calor gas cooker although he could not recall a shower or toilet. He said Mr Cooper had to get water from a tap. He said the last time he went to the top field was about a month ago but his visits were only for social reasons now. He confirmed that Mr Cooper had lived in more than one caravan on the top field since he had known him.

156. Mr Smith was not a very convincing witness because his evidence did not stand up to cross-examination. He could not remember specific years, even the 1990s, and he could not say how often he had visited since the year 2000. The best that can be said is that Mr Smith’s version of events is broadly consistent with the Appellant’s claim. However in the circumstances I am only able to attach Royston Smith’s testimony limited weight.

Fred Cremin

157. Fred Cremin affirmed the contents of his letter dated 10 June 2012 [CD 4.8] and so I shall focus on his oral evidence36. Mr Cremin bought Down Farm, which is a listed building, in 1989 and needed to renovate it. He needed recycled materials to do this and went to see Mr Cooper, who he already knew, in the early 1990s. The first time he set foot on the appeal site he bought some broken paving slabs from just inside the gate into the top field, on the left. Mr Cooper also had stone stored in the top field at this time, which was on the right of the gate. He recalled quite a high pile of slabs

36 Fred Cremin gave evidence on 22 October 2012.



although the stone was more scattered. He did not know if it had always been in the same position. He said the pile of stone was now overgrown and one would not know that the stone was there without searching for it.

158. Mr Cremin estimated that he had seen building materials on the appeal site more times than he had bought something. On average he went there twice a year to buy building materials and might call around “infrequently” for a cup of tea. He knows Mr Cooper is a busy man. He said he visited Mr Cooper 3 or 4 times a year, did not otherwise socialise with him and was not related to him.

159. Mr Cremin said his father-in-law, Roy Hicks, now deceased, had looked after Mr Cooper’s cattle in the lower field for a “good few years” from the late 1990s. Mr Hicks knew Mr Cooper was “living rough” and was concerned about the way he was looking after the animals. There were confrontations between Mr Hicks and Mr Cooper, e.g. he would find that the animals had not been watered because Mr Cooper was still hung over and asleep. Mr Hicks had recounted how he had to wake Mr Cooper up and wait for him to get out of the caravan. Mr Cremin does not recall seeing the cattle outside of the pens. He said the gate between the fields was always closed. He does remember horses on the top field and said there were 4 or 5 horses on there recently.

160. Mr Cremin said that from the early days there had always been a “lot of

body parts, vehicles, slabs, stones, caravans and horses” on 7400; he said that there were always “quite a few [vehicles] scattered around”. He had bought the odd tyre and a lorry wheel from Mr Cooper but for this purpose he rang Mr Cooper to arrange to meet at the gate by the road in order to save time and hassle. He said the bottom field was used for scrap and the vehicles that were cut up were exported; he said that the business on the top field was separate from that on the lower field. He said the top field had “usable, decent vehicles” and there was a fair amount of “toing and froing” of vehicles. When he went to the top field he never saw the same vehicles. He said without question there was a turnover, or movement, of vehicles and whilst there were a “lot of vehicles there on a lot of occasions” he did not put a figure on how many or when. In his view the position, in terms of number of vehicles on the top field, was not a lot different now from the early 1990s.

161. Mr Cremin recalled Mr Cooper living on the top field with his wife and son. He said he always lived on the top field “away from [the] messy side of the

business”. He remembered thinking that there were different caravans on the top field and he could not recall a particular track to the caravan. The caravans were generally to the right of the access where there were less vehicles. He could not remember what the caravans looked like. Sometimes they were positioned out of sight but at other times they were not positioned so far away. He initially said that he went into the caravan once or twice a year but he later retracted from that and said it was “at most” once a year.

162. Mr Cremin was asked how he knew that Mr Cooper was living in the caravan and he said it was untidy and that sometimes his wife and son were there. He remembered a fire going on one occasion but he did not recall where the cooking took place. In cross-examination he conceded that he could not say that the residential use had been continuous. He said he “can’t guarantee [Mr Cooper] lives there” but that he had called on him “fairly early”. He knew Mr Cooper was up there in the caravan “a lot of [the] period” but “how

much [he] couldn’t tell you”. However by the end of the cross-examination



Mr Cremin said he knew for a fact Mr Cooper had always been living up there.

163. I have no reason to find that Mr Cremin is not a reliable witness and I attach significant weight to his recollection that the building materials were stored on 7400 from circa 1990 because that is the reason Mr Cremin went there. On a balance of probability the piles of stones and slabs are unlikely to have moved and given that they are overgrown Mr Cremin’s testimony is useful in establishing that those materials were there at a relatively early stage. For this reason I reject the Council’s claim that his evidence lacked proper detail. His evidence with regard to vehicles and parts on the top field is consistent with the Appellant’s claim, particularly as to turnover, but is fairly imprecise. In closing the Council highlighted his reference to hiring a lorry and said there is no evidence Mr Cooper hired out lorries. I agree, but consider the point does not go very far either way; it cannot be assumed that Mr Cremin was mistaken as it might be that he did borrow a vehicle for the day.

164. My main reservation with regard to his testimony is that whilst he appears to have visited regularly, throughout the majority of Mr Cooper’s ownership, his visits to the caravan have been infrequent. By virtue of his admissions during cross examination, Mr Cremin is unable to give reliable evidence as to whether Mr Cooper’s residency was continuous. Hearsay evidence from his father-in-law is not a sound basis for finding residency. Although I stress that I have no reason to doubt the veracity of what Mr Cremin said, this does mean that I attach moderate weight to this aspect of his evidence.

Richard Maxfield

165. Mr Maxfield affirmed the contents of his letter dated 22 June 2012 [CD 4.3], which he said his secretary typed. He had no idea about the field numbers, which Mr Cooper had told him but it was a 2-minute jaunt through the lower field to the top field along a muddy track. He stated that he started Maxfield Motors, after an apprenticeship, in approximately 1987, and until 2000 the company had been based at Pear Tree Farm, which is where his parents had lived until 4 or 5 years ago. He did MOTs and spraying for Mr Cooper and bought bits and pieces from him. He would always collect the vehicles from the centre of the top field, in front of the access. The number of vehicles on the field varied between 10 and 30. He said that there had always been at least 10 cars up there. They were normally parked in the centre of the field in front of the access. Before his business moved to Lyneham he went there once or twice a week to pick up the vehicles to be worked on. He particularly remembers Landrovers, but also Nissans, which were sprayed with paint and on which he and up to 6 employees worked on mechanically. He said that Mr Cooper sometimes bought up to 10 Landrovers from the auctions.

166. He assumed that Mr Cooper wanted the vehicles freshened up with a view to sale. He worked on “at least” one vehicle a week for Mr Cooper, typically 5 cars a month, between 1987 and 2000. Mr Maxfield said there were 4 journeys associated with each vehicle, i.e. one to collect it, one to take it to the garage, one to return it and one back without the vehicle. Mr Maxfield said he personally went to the top field to collect the vehicles on trade plates and most were driveable. He always met Mr Cooper at the entrance gate to the top field to agree a price and what work was needed. Mr Maxfield could not remember if there was a hardstanding in the gateway but said he would have struggled to get through without it. In cross-examination he said that



he collected ‘nice stuff’ from the top field, rather than the scrap on the bottom field. He got parts from Mr Cooper, e.g. he looked after horseboxes.

167. He said that what needed to be done on the vehicles varied in each case. Some vehicles needed panel beating and repair to get rid of a few bumps. Once those vehicles had been re-sprayed he took them back to Mr Cooper to be paid. He said that he did not do any work in the top field, but only in his workshop. He said that the motor trade was variable and that if the vehicles had not been sold that they would have stockpiled in the top field. He said the volume of vehicles had been consistent to around 6 years ago [200637] when he sold his business. Although he still had his recovery truck he now helped his son with his hedge cutting business. There had been written invoices to Shinal Motors but he paid cash for parts. Things had got quieter now as the motor trade had moved onto the internet, but he still visited Mr Cooper and had bought some mudguards in the summer.

168. Mr Maxfield said there was “always a caravan up there”. Mr Maxfield said he would start early, between 0600 and 0700 hours, and go there late to deliver the vehicles. Mr Cooper was always on the top field and if he was not working he was sleeping. Once he became trusted he was shown into the caravan, which was moved around the top field. Mr Maxfield and Mr Cooper used to look out for each other. They would sit around a fire and talk as friends and work colleagues. He regarded it as a retreat to escape to. The caravan was in the nicest part, away from the “bomb site”. Mr Cooper never cooked for him and at most he had a cup of tea. “As far [as he was] aware” Mr Cooper lived there alone. He never saw anyone else and does not recall his wife and child living on the top field. He said everyone knew Mr Cooper lived there and Mr Maxfield found him there at all times of the day.

169. In cross-examination he was taken to a number of aerial photographs [CD 24.7 to 24.9] and he said there were vehicles in every picture, including a caravan, and that they “absolutely” showed what he remembered. However he stressed that the photographs were just a snapshot. In relation to the 2005 photograph [CD 24.16] he said he could not remember if the top field had been that busy during the 1990s. However he said that the aerial photographs showed that the “business started early on and grew and grew

and grew”. The picture that emerged was that it “got bigger and bigger and

bigger”. He said the 2002 photograph [CD 24.14] showed that the field was getting busier and the 2004 photograph [CD 24.15] showed the top field at its busiest. He rejected the contention that not much happened until 2004.

170. I find Mr Maxfield’s testimony to be compelling in terms of residency and business use. His evidence supports the claim that Mr Cooper lived on the appeal site from 1987 until at least 2000. I have no reason to doubt that Mr Maxfield went back and forth to the appeal site at least twice a week, i.e. to pick up and then drop back the vehicles. He had a good reason for going there in the evenings and as he lived with his parents nearby I can also accept why he might perceive it as a retreat to escape to. It is surprising that he does not recall Mr Cooper’s wife and child being on the site but by his own admission there would appear to have been an initial period where he had not gained Mr Cooper’s trust and this might be the explanation.

171. The evidence of Mr Maxfield with regard to the vehicles is robust. This gives me some basis to distinguish between the vehicles that were stored on the respective fields. Having regard to the aerial photographs that are before

37 Mr Maxfield gave evidence on 22 October 2012.



me his estimate that there were between 10 and 30 vehicles on the appeal site appears to be more realistic than some witnesses. For these reasons I attach the oral testimony of Mr Maxfield significant weight. In reaching this view I reject the Council’s submission that Mr Maxfield was a “very poor

witness”. The Council appears to be confused because I did not understand him to say he did spraying on the appeal site38. That submission is entirely inconsistent with his need to drive back and forth to his garage, as if he had done the work on the field there would have been only 2 journeys.

George Scarrott

172. Mr Scarrott affirmed the contents of his letter dated 19 June 2012 [CD 4.1] and so the following summary focuses on his oral evidence. Mr Scarrott said he had lived at his house since 1980 and had known Mr Cooper all his life. He said that he called into the site once a month but in cross-examination he said that the majority of those visits would have been to the lower field. He said he went to the site mainly for tyres and wheels and the best ones were in containers in the top field. If he found what he wanted he could be there half a day changing the wheel over. Although, as a travelling showman, Mr Scarrott spent around 6 months of the year working away this was typically within a 40 mile radius and so he would regularly pop home to collect mail. He said he visited the top field often enough to know that Mr Cooper lived there. He also bought a transit from the top field and a big, heavy, 110 volt generator, which is still stored on the top field for when it is required. The generator was pointed out to me on my site inspection.

173. He said that it was “obvious” that Mr Cooper was living in a caravan in the top field. He could remember his wife and his son Tony “messing around”. When he first went there Mr Cooper had an elaborate Carlight caravan with a Mollycroft roof. He had only known the caravan in the top corner and in the middle by the hedge. In cross-examination he admitted that it was at least 15 years39 since he had been in the caravan socially and he had only been in it “once or twice ever” for a cup of tea. He said in cross-examination that it was not the thing to do to go in someone else’s caravan and that he was not the sort of person to go there to say hello and have a cup of tea. However he honestly believed Mr Cooper had moved his caravan from Hay Lane to the appeal site and that he had lived there since. He said he did not regard Mr Cooper to be a gypsy and that he took people as he found them: he said he found Mr Cooper to be a civil, helpful and honest man. His view on gypsy status is not material to the question of immunity. In re-examination Mr Scarrott said that he had always understood that Mr Cooper lived in the caravan and that he had seen him go back and forth to the caravan. He said Mr Cooper had not restricted where Mr Scarrott could go on Hicks Leaze.

174. In cross-examination he was taken to a number of aerial photographs. He said he was “bound to have” visited in 1990 and that at that time Mr Cooper was living at “B” [CD 24.4]. He said he would have visited in 1993 and at that time Mr Cooper was living at “A” or “B” [CD 24.7]; he noted that there were a number of vehicles scattered around by “A”. He said he was bound to have been there in 1995 and that he could not remember it being much different to what is there now. He said there were vehicles in and around the gate and straight on and to the right of “A” [CD 24.8]. When taken to 2004 [CD 24.15] he agreed there was “more there” but maintained that

38 My contemporaneous note is very clear that he sprayed vehicles in his workshop and did no work in the field. Mr Cooper also said this in chief on 22 October 2012. 39 Mr Scarrott gave evidence on 23 October 2012, so this takes me back to 1997 at the latest.



there were always vehicles stored in the top field and he had never noticed much difference in the numbers. He had never known the top field with nothing in it. The best vehicles were to be found on the top field and he said that he had never seen things taken to pieces up there. He said the vehicle he bought from the top field, a former army lorry, was from Shinal Motors.

175. I have no reason to find Mr Scarrott is not a reliable witness and I attach significant weight to his recollection that Mr Cooper was living on the appeal site with his family more than 15 years ago. However his understanding that Mr Cooper lived there since does not appear to be based on anything tangible, such as personal visits to the caravan, and even his visits to the top field appear to have been relatively infrequent. In these circumstances Mr Scarrott is unable to give reliable evidence as to whether Mr Cooper’s residency was continuous through the period at issue. Equally his evidence with regard to vehicles, whilst consistent with the Appellant’s case, is fairly imprecise. Mr Scarrott’s recollection that he never noticed much difference in the level of vehicle storage appears to be at odds with the fluctuations in level referred to by others and perhaps the change in numbers that is evident in the aerial photographs. Nevertheless I attach moderate weight to his evidence that there have always been vehicles stored in the top field.

Alex Oram

176. Mr Oram affirmed the contents of his letter dated 9 July 2012 [CD 4.12] and in particular the dates contained in it and so the following summary focuses on his oral testimony. However in cross-examination he conceded that he had only ever been onto the appeal site 5 or 6 times. The first time had been 1996 at the latest. However Mr Oram admitted in cross-examination that he had never been in the caravan, never seen Mr Cooper in the caravan and the nearest he had seen Mr Cooper to the caravan was about 5 m. Nevertheless he maintained that “Podgy Rogers”, who had introduced him to Mr Cooper, had told him that Mr Cooper lived there. When he first met Mr Cooper on the lower field they had walked together onto the top field and he had been talking about his new caravan and so Mr Oram said it was obvious he lived there, although he conceded that he had presumed he did. When Mr Oram wanted to find Mr Cooper he would look for him in the café, in the pub or on the land at Chelworth. When he had asked workers on the lower field where he would find Mr Cooper he was told he was at home if he was in the top field. In Mr Oram’s view it was “common knowledge” in Cricklade that Mr Cooper lived on the appeal site. Mr Oram said that it was “hard to

believe” that he could be mistaken or that he had got the fields the wrong way round.

177. In cross-examination Mr Oram admitted that he is not very good with dates for reasons that I do not need to set down in a public document. However this does not lead me to doubt his evidence that he went onto the top field to look for stone and patio slabs, which were stored to the left of the access, and by reference to the letter this would appear to have been in 1995 or later. I also accept his evidence that he went onto the top field, possibly in 2002, to view a large white lorry box. In this context, when he was taken to aerial photographs he said that he recalled more vehicles than are shown in 1996 [CD 24.9] but that the aerial photograph for 2002 [CD 24.14] was more realistic as to the number of cars although he remembered more lorries scattered about. He said in chief that the better vehicles and parts, such as the lorry box, were kept on the top field whereas the lower field was “chaos”.



178. I have no reason to find Mr Oram is not a reliable witness and I attach significant weight to his recollection that the building materials were stored on 7400 from circa 1995 because that is the reason Mr Oram went there. I have already given reasons why, on a balance of probability, the piles of stones and slabs are unlikely to have moved and so Mr Oram’s testimony tends to corroborate that of Mr Cremin. His evidence with regard to vehicles on the top field is consistent with the Appellant’s claim, but is imprecise, and this aspect of his evidence has limited weight due to his poor memory.

179. My main reservation with regard to his testimony is that because his visits to the top field have been infrequent and he has never been in the caravan his evidence as to residential use cannot be given much weight. Hearsay evidence from Mr Rogers is not a sound basis for finding residency. Whilst I stress that I have no reason to doubt the veracity of what Mr Oram said, this means very limited weight can be attached to this aspect of his evidence.

Both appeals: Initial comments on the Appellant’s version of events

180. The contrast between what was submitted with the application, which did not include any statutory declarations, and the days of evidence that has been given on oath and subject to cross-examination, could not be more striking. Although the Council submitted in closing that the evidence that has been advanced is confusing and contradictory, I consider that it might have reached this view because of the unsatisfactory way in which the evidence has been brought out. It is only when this largely oral evidence is collated that a clear picture begins to emerge. Without prejudice to my review of the Council’s contrary evidence and my overall findings, the oral testimony given at the Inquiry might suggest that the mixed use of the appeal site commenced prior to the first material date and continued thereafter.

181. Nevertheless, in generic terms the question is whether that evidence is sufficiently precise and unambiguous, as required by the Circular, to justify the issue of an LDC. Certainly the manner in which the evidence has been presented was somewhat haphazard. To compound my earlier criticism of the failure to provide statutory declarations with the application [28] the oral testimony provided by the Appellant’s witnesses added significantly and materially to that set down in their proofs of evidence. Indeed in most instances the Appellant’s witnesses did not even provide a proof [95, 98, 129, 135, 139, 143, 148, 154, 157, 165, 172 and 176]. Such an informal approach to a formal process is in my view the antithesis of best practice. In saying this I recognise that a proof is not required under the rules and so there was no question of me refusing to hear this evidence40. However I respectfully suggest that it is not in anyone’s interest, least of all the client by reason of cost, for evidence to be presented in such an ad hoc manner.

182. An example of the lack of precision which, it would appear, was within the Appellant’s control to remedy, is business documentation. Given the claimed scale of the business, Shinal Motors, which the Appellant claims to have operated exclusively from the appeal site, it is surprising that there is little documentary evidence of the company’s existence. I have given reasons for attributing very little weight to the only company accounts that have been tabled [72]. The Appellant’s somewhat inconsistent claims regarding employees [67] should mean that there is a paper trail for about 6 years41,

40 The relevant procedural rules governing these proceedings are set out in the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002/2685. 41 Company records should be kept for at least this period for income tax purposes.



potentially back to 2003 at the date of the application. Indeed I have noted the claim that records for 2001/2002 were said to exist [72]. Noting Mr Kelly’s recollection that the Appellant did, at one stage, keep a considerable amount of papers [132] it is a concern how little was produced. Although the Appellant stated that he had not been asked to produce such records [59] I find this to be a poor excuse and, given the amount of material that was submitted over the duration of the Inquiry, the fact that nothing further was submitted [107] does in my view weigh against the Appellant’s claims. There is so little tangible evidence, distinct from recollection and unsworn letters, that if such records exist it is surprising they were not submitted. One of the few other documents before the Inquiry bearing the name “Shinal Motors” is an invoice from April 1997 [CD 9.1] but this carbon copy is of little assistance, e.g. the address is merely ‘Cricklade’, rather than the appeal site. Moreover it appears to be for the purchase of parts for a cutting torch, which might be said to be inconsistent with the Appellant’s claims [4].

183. However paragraph 8.15 of Circular 10/97 says “…the applicant's own

evidence does not need to be corroborated by "independent" evidence in

order to be accepted” and I consider that applies to documents and oral evidence. Moreover the Appellant’s sworn evidence has been corroborated by a number of highly credible witnesses. The Circular continues: “If the

LPA have no evidence of their own, or from others, to contradict or otherwise

make the applicant's version of events less than probable, there is no good

reason to refuse the application, provided the applicant's evidence alone is

sufficiently precise and unambiguous to justify the grant of a certificate "on

the balance of probability".” It is in that context that I now turn to examine the evidence put forward by the Council to contradict the Appellant’s claims.

Both appeals: What documentary evidence is before the Inquiry to

contradict the Appellant’s version of events?

184. I deal initially with documentary evidence. I have reviewed correspondence submitted by third parties as part of the application [26 (oo), (pp), (qq), (rr), (ss) and (tt)] but these include little in the way of evidence. The only letter submitted at appeal stage, dated 29 June 2010, is from Cricklade Town Council [* 2]. However it too is essentially a comment on the planning merits of the development. I propose to examine the aerial photographs, which were referred to as part of all of these submissions, in due course.

Both appeals: What first hand evidence is before the Inquiry to contradict

the Appellant’s version of events?

185. Although representatives of the Town Council attended the Inquiry for part of its duration and indicated that they wished to give oral evidence, nobody actually gave oral evidence to the Inquiry on behalf of the Town Council. No other third party gave any indication that they wished to give oral evidence. Amongst others, the Council chose not to call Mrs Burkey who, I was told, is now an employee of the Council rather than a consultant. Although the Council liaised with the EA this appears to have arisen following Mr Cooper’s request for aerial photographs [the circumstances are set out in the letters dated 9 April and 13 December 2010, particularly the former, in CD 16.1]. However the EA did not attend the Inquiry or give any direct evidence.

186. Accordingly the only witness called with any first hand knowledge of what took place on the appeal site over the period at issue is Mr Brown. In what follows I shall summarise his evidence on oath and give reasons for the



weight that I attach to his testimony. It is important to stress the following comments do not purport to be a summary of the evidence that he gave on planning merits, ground (a), e.g. his involvement in the biannual caravan count, or in relation to the issue of the notice given earlier findings [11].

Allan Brown

(i) Summary of his oral testimony

187. Mr Brown said he was in the Metropolitan Police for 21 years, of which he had a supervisory role as a sergeant for 14 years and acted up as a senior sergeant for a time. Mr Brown said he had not investigated the appeal site, only the lower field, and that from 2004 only he had conduct of the matter. He said his instructions were merely to prosecute Mr Cooper for what was taking place on the lower field and said that he agreed to work closely with the EA to achieve this. However he admitted that this “…clearly did not

happen” as no prosecution has been brought for failing to comply with the extant notice. He said the enforcement section of the planning department was in a state of disarray when he joined NWDC in November 2003 and so he had not been aware of the earlier investigation as the file was missing. He first looked for the missing files on the lower field in 2008 before the demise of NWDC, but it was not his role to investigate the background to an LDC application or to involve Mrs Burkey. He had only realised there must be a historic file in respect of the appeal site during the opening of the Inquiry when there was mention of a PCN. At the time the LDC came in he was based at Devizes and so not involved with it.

188. He obtained the photographs [* 5.1 - 5.802] from the Council’s hard drive but he said that it would not have been cost effective to print them all off. Although he went through them after the LDC was submitted he did not initially find those relating to the appeal site. His supplementary proof had corrected the initial error in his first proof of evidence after he took the photographs home, went through them and noticed that some were taken on the appeal site. In cross-examination he accepted that, contrary to paragraph 5 of his first proof of evidence, he must have gone through the gate onto the appeal site in order to take some of those 31 photographs. When it was suggested that it was not a 5-minute job to take that number of photographs Mr Brown maintained that he could not remember taking them. He said that he had no recollection of taking the photographs at the time he wrote his first proof of evidence.

189. He was taken to paragraph 4 of his first proof of evidence in which he says that the gate was also closed and does not mention that he went through it, which plainly he had to take those 31 photographs. Mr Brown agreed that this was an inaccuracy. When it was suggested that this gave rise to a concern about his memory Mr Brown said that the first proof was written from his memory at the time and was done to the best of his ability.

190. Mr Brown said that he tries to maintain a contemporaneous notebook, which he kept on his person or in a drawer. He had not initially found his notebook relating to this period and although he had not looked particularly hard for the notebook he later found it in a cupboard. He wrote things to the best of his knowledge and belief, including his first proof. He did a report for every visit but in this case the large number of photographs showed the position. However he said he had done an inventory of what was on the lower field.



191. He stated that he had a copy of the enforcement notice but claimed that he was not aware of the boundary between 8316 and 7400. He said that he could not remember if he had investigated who owned the appeal site but said that by 2005 it had become apparent that Mr Cooper owned it. He did not deny that he knew Mr Cooper owned the land from the outset and said that he might have been given this information by Mr Pescod. He said he might have seen the anonymous letter [26 (ii)] but he had no recollection of it because his memory was bad. He had no knowledge of the 2003 PCN from the Council’s files but, beyond confirming there should have been a separate file for 7400, he could not comment on the Council’s reference system from that time. Mr Brown initially said he was aware of the Town Council letter [33 (a)] but then changed his position and said he was not aware of it. He said he had not seen the letter because he never saw an enforcement file in respect of the appeal site. He had no recollection of a cross-reference to the appeal site on any file and if there had been he would have enquired further into it. However he said that the files for the appeal site had also been lost. Anything relating to the appeal site since 2004 was recorded on camera. He had not discussed the 10-year point, or possible immunity, with fellow officers and said this was a “failure on my part”.

192. Mr Brown was also asked about the 1993 Committee report [33 (b)] but said he had not seen it before the Inquiry. It was suggested, in line with what the Committee report said, that it had been common knowledge in the area that Mr Cooper lived at “The Gallons”. However Mr Brown said it was not common knowledge as he had asked locally and said the general response from people had been that they “don’t know where he lives”.

193. Mr Brown said that he had never discussed the appeal site with Mr Cooper. He had taken photographs when Mr Cooper was not there and confirmed that he had been given a free rein to inspect all of the land at Hicks Leaze but did nothing. His experience in 2004 /2005 was that where he had taken advice from NWDC officers it had not been considered to be expedient to pursue the matter at the time. He said that he had received such advice from Robin Williams, Senior Enforcement Officer, and Charles Pescod, who was the Chief Planning Officer. He said that Mr Cooper and Mr Pescod went back some years and that Mr Pescod responded to his own correspondence but that he personally had not done a search of Mr Pescod’s personal files42.

194. When asked whether he had been asked to turn a blind eye to what Mr Cooper was doing Mr Brown said he had been pretty “cheesed off” about it. However he made clear that this comment related to what Mr Cooper was doing on the bottom field, which he said should have been dealt with 27 years ago, rather than what was taking place on the appeal site43. He said that he had appraised Mr Williams that Mr Cooper had said he lived at Hicks Leaze before 2005 but that Mr Williams did “not take the matter in

hand”. He considered that Mr Cooper’s claim that he was living on the land was not progressed because the focus was on bringing a prosecution for non-compliance with the extant notice. Mr Brown said that he had not mentioned the outcome of the meetings he had with Mr Williams and Mr Pescod to Mr Smith. Indeed he had no recollection of what he had discussed with Mr Smith and although Mr Brown did discuss the LDC more widely with Mr Smith he could not recall if he told him that NWDC had decided it was not

42 It is only fair to record at this point that Mr Smith denied on oath that such personal files existed. 43 I acknowledge that submissions have been made to the effect that this comment “cheesed off” went wider but my notes are clear that it related to the failure to take action in respect of the lower field.



expedient to take enforcement action at that stage. At the time he wrote his first proof of evidence he was still not based in Chippenham.

195. Mr Brown acknowledged that Mr Cooper did tell him about No 42 and that he had understood it to be his home address. He admitted that when he had questioned Mr Cooper on site he had told him that he was living in a caravan but he did not believe he was living in any caravan because they were “a

wreck”. When it was put to him that Counsel had taken a different view and cross-examined the Appellant on the point at length he repeated that Mr Cooper said he was living in a certain caravan on the lower field but he did not believe him. Mr Brown’s view, on reflection and in the light of Counsel’s exchange with the Appellant, was that Mr Cooper had started living on the appeal site “recently”, i.e. since the start of the Inquiry, and he thought the caravan had been set up for my initial site inspection in January 2011. However Mr Brown acknowledged that Shotgun was living on the land in 2004 and that he had asked him to leave but he did not know why he had not asked Mr Cooper to leave.

196. Mr Brown said he had not mentioned the interview alleged to have been under caution in his first proof because he could not remember doing it and had not found his notebook when he wrote it. However he could now remember cautioning Mr Cooper and excluding Mr Olding, although he could not recall where44. However he said that he could only “vaguely” remember the interview, could not remember what he had made notes of the interview in and as he thought the notes dealt with the lower field he had not realised their significance. He said that the failure to mention the interview was an “omission on my part”. He said that it was best practice to make contemporaneous notes, which these were, but that other visits had not been recorded in his notebook because the purpose of those visits had been merely to gather information. He said the notes of other visits comprised little more than a sketch showing the position from which photographs were taken. All other contemporaneous notes that were taken in respect of Mr Cooper’s land were sketch plans on A4 sheets of paper.

197. Mr Brown said that he had written to Mr Cooper ahead of the visit in April 2004 and described it as a formal visit, although he conceded that he had not said that he would conduct an interview under caution. He then said that he would have invited Mr Cooper to the office to do a formal interview. He said the primary purpose of the visit on 21 April 2004 was with regard to vehicles but he had asked about caravans as part of an information gathering exercise. Specifically with regard to the green and white caravan there was a family living there, Shotgun, and Mr Brown agreed that there could have been the potential for enforcement action. Mr Brown confirmed that Mr Cooper had told him that he lived on his land as that is what he had recorded. He claimed that if Mr Cooper had said that he was living in the top field that he would have recorded that. He said he had not made a record of Mr Cooper’s claim that he was living on the site on a file or told the NWDC solicitor, Mr Packer, at the weekly meetings they had, about his claim. He could not remember bringing Mr Cooper’s claim to the attention of Mr Pescod and took responsibility for that. He did not even mention Mr Cooper’s claim to Counsel when Mr Brown attended a conference regarding the prospect of bringing a prosecution for the failure to comply with the extant enforcement

44 It is submitted in closing for the Appellant that Mr Brown said he could not remember cautioning Mr Cooper, but that is not my note of what was a rapid exchange. My note is that Mr Brown said he could not remember the interview, but I am prepared to acknowledge that my note is not especially clear in relation to this particular point.



notice. As far as Mr Brown was concerned Mr Cooper was living at No 42. Mr Brown said he was happy that Mr Cooper was going to evict Shotgun, but he conceded that a PCN should have been issued to explore Mr Cooper’s claim that he was living on his land. He said there were a number of other matters that should have been dealt with.

198. In cross-examination Mr Brown was asked whether he had checked the caravans on the lower field to see whether they were capable of being lived in. He said he had a recollection of checking the caravans, specifically the green and white one by the main gate. He could remember the amount of vehicles on the appeal site and was certain that he would have checked the caravans too. Mr Brown said that he had asked Mr Cooper for his address as part of the information gathering exercise and that he had given No 42. As far as Mr Brown was concerned his address was his abode. In any event Mr Brown said he had not believed what Mr Cooper had told him. At another stage during the cross-examination Mr Brown said he “…still doesn’t believe

everything that Mr Cooper tells me”. When it was said that Mr Cooper told Mr Brown he was living there in 2004 he said I “…still don’t believe him”.

199. With reference to paragraph 2.10 et seq of his enforcement proof Mr Brown was asked how he could suddenly remember that Mr Cooper was living on the bottom field. He said that things had come to his attention and it was with the aid of the pocketbook and photographs, although he agreed that he had not mentioned this in earlier proofs of evidence. Mr Brown claimed he had given the best information at each stage and when challenged that he had given different accounts he said it was up to the Inspector to form a view. When it was suggested that his proofs of evidence contained multiple inaccuracies Mr Brown said his “memory was not as good as it used to be”.

200. Mr Brown was taken through his photographs [in the bundle at CD 20.1a/b]. He did not know why he had not looked at the vehicles in the “dog leg”, i.e. the western end of the appeal site, but again stated that the focus of his attention was on prosecuting for non-compliance with the extant notice. In the context of what the photographs show he agreed that his first proof was incorrect insofar as it suggested that the number of vehicles on the appeal site was de minimis. He said the storage of between 4-5 vehicles, or half a dozen, would give rise to a material change of use. In re-examination he was taken through what he understood by the terms material change of use and de minimis and said that if there were 4 or more vehicles that he would start asking questions. He said he would speak to a Planning Officer or issue a PCN. However I consider this does not detract from his earlier answer.

201. It was suggested that there was a tension as to whether he was saying that no action was taken because it was de minimis or that there was a material change of use but that it had not been expedient to take action. He stood by his claim that it had not been expedient for NWDC to take action at the time. He had not set out to be but accepts that this part of his first proof had been misleading. He said looking at the 31 photographs now there was “certainly

evidence” of a material change of use and that he would do something now. However he reiterated that at the time his focus had been on the lower field. In re-examination he said it had been expedient to issue the notice subject of Appeal B because of the harm to the land and the time deadline.

202. In relation to the photographs Mr Brown took in 2011 [CD 21.5, CD 23.2 and CD 23.3] he said that it was quite possible that they had been taken with a zoom lens as they had been taken from the airfield. He maintained that he



did not think Mr Cooper was living on the appeal site in January 2011, when the first site visit had been convened, but could not identify what benefit there would be for Mr Cooper from adopting such a stance. All he could say was that it was not what he would expect if he was living in a caravan. Mr Brown agreed he was living there by the end of the year when he wrote his first enforcement report [* 48.1] and said he visited the site in November 2011 because he was contemplating enforcement action. He said that a decision was taken “some time” before the notice was issued and that it was his decision to issue a notice although he had discussed it with the Council’s legal section. He said people at the Inquiry knew, but he did not discuss it with Counsel. In his view there had been no need for a PCN because he had heard enough.

Allan Brown

(ii) My findings

203. In closing it was submitted for the Appellant that Mr Brown had no credibility as a witness because he changes his story between proofs of evidence and has contradicted himself, to the extent that his evidence cannot be relied on. It is hard to disagree with this submission. Mr Brown was not a convincing witness. Even on paper, before he gave oral evidence, there were a number of contradictions. Perhaps the most obvious was saying in his first proof that he did not enter the appeal site and that none of the 802 photographs show the appeal site in any detail and then saying in his supplementary proof that 31 photographs were of the appeal site and appending a map showing that he stood on the appeal site to take them. Equally striking is that he said in his first proof that he did not notice any caravans on the appeal site and yet paragraph 2.10 of his enforcement proof says: “I looked into every caravan

on the appeal site”. Unfortunately Mr Brown did not recover his credibility when giving his oral testimony: to put it kindly things did not get any better.

204. In closing it was submitted for the Appellant that Mr Brown’s evidence, where it conflicts with that of the Appellant, cannot be relied upon; I agree. I have no confidence in his answers, not because I think he set out to mislead, but because his memory is very poor and I am not convinced that he tried to make up for this by taking contemporaneous notes. Mr Olding made an interesting observation on the weather on 21 April 2004 [111]. The agreed transcript [* 15] records that Mr Brown attended Hicks Leaze at 1000 hours with representatives of the EA, that the interview with Mr Cooper commenced at 1013 hours and it took 15 minutes, until 1028 hours, to go through the enforcement notices and preliminaries.

205. In that context I find it most unlikely that Mr Brown took 40 photographs45 on that day between 1000 hours and 1013 hours, given that they are widely dispersed across the lower field. Although I accept that the photographs show an overcast sky and puddles on the ground it is not raining in any of them and neither is there evidence that it has just rained, e.g. windscreens of vehicles show no sign of rain and there are areas of ground that are dry. As I am satisfied that the photographs were taken after the interview this means it is unlikely to have been raining during the interview. However the notes are smudged, which suggests it was raining when they were written.

206. It is a minor detail, but it does tend to corroborate the Appellant’s claim and to support my main reason for preferring Mr Cooper’s version of events,

45 Image Nos 000_0739.JPG to 000_778.JPG in the bundle at * 5.1-5.802.



which is that Mr Brown’s memory is poor. He did not remember conducting the interview at all until he found his notebook. On finding it I understand why he would be led into thinking that they were contemporaneous notes but I am not satisfied they are. Moreover his letter of 27 May 2004 [* 47] says Mr Brown intends to visit the site on 8 June 2004 but continues: “I do

not intend to conduct any interview on site, but will be requesting that you

attend my offices at Chippenham after this visit to facilitate an audio taped

interview”. I fail to understand why this would be necessary if an interview had been conducted under caution on the site just a matter of weeks earlier and this is broadly consistent with what Mr Brown told the Inquiry [197].

207. Given the contradictions between his proofs, I have no confidence that Mr Brown looked into every caravan. As he admitted his focus was at all times on collating evidence with a view to bringing a prosecution for a failure to comply with the extant notice. He was not interested in caravans, as is evident from his admission that he did not convey Mr Cooper’s claim to be living on site to others including the Chief Planning Officer, the Council’s solicitor and Counsel. His focus was on the lower field and so I have reason to believe that until he found the 2005 photographs he could not remember going on the top field. When he did it is clear from the photographs and the plan [CD 20.2] that he did a cursory inspection as he did not go to the western end of the appeal site46. That is consistent with a finding that his focus was elsewhere. Moreover even if he did look at the caravan on the appeal site in 2005 the curtains were closed and so he would not have seen into the caravan [see AB/18 in the bundle at CD 20.1b]. This is consistent with what Mr Cooper told the Inquiry about closing the curtains [45, 84].

208. Given the generality of the question47 on page 59 of the transcript [* 14/15] regarding the brown and white caravan and my reservations about the oral testimony of Mr Brown, I accept the Appellant’s explanation that they were talking at cross purposes. Accordingly I find that this was an admission that Mr Cooper lived on the appeal site in April 2004. I can understand why Mr Brown understood that Mr Cooper lived at No 42 because he gave that as his correspondence address but ultimately that was Mr Brown’s interpretation. There is no dispute that Mr Cooper told him in the interview in 2004 that he lived in a caravan. The fact that Mr Brown did not believe him is irrelevant.

209. I find Mr Brown’s suggestion that Mr Cooper was not living on the appeal site at the time of my inspection on 10 January 2011 curious. It did not even cross my mind that Mr Cooper was not living on the appeal site at that time. I note the submission regarding the alleged absence of energy and water connections but the Appellant has provided a satisfactory explanation [47]. The bottom line is that Mr Cooper made the application for the LDC, subject of Appeal A, in September 2009 and in doing so he was telling the Council that was where he lived. It was an open declaration and so from that date there is no logical reason why Mr Cooper would not have lived on the appeal site. Given the need for continuity which, I have no doubt, Dr Murdoch or others would have impressed on Mr Cooper, there is every reason to think that he lived on the appeal site throughout the period from 2009 to 2013.

46 There is a long distance shot towards the western end of the appeal site, IMG_7707. This image was ‘blown up’ on screen at the Inquiry and I have examined it. There are clearly a number of vehicles including a blue saloon car, a grey transit van or similar, the open end of a lorry container or box van and, behind that, a white transit, coach or similar vehicle. However I am satisfied that this view does not go around the corner into the ‘dog leg’. 47 It contrasts with the question about the green and white caravan “on the right of the entrance” and specific questions about vehicles by reference to their registration numbers.



This says more about the assumptions that Mr Brown appears to make or his preconceptions as to the standard of living that he expects.

210. Turning to the business use this element of the appeals is not going to turn on Mr Brown’s answer to my question as to what level of storage would give rise to a material change of use. It does not bind the Council. However it does give an indication of Mr Brown’s thinking and strongly suggests that he would have gone back to the office and, as he did not issue a PCN, discuss the matter with his colleagues. The June 2005 photographs show a level of vehicle storage on the appeal site significantly above 4 vehicles and I find it unlikely that NWDC’s Senior Enforcement Officer and Solicitor, at the weekly meetings Mr Brown said he had with them, would have found the storage to be de minimis. It follows, as Mr Brown said, that NWDC must have found that it was not expedient to take action at that stage. In policy terms, given its earlier stance [14 (d)] and that the appeal site remains designated open countryside48, such a conclusion does not fit. The only way to make it fit is having regard to the PCN the Council issued the year before and Mr Cooper’s response to it in terms of the length of time that the use had subsisted. It is material that Mr Brown’s 2004 letter [* 47] bears an “03” reference so, on a balance of probability, other NWDC officers if not Mr Brown would have been aware of the PCN response. I acknowledge this is somewhat speculative and inconclusive but it does appear to be consistent with the Appellant’s claims.

211. For the above reasons I attach limited weight to Mr Brown’s evidence. On its face his written evidence is contradictory and this was graphically exposed during cross-examination. In my earlier analysis I have given reasons why, to the extent that there is a conflict between Mr Brown and other witnesses, notably Mr Cooper and Mr Olding, the Appellant’s version of events must be preferred. Accordingly Mr Brown’s evidence, in totality, does not contradict the Appellant’s claims. To the contrary, as Dr Murdoch suggested in chief, Mr Brown’s evidence largely supports the Appellant’s case in a number of material respects.

Both appeals: What other evidence is before the Inquiry to contradict the

Appellant’s version of events?

212. Given that Mr Smith has no first hand experience of the appeal site prior to the date of the LDC application, although he gave evidence based, in part, on the aerial photographs, I see no reason to summarise his oral evidence as I have for other witnesses. Rather I propose to examine the aerial photographs and bring together observations made on them by, in particular, Ms Cox and Mr Olding. There was much discussion at the Inquiry about the professionalism of these witnesses, but I am reluctant to get too drawn into that debate, which ultimately does not assist me in reaching my conclusions. However there are a number of points that need to be addressed and since a costs application has been made on the back of this issue, I must address it to inform consideration of that application.

Credibility of the respective expert witnesses

213. There would appear to be a tension between what Ms Cox says at paragraph 1.2 of her proof, in describing her MA as “Aerial Photographic Interpretation” and what is said on the certificate, which is “Archaeology and Prehistory” [* 56.2]. The stated date also appears to be wrong as it was awarded in 1985. However I have no reason to doubt that the course was taught by

48 As is evident from the face of the enforcement notice subject of Appeal B, specifically section 4 b) thereof.



Dr Riley and, noting the terms of the email exchange with the university [* 57], that the course had a strong emphasis on aerial photography. Indeed this is consistent with her stated area of competence and company directorship. As such I have no reason to doubt her experience or competence in this area. I acknowledge that Ms Cox corrected a number of errors in her proof during the course of giving evidence, including recording evidence sources. Whilst the Appellant says this undermines her thoroughness I am not convinced that the point can be taken further in order to say her credibility is damaged. The errors were readily admitted and so nothing further turns on the point.

214. Ms Cox said that she did not agree with Mr Olding’s proposition that it was difficult to determine the identity of the objects viewed on figures 2 to 13 as they were not intended for the task of individual object identification. She claimed that there was a contradiction insofar as Mr Olding had proceeded to do this exercise. However I see no contradiction. Mr Olding does the task in the context of him saying at the outset that the images are of poor quality. When one compares some of the images before the Inquiry to some others the contrast is stark and in my view that tends to support Mr Olding’s claim.

215. In this context I note the reservations expressed by Inspector Norman in a 2005 decision49 when he said: “In my view aerial photographs should be

interpreted with caution. They are valuable for what they show but it is not

safe to assume that objects or features not shown were not present on the

ground”. It would appear that the Inspector was referred to some of the aerial photographs of the Cricklade area which are presently before me, including those from 1999 and 2001, in making such prescient comments.

216. If some objects cannot be seen then it is likely to be equally true that those objects that are able to be seen might be difficult to accurately identify. As Ms Cox fairly acknowledged in cross-examination, the fact that a use is not evident in the photographs does not mean that the use has not taken place. All that Ms Cox can say is what she can and cannot see in the photographs and in that sense she gives secondary rather than primary evidence; she is unable to give direct evidence because she has no personal knowledge of the site on the various dates on which the aerial photographs were taken. The aerial photographs are a primary source of evidence, but they are open to interpretation, as the dispute between Ms Cox and Mr Olding shows.

217. I also question the wisdom of not drawing on other sources of evidence in order to inform the observations being made about the aerial photographs. Examples include Ms Cox’s claims about water meadows and stored paper. The former could have been resolved by a site visit, even if that was after the image was taken, and the latter could have been rationalised by sight of some of the written evidence. I agree that it is important for the witness to have integrity but I do not see this would be threatened by such action. Ms Cox acknowledged her role is to provide evidence but she does not advance her case by making claims that can be so readily shot down as it does not inspire confidence about her observations on the issues in dispute. I acknowledge it is primarily for the decision maker to undertake the task of comparing the aerial photographs to the witness evidence50 but I still see an advantage from undertaking an exercise to eliminate obvious factual errors.

49 Source of quote: paragraph 20, appeal ref: APP/J3910/C/04/1153508 etc [CD 6.2]. 50 As recognised in the last part of paragraph 42 of The Planning Inspectorate’s decision FPS/J1155/7/87 [CD 7.3].



My view is reinforced by Ms Cox’s admission in cross-examination that she had read a number of proofs of evidence by way of background in any event.

218. It has been suggested that Ms Cox did not produce the Google Earth image because it contradicts her evidence and hence her client’s case. However there is no reason to doubt that she thought she had presented all of the available images from 1999 onwards from Blue Sky who supply Google. She told the Inquiry that she did not re-search Blue Sky or Infoterra because she had assumed all of the commercial aerial photographs from this period were before the Inquiry. As a professional witness I have no reason to find that there was an ulterior motive behind her failure to identify the later image.

219. Mr Olding has experience of examining aerial photographs as a result of his time in the Royal Marines [102, 117]. On that criterion he would qualify as an expert witness who was able to assist51. As he gave evidence on oath, there is no reason to doubt he owns and knows how to use a stereograph [118] but did not bring it to the Inquiry because he saw no scope to use it. I acknowledge that Ms Cox has studied this area of expertise in detail, has given evidence to similar tribunals, is a member of a professional body and, as a result, is up-to-date with CPD requirements. However that does not lead me to find that Mr Olding would not be qualified to act as an expert witness. As the J.P.L. article says “An expert does not need to have acquired

his expertise in a particular way before he can be regarded as an expert…it

does not matter how that expertise was acquired…”52.

220. The article goes on to rhetorically ask what is the job of an expert witness? It answers this by quoting May J in Larby v Thurgood [1993] I.C.R. 66 in the following terms: “The task of an expert witness in litigation is to express an

opinion within his expert competence on matters susceptible to such an

opinion relevant to the litigation. He expresses that opinion on facts agreed,

proved or to be proved by evidence. In addition to expressing his opinion,

he may himself give factual evidence of matters of which he has first hand

knowledge…an expert is entitled to draw on the work of others as part of the

process of arriving at his conclusion”53 (my emphasis).

221. The Council says Mr Olding’s approach has not been rigorous enough and it complains that when pressed Mr Olding fell back on his memory to justify his conclusions. Although not always true, the topography of the site being one example, I accept that this was the justification for a position taken on more than one occasion. The J.P.L. quote (see my emphasis) might suggest it is not inappropriate to supplement expert opinion with first hand knowledge, but I recognise that there are dangers. As the Council submits, memory can be unreliable and there must be a danger that it could lead one astray by influencing an expert’s interrogation of the aerial photographs. There is a balance to be struck between using one’s memory to rationalise what is observed and using that knowledge to colour the interpretation. In one sense it is an advantage to have knowledge of the site but not if that is used to distort the outcome and thereby not approach the task objectively.

222. This is the nub of the matter. The Council submits that Mr Olding is not an objective or impartial witness and that as a result his evidence is not “…the

independent product of the expert uninfluenced as to form or content by the

51 Having regard to the test of an expert witness in R v Bonython [1984] SASR 45, as quoted in the article at [2010] J.P.L. 1200. 52 Source of quote: [2010] J.P.L. 1201 drawing on R v Silverlock [1894] 2Q.B. 766. 53 Source of quote: [2010] J.P.L. 1202.



exigencies of litigation”54. Whereas Ms Cox gave evidence without any prior involvement with the case and can be seen to be independent, objective and unbiased, Mr Olding is in dispute with the Council with regard to his own site55 and made no secret of his allegiance to the Appellant [109]. Mr Olding has more than a passing interest in the outcome of the case, albeit not, to the best of my knowledge, on the basis of any financial remuneration [109].

223. The Council refers to the Civil Procedure Rules and whilst they do not apply here the Council plainly does perceive bias. However ultimately this is a question of trust and just as I have found no reason to find that Mr Olding has committed perjury equally, in his role as expert witness, I find no basis on which to find that he did not approach this task objectively rather than as the Appellant’s advocate. In reaching this view I appreciate Mr Olding gave no declaration in the terms set out in section 8 of Ms Cox’s proof but that does not lead me to find that his testimony was not given in that spirit. It would be wrong to assume that his personal grievance coloured his views.

224. However Mr Olding is not a professional witness and therefore might not be familiar with professional conventions, such as understanding the manner in which sources of evidence have been set out in Ms Cox’s proof of evidence. In the circumstances it would be harsh to accuse him of being ‘negligent’ in not considering the archive material. Point 7 of the Ikarian Reefer summary is: “Where expert evidence refers to photographs…these must be provided to

the opposite party at the same time as the exchange of reports” 56. I have no reason to doubt that Ms Cox’s experience has been to set out her proof as she has so that another professional would know to go to the archive to look at the original images, so this is not a criticism of her approach. The Council also says it is not possible to append 3 dimensional images. Perhaps, with hindsight, it might have been evident to Mr Olding that was the task that he had been set. However he is not a professional and he did not claim to be experienced in procedural terms. As such I can understand why Mr Olding relied on the prints that were attached to Ms Cox’s proof rather than going to the original source providers because that is what he was sent.

225. Ms Cox said in chief that she saw the aerial photographs from 1967 and 1969 but chose to start with the aerial photographs from 1971 as a baseline. Given the limited activity on the early images which, in any event, are long before the period I am concerned with, there is no reason to rely on the images from 1967 and 1969. That view is reinforced by the Council’s concerns as to the manner in which those images [CD 7.6 -7.9] have been derived57. It is not appropriate to try to clear and remove cloud cover as this would be likely to change the resulting image and potentially introduce ‘digital artefacts’ or pixels that might be mistaken for objects. In this respect Ms Cox’s analogy to hands over a face is apt. It is of concern to me that Mr Olding saw fit to attempt such an exercise and to introduce coloured filters. This can be clearly distinguished from the use of established software such as rectification that seeks to match up imagery to control points such

54 Source of quote: the first point in the summary of the position of an expert witness by Cresswell J in the Ikarian Reefer case quoted at [2010] J.P.L. 1202, which is reproduced in full in the bundle of authorities [* 80]. 55 Without going into detail in a public document he has been in dispute with the Council with regard to a culvert and * 63 records that litigation between the parties had been commenced but was stayed as at 11 January 2013. 56 Source of quote: summary of the position of an expert witness by Cresswell J in the Ikarian Reefer case quoted at [2010] J.P.L. 1203. 57 I acknowledge that I also have a print of the 1967 aerial photograph [* 67] but see no advantage in doing my own analysis of it in preference to using the 1971 aerial photograph as the baseline.



as field boundaries. I have no reason to doubt Ms Cox’s evidence that the images from 1999 onwards, provided by Google and Blue Sky, are rectified.

226. Nevertheless, since I do not propose to rely on the aerial photographs from 1967 and 1969 this does not taint Mr Olding’s other evidence. I have already noted an expert witness is entitled to draw on the work of others in arriving at his conclusions (see my emphasis in the earlier J.P.L. quote, [220]) and that is what Mr Olding has done to a large extent in relying on Ms Cox’s aerial photographs. I acknowledge that whenever any party wishes to refer to a point using aerial photographs it is to Ms Cox’s proof that one instinctively turns, but first and foremost that is testimony to the clear, methodical way in which she has set out the aerial photographs. However equally it is a necessary consequence of the fact that this evidence is advanced as a means to rebut the Appellant’s version of events. In the period that the Inquiry was running before her involvement all parties went to, amongst others, the EA aerial photographs, which appear to have been reproduced by the Council at the instigation of the Appellant58. However to the extent that Mr Olding has provided new images, notably from Google Earth, I also rely on his evidence.

227. The Council submit that to the extent that the evidence of Ms Cox and Mr Olding conflict, that of Ms Cox is to be preferred. However I am not persuaded it would be appropriate to universally apply that rule. In the circumstances it would be wrong to draw a general finding that one expert witness should be preferred over another. Rather I propose to look at each of the aerial photographs and draw out my own reasoned conclusions, based on expert evidence before the Inquiry, about what the photographs show.

The aerial photographs

228. In this context I propose to examine Ms Cox’s figures [CD 24.2-24.18] in turn59. I see no purpose in rehearsing the arguments put forward by each witness but I do propose to draw out some broader conclusions at the end, specifically with reference to any caravans. Mr Olding said the claim that the appeal site is a water meadow, which silted up and retained water allied to a stream, was inconsistent with the site’s elevation, which is around 81 m above AOD, and the fact that the adjoining land had been selected as an airfield. Ms Cox acknowledged in chief that her reference to water meadows as an historic landscape feature was in error and said those features were drainage channels. However I accept these historic drainage features can be used as a reference point against which to assess activity on the land.

(2) It appears to be common ground that there was little activity on the appeal site in 1971. Ms Cox does identify a worn linear feature from point “C” into the site, which she says is likely to be pedestrian access, and colouration at point “B”, which she says is where the grass is worn. Given that these markings are broadly in the ‘dog leg’ in the western end of the field, this might be said to be consistent with the claims regarding Mr Pratt’s activity but, if so, it is clear that any historic activity on the appeal site was at a very low level. In the circumstances I reiterate that I see no merit in looking at the earlier images submitted by Mr Olding.

58 See letter dated 9 April 2010 from the EA to Wiltshire Council, at CD 16.1, which says: “Mr Robert Cooper

recently requested photos of his land at Hicks Leaze…He would have had this information disclosed to him at the

time of the prosecution…I have enclosed all the same documents for your information…”. 59 Figure 1 is merely for the purpose of site identification and so no comment is necessary.



(3) In figure 3, from 1981, the position appears to be little changed from 1971 and for my purpose, since it significantly pre-dates the Appellant’s ownership, there is little purpose in my analysing this image further.

(4) Ms Cox identifies 2 rectangular items at point “A” and smaller objects at point “B”. Given that Ms Cox says it is not possible to identify the precise nature of the larger objects I question whether it is possible to say with any certainty that the smaller objects are oil drums. Apart from these objects figure 4 reveals that the main body of the appeal site is entirely free of stored or deposited articles as at 30 March 1990. Even to the naked eye it is clear the entrance at “A” has been cleared to substrate in a very sharp and edged manner and I accept Ms Cox’s evidence that this might suggest it was recently finished. The other clear feature on this image is the worn track from point “D” to point “A”. Noting that the appeal site was by this stage in separate ownership from The Gallons, the off-site track from “D” to “C” might be said to be evidence of the Appellant’s movements, which he said were to collect post and water.

229. Figure 4 is the first of a series of images of the appeal site taken during the Appellant’s ownership in which Ms Cox says that there are no caravans on field parcel No 7400. This goes to the heart of the dispute between the main parties. It is the most significant evidence put forward to contradict the Appellant’s version of events. Although this is before the first material date if I were to fully accept Ms Cox’s evidence it would undermine the credibility of the Appellant and his witnesses who gave evidence on oath. For these reasons I deal with this issue in detail in due course [233 et seq].

(5) Figure 5, from June 1990, is a matter of months after the date of figure 4 but among the changes are what Ms Cox describes as small ovoid objects at point “E”; Mr Olding said these were tyres, rather than silage. Ms Cox also identifies a structure at point “B”, which she describes as small. Mr Olding says it is a big object, probably a caravan, and that it would not be possible to see a towing hitch at this scale. The fact that I can see the object with the naked eye suggests it is relatively large. Nonetheless the main body of the appeal site is free of stored or deposited articles and in contrast to figure 4 there appear to be mowing lines. This might be said to be consistent with the small objects being silage.

(6) The most striking feature of figure 6, from August 1992, is what Ms Cox says are light toned sub circular areas, which might be the result of an agricultural process or deposition from outside the site. Mr Olding says there are 38 such markings, which he said arose from where vehicles had been worked on, and whilst I have not counted them they are numerous. I accept Mr Olding’s claim there are exactly the same marks in the lower field and observe that this contrasts with surrounding fields. There can be no dispute that the lower field had been used for the dismantling of vehicles for at least 5 years by the date of this photograph. Ms Cox says she is still not able to identify the nature of the objects at point “A” and that apart from the established track from point “A” to point “C” there is another from point “A” to point “E”; I agree. There is a degree of consensus between Ms Cox and Mr Olding that the image is grainy.

(7) Figure 7, from June 1993, appears to show the appeal site more clearly as, arguably for the first time, distinct objects can be seen along the line of the hedgerow. Ms Cox identifies them as vehicles, including what she says is a blue saloon car. I accept her evidence that figure 7 reveals no



items in the main body of the appeal site and that the type and location of items has changed since 1992. However Mr Olding’s observation that the number of vehicles on the lower field is low is equally valid. Whilst the access points at “A” and “C” remain evident, tracks within the appeal site and to off site locations, e.g. to point “D”, are not, and this contrasts with the tracks evident on field parcel No 8316.

(8) Figure 8, from March 1995, appears to be less clear than the last image although that might be because the print at figure 8 is so poor. I have no reason to doubt that Ms Cox can identify 3 rectangular items closely set next to each other at point “B”, another 3 rectangular items at point “A” and that the main body of the site is free of stored or deposited items. Although Ms Cox identifies an uneven tone to the grass south of point “A”, which she says might be weeds, the area concerned appears to extend more to the south-west. One possible explanation might be ground disturbance, which is perhaps more evident from the other copy of this image before me [CD 16.1]. That copy might also be said to reveal more vehicles, e.g. there appears to be something on the opposite side of the ‘dog leg’ from point “B” and a number of objects parallel to the hedge on either side of point “A”. This leads me to question Ms Cox’s statement that there are no other items or structures on site, although I do accept that the main body of the site remains entirely clear of objects.

(9) The most striking feature from figure 9, from June 1996, is what Ms Cox calls a cleared apron of very light toned material at point “A”, which gives access from the lower field. The 4 largest structures at point “B” are distinct. There appears to be a consensus that there are smaller objects there too and Ms Cox identifies a car at point “C”. Cross-referencing to CD 16.1 might suggest no substantive change with regard to the objects at points “B” and “C” between 1995 and 1996. Mr Olding says that he is 90 % certain that one of the objects at point “B” is a caravan and that the claim that the vehicles could not be occupied because they were close together was nonsense. Mr Olding said he knew the caravan was closest to the hedgerow. The object at “L” is distinct and I accept the evidence of Ms Cox that she can trace that through to later images and identify it as a container or animal box. I agree that the main body of the site is free of stored or deposited items but note that Ms Cox identifies 6 cars around the perimeter of the field.

(10) This is the clearest historic oblique image provided and as such is useful in revealing rectangular objects against the boundary hedgerow with the lower field. I accept Ms Cox’s evidence that this image reveals that the main body of the appeal site is entirely free of stored or deposited articles and that apart from the items at points “A” and “B” there is nothing on the site on 29 October 1997. Mr Olding claimed that the Land Rovers could be seen in the hedgerow in this oblique image. Although Ms Cox says the items at point “B” have one side missing, which she says might be indicative of containers, she agreed under cross-examination that an oblique image would not show features such as a towbar on a caravan.

(11) Ms Cox accepted in chief that this was a poor quality image, derived as it was from a paper copy sourced from the EA60, and for this reason she said limited weight should be given to it; I agree. In cross-examination

60 Evidence given by Ms Cox on oath on 19 December 2012, which is consistent with the terms of the Certificate of Authenticity reproduced at CD 16.2.



she agreed that her observations were only as good as the photographs that she was given. On this basis Figure 11 is a photograph that is not fit for purpose. As Ms Cox agreed it is not even possible to see the track and so I cannot accept that it is appropriate to state, as she does at 6.10 of her proof, that grass has re-grown and there has been a low level of vehicular access. Although there are rectangular objects between points “A” and “B”, given the inferior quality of the image it is inappropriate to draw conclusions about the level of use that is associated with them.

230. The Council conceded at the Inquiry that it was satisfied the Google Earth image was taken on 29 August 1999, the day after Figure 11. There is no comparison between the 2 images. Ms Cox said Google images are “wonderful” and her only reservation was about its date, but that must have been resolved by the Certificate of Authenticity [CD 7.2]. In contrast to the EA image, Figure 11, I attach significant weight to the live Google Earth image displayed at the Inquiry because it was so clear and it was possible to drill into it to reveal obvious markings, which had the appearance of a “£” sign on the ground. This image is just before the first material date and on this basis it is highly significant to my findings in this appeal.

231. Mr Olding’s evidence to the Inquiry was that he could identify 19 objects on this image, including small and large vehicles, and a pile of stone. He said one of the objects, at point “B” was a caravan and this was not challenged. In contrast Ms Cox admitted that she had not drilled into the Google Earth image and so had not counted the number of objects. Mr Olding said that there were extensive markings consistent with items being moved in the field and said these might be caused by the crane or JCB collecting vehicles.

232. Ms Cox said that the tracks were made by the same, or a similar type of, vehicle at a time of year, August, when the ground was dry. I regard it to be highly significant that Ms Cox agreed with the proposition that was put in cross-examination that these markings would only have arisen from driving around vehicles stationed on the appeal site. As these track marks extend across a large part of the appeal site this is consistent with the Appellant’s claim that the number of vehicles stored on the appeal site fluctuated. The crispness of the Google Earth image and the zoomed version [CD 8.9 a-b], said to be from an elevation of 93 m, contrast markedly with all of the other images that have been produced by Ms Cox prior to the first material date.

(12) I agree with Ms Cox that figure 12 is clear but, having been supplied with a digital version of figure 12, it is evident that it breaks up as one zooms in, so it is arguably not as good as the Google Earth image. Comparison between figure 12 and the Google Earth image reveals that the number and distribution of objects on the appeal site has not materially changed. This might be said to be consistent with Ms Cox’s observation that the entrance at “A” has grassed over, suggesting a low level of access. Mr Olding said that he could not identify a caravan in this image. There is more than one object at point “B” but it is unclear if there is a caravan. The fact that the markings so clearly evident in the Google Earth image cannot be seen in this image, less than 3 months later, might suggest one of two things: (i) that grass growth quickly masks such marks; or (ii) that such images cannot be relied on to reveal such fine detail.

(13) The first of these images from 2001, which is sourced from Wiltshire Council, is not very clear although again that might be because the print at figure 13 is so poor. The print of the same image at CD 16.3 is better.



I accept Ms Cox’s evidence that the group of items at point “B” is likely to be the same as those evident in 1999, that there is a cluster of stored items at point “A” and that tracks are evident from point “A” to point “G” and from there on to point “B”. The broad distribution of objects appears to be similar to that shown on the Google Earth image, although there appear to be additional vehicles including one to the south-west of point “A”, one in the vicinity of point “C” and one at point “H”. There is nothing stored on the main body of the appeal site. The second oblique image at figure 13, from the EA, is of poor quality but broadly corroborates the first of the images from 2001 in terms of the number and distribution of items on the appeal site. Again the print of the same image at CD 16.4 is better. It does suggest that the entrance from the lower field has been re-surfaced for a short length into the appeal site.

(14) Figure 14 is agreed to date from 3 May 2002 and is a clear digital image. Mr Olding identifies over 30 objects on this image and it is clear that the number of vehicles has increased, albeit essentially around the entrance, parallel to the hedge and in the ‘dog leg’. I accept that the shadow from the object at “H” determines that it is a lorry with a cab and body. Using the same rationale the largest object at point “B” is a long rectangular object. Mr Olding said there was a tourer and a larger caravan at point “B” but that it was impossible to see the draw bar or rooflights. Having been supplied with a digital version of figure 14, it is far from clear what the object between the long rectangular object and the hedge is. I am in no doubt that the pile of light coloured material is not waste paper but some type of building material, possibly stone. The historic landscape drainage lines remain distinct beyond the end of the track in the vicinity of point “J”. The storage has spread out more, particularly from point “A”, but the majority of the site still remains completely clear.

(15) Figure 15 is agreed to date from 21 August 2004 and is a clear digital image. I accept Ms Cox’s evidence that this is the first image that clearly and unambiguously shows that storage of vehicles has expanded into the main body of the top field. Mr Olding identifies well over 100 objects in this photograph, which is a significant increase over what he identified on figure 14. It is the first image in which Ms Cox identifies caravans, at point “C”, but Mr Olding points out there are no tow points visible. There appear to be clear vehicle tracks across the historic landscape features but they are similar in extent to those shown on the Google Earth image. Ms Cox still says the historic drainage features are undamaged. The white truck with a blue cab, at point “B” can be traced back to point “H” on the first 2001 image. I reject the claim that there is stored paper at point “K” which, on a balance of probability, is a pile of aluminium61.

(16) Figure 16 is image AW04, from the EA, which can be dated to 11 May 2005 [see page 4 of * 46 and CD 16.8, which appears to be a slightly different view of the same image]. What Ms Cox identified as caravans at point “C” are now clearly evident. Although Mr Olding said there were no towing points visible on the caravans in figure 15, which might be true of the right hand one, there would appear to be a projection at the front of the caravan on the left, which appears to be a draw bar. On the balance of probability that is the same caravan in the same position and so the

61 See bottom of page 3 of 4 at * 46 and image EM02x at CD 16.10, even though I acknowledge that statement recites what was found on a visit undertaken in March 2005 rather than August 2004.



fact that the tow bar is evident in this later oblique image, which is taken at a lower elevation, but not in figure 15 from a higher level is significant.

Figure 16 was taken approximately one month before Mr Brown’s ground level photographs [CD 20.1b] and so it is appropriate, as Mr Olding suggested, to cross refer to those images. The most striking thing from doing such an exercise is that the Carlight caravan that Mr Cooper said he was living in on 9 June 2005 is not evident in the vicinity of the large white lorry with the red van parked next to it, which can be identified in both images62. There is other evidence of a turnover of vehicles, such as the additional blue lorry [AB/22 at CD 20.1b]. The blue salon car and white transit in the vicinity of point “B” are consistent with my observations on IMG_7707 [207], although it would appear that the open ended container or box van was a later addition. This corroborates Ms Cox’s view that the situation at this time was dynamic. The small objects alongside the airfield fence are confirmed to be tyres63 and their position is similar to point “E” on both figure 5 and figure 15.

(17) Figure 17, which dates from 11 May 2008, is a clear digital image. The dispersal of vehicles across a wide area of the site is confirmed by the now well established tracks. Ms Cox draws attention to the 2 caravans at point “C” as having not moved since 2004 but given the evidence from the intervening ground shots it is unclear if there are other caravans on other parts of the site. If there are none Mr Brown’s photographs show that there have been; a number of caravans are evident64. Some of the vehicles south of point “A” are closely parked, which might be consistent with storage. Mr Olding said that there are no towing points visible on the caravans identified by Ms Cox and, having been supplied with the digital version of figure 17, I agree it is far from clear. The image breaks up beyond a certain point as one zooms in and the tow hitch on the left caravan, evident on the last oblique image, cannot be distinguished. The yellow plant storage, to the bottom right of the lower field, is distinctive in this image, which contrasts with earlier images where it is absent65.

(18) Caravans can be clearly distinguished in the latest oblique images at figure 18, which were taken on 12 May 2012. However these were specifically commissioned in connection with these appeals and the vehicles can be clearly made out because the image has been taken from a significantly lower elevation. In that sense the images are comparable to figure 16. Deep ruts are evident in these photographs over a dispersed area of the field in the damp ground surface. The other noticeable feature of these images is the ground markings, possibly from where vehicles have been stationed and then removed. These markings might be said to have a similar characteristic to those which are evident on figure 6. Ms Cox identifies the site of a recent fire at point “U” and says she has seen nothing comparable in the earlier images. First, by reference to the width of the caravan at point “O”, this mark appears to be the seat of a large bonfire rather than a small camp fire. Second I reiterate the point about elevation. The sharpness of the image reveals all of the objects on

62 Compare CD 24.16 with AB/18 at CD 20.1b; the brown van can also be useful as a common marker. 63 Compare CD 24.16 with AB/16 at CD 20.1b. 64 See CD 20.1a/b, specifically the tourer in AB/15, the Carlight in AB/17-20 and the front of another caravan on the left hand side of AB/29. The original image of the latter is clearer; see IMG_7720. I should reiterate that this does not include the other caravans in the ‘dog leg’. 65 Compare figure 17 to CD 16.8.



the site for what they are but the same cannot be said for earlier images. Amongst other things the yellow plant/JCBs are evident in the lower field.

Finally the pile of stone, to the left of point “N”, is clearly evident in these images and can be traced back through earlier photographs in that location, including in the zoomed-in version of the Google Earth image [CD 8.9b]. It is material that in some images it appears clean, e.g. figure 14, but in others it is less obvious because of encroaching vegetation. This might suggest that the pile of material was replenished or that some was removed, perhaps on sale, to reveal the fresh material underneath.

The presence of a caravan in the aerial photographs

233. In the face of a succession of witnesses who gave evidence on oath it is said that the evidence of Ms Cox that there is no evidence of a caravan on the appeal site in 11 images taken between 1990 and 2002 should be preferred. In undertaking the balancing exercise inherent to this type of judgment, I am not persuaded this claim has been made out for a number of reasons.

234. I have reservations about the quality of many of these images, notably figures 6, 8, 11 and at 13, and hence the extent to which it is possible to say with any certainty what the objects on the field are in those photographs. Even in the better quality images the evidence of Ms Cox cannot be 100 % conclusive that there is no caravan. To take arguably the best image as an example, figure 14, I have given reasons why I cannot exclude the possibility that one of the objects at “B” is a caravan. As Ms Cox acknowledged during her cross-examination just because something is not visible does not mean that it is not on the site, just that it cannot be seen. She told the Inquiry that she had not looked at a gypsy caravan site before. The possibility that a caravan was parked in close proximity to and/or between other vehicles or containers in the vicinity of “B” without displaying any obvious indications cannot be ruled out.

235. Ms Cox used a number of indicators for identifying objects as caravans. The first is tow points, but the right hand caravan that she identifies in figure 16 does not appear to have one. I have noted the draw bar on the left hand caravan in figure 16 cannot be readily distinguished in figures 15 and 17. The images associated with the Second Chance Caravan Park [CD 8.5 a-e] reveal towing hitches on the tourers but the mobile homes do not appear to have them66. For these reasons I am not satisfied this is a viable indicator as to whether there was a caravan on the appeal site in the pre-2004 images, particularly given the quality and, in particular, elevation67 of those images.

236. The second indicator used by Ms Cox is roof lights. Mr Olding said that caravans did not always have roof lights and conversely he could recall light boxes in the vans that Silver Arrow ran. Again the right hand caravan that she identifies in figure 16 does not appear to have roof lights and the Second Chance images show that not all tourers have them. For these reasons I am again not satisfied that this is a viable indicator as to whether there was a caravan on the appeal site in the pre-2004 images. As an aside, the letter from the proprietor of Second Chance [CD 8.5 c], although I acknowledge it

66 The letter from the proprietor dated 8.9.2012 identifies, with red crosses on the aerial photograph, that these are the 3 mobile homes that were removed by Mr Cooper to Chelworth in 2000; see CD 8.5 (a) and (c). 67 I acknowledge that Ms Cox told the Inquiry that altitude was not a problem and that the quality turned more on the resolution which, in turn, depends on the equipment. However there can be no doubt in my view that figures 16 and 18 are the most clear of those presented by Ms Cox and a common factor in that is that they have been taken from a lower elevation for the express purpose of providing evidence of what is on this site. I acknowledge however that resolution might be a more apt description than elevation in this and other parts of my decision.



has not been sworn on oath, would appear to corroborate the Appellant’s story about the mobile homes [44]. However the letter suggests Mr Cooper’s memory is slightly out in terms of date, i.e. 2000 rather than 2003.

237. The third indicator is windows. Whilst these are evident in the oblique image at figure 16 the windows of the same caravans are not evident in figure 15 or in figure 17. It is only the oblique images at figure 18 that reveal other vehicles on the appeal site to be caravans, although there is evidence before me that there were other caravans on the site in the intervening period. Again this is not a viable indicator as to whether there was a caravan on the appeal site in the pre-2004 images, most of which are not oblique shots and are taken from a significantly higher elevation.

238. Ms Cox also set out a number of indicators of domestic activity, such as worn tracks to access a caravan and wear around it, storage of domestic waste, fires from outdoor cooking and ancillary activities such as toys and washing. However given the quality and elevation of some of the images, I do not find it surprising that Ms Cox has been unable to identify such features. If one cannot readily identify a caravan it is unlikely that one would see ancillary domestic items in its vicinity. Amongst other things the possibility that any fire pit might have been dug out and the turf re-laid the following day, or when the ashes were cold, so as to conceal its existence cannot be ruled out. Even where Ms Cox does identify caravans, in figures 15, 16 and 17, she finds no evidence of occupation, but in the light of all that I have heard I am not persuaded that this means that every caravan was unoccupied.

239. The same can be said of the board that was placed outside the caravan door, acting as a mat, which Mr Brown first noted in 2011. Such a board is evident in figure 18, at point “O”, but even in the other recent oblique image, figure 16, I question whether such a feature could be distinguished. In the earlier aerial photographs, having regard to both their quality and elevation, I am satisfied that it would not be visible.

240. The inability to identify pedestrian movements on aerial photographs is well made by reference to a public park in Swindon [CD 8.11]. Nevertheless I have identified the track or path from the appeal site to The Gallons to be consistent with the Appellant’s testimony, e.g. in figure 4. Given his oral evidence regarding his largely solitary lifestyle, save perhaps at the time of figure 5, such indicators might not be present in what in that respect are the unusual circumstances of these appeals. As a result of eating out [47] it is likely there would be little domestic rubbish generated. With the possible exception of figure 5, toys might not be present and as washing was done elsewhere on the balance of probability there would be no conventional washing line [47]. For all of these reasons this line of arguments does not categorically show there was no caravan on the appeal site prior to 2004.

241. Taken together I find that Ms Cox’s testimony does not, in itself, provide clear evidence to contradict the Appellant’s claims regarding the presence or occupation of a caravan on the appeal site. Although I acknowledge that Ms Cox has not been able to identify a caravan on the aerial photographs prior to figure 15, 2004, the possibility that a caravan was on the appeal site prior to this date cannot be ruled out. The Google Earth image provides evidence of tracks on the appeal site, including habitual vehicular access, so this is not a good reason to support a finding there was no residential presence. The track marks, distinct from ruts, do tend to come and go from year to year.



Observations on the photographs in terms of the level of business use

242. In contrast to the caravan, which on the Appellant’s version of events must have been a permanent fixture of the appeal site and should be present in every image from figure 5 onwards [46], the level of business use was said to fluctuate. The Google Earth image might support such a claim. As a consequence it is clear that the photographs reveal a snapshot in time, typically one minute in one day in any given year and in the case of the early images one day in a decade, and cannot be determinative of the level of use.

243. However the limited number of vehicles in the photographs prior to 2002 and most notably 2004 does bring into question the extent to which the appeal site was used for business activity and storage over the period in which the Appellant has owned the land. In addition to the increase in the number of vehicles stored and their geographical spread, notably from 2002, I agree that there are other indicators that testify to an increase in activity on the appeal site, notably in terms of tracks, wear and tear, and rutting in what, based on my visits and the lower photograph in figure 1868, is a wet field. In that context Ms Cox’s concession regarding the underlying cause for the tracks evident in the Google Earth image becomes significant [232].

244. Ms Cox draws only one ‘firm’ conclusion in section 7 of her proof, which is that the majority of the appeal site had not been subject to what, for this purpose alone, I shall call intensive use until 2005. Her rationale, which is set out in paragraph 7.6 of her proof, is that the drainage channels were not at all disturbed until that time. However figure 15, 2004, shows clear vehicle tracks across the historic landscape features. Of greater significance are the tracks on the Google Earth image, the “£” sign, which appears to encroach into that part of the appeal site on which the drainage channels are evident in later images, e.g. figure 14, 2002. On balance this leads me to doubt Ms Cox’s conclusion. Moreover the extent of the storage use is not conclusive as to whether a material change of use has taken place.

245. Finally, before I turn to examine the parameters for a material change of use I return to the plant and machinery storage issue. Mr Keogh’s letter [26 (y)] said plant and machinery was stored on the appeal site but there is no evidence from any of the aerial photographs to support this claim. At face value it might be said that the fact that the JCBs are evident in the 2008 aerial photograph [232 (17)] might discredit Mr Cooper’s explanation that they would not be evident in the aerial photographs because they were on hire during the day. However 11 May 2008 was a Sunday which, adopting the balance of probability, was not a working day. In contrast 11 May 2005 [CD 24.16] was a Wednesday, which might have been in the middle of the working week, when such plant and machinery might have been out on hire. I accept that the 2008 photograph is consistent with the Appellant’s claim that the JCBs were kept on the lower field in later years [66], but noting the large number of Mr Keogh’s JCBs [66], I have a doubt about whether his vehicles were ever stored on the appeal site. The Google Earth image was also taken on a Sunday, of a long Summer Bank Holiday weekend, but there is no sign of JCBs on the appeal site or, for that matter, any obvious sign of such machinery on the lower field. For these reasons I consider that

68 I acknowledge that 2012 was an exceptionally wet year although, apart from a very wet April, the rain was concentrated in the summer, after this image was captured. However the extent of rutting in the surface is a distinct characteristic of this particular image, which suggests it does cut up badly due to vehicular movements. In saying this I acknowledge that the Google Earth image shows evidence of movement without causing rutting but that was taken in August 1999, following a long hot dry summer.



Mr Keogh’s claims in his letter [26 (y)] are incorrect and this perhaps comes closest to discrediting the Appellant’s version of events as there is no evidence of large plant/JCBs ever being stored on the appeal site.

Parameters for the assessment of a material change of use

246. My starting point is the assumption in the allegation in the notice that the lawful use of the field is agriculture. Before the war and construction of the airfield it might have been but, if I accept Mr Olding’s claims, its use after the war, under Mr Pratt’s ownership, might not have reverted to agriculture. It is possible that the appeal site had a nil use, i.e. no lawful use. However it is not essential for me to form a view on this point because case law has held that it is not necessary to identify the ‘before’ use in an allegation.

247. Of more significance is that the mixed use alleged in the notice does not include agriculture. Although I pressed the Appellant on this use at various points, e.g. the extent to which hay might have been kept on a lorry and whether cattle were allowed to graze on the top field, there is no evidence that the top field was used for agriculture during the Appellant’s ownership. For example Mr Robinson was clear the cattle stayed in the lower field [96]. In reaching this view I acknowledge that there is evidence of mowing lines in figure 4, 1990, but the taking of one crop of hay over a period of 25 years might itself be said to be de minimis. On this basis, without prejudice to the planning unit issue, I accept that it has been established that the field’s use is unrelated to agriculture. The Council’s claim69 that agricultural use of the land was taking place is not consistent with its allegation in the notice. In the circumstances I find no basis to correct the allegation to include agriculture.

248. Turning to residential use of the caravan if the claim were to be made out then such use would clearly be material. The continuous use of a caravan for residential use, even one where that use comprises sleeping overnight but not taking many if any meals in the caravan, would constitute a material change in the character of the use of the land. The residential use would be material in terms of its significance, permanence and, amongst other things, the use would generate activity, including movements to and from the land. Although the Council submitted in closing that the occupation of the caravan to maintain security at the appeal site is a business security type of use that should not be counted I cannot agree. Moreover, as a matter of fact and degree, use of the caravan by others appears to have been de minimis [50].

249. I have already noted Mr Brown’s view [200] and on this analysis it might be said that a material change of use commenced prior to the first material date because Mr Olding identified 19 items in the Google Earth image [231]. However I accept Mr Smith’s view that it is more than a numbers game. So for example the mere storage of a number of Land Rovers under the hedge for more than 10-years might not be enough to constitute a B8 storage use. I accept Mr Smith’s contention that there has to be something more to it in terms of establishing why the vehicles are there, but I am not convinced it is helpful to look at the % coverage of the field. Dr Murdoch pointed out there is no judgment or appeal decision to support this approach. A residential caravan might take up less than 1 % of the field but its use is still material.

250. The Council’s position70 is that the use of the field for storing 10 cars would be de minimis and an overspill71 from OS 8316. This latter point is a planning

69 Paragraph 33 of its closing submissions [* 81]. 70 Paragraph 33 of its closing submissions [* 81]. 71 I note that paragraph 2.8 of the second enforcement report [* 48.2] uses the same terminology.



unit argument but the Council did not run that argument and so I shall also discount Mr Smith’s suggestion that the use was “bleeding through” from the lower field72 for this reason. In closing I was not referred to any case law to substantiate the figure of 10 cars which, in any event, is inconsistent with the view expressed by Mr Smith that it is more than a numbers game. The question of materiality is quintessentially a matter of fact and degree.

251. In reaching this view I note the Council’s assertion that the storage of 10 vehicles was considered not to constitute a material change of use in 200273. However this is nothing more than hearsay evidence and I attach the claim as to the number of vehicles on the appeal site at that time very limited weight. On the limited evidence before me it is by no means clear whether Mrs Burkey even went onto the appeal site and if the gate was closed and she was pregnant [109] there is a fair chance she did not. If the Council wanted to make good this point it should have called Mrs Burkey to give evidence on oath which, as a current employee, was wholly within its power. Moreover figure 14 [CD 24.14] was taken less than 2 weeks before the date of Mrs Burkey’s site meeting and it reveals far more than 10 vehicles to be present [232 (14)]. On the balance of probability there might have been close to 30 objects on the appeal site at the time of the meeting on 16 May 2002, a significant proportion of which would have been vehicles. It is material that some of those vehicles would not have been seen from the entrance gate because they are sited around the corner in the ‘dog leg’.

252. Finally I make clear that the mixed use needs to be substantiated for the whole of the period at issue. If use (a) took place for 9-years, then use (b) was added, the composite use would constitute a materially different use and bring to an end the prospect of immunity being claimed for use (a). If a materially different use (c) was then added after another 9-years, the result, even after say 27-years of continuous use, might still be a use that was not lawful. It would not be lawful because there was a material change of use within the last 10-years from use (a) + (b) to use (a) + (b) + (c) and there would be no fallback because use (a) + (b) had also not achieved immunity. That, in a nutshell, is the point arising from the quoted commentary in the Encyclopedia of Planning Law and Practice on Panton and Farmer [22].

Both appeals: Observations on the planning unit and planning history

253. In my original handout, circulated in advance of opening the Inquiry, I said: “In Wigan NBC v Secretary of State for the Environment [2002] J.P.L. 417

Sullivan J says at 425 [paragraph 40] that the Inspector was not bound by

the terms of the agreed statement. She was entitled to form her own view

"subject only to giving the parties a fair opportunity to comment". Thus

whilst the main parties appear to agree that field OS8316 and OS7400 are

separate planning units both parties are on notice that I will test this claim at

the Inquiry, having regard to section 191 (2)(b) of the Act. In the light of

Circular 10/97 my view is that the onus of proof falls on the Appellant in this

regard”. The Statement of Common Ground [* 21], which was subsequently signed by representatives of both main parties, records that the main parties agree that OS field parcel Nos 8316 and 7400 are separate planning units.

254. In my original handout I also referred to Burdle v Secretary of State for the

Environment [1972] 1 WLR 1207, which is the leading case on the concept of the planning unit. It held: “First, whenever it is possible to recognise a

72 Evidence in chief on 18 July 2013. 73 Paragraph 5.5 of the second enforcement report [* 48.2] and paragraph 4 of Mr Brown’s supplementary proof.



single main purpose of the occupier’s use of his land to which secondary

activities are incidental or ancillary, the whole unit of occupation should be

considered. It continues: “But, secondly, it may equally be apt to consider

the entire unit of occupation even though the occupier carries on a variety of

activities and it is not possible to say that one is incidental or ancillary to

another. This is well settled in the case of a composite use where the

component activities fluctuate in their intensity from time to time, but the

different activities are not confined within separate and physically distinct

areas of land”. It continues: “Thirdly, however, it may frequently occur that

within a separate unit of occupation two or more physically separate and

distinct areas are occupied for substantially different and unrelated

purposes. In such a case each area used for a different main purpose

(together with its incidental and ancillary activities) ought to be considered

as a separate planning unit”. It continues: “It may be a useful working rule

to assume that the unit of occupation is the appropriate planning unit, unless

or until some smaller unit can be recognised as the site of activities which

amount in substance to a separate use both physically and functionally”.

255. As I made clear in closing, having raised the issue and allowed a full and fair opportunity for the Appellant and his witnesses to address me on it, it was not appropriate for me to give an indication of my conclusion in the matter. In a truly exceptional case of this nature it is sometimes not until one sets down what has gone before that it is possible to draw out any conclusions.

256. Nevertheless it is fair to record what I said at the Inquiry that I persisted in raising this matter because of the manner in which the letters of support, which in my view conflated the respective fields, had been written [30]. The letters remain as material considerations and, in themselves, might support a finding that both fields, 8316 and 7400, are a single planning unit. To put the matter another way, had I dealt with Appeal A on the basis of written representations, i.e. a review of the documents before the Council when it made its decision, it is a finding that I would have been strongly drawn to.

257. However the Appellant has addressed the matter in both his oral evidence, the evidence given by his other witnesses and in closing. Dealing initially with physical factors it is trite to record that the appeal site is a separate field. For the majority of the period at issue, specifically after the route to The Gallons was blocked [49], the appeal site has in practice only had a single vehicular access, via the field gate into the lower field. Consecutive witnesses for the Appellant gave consistent evidence to the effect that the gate between the respective fields was kept closed [96, 100, 129 and 159]. It is significant that 2 of Mr Brown’s photographs, taken on 9 June 2005, show that the gate between the respective fields was closed74. On the basis of this evidence I conclude that the appeal site is physically separate.

258. Turning to functional separation I have already given reasons for finding that there was no agricultural activity on the appeal site [247]. Although there is clear evidence that cattle have been consistently kept on the bottom field, 8316, and in its associated buildings, my finding that the gate between the respective fields has been kept closed is consistent with this view. There is evidence that horses have been on the appeal site [65, 159 and 160] but the extent to which they have been grazed or kept75 is not clear. Even if the horses were grazed the extent to which the use has taken place is unclear

74 Photograph Nos AB/4 and AB/5 at CD 20.1a. The original image of the latter is clearer; see IMG_7694. 75 In planning terms there is a difference as grazing might suggest an agricultural use whereas sustaining horses through feed might suggest that they were kept.



and it might have been de minimis. The limited evidence before me on this point does not lead me to make a positive finding that it was an agricultural use and, given the closed gate, it must have been functionally separate.

259. In respect of the residential use the key factor that might suggest functional dependence on the lower field is the existence of the water supply in the barn [47, 120, and 155]. However noting that the Appellant said that he used to go to Mr Pratt at The Gallons for this purpose I consider this factor alone is insufficient to enable me to find the residential use is functionally dependent on the lower field. On the Appellant’s evidence the residential use subsisted prior to that supply being relied upon [49] and so it would follow that the use could be sustained without that particular water supply. I accept Dr Murdoch’s evidence that the residential element of the mixed use does not depend on the water supply or the arrangements for toilet facilities.

260. Turning to the commercial use, a succession of witnesses gave evidence on oath to demonstrate on the balance of probability that the use that has been made of the appeal site has been functionally separate from the lower field [56, 64, 100, 107, 126, 145, 153, 160 and 171]. Of particular significance to reaching such a finding is the oral testimony of Mr Giles and Mr Maxfield. A succession of witnesses also gave evidence on oath to assert that the business operated on the appeal site, Shinal Motors, was a separate trading entity from the business operated on the lower field, Commercial Salvage [4, 56, 100 and 124]. Although this is inconsistent with the manner in which the LDC application form was completed I am prepared to accept that this was an elementary error in completing the form [87], such that this factor should not be given great weight. For all of these reasons I conclude that the use that has been made of the appeal site has at all material times been functionally separate from the lower field.

261. I acknowledge that it is rare for an Inspector to raise an issue of substance that did not form a reason for refusal but I have given my reason for doing so and maintain that it was appropriate given the submitted documentation. I acknowledge that as a consequence the Inquiry was lengthened but that is a consequence of the manner in which the supporting letters were drafted. However the Appellant has addressed the issue throughout the course of the Inquiry and ultimately I find that my earlier concerns have been resolved. I conclude that the appeal site is a separate planning unit from the bottom field and so the extant notice that binds that land presents no statutory bar to the claimed use of this site by virtue of section 191 (2)(b) of the Act.

262. As the Council submitted in closing, there remains the question as to why, if a materially different use of the appeal site was taking place at the date of issue of the enforcement notices on 5 February 1988 by NWDC [14 (a)-(c)], it did not include OS field parcel No 7400 within the scope of those notices. I accept that there is an argument that this might suggest that there was no breach on 7400 at that time, but ultimately there is no evidence to support that conclusion; it is speculation. The Appellant has made observations on this and says the Inspector did not go on the land as it was foggy [39]. It must remain in prospect that NWDC simply overlooked the use of 7400 perhaps in innocence of the use that was taking place in the first instance.

Appeal A and Appeal B, Ground (d): Conclusions

(i) Residential use

263. On the balance of probability I conclude that the residential use of the caravan commenced by 1987 at the latest. Although the Appellant [39],



Mr Olding [105], Mr Austen [136] and others, in letters, said it started in 1985 I still have reservations about that date [93]. There is some evidence to suggest that the Appellant has got his dates wrong [236] and he admitted his memory was not so good over a longer timeframe [44]. However I am not convinced that for my purpose this matters as I see no reason why, as the Council has suggested in closing, it goes to the credibility of the witnesses. The date of 1987 is still well before the first material date.

264. I have given reasons why I am satisfied that Mr Cooper has not resided at No 42 [52, 53] and both Mr Cooper and other witnesses [125] gave evidence to that effect. I have also given reasons for finding no evidence to support the claim that he lived on the lower field [208]. Mr Cooper [39] and other witnesses [125] were clear that he had not lived on the lower field. Given the scale of his business enterprises on these fields and local commitments, including family [121] and the 6-years he spent as a Councillor [92], I reject the possibility that he maintained a nomadic lifestyle during this period. In short there is no evidence before me to suggest that he has lived anywhere except on the appeal site since 1987. To the contrary, a succession of witnesses gave evidence on oath to corroborate the Appellant’s claim that he has lived on the appeal site [96, 98, 105, 121, 125, 132, 136, 143, 149, 155, 161, 168 and 173]. I acknowledge that some of these witnesses could only speak to certain periods when they had personal knowledge of, or dealings with, Mr Cooper but, cumulatively, this testimony is overwhelming.

265. I acknowledge there is some evidence to contradict the Appellant’s claims. The only witness called by the Council with personal knowledge of the appeal site prior to the date of the application is Mr Brown and I have given reasons why I found his testimony unconvincing [203, 211]. In these circumstances I attach it limited weight and it does not outweigh the Appellant’s evidence.

266. The other evidence brought forward to contradict the Appellant’s claims is that of Ms Cox but unlike the aerial photographs themselves, which are open to different interpretations, hers is secondary evidence [216]. I have given reasons why the aerial photographs prior to 2004 are not conclusive that there was no residential caravan on the appeal site [233-241]. In the face of corroborative first hand accounts from a significant number of witnesses I cannot accept that her interpretative evidence regarding the existence of a caravan and its residential use should outweigh the Appellant’s evidence.

267. Finally I have given reasons why the residential use of a caravan on the site would constitute a materially different use from the historic use of the land [248], whether that was an agricultural use or a nil use. In this context it is relevant that I find little evidence to support the claim the appeal site was used to any material extent prior to acquisition [55, 104, 135 and 228 (2)].

(ii) Storage use

268. The LDC sought includes the storage of cars, vans, lorries and plant and machinery; it does not go wider to include, for example, coaches, which the Appellant said had not been stored there for many years [61]. Whilst there is no ground (b) in Appeal B, and so it would appear the storage of coaches is admitted to have occurred as a matter of fact, there is no need to broaden the LDC description. There is evidence from a number of sources to support the claim that the storage of vehicles, including cars, vans and lorries, has taken place on the appeal site, and I consider this in greater detail below.

269. The evidence to support the claim as to storage of plant and machinery on the appeal site is rather more limited [66, 107]. However I accept that this



is a generic term and as such smaller equipment, including that stored within containers [66], would count. Although I have expressed reservations about some claims that have been made about the storage of plant and machinery on the appeal site [245] I have no basis to dispute the claim that small items were kept there continuously. In this context the Council has submitted in closing that: “Mr Cooper made clear when giving evidence at the CLEUD

Inquiry that there was no plant or machinery on the land”76. However that does not accord with my note of the proceedings, which arise from the first time he gave evidence [66]. I have acknowledged that I am dependent on my notes [37] but I have a record of clarifying his earlier answer about plant and machinery. It is also submitted that Mr Brown’s June 2005 photographs do not reveal plant and machinery, but I have already noted that they do not cover the ‘dog leg’ [207]. Moreover it must remain in prospect that such storage was taking place within containers as some photographs show tyres were stored in containers77 and there are a number of closed containers that might store such items. For these reasons I reject these closing submissions.

270. The rationale for the storage of cars, vans, lorries, plant and machinery is claimed to be for export and recycling. In terms of export the evidence of Mr Mundy might suggest this was confined to the lower field because of his reference to Commercial Salvage [124]. However the Appellant’s evidence was more wide ranging [4, 56 and 68]. In particular I find his detailed explanation of the mechanics of the process fairly convincing; I was for example able to verify the name of the shipping company [68] and I think it unlikely that sort of detail could be made up under cross-examination. Mr Kelly’s evidence as to his historic involvement adds to the credibility of the Appellant’s version of events [132]. For these reasons, whilst I acknowledge that corroborative evidence is somewhat thin on the ground, the Circular says it is not necessary for the Appellant’s claims to be corroborated [183] and so, on a balance of probability, I accept the case for export is made out.

271. The rationale for the vehicles being recycled is less explicit but in my view this generic term could be said to be inherent to the very nature of the use claimed. Several witnesses for the Appellant outlined the process by which vehicles came in and were, to varying degrees, patched up with a view to onward sale or condemned. The most obvious example given of the former is from Mr Maxfield who outlined in detail his involvement and understanding of the purpose of the exercise [165-167]. An example of the latter is given by Mr Valler who went to the appeal site for vehicle parts [143]. It seems to me that it is appropriate to describe the underlying purpose in both instances to be the recycling of, generically, vehicles. For these reasons, on a balance of probability, I also accept that the case for recycling has been made out.

272. The Council has submitted in closing that the Appellant’s evidence with regard to dismantling has changed during the course of the Inquiry. I am not satisfied this is correct, although some of the operations described might be said to go beyond conventional storage [61]. Mr Cooper made his position plain [4] which, I think it fair to say, surprised those whom he had instructed. In this respect I did detect some differences with Mr Olding [103, 116]. However the Appellant gave clear reasons for the condition of some of the vehicles in the EA’s photographs [73, 74], so I reject the Council’s submission. Among other things Mr Clark said dismantling took

76 Source of quote: paragraph 38, * 81. 77 See AB/2 at CD 20.1a; the white box van is full of tyres but other containers in this and other photos are closed.



place on the lower field [99], Mr Mundy said he worked on vehicles on the lower field [124] and Mr Valler said he had never seen dismantling take place on the appeal site [145]. In these circumstances any dismantling on the site appears to have been de minimis.

273. Comparison between the terms of the LDC application and the allegation in the notice, as corrected, reveals that there are differences. I have already dealt with coaches [268] and for similar reasons, although there is some evidence for vehicles such as horseboxes [57, 166], I see no need to broaden the LDC description to encompass other types of vehicle. However the notice alleges use for “…the storage of demolition materials, hard core

and building materials”. There is evidence that building materials have been stored on the appeal site for many years [157, 177] and aerial photographs corroborate this view [232 (18)]. My site inspections confirmed that the pile of Cotswold stone, in particular, remains stored on the land. However the witnesses focussed on stones and slabs, rather than hardcore, which, where present, appears to have been incorporated into a hardstanding [57, 58 and 106]. The only evidence for hardcore is the Appellant’s letter dated 19 May 2010 [CD 1.4], which says: “…we always keep [hardcore] as a ready supply

in piles on the field”. However it is unclear if this is anything other than the Cotswold stone. As the term “demolition materials” is rather more generic and could potentially encompass something materially different, I propose to adopt the narrower term “storage of building materials” for this purpose. As this use was excluded from the terms of the application I consider that the Appellant, far from being disadvantaged, would benefit from this approach.

274. Section 191 (4) of the Act allows an LPA to modify the terms of an LDC application to give a certificate in somewhat different terms so as to accord with the facts and evidence. The Panton and Farmer judgment78 confirms that an Inspector is able to exercise the power on appeal and, moreover, indicates an Inspector is obliged to issue an LDC for any use of the planning unit which the evidence shows is lawful, and to modify the description of the use as necessary. Mr Lockhart-Mummery QC, sitting as a Deputy Judge, held: “…if [the decision maker] is satisfied that the description of the use

specified in the LDC application does not properly describe the nature of the

use which resulted from the material change of use, then the decision maker

must modify/substitute such description so as properly to describe the

nature of the material change of use which occurred”79 (my emphasis). The injustice test in section 176 does not apply to this situation. In any event this should come as no surprise to the Council because it has identified this component of the mixed use itself in the manner in which it has alleged the breach of planning control in the enforcement notice the subject of Appeal B.

275. Mr Brown’s evidence, far from contradicting the Appellant’s claims in terms of the storage use, strongly corroborates my view that a material change of use had taken place prior to his visit in June 2005 [201, 210]. All the aerial photographs of the appeal site since the Appellant’s acquisition reveal some element of storage [228 (4) et seq]. The key question, having regard to the approach that I have indicated that it would be appropriate to take in these appeals [21], is when did the material change of use take place?

78 Panton and Farmer v SSETR and Vale of White Horse DC [1999] JPL 461, which is in the bundle of authorities to which the Council make reference [* 80]. 79 Source of quote: page 11 of the substantive transcript with which I am provided; unfortunately the paragraphs are not numbered in this version but the quote is reported at 1999 [J.P.L.] 469.



276. As preliminary points under this head I start by recording that I have given reasons for my finding that the appeal site is a separate planning unit [261]. Although the parking of Mr Cooper’s own car might be said to be ancillary to the residential use of the caravan, judicial authority has held that storage and parking are not the same. On this basis the storage of vehicles on the appeal site would be unlikely to be ancillary to the residential use of the caravan. As there was no other primary use of the land, such as agriculture [247], the storage of vehicles would, at a level that would be material, be likely to constitute a material change in the use of the land.

277. Pinpointing the date of breach is notoriously difficult, which is magnified in a complex case of this nature. There is an argument that the material change of use occurred in 1987, at around the same time as the residential use. The evidence of Mr Maxfield [165-167] suggests a rationale for vehicle storage, principally cars, from 1987 that enables me to distinguish such use from the mere stationing of vehicles in the hedgerow [see Mr Smith’s comment, 249]. It would appear that those stored vehicles were subsequently disposed of by way of export and recycling, depending on an assessment of their condition. The use of the appeal site for the storage of Cotswold stone also commenced early [57] and appears to have been continuous [157, 177 and 273]. I have also given reasons for finding no basis to dispute the Appellant’s claim that the storage of plant and machinery started early on and continued [269].

278. The evidence of Mr Giles that 15 vehicles were taken onto the appeal site in the first consignment from Titcombe Garage to add to the 15 or so already on that field is evidence of a significant increase in vehicle numbers [151]. The date that first consignment was delivered to the appeal site has not been clearly established as Mr Giles was vague as to the date of his first visit. It was plainly before the second material date but it might not have been before the first material date [148]. It is only with the vehicles from Titcombe Garage that a really clear rationale emerges for keeping vehicles separate and secure on the top field. To reinforce this it is noticeable that other witnesses refer to the vehicles that the police brought in [100, 107 and 126] but this would appear to have been August 1999 at the earliest.

279. The aerial photographs are consistent in showing very little in the way of vehicle storage on the appeal site over a long period [228 (2)-(4), 229 (5)-(11)]. If vehicle numbers had fluctuated significantly during the period from approximately 1987 to 1999 then I might expect to see some evidence or legacy, e.g. in terms of rutting. Noting the onus of proof the first positive evidence for significant numbers of vehicles in any of the aerial photographs, albeit even then principally in terms of markings on the ground rather than vehicles, is in the Google Earth image [230-232]. This is agreed to have been taken about a month before the first material date. In my view this photographic evidence, taken together with the succession of witnesses who gave sworn evidence to corroborate the Appellant’s claim in terms of the established business activity on the appeal site [106, 122, 127, 130, 137, 145, 160, 171 and 172] leads me to find, on the balance of probability, that the material change of use had occurred prior to the first material date.

(iii) Drawing these points together to inform the terms of an LDC

280. Despite reservations about the precision of the Appellant’s case, notably in terms of the absence of documentation [182], and certain ambiguities [92, 93 and 245], I nevertheless conclude on balance that, cumulatively, the evidence before me leads me to conclude that the claim has been made out.



I pinpoint the date of the initial breach of planning control, the residential caravan, to 1987 [263]. At some point fairly soon thereafter, by about 1990 if not before, the use of the land for the storage of building materials commenced [173]. Although I acknowledge that there is evidence for the storage of, generically, vehicles, the point at which that use became material might have been as late as 1999 [278, 279]. Nevertheless, on balance, I am satisfied that the mixed use commenced prior to the first material date.

281. There is no evidence that would lead me to find that the mixed use thereby established has not continued or that there has been any further material change. Any period during which the field was cleared to enable hardcore to be laid in the gate and entrance to the top field is likely to have been minimal. I consider that neither Mr Olding’s evidence on this point [106] nor the terms of the Appellant’s letter dated 19 May 2010 [CD 1.4], in similar terms because it might have been written by Mr Olding [108], should lead to a finding there was a break in the mixed use that was subsisting. In closing the Council has referred to the 1993 Committee report insofar as it says the “vehicle dismantling business” had ceased at that time. I have already given reasons for attributing this report very limited weight [33 (c)] but in any event the dismantling forms no part of the mixed use now being claimed. The Council could have taken enforcement action at any point during this period because there is clear evidence that NWDC officers visited the appeal site on multiple occasions [26 (ll) and (mm), 33 (c), 39 and 193, both of which confirm that Mr Brown had unrestricted access, and 251].

282. Paragraph 8.16 of Circular 10/97 says: “Subsection (5) of section 191

provides for certain matters a LDC must contain. The LDC is particularly

valuable because its effect is similar to a grant of planning permission. It

is therefore vital that the certificate indicates precisely the area of land to

which it relates (normally by means of an attached, scaled site-plan);

precise details of what use, operations or failure to comply with a condition

are found to be lawful, why, and when. For example, if a certificate is for a

use of land - unless the use falls within one of the "use classes" specified in

the UCO current at the time, or the certificate is granted on the basis that a

specific grant of planning permission confers, lawfulness on the use it is

important for it to state the limits of the use at a particular date. These

details will not be legally equivalent to a planning condition or limitation.

They will be a point of reference, specifying what was lawful at a particular

date, against which any subsequent change may be assessed. If the use

subsequently intensifies, or changes in some way to the point where a

"material" change of use takes place, the LPA may then take enforcement

action against that subsequent breach of planning control (which a less

precise certificate might well preclude). A LDC must therefore be precisely

drafted in all respects” (my emphasis).

283. The first point arising concerns the plan. I have noted that the application was accompanied by NWDC’s PCN plan [14] and so it is over 10-years old and shows the lower field, which would form no part of any LDC that I might issue, edged blue. For both of these reasons I consider that it would be preferable to adopt the plan attached to the Council’s enforcement notice for this purpose, which is more up-to-date and only identifies the appeal site within an area edged red. For the avoidance of doubt it is the same area. The main parties have, at different times, suggested that the geographical area that forms the basis of any LDC could be reduced, but I consider that it is appropriate to issue an LDC for the planning unit rather than an arbitrary



and undefined smaller area80. However I have considered whether there should be any qualifications to the terms of the LDC that I intend to issue.

284. In this context I have already given reasons for excluding dismantling [4] and including the storage of building materials within the ambit of the LDC in Appeal A [273]. For this reason I shall modify the mix of uses. However applying this quoted advice from the Circular further informs my approach to its drafting. The storage use, by virtue of being part of a mixed use, is not within a Use Class; the mixed use is a sui generis use81. Accordingly it is necessary to try to quantify the scale of the use at a particular date. It is self-evident that the aerial photographs show that the level of storage has increased since 1999. However I have given reasons for attributing weight to the Google Earth image in which Mr Olding identified around 19 objects, including a caravan and the pile of stone, so no more than 17 vehicles [231]. This was taken approximately one month before the first material date and so gives the most precise indication of the level of storage subsisting at that time. Allowing for some fluctuation an estimate of 20 vehicles would appear to be reasonable and ties in with evidence given by some witnesses such as Mr Maxfield [171]. It is only this base level of around 20 vehicles that has subsisted throughout subsequent years as any fluctuation would appear to have been short term pending export or recycling. In these circumstances I shall use this as the point of reference because the alternatives provided by witnesses for the Appellant vary so markedly as to be imprecise [59, 100, 106, 122, 127, 130, 137, 145, 151, 160, 165 and 174] and unreliable.

285. I stress that this figure of 20 is not an upper limit but a benchmark against which to assess whether any subsequent intensification would be material. In that context I reject the Council’s submission that the fluctuations in the numbers of vehicles are a strong indication that the use did not continue at a material level for the requisite time. Apart from Mr Olding’s concession, which I have dealt with above [281], there is no evidence to suggest that the number of vehicles fell below what is evident on the Google Earth image at any point after the first material date. To the contrary, the photographic evidence strongly suggests the level of storage increased. Although there is some evidence of vehicle parts, plant and machinery being kept within vehicle containers I see no reason to articulate this in the terms of the LDC that I propose to issue. However I make this clear so that for the purpose of assessing any intensification it is in prospect that such components as might be stored in another vehicle or vehicle body would not add to the numbers.

Appeal B: Other matters

286. In closing it was submitted for the Appellant that in the circumstances where I were minded to allow ground (d) in Appeal B that instead of quashing the enforcement notice I should use that finding as a factor in the ground (a) and proceed to grant planning permission. As I indicated during the Inquiry I cannot accept that such a course of action is open to me. In my view where ground (d) succeeds the only course open is to quash the notice. If it were otherwise the material consideration that is immunity might not outweigh the conflict with the provisions of the Development Plan. I cannot

80 Paragraph 4.2 of the Council’s Statement of Case identified a fallback position where an LDC might be granted for a small portion of the field and this was subject of further comment at paragraph 5.2 of Mr Smith’s first proof of evidence. However the Council later retracted from that position in its letter dated 23 December 2010. Dr Murdoch also stated in cross-examination that an LDC could be issued for part of the planning unit. 81 See paragraph 13 in ODPM Circular 03/2005 “Changes of Use of Buildings and Land, The Town & Country

Planning (Use Classes) Order 1987”.



accept any inference that a decision maker must be bound to grant planning permission in circumstances where there is a conflict with policy.

287. The point is brought into sharp relief in Appeal B where no case has been made on behalf of the Appellant for a grant of planning permission for the commercial use of the appeal site. The only substantive argument that was advanced was based on immunity but if I had been minded to dismiss ground (d) it must follow that such a consideration would be given little, if any, weight when reaching the planning balance under ground (a). As a corollary it is entirely in prospect that even where ground (d) succeeds such a factor would not outweigh the conflict with the Development Plan and on that basis, because the enforcement notice had not been quashed, it might conceivably be upheld. In my view this illustrates precisely why the approach advocated for the Appellant is entirely misconceived. Moreover despite an invitation to provide an example I have not been referred to any decision ever issued by the Secretary of State or an appointed Inspector in which such an approach has been adopted82. In the circumstances I reject the claim that I would be acting unlawfully in failing to consider ground (a) following success under ground (d). To the contrary I consider I would be acting unlawfully if I proceeded on this basis because the notice is quashed.

288. A further reason to decline this course of action stems from the nature of a ground (d) success. Under the Act the use alleged in the notice becomes lawful. Such lawfulness is unfettered and its limits are clear, as it would be derived from the allegation. Planning permission is not required for the use to continue in perpetuity subject only to the well established principles of planning law. Were an unconditional planning permission to be granted for the same development it would add nothing to the lawful status of the use.

Appeal A: Overall conclusion

289. For the reasons given above I conclude, on the evidence now available, that the Council’s refusal to grant a certificate of lawful use was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195 (2) of the Act to grant an LDC in the terms sought, as modified by the Appellant, so as to exclude dismantling [4], and myself, to include the storage of building materials [273], whilst quantifying the number of vehicles stored having regard to the available evidence in the light of advice in the Circular [284, 285].

Appeal B: Overall conclusion

290. For the reasons given, and having regard to all other matters raised, I conclude that the appeal should be allowed under ground (d) and the enforcement notice quashed. In these circumstances the appeal under grounds (a) and (g), and the deemed planning application, do not fall to be considered.

Pete Drew

INSPECTOR

82 There was a suggestion, made orally during the Inquiry, that one of my former colleagues had reached such a conclusion but that assertion was not backed up by the production of an appeal decision.



Lawful Development Certificate TOWN AND COUNTRY PLANNING ACT 1990: SECTION 191 (as amended by Section 10 of the Planning and Compensation Act 1991)

TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) (ENGLAND) ORDER 2010: ARTICLE 35

IT IS HEREBY CERTIFIED that on 29 September 2009 the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto, and edged red on the Plan annexed hereto, was lawful within the meaning of section 191 (2) of the Act, for the following reason: 1. The material change in the use of the land described in the Second Schedule, which is a single planning unit, to that described in the First Schedule commenced before 29 September 1999 and has continued such that the use is lawful by virtue of section 171B (3) of the Act.

Signed

Pete Drew

Inspector

Date: 10 December 2013

Appeal A Ref: APP/Y3940/X/10/2128884 First Schedule

Use of the land for: i) the storage of vehicles, generically cars, vans, lorries, plant and machinery, for export and recycling, at a level that does not result in a material change of use of the land from its use as it existed on 29 September 1999, namely use for the storage of approximately 20 vehicles;

ii) the storage of building materials at a level that does not result in a material change of use of the land from its use as it existed on 29 September 1999; and,

iii) the siting of a caravan for residential use.

Second Schedule

OS 7400, Hicks Leaze, Chelworth, Cricklade, Wiltshire SN6 6HJ



NOTES

This certificate is issued solely for the purpose of Section 191 of the Act.

It certifies that the use described in the First Schedule taking place on the land specified in the Second Schedule was lawful, on the certified date and, thus, was not liable to enforcement action, under section 172 of the Act, on that date.

This certificate applies only to the extent of the use described in the First Schedule and to the land specified in the Second Schedule. Any use which is materially different from that described, or which relates to any other land, may result in a breach of planning control which is liable to enforcement action by the LPA.

http://www.planning-inspectorate.gov.uk

Plan This is the plan referred to in the Lawful Development Certificate dated: 10 December 2013

by Pete Drew BSc (Hons), Dip TP (Dist) MRTPI

Land at: OS 7400, Hicks Leaze, Chelworth, Cricklade, Wiltshire SN6 6HJ

Appeal A Ref: APP/Y3940/X/10/2128884

Scale: Do not scale as original plan has been scanned which might cause variations.



APPEARANCES

FOR THE APPELLANT:

Alan Masters Counsel. He called: Robert Cooper Gary Robinson Norman Clark Alan Olding Tony Cooper [junior] Len Mundy Paul Kelly Michael Austen Julian Read A Valler Roger Giles Royston Smith Fred Cremin Richard Maxfield George Scarrat Alex Oram Dr Angus Murdoch

Appellant. Murdoch Planning.

FOR THE LOCAL PLANNING AUTHORITY:

Sarah Knapton [in part] Judi Evans [in part]

Counsel. Counsel.

She called: Kevin Breslin Simon Smith BA (Hons), MTP, MRTPI Allan Brown Christine Cox BA (Hons), MA, MIfA Carolyn Gibson MRTPI

Senior Solicitor, Wiltshire Council. Area Team Leader, Wiltshire Council. Planning Enforcement Officer, Wiltshire Council. Director, Air Photo Services Ltd. Team Leader, Spatial Planning Team, Wiltshire Council.

CORE DOCUMENTS [Referred to as “CD” in this appeal decision]

CD CD CD CD CD CD CD

1.1-1.9

2.1-2.4 3

4.1-4.14

5.1-5.3

6.1-6.17

7.1-7.9

Appendices 1-9 attached to Mr Cooper’s first LDC proof of evidence. Letters appended to Mr Cooper’s supplementary proof of evidence for the LDC. Map appended to Dr Murdoch’s second supplementary proof of evidence for the LDC. Letters appended to Mr Cooper’s first enforcement proof of evidence. Appendices 1-3 attached to Dr Murdoch’s first enforcement proof of evidence. Appendices A, A2, B, C, D, E, E2, WC2, WC4, WC5, WC6, WC7, WC8, WC11, WC12, WC13 and WC14 attached to Alan Olding’s supplementary proof of evidence. Appendices A01-A09 attached to Alan Olding’s Second Supplemental Statement.



CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD

8.1-8.17

9.1-9.2

10.1-10.3

11.1-11.3

12.1-12.4 13 14

15.1-15.6

16.1-16.15

17.1-17.2

18.1-18.22 19

20.1-20.3

21.1-21.6

22.1-22.5

23.1-23.4

24.1-24.18 25.1-25.4

26

27.1-27.9

Appendices 1-17 attached to Alan Olding’s rebuttal proof of evidence. Appendices TC4A and TC4B attached to Mr Cooper’s rebuttal proof of evidence. Appendices AM4A-4C attached to Dr Murdoch’s rebuttal proof of evidence. Appendices AM5A-5C attached to Dr Murdoch’s second rebuttal proof of evidence. Appendices 1-4 attached to Dr Murdoch’s last proof of evidence [“in relation to CP47”]. Letter dated 23 December 2012 from Wiltshire Council to Dr Murdoch. Letter dated 21 April 2011 from Wiltshire Council to Dr Murdoch. Six aerial photographs appended to the Council’s Statement of Case in relation to the LDC appeal. Appendices 1-15 attached to Simon Smith’s proof of evidence for the LDC appeal. Appendices 1-2 attached to Simon Smith’s supplementary proof of evidence for the LDC appeal. Appendices 1-22 attached to Simon Smith’s enforcement proof of evidence. Map appended to Alan Brown’s proof of evidence for the LDC appeal. Appendices 1-3 attached to Alan Brown’s supplementary proof of evidence for the LDC appeal. Appendices 1-6 attached to Alan Brown’s second supplementary proof of evidence for the LDC appeal. Appendices 1-5 attached to Alan Brown’s “fourth” supplementary proof of evidence for the LDC appeal. Appendices 1-4 attached to Alan Brown’s enforcement proof of evidence. Figures 1-18 attached to the statement of Christine Cox. Appendices 1-4 attached to Simon Smith’s supplementary proof of evidence. Email from Simon Smith to The Planning Inspectorate dated 17 December 2012 appending caravan count information. Appendices 1-9 attached to Carolyn Gibson’s proof of evidence.

DOCUMENTS [Referred to by the symbol “*” in this appeal decision]

Document Document Document Documents Documents

1 2 3

4.1-4.5

5.1-5.802

Copy of the Council’s letters of notification and a list of persons notified. Comments sent in response to the Council’s letters of notification. Bundle of documents comprising the planning history of OS field No 8316, including enforcement notices issued on 5 February 1998 and related appeal decision dated 30 January 1989. Letters submitted by the Appellant at the Inquiry from: (i) Alan Olding; (ii) Gary Robinson; (iii) Royston Smith; (iv) Norman Clark; and (v) Kenneth Ann’s. Bundle of digital photographs submitted by the Council



Document Document Documents Document Document Document Document Document Document Document Document Document Documents Document Document Document Document Document Documents Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document Document

6 7

8.1-8.3 9 10 11 12 13 14 15 16 17

18.1-18.2 19 20 21 22 23

24.1-24.3 25 26 27 28 29 30 31

32.1-2 33 34 35 36 37 38 39 40 41 42 43 44 45 46

dated 21 April and 10 June 2004, 8 March,10 March, 23 March, 1 April, 22 April, 10 May, 9 June, 14 June and 5 July 2005. Excerpt from Council’s plotting sheet. Statement of Kevin Breslin. Letter dated 6 April 1988, planning decision 04/02215/FUL and excerpt from Council’s plotting sheet. Bundle of redacted documents from complaint file E.97.150. Conveyance dated 29 September 1986. Certificate of motor insurance. Appeal decision [Ref T/APP/J3910/A/89/142381/P5]. Bundle of voter registration forms. Photocopy of Pocket Book. Agreed transcript of Pocket Book. Notice dated 26 June 2006 [to evict ‘Shotgun’]. Trading accounts for Shinal Motors for year ending April 2004. Signed proofs of evidence submitted on behalf of the Appellant. A3 version of Exhibit AW04. E-mails to Mr Brown regarding rates. Agreed Statement of Common Ground. Letter from Accountant dated 4 January 2012. Council Tax bill dated 13 December 2011. Newspaper articles and Councillor promotion document, submitted by the Appellant at the Inquiry. Land Registry title for 77 Cherry Tree Road, Cricklade. Exchange of e-mails regarding inspection of aerial photographs by Mr Olding. Alan Olding’s comments on Ms Christine Cox’s evidence. Mr Conlon’s polling card. Maps showing public rights of way. E-mails between Mr Olding and University of Sheffield. Appeal decision APP/Y3940/A/10/2135171. Gypsy and Traveller Site Allocations DPD and Topic Paper 16: Gypsy and Travellers. Position statement on gypsy pitch provision. Appeal decision APP/Y3940/A/12/2173334. Four Oaks Park report to Planning Committee. Appeal decision APP/P1133/C/12/2175641 etc. Appeal decision APP/B3030/A/12/2168900. SWRA GTAA benchmarking summary report. DCLG Statistical Release 31 May 2012. Wiltshire Local Development Scheme. Schedule of planning permissions granted for gypsy sites in Wiltshire 2006-2012. Gypsy and Traveller Accommodation Needs Assessment. Bi-annual count data. Letter dated 18 July 2012 from The Planning Inspectorate to Dr Murdoch. Letter dated 16 November 2011 from The Planning Inspectorate to Alan Olding. Environment Agency prosecution statement of witness



Document Documents Document Document Document Documents Document Document Documents Documents Document Document Document Documents Document Document Document Documents Document Document Document Document Document Document Document Document Documents Document Document Document Documents Document Document Documents Document Document

47

48.1-2 49 50 51

52.1-3

53.1-5 54

55.1-2

56.1-2 57 58 59

60.1-3 61 62 63

64.1-64.2 65 66 67 68 69 70 71 72

73.1-73.5 74 75 76

77.1-77.2 78

79.1-19 80.1-10

81 82

regarding 2005 visit. Letter dated 27 May 2004 from Mr Brown to Mr Cooper. Delegated enforcement reports. Letter dated 17 February 2012 from Wiltshire Council to Mr Cooper with Requisition for Information. Reply to Requisition for Information. Mr Brown’s note of recollection of gypsy count. Email from Alan Olding to The Planning Inspectorate dated 23 November 2012 [02:43 hours] attaching two aerial photos taken on 22 September 1969. Bundle of 5 e-mails from November 2012 regarding Ms Cox Figure 2. NMR Customer enquiry reference 67817. Certificate of Authenticity for aerial photographs of 27 November 1999 and 10 November 2010, respectively. Ms Cox’s degree certificates. E-mail from Sheffield University. Aerial photograph “Cricklade 2001”. E-mail exchange with University of Cambridge regarding 1990 aerial photograph. Background papers on Derrick Riley. Annotated Supplementary Proof of Mr Smith. Annotated copy of letter from The Planning Inspectorate to Dr Murdoch dated 9 May 2012. Blanked out copy of e-mail from Sarah Marshall dated 11 January 2013. EiP report into the RS for the South West and transcript of Linfoot v SSE [2012] EWHC 3514 (Admin). Wiltshire Core Strategy Hearings programme. Appeal decision APP/P1940/C/11/2164949. 1967 aerial photograph. Dr Murdoch’s submission to the Core Strategy. Letter dated 23 December 2010 from the Council to The Planning Inspectorate. Secretary of State decision, 15 July 2013, Runnymede Borough Council [Ref APP/Q3630/A/12/2169543]. Alan Olding’s first appeal decision at Chelworth Lodge, Cricklade [Ref APP/J3910/A/08/2078618]. DCLG’s publication “Designing Gypsy and Traveller Sites

Good Practice Guide”. Maps showing distances to Cricklade Town Centre. Decision notice, plans and delegated report for solar arrays at Braydon Lane [Council’s Ref N/12/03968/FUL]. Site visit notes and extracts from LDC file. Email from Mr Olding to Wiltshire Council dated 5 September 2012. Hearing statements for Cash Hearing. Suggested conditions put forward by the Council. Planning history of Bonnie Farm site. Bundle of legal authorities and JPL article submitted in closing on behalf of the Council. Closing statement on behalf of the Council. Closing statement on behalf of the Appellant.