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					report
                                                              Nottinghamshire
                                                               County Council

meeting   PLANNING AND LICENSING COMMITTEE

date      8 SEPTEMBER 2006
from:     Strategic Director (Communities)
                                                agenda item number              6

          NEWARK AND SHERWOOD DISTRICT COUNCIL 3/06/00138/CMA
          APPLICATION FOR A CERTIFICATE OF LAWFULNESS OF EXISTING USE
          OR DEVELOPMENT AS EXISTING SCRAPYARD USE FOR STORAGE,
          SORTING AND RETAIL OF SCRAP AND USE FOR STORAGE OF
          PORTAKABINS AND SHELVING AND ERECTED BUILDING – LAND AT THE
          FORMER TWITCH FARM, HOLLOWDYKE LANE, BALDERTON, NEWARK
          APPLICANT :             MR T FLATTERY


          Purpose of Report

1.        The purpose of this report is to determine whether to issue a Certificate of
          Lawfulness of Existing Use or Development (CLEUD) for the use of land as
          ‘Existing scrapyard use for storage, sorting and retail of scrap and use for the
          storage of portakabins and shelving and erected building’. The recommendation
          is to refuse.

          Description of Site & Surroundings

2.        The site is located in open countryside immediately to the east of the A1 on the
          outskirts of Balderton (see plan attached as Appendix 1) and is known locally
          because of an old Lightning aircraft situated on the land. A new housing
          development at Fernwood is situated to the south of the site and building works
          are ongoing. The east coast mainline railway is situated to the north and beyond
          this an operational farming unit and some isolated dwellings. The site is
          accessed through Balderton and a bridge under the A1 onto Hollowdyke Lane,
          but can be accessed via Hollowdyke Lane from the direction of Claypole.

          Description of Proposed Lawful Claim

3.        The application for the CLEUD has been submitted under Section 191 of the
          Town and Country Planning Act 1990 and must be determined on the facts of the
          case and not the planning merits or acceptability of the particular development.
          The applicant must demonstrate that any use claimed has continued
          uninterrupted for 10 years prior to the date of application or that any operational
          development was substantiated more than 4 years prior to the date of
          application.




                                               1
4.    The application seeks to demonstrate that the existing activities, both the use of
      the land and operational development, are lawful. The application describes the
      land as ‘Existing scrapyard use for the storage, sorting and retail of scrap and
      use for the storage of portakabins and shelving and erected building’. In light of
      the number of uses and operations the application then goes on to break this
      down into:

      (a)   The use of the site as a scrapyard covers the whole site, it includes
            storage, sorting and retail elements;

      (b)    The use of the site for the storage and use of portakabins; and

      (c)    The erected building.

5.    The applicant claims that the uses began more than 10 years prior to the date of
      application and that the building operations were substantially completed more
      than 4 years ago.


      Consultations

6.    Although not a statutory requirement in the same way as in the case of a
      planning application, consultations were carried out. Representations received
      are set out below.

7.    Newark & Sherwood District Council (NSDC) – have evidence that the land had
      been used for the storage of scrap, but cannot confirm that this has been
      ongoing for a period of 10 years uninterrupted. They also indicate that the land
      was registered for rating purposes as a scrapyard until October 1999, the site
      then remained unregistered for rates until August 2005.

8.    Environment Agency – have no records of the site since their formation in 1996.

9.    Fernwood Residents Association – raise objections to the application on planning
      grounds and material considerations; a reference is however made to the land
      being unused for a ‘significant period’.

10.   Mr & Mrs Pickstock of Oakfield Road, Fernwood – state that no vehicles have
      been on the site for a long time and certainly not continuously for 10 years and
      also raise objections on planning grounds.

11.   Mr White of Field House Farm – has given a résumé of the history of the site
      advising that the use of the site started in the 1960s at about the size of a tennis
      court and ancillary to the farm use. The use went on at a similar scale until the
      late 1970s when it was sold on. At this point the resident states that fencing and
      lighting was erected, and the land was used for the storage of lorry tractor units
      and high sided trailers which were subsequently dismantled over the years, the
      resident states that the site had a local caretaker but was never fully manned.




                                           2
      Publicity

12.   Site notices were posted at the entrance of the site. NSDC, Balderton Parish
      Council, Environment Agency and the County Council Members for Farndon &
      Muskham and Balderton were consulted by letter. Responses have been
      received from NSDC, Environment Agency, the Fernwood and District Residents
      Association and from two residents as detailed above.

      The Evidence

13.   Guidance for determining applications for Certificates of this nature states that it
      is the responsibility of the applicant to prove his case, not for the Authority to
      disprove it. However, unlike criminal cases, where the facts have to be proved
      ‘beyond all reasonable doubt’, for the purposes of proving a lawful use or
      development it is sufficient for a conclusion to be reached ‘on the balance of
      probability’.

14.   A résumé of the evidence submitted by the applicant and that received from third
      parties and the Council’s aerial photography records are listed within Appendix 3
      to the report.

15.   In this instance the submitted application is made for a number of interrelated
      uses and operational development as defined above. To determine the
      application the site history has to be reviewed and then each of the claimed
      elements analysed in turn to establish whether the lawfulness claim for each
      element can be granted as having continued uninterrupted for 10 years prior to 7
      February 2006 for the uses, or that any operational development was
      substantially completed over 4 years ago, namely prior to 7 February 2002.

      THE SITE HISTORY

16.   The information submitted by the applicant, the historic records available at
      NSDC, the Council’s own aerial photography records and the representations
      made in response to the application have all been reviewed. From this
      information the following interpretation of the history can be gleaned.

17.   In the 1960s the site formed part of an operational farm, owned and operated by
      a Mr Price. It appears that Mr Price at this time diversified into storing scrap
      agricultural vehicles on a small area of the site, this use probably being ancillary
      to the farm development at the time. The site subject to the application was
      separated from the main farm by the construction of the A1 in the 1960s. On the
      death of Mr Price in the early 1970s the agricultural land was sold to a
      neighbouring farmer, but the land subject to this application was sold separately
      to a Mr Warriner.

18.   It appears that Mr Warriner then increased the scrap development on the site.
      Correspondence held by NSDC indicates that an appeal was lodged against the
      refusal of an application for a dwelling/caravan on the site and that this refusal
      was upheld under an appeal decision dated 17 February 1975, the Inspector’s
      decision notice makes reference to an ‘extensive scrap metal dump’. Mr
      Warriner was advised to remove the caravan and scrap by NSDC in February




                                           3
      1975 and if that was done NSDC would consider an application for a dwelling
      and agricultural use.

19.   In January 1976 NSDC wrote to the agents for the site advising that they did not
      know when the scrapyard use commenced, but it was assumed that the scrap
      yard was in use prior to 1971 and therefore immune from enforcement action
      under the 1971 Act. The letter indicates that ‘Established Use Rights’ may be
      claimed and that NSDC ‘will accept existing use rights on the land presently
      occupied by scrap metal etc.’

20.   A plan date stamped 26 January 1977 showing the land apparently affected by
      the scrapyard appears in NSDC’s records prepared by a firm of solicitors
      (Edward Bailey and Sons); however, no associated correspondence is available.
      This indicates that only the area immediately around the farm buildings was in
      use for scrap metal storage.

21.   A copy of a certificate of registration made under the Scrap Metal Dealers Act
      1964 issued to Mr Warriner of Spring Lane, Balderton on 12 May 1978 referring
      to land at Bridge End Farm, Balderton has been provided by the applicant, it is
      not clear whether or not this is the same land as the CLEUD application.

22.   In 1979 further correspondence from NSDC indicates that they again accepted
      an established use for the storage of scrap.         A committee note dated 25
      September 1979 recommends enforcement action against unauthorised repairs,
      servicing, storage and haulage of goods vehicles, parking of portakabin type
      building and mobile hydraulic platform and this is recorded in minute no.758.

23.   In February 1980 NSDC served an enforcement notice against the use of the
      land for the storage of vehicles other than scrap, erection of a boundary fence
      and lighting standards in excess of 2m high and the use of advertising material
      and flood lighting for illumination of that material, a plan has been provided by
      NSDC referring to the area affected by the notice, but NSDC are not 100% sure
      this is the correct plan. This plan refers to the entire site subject to the CLEUD
      application. Steps of the enforcement notice included a requirement to remove
      the unauthorised development including to ‘discontinue the use referred to in Part
      III thereof’, namely ‘the use of the land for the storage of vehicles other than
      scrap’. An aerial photograph taken of the site in May 1980 shows the site in use
      for the storage of trailer units, but only on a reduced area, this corresponding
      closely to the area on the plan submitted in 1977 by Edward Bailey and Sons
      detailed above.

24.   In February 1981 an application for the retention of the fencing and for the use of
      the site for light industrial, parking and vehicle sales was refused. In July 1981 it
      is understood that NSDC successfully prosecuted for non-compliance with the
      enforcement notice. In June 1982 a letter was sent from the District Valuers to
      the owner Mr Wilks detailing that the land was rated as a scrap yard over some
      1.99 acres and that a portakabin was situated on the site. In December 1982
      advertisements had appeared again on the site and letter was sent by NSDC
      requesting their removal.




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25.   It is understood that the Lightning aircraft was brought to the site in 1983. An
      aerial photograph of the site taken in 1984 shows the aircraft on the site and also
      that the site had now been extended to the full extent of the CLEUD application.

26.   A copy of a general rate demand note from NSDC for the period 1983/84 is
      supplied by the applicant. This refers to the property as a breaker's yard and
      gives an address as 100 Spring Lane with a further address blacked out.

27.   Little information is available until July 1991 when advertising trailers again
      appear on site and again a letter is sent by NSDC requiring their removal. NSDC
      Rating records show that the site was occupied between 1 April 1990 and 30
      September 1999, with a break between 6 June 1992 and 30 June 1992. A letter
      from Estatrix Limited dated 15 August 2005 states that they had acquired the
      land in April 1993. On 15 June 1993 NSDC again write to a firm of solicitors
      advising that the storage of scrap is part of the established use.

28.   A letter dated 2 December 1997 from NSDC to Estatrix Limited refers to the land
      being used for the storage of scrap.

29.   On 14 August 1998 NSDC write to Peter Marsh and Co advising that the land
      does not have an Established Use Certificate, but the Council is aware of a long-
      standing scrap use. On 23 July 1999 a letter from NSDC to the Parish advises
      that the storage of the old aircraft and other items constitutes use of the site for
      storage of scrap, i.e. the authorised use.

30.   It appears from the aerial photographs and accounts from local residents that the
      land was vacated between 1999 and 2005, this being supported by the
      information provided by NSDC that the land was failing to attract business rates
      within this period.

31.   In July/August 2005 the land was purchased by the applicant. A letter from
      NSDC of 9 August 2005 advises that they accepted an established use for a
      scrapyard in 1979, but that this did not extend to breaking, stripping, processing
      of scrap, selling of scrap or other activities associated with the authorised scrap
      storage.

32.   In October 2005 the County Council became involved in the site as this related to
      a waste matter. In light of the alleged history and claims by the new owner that
      the site had a lawful use for a scrapyard, an application for a Certificate of
      Lawfulness of Existing Use or Development was invited and it is this which forms
      the subject of this report.

33.   In addition to the CLEUD application the new owner has erected palisade type
      fencing around the perimeter of the site at a height of 2.4m following his
      occupation of the site in 2005. This would appear to have replaced dismantled
      chain-link fencing which had been erected around the site previously. One
      cranked post remains on site from this fence, this being roughly 2.4m high.




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      ASSESSMENT OF THE ACCRUED LAWFULNESS CLAIM FOR EACH
      ELEMENT OVER 10 AND 4 YEARS PRECEDING THE APPLICATION

34.   The application was validated on 7 February 2006 and as such the period within
      which evidence will need to be provided to support this claim starts on 7
      February 1996, or 7 February 2002 for operational development. As detailed
      above the application makes reference to three elements: ‘Existing scrapyard
      use for the storage, sorting and retail of scrap and use for the storage of
      portakabins and shelving and erected building’, which the applicant breaks down
      into:

      (a)    The use of the site as a scrapyard covers the whole site; it includes
             storage, sorting and retail elements;

      (b)    The use of the site for the storage and use of portakabins; and

      (c)    The erected building.

      Taking each of these in turn.

      Scrapyard use for the storage, sorting and retail of scrap

35.   The applicant has submitted various pieces of information to support this element
      of the application in the form of letters/statements from parties involved in or
      having visited the site, rate demands and letters from NSDC. Some of this
      information relates to time prior to February 1996 and is therefore not directly
      relevant to determining an uninterrupted use for 10 years preceding the date of
      the application. However this information does set the background to the site
      and points to some form of scrap use on the site from the late 1960s to the
      1980s, but then information becomes limited. The information available from the
      applicant and gleaned from elsewhere and predating the 10 year period prior to
      the application is listed in Appendix 3.

36.   A significant amount of supporting material has been submitted by the applicant.
      The various witness statements make reference to the site being used
      continually for the storage of scrap, its breaking, processing and retail and within
      unrestricted hours, but do not contain specific details about precisely what
      activities have been carried out on the land, to what intensity, when and within
      what hours. However, all the statements appear to indicate that a substantial
      and well established scrapyard has been operating from the site on a continuous
      basis for the last 10 years. The letter from Estatrix refers to the site being used
      as a scrapyard from April 1993 continuously for 12 years and the statement of
      Noel Higgins also states that he occupied the site from 1994 to 2005 when Mr
      Flattery took over the site. Mr Flattery states that part of his agreement to
      purchase the site was a stipulation that the scrap on site was removed.

37.   The aerial photographs clearly show that a small part of the land was being used
      for the storage of trailers in 2000 (the date of the photograph is understood to be
      taken on 18 June 1999) and that the site was vacated at the time of the aerial
      photograph in 2004 (understood to be taken on 8 September 2004), this would
      appear to contradict the letter from Estatrix Limited and other parties referring to




                                           6
      ongoing and uninterrupted high intensity use of the site. Copies of the two aerial
      photographs referred to are contained within Appendix 2.

38.   In conclusion it is considered that on the evidence available that, on the balance
      of probability, the use of the site for the storage, sorting and retail of scrap has
      not taken place for an uninterrupted period of 10 years from 7 February 1996.
      The evidence submitted by the applicant does not outweigh that shown on the
      aerial photograph from 2004 or the evidence forwarded by NSDC’s Rating
      Department. The information provided by the applicant is also insufficient to
      allow any accurate assessment of the scale and intensity of the claimed use to
      be defined if it was appropriate for a certificate to be issued.

      The use of the site for the storage (and use) of portakabins and shelving

39.   The applicant's only submission to support the claim in respect of this use is a
      plan showing a site layout. This plan shows various features in letter form: (A)
      Office/Store; (B) double p/cabin store; (C) Open Racking; and (D) double p/cabin
      store. A reference is made to a portakabin being on site in the NSDC committee
      report resolution in 1979 and passing reference is made in a letter dated June
      1982 from the District Valuer to a portakabin erected on the site. None of the
      witness statements make reference to this subject matter.

40.   Within the correspondence penned by NSDC over the years, bar the above
      reference in 1979, no reference is made to any portable buildings, either in use
      for an office or being stored or the erection of shelving. It is considered that this
      would have been something which would have been apparent on the various site
      inspections. The information provided by the applicant to support the use of the
      site for the storage of portakabins and shelving is limited to a plan only and
      unsupported by other evidence.

41.   The aerial photographs of 1992, 1996, 2000 and 2004 do not support the
      continuing presence of these items on the land. The aerial photograph from
      September 2004 does not show any temporary buildings or shelving on the site.

42.   In deciding how to determine the lawfulness of this claim it is necessary to review
      whether these ‘structures’ amount to a use of the land or operational
      development. It is considered that should the portakabins purely be stored on
      the site and periodically removed and not used in connection with the claimed
      use then this would amount to a use of land and the 10 year period to establish
      lawfulness would apply. This is the claim submitted by the applicant. It could
      equally be argued that these portakabins are used in connection with the claimed
      use for the storage of parts and for office accommodation. It is considered that
      should these be fixed structures, then both portakabins and shelving could be
      classed as operational development, being permanent, requiring construction by
      an engineer and by their dimensions being physically attached to the ground, the
      office requiring both power and other services. If it is considered that the
      portakabins and shelving amount to operational development then the 4 year
      period to establish lawfulness applies.

43.   In conclusion, and notwithstanding whether the structures are a use of the land
      or operational development, on the balance of probability, the claim of lawfulness




                                            7
      for a use of the site for storage (and use) of portable buildings and shelving has
      not been substantiated as being continued uninterrupted for a period of 10 years
      from 7 February 1996 or having been substantially completed 4 years prior to the
      date of application, namely 7 February 2002.

      The erected building

44.   The erected building for which a lawful claim is made is shown as item F on the
      plan submitted by the applicant and labelled as barn/store frame. No supporting
      information has been provided beyond this and the precise dimensions and use
      of the building are not defined. For the building to be lawful it would have had to
      have been substantially completed more than 4 years prior to the date of
      application, namely 7 February 2002. It is apparent on site that the building is
      nothing more than the rusty metal shell of a barn and is totally devoid of cladding.
      No evidence has been provided as to when the building was erected or
      substantially completed. The building is not shown as roofed or clad in any aerial
      photographs available from 1992. This being the case it must be assumed that
      one of the following situations is correct:

      (a)    that the building was never substantially completed; or

      (b)    that the building was substantially competed prior to 1992 and has since
             this date fallen into a state of disrepair and that due to its condition it has
             been abandoned and that any rebuilding would be new development.

45.   In conclusion, the applicant has not provided sufficient evidence to support the
      claim of the substantial completion of the building more than 4 years prior to the
      date of application and in any event the building has now fallen into such a state
      of disrepair that even if such information had been provided it would amount to
      new development if it were to be rebuilt. As such it is not considered that a claim
      for lawful operation development for the building can be supported on the
      balance of probability.

      ALTERNATIVE MECHANISMS TO ACCRUE LAWFULNESS – THE EFFECT
      OF THE ENFORCEMENT NOTICE DATED 5 FEBRUARY 1980

46.   An enforcement notice was served by NSDC on 5 February 1980. The notice
      related to various unauthorised activities on the site, including the use of the land
      for storage of vehicles other than scrap, and subsequently required the
      discontinuance of this use. Should enforcement action be taken against
      unauthorised development on land then Section 173(11) of the Act provides that
      where an enforcement notice could have required any buildings or works to be
      removed or any activity to cease, but does not do so, and all the requirements of
      the enforcement notice have been met, then, so far as the enforcement notice
      did not require, planning permission shall be treated as having been granted by
      virtue of Section 73A in respect buildings or activities being carried out.

47.   Relevant case law on this matter is Fidler. The outcome of this case is in
      summary that an activity can only benefit from this section through under
      enforcement if the matters are specified in the allegation, but are not required to
      cease. In this case the breach of planning control alleged is ‘the use of land for




                                            8
      the storage of vehicles other than scrap’; the allegation therefore relates to the
      storage of vehicles, not to the storage of scrap or related activities. The storage
      of scrap does not form part of the allegations and cannot therefore accrue a
      deemed permission through under enforcement by virtue of this notice as
      worded.

48.   In conclusion and having assessed all the information available it is not
      considered, on the balance of probability, that the site has been used as a
      scrapyard or for the stoppage of portakabins and shelving for an uninterrupted
      period of 10 years or that sufficient evidence has been provided to demonstrate
      that the erected building was substantially completed 4 years prior to the date of
      application.

      Statutory and Policy Implications

49.   This report has been compiled after consideration of implications in respect of
      finance, equal opportunities, personnel, Crime and Disorder and those using the
      service. Where implications are material, they have been brought out in the text
      of the report.

      RECOMMENDATION

50.   It is RECOMMENDED that the application for the Certificate of Lawfulness of
      Existing Use or Development on land at the former Twitch Farm, Hollowdyke
      Lane, Balderton be refused for the following reason:

            Taking together the evidence submitted by the applicant, those letters
            received from third parties and the aerial photographs of the site, it is
            considered that, on the balance of probability, insufficient evidence has
            been submitted to substantiate an accrued lawful use for any of the
            elements claimed for an uninterrupted period of 10 years for the uses
            claimed or 4 years for the operation claimed.

50.   It is FURTHER RECOMMENDED that:

      (a)    the land be cleared of scrap and other associated elements within 2
             months of the date of this decision; and

      (b)    if this is not undertaken, enforcement action be initiated to secure the
             cessation of the use and clearance of the scrap and other related
             elements, including the portable buildings, racking and fencing.

MICK BURROWS
Strategic Director (Communities)




Financial Comments of the Strategic Director (Resources)

There are no financial implications arising from this report. [DJK 17.8.06]




                                            9
Legal Services’ Comments

As a refusal is recommended, this matter falls outside the delegation to the Director and
Committee are required to decide the Recommendation. [SHB 10.8.06]


Background Papers Available for Inspection

In addition to items listed in Appendix 3:

Letter dated 30 January 2006 from Councillor Saddington.
Letter from NSDC dated 16 February 2006.
Letter from Mr White of F W White Farmers Limited dated 13 February 2006.
Letter from Fernwood District Residents Association dated 23 February 2006.
Letter from Mr & Mrs Pickstock dated 22 February 2006.
Letter from Environment Agency dated 21 February 2006.
E-mail from Fernwood Residents Association dated 9 March 2006.
E-mail from NSDC Rating department dated 19 July 2006.


Electoral Division(s) and Member(s) Affected

Muskham & Farndon               Cillr Sue Saddington.


EPD.TT/ep4919
9 August 2006(17 August 2006)




                                               10
                                  APPENDIX 3

     INFORMATION AVAILABLE PRIOR TO THE DATE 10 YEARS BEFORE THE
     DATE OF APPLICATION FOR THE CERTIFICATE

a)   a copy of an appeal decision dated 17 February 1975 refusing an application for
     an agricultural dwelling and residential caravan, this makes reference to the
     appellant not being able to supervise his scrap dump;

b)   a letter dated 6 January 1976 from NSDC to Hodgson solicitors stating that
     assuming use existing prior to 1971 that established use rights could be claimed
     and that the LPA will accept the land as occupied by scrap metal etc. The use
     may be resumed until abandoned;

c)   Certificate of Scrap registration 12 February 1978 referring to a premises known
     as Bridge End Farm;

d)   NSDC Planning Committee 25 September 1979 refers to part of the site having
     established use rights for storage and reclamation of scrap metal;

e)   an extract from what appear to be minutes of a committee meeting (item 758)
     approving enforcement action against unauthorised repairs, servicing, storage
     and haulage of goods vehicles, parking of portakabin type building and mobile
     hydraulic platform;

f)   the enforcement notice dated 6 February 1980 referred to above;

g)   a letter dated 1 June 1982 from the District Valuer refers to the scrapyard being
     extended and also a portakabin erected on site;

h)   a rate demand from NSDC dated 15 March 1983 referring to a property address
     as 100 Spring Lane, Balderton and property use as a breakers yard;

i)   a letter from NSDC to Balderton Parish Council dated 7 January 1985 stating
     storage of scrap vehicles arises from an old established use of the property
     accepted by NSDC in 1979;

j)   a letter dated 15 June 1993 from NSDC to P W Marsh Solicitors refers to
     established use for the storage of scrap;

k)   aerial photographs 2 August 1974, 10 May 1980, 1984 and 26 May 1992.


     THE EVIDENCE AVAILABLE FOR THE 10 YEAR PERIOD PRECEDING THE
     DATE OF APPLICATION SUBMITTED BY THE APPLICANT IS THE
     FOLLOWING –

i)   A letter dated 14 August 1998 from NSDC Chief Executive to Marsh Solicitors
     advising land does not have Established Use Certificate, but that NSDC are
     aware of a long established use of the land for a scrap metal etc.;




                                         11
ii)     a Letter from Balderton Parish Council dated 25 May 1999 to NSDC concerning
        the parking and scrapping of vehicles and them being left on the grass verge and
        vandalism of the aircraft;

iii)    a letter dated 23 July 1999 from NSDC to Balderton Parish Council advising that
        the site is a scrapyard of many years standing and no conditions precluding
        parking and dismantling;

iv)     a letter dated 15 August 2005 from Mr Wilks of Estatrix Limited, the former
        owner, stating that the land has been used as a scrapyard for the dismantling,
        breaking and storage of scrap and other materials for 12 years since they bought
        the premises in April 1993;

v)      An undated letter from Convoy Commercial stating that they have picked up used
        spared parts from the site, (but no time frame is given);

vi)     a letter dated 15 August 2005 from BJ & C Carberry Haulage stating that they
        collected scrap trailers and parts between 1995 and 1998 from Estatrix Limited;

vii)    a letter dated 17 August 2005 from Bradford Moor (Iron and Steel) Limited stating
        that they bought scrap metal from Estatrix Limited six and a half years ago (this
        would equate to early 1999);

viii)   a statutory declaration from Noel Higgins dated 6 June 2006 stating that in 1994
        he started using the property for breaking cars prior to taking them to Ireland,
        plus he sold scrap to local metal dealers and that this use continued until 2005
        when he sold the site to the applicant;

ix)     a further statement by Mr Noel Higgins stating that other commercial activities
        were carried out on the site, with cars being removed from the site on a daily
        basis, parts being stored inside lorry trailers, also that some commercial vehicles
        were dismantled and salvaged at the site;

x)      a witness statement from Steven Moor of Bradford and Moor Iron and Steel
        Limited, Cow Lane, Northgate, Newark stating his company bought considerable
        amounts of scrap metal from Estatrix Limited at the site during the course of the
        last 10 years; (this supplements a previous letter dated 17 August 2005
        previously submitted by the applicant (vii above));

xi)     a witness statement of Mr S Marshall of Philip Road, Newark stating that he has
        visited the site to purchase motor vehicle spare parts for 12 years and at the time
        of these visits the site has been busy and fully occupied by scrap vehicles and
        that sorting and processing has been ongoing (this supplements an earlier
        undated letter submitted by the applicant from Mr Marshall under cover of a letter
        dated 6 June 2006);

xii)    a witness statement of Mr S Beckett of Main Street Balderton stating he has
        walked his dog down this quiet country lane on a daily basis and that the site has
        always been busy and a large volumes of parts were always available for sale
        and that he bought parts;




                                            12
xiii)    a witness statement of Mr J Kerriage of Devon Road Newark stating that for 12
         years he had regularly bought tyres and motor spares from a business called
         Kilcock Car Dismantlers, there being a large number of vehicles on site, usually
         50, and that the site was a scrap yard with storage and processing for the whole
         period; (this supplements an earlier undated letter from Mr Kerriage submitted by
         the applicant under cover of a letter dated 6 June 2006);

xiv)     a witness statement of Mr F Convoy of Convoy Commercials from Rayleigh,
         Essex stating his company collected used metal parts and scrap metal from site
         between 1994 and 2005; (this supplements an undated letter previously
         submitted by the applicant on 6 June 2006 as detailed under (v) above);

xv)      a witness statement of Mr Blisset of the NATO Air Museum, Grimsby stating that
         he has passed the site and seen the lightning aircraft on site since the early
         1990’s and he can recall observing several lorry trailers in different states of
         repair, some without axles, mudguards and wheels when passing on the A1 and
         that this was confirmed at his site visits in 1994 and 2001 and also spring 2004
         when some cars were also on the site, and that dismantling and processing were
         ongoing and no apparent hours restrictions;

xvi)     a witness statement of Mr D Grey of Devon Road, Newark stating he had lived in
         the area for over 12 years and he regularly removed scrap form the site
         throughout the 12 years and also that a large amount of scrap was stored, and
         sorting and processing took place, retail sales occurred and that he was not
         aware of any hours limitations; (this supplements an undated letter from Mr D
         Gray (NB spelling different) to that previously submitted by the applicant under
         cover of a letter dated 6 June 2006);

xvii)    a witness statement of Mr B Carberry of Carberry Haulage, Bury St Edmonds,
         stating on a number of occasions since 1995 he visited the site and collected
         scrap metal and trailer parts from Estatrix Limited, (this supplements a letter
         dated 15 August 05 previously submitted by the applicant under cover of a letter
         dated 6 June 2006, (vii) above);

xviii)   a witness statement by Mr Jeff Smith stating he has driven past the site in his
         lorry on the A1 on a regular basis and that the site has been a scrapyard since at
         least 1977;

xix)     a statement of the applicant Mr T Flattery indicating his involvement with the site
         since late summer 2004 stating the site was being used as a scrapyard in August
         2004 for storage, sorting and processing and that this was carried out by a Noel
         Higgins operating out of the site as Hillcock Car Dismantlers. The statement
         refers to a large amount of material being removed from the site prior to Mr
         Flattery’s occupation.

xx)      a witness statement by Mr M Parthipan stating that he drove past the site on a
         regular basis for the last 17 years and that he called in and bought cars and car
         parts from the site over a 12 year period;




                                             13
xxi)    a witness statement by Mr P Foley stating that he regularly purchased used car
        parts from the site for 10 years and more so in the last 5 years when his business
        was in a period of growth.


        THE EVIDENCE AVAILABLE FOR THE 10 YEAR PERIOD PRECEDING THE
        DATE OF APPLICATION PROVIDED BY CONSULTEES, NSDC’S FILES AND
        FROM THE COUNCIL’S RECORDS IS THE FOLLOWING –

1)      A letter dated 14 August 1998 from NSDC Chief Executive to Marsh Solicitors
        advising land does not have Established Use Certificate, but that NSDC are
        aware of a long established use of the land for a scrap metal etc.;

2)      a letter dated 23 July 1999 from NSDC to Balderton Parish Council advising that
        the site is a scrapyard of many years standing and no conditions precluding
        parking and dismantling;

3)      Correspondence from NSDC dated 9 August 2005 to Mr Flattery stating site
        accepted as having an established use for the storage of scrap, but not breaking
        and stripping of vehicles, processing of scrap, selling of scrap or other activities
        associated with the authorised scrap use;

4)      Correspondence dated 16 February 2006 from NSDC indicating that the use for
        scrap has been ongoing, but they cannot confirm this has been ongoing
        uninterrupted for 10 years and records in the Council’s Rate Section indicate the
        site was registered as a scrap yard and rates were paid until 1999, but ceased
        between 1999 and 2005 when they were started to be paid again;

5)      an aerial photograph from 2000 (date range 1999-2001, photograph understood
        to be taken on 18 June 1999) showing the site largely greened over, but with 17
        lorry trailers parked on the southern (rear) half of the site and also the lightning
        aircraft;

6)      an aerial photograph from 2004 (understood to have been taken on 8 September
        2004) showing the site with the lightning aircraft still present, but the site devoid
        of any obvious scrap, buildings etc and effectively greened over;

7)      e-mail dated 19 July 2006 from NSDC stating that the site has been occupied for
        rating purposes since 1990, but has been unoccupied between 6 June 92 and 30
        June 92 and also 1 October 1999 and 31 July 2005.


EPD.TT/ep4919
9 August 2006




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