Decision

Decision for Lays International Limited (OK0226195)

Published 14 May 2024

0.1 In the London and South Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

2. Public Inquiry held on 27 March 2024 at Sheraton Skyline Hotel, Heathrow

3. Operator: Lays International Limited (OK0226195)

4. BACKGROUND

Lays International Limited is the holder of a standard international licence granted on the 18 October 1996 authorising one hundred and fifty vehicles and ten trailers. The directors of the company are Paul Lay and Janet Lay. The transport managers are Paul Lay, Amy Lay and William Robinson. There are two operating centres authorised on the licence, 100 vehicles and 4 trailers authorised at Lays Yard, Delta Way, Thorpe Indistrial Estate, Egham. TW20 8RX and 50 vehicles and 6 trailers authorised at The Rear of Unit 8, Crabtree Road, Thorpe Industrial Estate, Egham, TW20 8RN.

On the 21 September 2023 a variation application was made to remove the operating centre at The Rear of Unit 8, Crabtree Road, Thorpe Industrial Estate, Egham, TW20 8R and to approve authorisation for 50 vehicles at 262-264 Chertsey Lane, Staines-upon-Thames, TW18 3NF. The application was advertised in the Surrey Advertiser and objections to the application were received from Surrey County Council who were concerned in relation to the space within the proposed site to allow vehicles to enter and exit in forward gear and to avoid vehicles having to be parked on the highway. Runnymede Borough Council objected on the basis that the site does not have the necessary planning permission and a planning enforcement notice preventing the storage and/or parking of motor vehicles from 2004 is extant. Additionally, they stated that the use of the site for keeping up to 50 vehicles may be inappropriate as the majority of the land is within the functional flood plain and there were concerns in relation to noise due to the proximity of residential properties.

The last date for receipt of representations was the 13 October 2023 and between the 19 October and 30 October 2023 fourteen letters of representation opposing the application were received from local residents. These letters stated that the residents had not been aware of the advertisement contained in the Surrey Advertiser and had found out about the application when one of their number attended a Borough Council committee meeting. Having taken into account the speed with which the residents submitted representations once they were aware, the nature of the representations and the explanations why the newspaper advertisement had not been seen, I decided that I could find exceptional circumstances under Section 12(8) of the Goods Vehicles (Licensing of Operators) Act, 1995 and deem the representations as valid notwithstanding the late notice.

The representations from the residents opposed the application on grounds that there was an absence of planning permission, safety of access, noise, detrimental impact on flood risk, visual impact and fumes/pollution. Traffic Examiner Jassal carried out a site visit on the 10 November 2023 and compiled a report based on his findings and opinions.

In an attempt to resolve matters without a hearing a set of possible conditions and undertakings were sent to the operator who confirmed that these would be agreed to. When the conditions were sent to the objectors Runnymede Borough Council responded by saying the conditions seemed satisfactory but that they were still opposing the application on the basis of the planning enforcement status of the land. Surrey County Council did not respond at that stage. The representors were also sent the conditions and none agreed to them or felt that they were sufficient to ameliorate the detrimental impact of the site being used as an operating centre.

A decision was taken to call the case to public inquiry and notification was sent to all parties. In advance of the hearing the applicants submitted a bundle of documents as did some of the representors. Surrey County Council made contact to say that their objection in relation to the safety of the entrance/exit would be withdrawn provided a condition was agreed that authorised vehicles would enter and exit the site in forward gear.

In the days leading up to the inquiry various communications and documents were submitted by the representors and where possible these were copied to the applicant. On the 26 March 2024 I conducted a site visit at the proposed operating centre and familiarised myself as best I could with the layout of the site and proximity of the properties belonging to the representors.

5. THE PUBLIC INQUIRY

Directors Paul Lay and Amy Lay attended the inquiry on behalf of the operator and were represented by Mr Willis. Mr McNulty and Mr Iliopoulos who had been authorised to speak on behalf of all the representors attended together with a further three residents as observers. Traffic Examiner Jassal attended to speak to his report and two representatives from Surry County Council, Mr Schatten and Mr Diallo were present to observe the proceedings. The representatives who had lodged an objection from Runnymede Borough Council had indicated that they would not be attending the public inquiry and this was the case.

I started the hearing by summarising my understanding of the background of the case, the relevant legal provisions, guidance applicable to my decision and the way in which the inquiry would be conducted. I gave the attendees the chance to address me on what I had said, to ask questions and to confirm if my summary was agreed. I confirmed that I had read the relevant papers which comprised two large ring binders of documents.
I said that I had visited the site and asked Mr Lay to confirm that vehicles were already at the site despite the operating centre not being authorised to date. He confirmed that they were at the site and said that he had been put in a position where he had no other choice. He was aware that this was a breach of the conditions of the operator licence  

5.1 Availability of site and planning issues

I said that my reading of the documents told me that the land in question had a lengthy history in relation to planning issues and decisions. In a letter dated 25 October 2023, Mr Finch from Runnymede Borough Council said that in 2004 a planning enforcement notice had been served upon the area of land in question which required ,inter alia, that the landowners “cease the use of the land for the storage and/or parking of motor vehicles”. That enforcement notice had been upheld on appeal and “the Council’s opinion is that the enforcement notice remains extant” As a separate comment in their letter the Council referred to an appeal against a separate enforcement notice heard in December 2022 where comments from the planning inspector “may mean that the site has a lawful mixed use of B2 light industrial and agricultural”. A further letter from the Council dated 12 December 2023 confirmed that the objection to the application remained and commented that in any event vehicles “should not be parked in the dormant agricultural land to the north of the site”

In preparation for the hearing the applicant had submitted a report dated 30 October 2023 from a company Bell Cornwall who are “Chartered Town Planners”. This report set out the history of the site and referred in detail to the planning enforcement appeal dealt with in December 2022 as mentioned by the Council in their objections. In summary the report submitted that this decision had clarified previous uncertainties and could be considered as having primacy when planning permission was being considered. They went on to say at page 5 of the report (page 500 of the bundle) that the storage of vehicles would be “lawful B2 (general industrial use) if the storage of vehicles was ancillary to that general industrial use”. Mr Lay had advised the authors of the report that there was no intention to “provide long-term vehicle storage on the site” so they concluded that “repair and maintenance of vehicles” could take place on the site and ancillary storage would be allowed. The authors of the report also acknowledged that the exact boundaries that had been covered by the 2022 decision were not determined but submitted that it was reasonable to assume that “the existing area of hardstanding“ was included. An application for a Lawful Development Certificate had been submitted by the previous landowners but the authors of the report thought this would not now be necessary in light of the 2022 decision.

Mr McNulty and Mr Iliopoulos submitted that the enforcement notice from 2004 was extant and were adamant that the decision of 2022 did not change the status of that decision. They had submitted various documents in support of this view and said that this was the view of the planning authority.

Mr Lay said that his intention was to use the proposed site as an additional maintenance facility for his fleet of vehicles. His business involved providing specialist vehicles to the film industry and these vehicles were often away from base for lengthy periods. The industry had been on strike recently but once matters returned to normal the majority of the vehicles would not be at either of the operating centres.

Mr Willis referred me to Statutory Document No 4 issued by the Senior Traffic Commissioner where a paragraph 54 it is stated “Traffic Commissioners cannot and should not become involved with matters of planning law or consent”. He submitted that this meant that I need not decide availability of the site in that regard and could rely on “the expert report” from the company Bell Cornwall which had been submitted.

5.2 Suitability – safety of access to site

As previously stated Surrey Council withdrew their objection to the application provided the applicant agreed to a condition that vehicles entered and exited the site in forward gear. Traffic Examiner Jassal had reported that there was room within the site for vehicles to turn and therefore comply with this condition. A few days before the inquiry date Mr McNulty lodged documents relating to a planning application to use part of the front area of the site, and former service station premises as a tyre fitting service. At the hearing he said an agreement had been reached at the planning hearing that vehicles would operate via a “one way system” when using the tyre service and that this would cause a problem if HGVs were entering the site as proposed in this application. The observers from Surrey County Council at my request indicated that they did not believe this was what was proposed for the tyre fitting company and the withdrawal of objection remained. Traffic Examiner Jassal was also of the view that the use of the front of the site by the tyre company would not affect his view as to safety of access. Mr Lay said that he would cancel the arrangement with the tyre fitting company if this was necessary.

5.3 Suitability – Noise

The representors had all commented on the adverse impact of noise associated with the storage of lorries on the site and the proximity of their house and gardens. Mr McNulty said that the demographic of residents in the vicinity should be taken into account, several were elderly, some were night workers and the boundaries of some properties were unusually close to the site. There had already been complaints about noise from vehicles charging batteries during the day and all residents would be affected.
Mr Lay said that the vehicles were modern and therefore less noisy, the hours of operation as proposed would limit the noise nuisance and he was willing to restrict the number of movements too and from the site as proposed. Once his business got back to normal the site would be empty and no drivers would be going to the site. They would leave from and return to the other main site.

5.4 Suitability – Flood Risk

The majority of representors had included this aspect in their submissions and Runnymede Borough Council in their letter of 25 October 2023 had said “allowing the applicant to bring 50 HGVs onto the land may be viewed as inappropriate by the Council, taking on board that the majority of the land is within the functional flood plain” In support of this aspect of objection Mr McNulty and Mr Iliopoulos explained that the area and adjoining properties had flooded on a previous occasion and the area was at high risk. A recent incident had occurred when water was very close to the previous flood level. The presence of lorries would be a barrier which would exacerbate the risk for properties in the vicinity. When the recent incident occurred the Council had been contacted so that the vehicles currently stored at the site could be moved. Mr Lay said that he had ben contacted and had been keeping an eye on potential flood levels but had not had to move the vehicles.

5.5 Suitability – Visual Impact

The representors had submitted photographs which they said showed how the large vehicles were overbearing and oppressive as they were parked so close to the adjoining properties. Mr McNulty and Mr Iliopoulos said that this worry and oppression was aggravated by the risk of floods which was made worse by the presence of the lorries. Mr McNulty did not accept that screening that had been suggested in the proposed conditions could be placed between his property and the site.

5.6 Suitability – Fumes/Pollution

Most of the representors had highlighted this as an issue and Mr McNulty said that fumes could be smelt from nearby properties which was not surprising because they were so close to the site. Mr Lay said that the vehicles run on Biofuel which was 90% cleaner than diesel and therefore gave off less fumes. A condition not to park any vehicles along the boundary fences could be agreed if necessary.
After the inquiry several e mails and attachments were sent to the Office of the Traffic Commissioner by Mr Lay, Mr McNulty and Mr Iliopoulos. I considered these and determined whether they would potentially impact on my decision. If this was the case I would normally serve the documents on other parties and allow time for comment before concluding my decision. In this instance I concluded that these documents would not make a material difference to the core of my decision so did not delay in preparation.  

6. FINDINGS AND DECISION

6.1 Availability of site and planning issues

I deal first with the interpretation of the guidance in Statutory Document 4 issued by the Senior Traffic Commissioner and the submission made by Mr Willis on behalf of Mr Lay. His interpretation of the guidance was to the effect that “Traffic Commissioners should not get involved with matters of planning law or consent” and therefore I need not address the question whether the current status of the land needed planning permission. He also urged me to rely on the “expert report” lodged by the applicant and written by Bell Cornwall which he submitted supported the application.

I do not agree that the guidance goes as far as suggested by Mr Willis. Whilst the phrasing used in the guidance could lead the reader to think this is the case the relevant decisions from the Upper Tribunal (which is what the Statutory Documents are based on) give more detail which must be taken into account. The case of 2021/2168 PEP Plant Limited is relevant and helpful. The case involved an application for the use of land as an operating centre where the land had an extensive planning background. There was a dispute between the planning authority and the land owner whether the proposed use as an operating centre was allowed as part of the existing planning consent or whether a new application was required. The site owner was not prepared to submit a planning application saying that the relevant authority was already in place. Conversely the Council submitted that planning consent was needed before the site could be used as an operating centre. Because the planning situation was disputed and uncertain the Traffic Commissioner could not find that the site was available as required to be an operating centre. The suggestion that a Traffic Commissioner should “make a decision regarding the availability of an operating centre without having regard to issues or disputes relating to planning at all” is mentioned at paragraph 19 of the appeal decision. By inference, the Upper Tribunal did not support this view because they said  at paragraph 37 that they “could not see how the Traffic Commissioner could reach any different conclusion as to availability when the planning authority were saying that the site could not be used as an operating centre without breaching planning permissions in place and prompting enforcement action”.

Applying that approach to the instant case the status of the land in planning terms is disputed. The relevance and enforceability of the enforcement notice from 2004 is an issue, as is the scope and primacy of the planning decision from December 2022. The Runnymede Borough Council have confirmed their continuing objection to the application citing in addition to the 2004 decision the limitation of the 2022 decision which restricted the use to “storage ancillary to B2 use as opposed to B8 use for storage”. In essence they are saying that there is no planning in place to allow an operating centre on the site.

In making my decision I remind myself that I am considering availability of the site as an operating centre for 50 vehicles i.e. a place where up to 50 vehicles can be “normally kept”. Whilst Mr Lay has told me that once his business returns to normal there will be less vehicles kept on the site, I have to make my decision on the basis that I am authorising the full use of the site for that number of vehicles. The report from Bell Cornwall, which Mr Willis urged me to rely upon, concedes that the use of the land authorised by the 2022 decision was for “storage ancillary to B2 light industrial business”. The Council agrees this and says that longer term storage of vehicles requires B8 planning permission.

My decision in light of all the above is to find that the land in question is not “available” for use as an operating centre as required by Section 13 (5) of the Goods Vehicles (Licensing of Operators) Act, 1995. I make this finding without making a determination of the ongoing planning disputes although I  do find that, even on the basis of the report submitted on behalf of the applicant, there is no suggestion that the land is approved for storage of vehicles per se, which is what would be required for an operating centre.

6.2 Suitability issues

Despite my finding  that the site is not available as an operating centre, I feel it is fair to set out my views in relation to each of the areas raised in relation to suitability:

6.3 a) Safety of access to site

If I had concluded that the site was available I would have sought further information in relation to the access arrangements before deciding whether I was satisfied in this regard. Whether the tyre fitting company had agreed to a “one way system” of access and how this would impact on HGVs entering the land at the rear of the site was unclear to me. The volumes of traffic during the summer months as a result of “Thorpe Park” traffic was also a factor. My instinct is that the access is suitable, but I would have reserved my decision in this regard pending further information.

6.4 b) Noise

If the conditions restricting hours of operation, activities at the site and movements of vehicles to and from the site were at a low level I would be inclined to say that the detrimental effect on neighbours in the vicinity could be adequately controlled. The number of movements in the proposed conditions was 20 per week but after the hearing Mr Lay wrote to the Office of the Traffic Commissioner saying that this number may be too low. Once again I would have reserved judgement pending further information.

6.5 c) Flood Risk

On the basis of the objections raised by Runnymede Borough Council, albeit limited in detail, the past history which involved stored cars being deemed an increased flood risk and the representations on the part of the residents I would find that this is a valid ground for deeming the site as unsuitable. The increased risk of flooding as a result of climate change and the adverse impact of storing up to 50 vehicles which would create a barrier in the event of a flood is sufficient for me to find this. I reject the suggestion that vehicles could be moved with sufficient speed in the event that the flood risk reached a critical stage.

6.6 d) Visual Intrusion  

The unusually close proximity of dwellings on all sides of the site and the otherwise semi rural nature of the area are all factors in this part of my determination. I can understand the effect viewing the vehicles has on the residents’ enjoyment of their properties as explained at the inquiry. Before deciding this point, I would be seeking greater clarity on the placing of screening as suggested in the proposed condition and assurance that it would be effective in creating a barrier that is sufficient for all properties.

6.7 e) Fumes/Pollution

I link this ground with my indications in relation to the detrimental impact of noise. Once again, my decision would be reliant on the number of movements per day that was proposed by the applicant and this would need to be clarified in order for a decision to be made.

To summarise, my decision is to refuse the application primarily on the ground that the proposed operating centre is not available as required by Section 13 (5) of the Goods Vehicles (Licensing of Operators) Act, 1995. In addition, I find that the proposed site is unsuitable on the ground that the use as an operating centre would increase the impact of flooding in the area and therefore have a sufficiently detrimental effect on local residents. Other potential environmental impacts would have been assessed further if the application had been approved on other grounds.

John Baker
Deputy Traffic Commissioner

4 April 2024

FOOTNOTE: The regulatory history of this operator is excellent and I have some sympathy with Mr Lay in his attempts to find a suitable operating centre in the area of the South East from which his business is run. At the hearing he indicated his intention to use part of the site for maintenance of vehicles if the application as an operating centre is refused. I make no comment on the planning issues which may be linked with this proposal. However, he also said he was advised that vehicles could be kept during this process for up to 28 days. I wish to record that this is not the case in relation to authorised goods vehicles which should be normally kept at their operating centres. If a vehicle is kept at a site for a period of time beyond that needed for repair or maintenance the operator could be found to be using an unauthorised operating centre which would impact on the repute of that operator.