The original use of the land prior to Mr Abell acquiring it was agricultural/nil use. From 1986 to 1996 the land was used for the periodic storage of soil and for the storage of a small number of broken down lorries used to provide spare parts for Mr Abell's working lorries. Subsequently, this use was abandoned in 1996 when Mr Abell's business ceased to operate. In the case of Hartley v Minster of Housing & Local Government (1970) 1 QB 413 Denning MR said that it is open to the local planning authority or the Minister to conclude that a use has been abandoned if land has remained unused for a considerable time in such circumstances that a reasonable man might conclude that it has been abandoned. Case law has also shown that the intention of the party concerned is important in deciding whether a use has been abandoned. In the case of Nicholls v Secretary of State for the Environment, McNeill J pointed out that "¿.the intention may be established both from direct evidence and from conduct and behaviour of the owner or occupier".

An ex-employee of Mr Abell' business has provided evidence as to the probable intention of Mr Abell in 1996. The employee states that Mr Abell had sold all the old lorries from his business before the cessation of his business and that before the ex-employee left in 1996, the ex-employee cut up the lorries that were on site and these were scrapped and that the land was clear when his employment was terminated by Mr Abell in 1996. There was therefore no intention to continue the previous use of the land at this time. The land remained vacant for approximately 4 years before its acquisition by the Applicant in 2000.

Upon abandonment of use the land would have reverted back to its use as agricultural land/nil use. There is no evidence of any intervening use before its purchase by Mr Cairns in 2000; the evidence of use by Mr Walker can be discounted as this is contradictory to the evidence of Dr K Gregory who states that the land remained vacant until it was purchased by the Applicant in 2000. The applicant is not helped by the contradictory nature of the evidence submitted on his behalf. Other evidence obtained by Charnwood Borough Council confirms that Mr Abell did not use the land after 1996. The Applicant has therefore failed to establish a 10 year period of use before the date of his application. The use is therefore not immune from enforcement action.

Alternatively, evidence obtained against the application shows that there has been an intensification of use of the land which began less than 10 years before the date of the application and this has resulted in a material change of use affecting the character of the land for which planning permission has not been granted. The use of the land is therefore not immune from enforcement action.