Enstone Uplands and District Conservation Trust, R (on the application of) v West Oxfordshire District Council

In a planning judicial review, the committee’s understanding is assessed from the general tenor of its discussion and the material before it. The absence of an express statement by individual members does not, by itself, establish a failure to consider a material matter. Members may rely on site-visit impressions where expert evidence explains the significance of different noise limits. Failure to follow Circular 11/95 guidance on personal conditions is not automatically unlawful. A condition personal to a company may be undesirable or ineffective, but it does not invalidate the permission where other conditions control the use and the personal element does not go to the permission’s root.

ENCON sought judicial review of the respondent council’s retrospective planning permission for a performance motor sport circuit and related rally-course use at an airfield. The principal objection concerned noise. The permission imposed a maximum peak limit and a five-minute average noise limit, together with a condition restricting the use to Vision Motor Sport Limited for five years.

The Administrative Court, presided over by Sir Michael Harrison, dismissed the claim: [2008] EWHC 3275 (Admin). ENCON appealed, arguing that the planning committee had assessed noise by reference to its site visits without appreciating that the permission allowed higher levels, and had failed to consider guidance against personal permissions to companies. The central issues were whether the committee had taken relevant noise considerations into account and whether the personal element of the condition was unlawful.

1. Appeal dismissed. Sullivan LJ gave the leading judgment. Lloyd LJ and Sedley LJ agreed.
2. On the noise ground, the court assessed the committee’s notes as a whole. Members were entitled to take account of their impressions from site visits, but those impressions formed only part of the evidence. The Sharps Redmore report explained the distinction between peak LAMAX levels, relevant particularly to audibility, and the calculated five-minute LAeq level. It also explained why the average limit operated as an additional safeguard against prolonged periods of the noisiest cars being driven at high levels.
3. The committee had been told that the peak limit of 83 dB had been achieved during the visits and was reminded of the reasoning for the 75 dB LAeq limit. The court therefore refused to infer from members’ references to hearing little or no noise that they had failed to appreciate that the permission could permit higher noise than the particular mix of vehicles observed. There was no error of law.
4. On the condition restricting the use to Vision Motor Sport Limited, Circular 11/95 was guidance on good practice, not an enactment. Its advice that a permission personal to a company is inappropriate did not make such a condition automatically unlawful, nor did failure to follow the advice necessarily invalidate the permission.
5. A personal condition might be unlawful if it were the sole or substantial means of controlling the permitted use. Here, numerous other conditions controlled vehicle numbers, operating days and hours, noise, prohibited activities and the duration of the permission. The personal element was at most unnecessary surplusage. The essential purpose of condition 7 was the temporary five-year permission, consistent with paragraph 111 of the circular. Even if the personal element were unlawful, it did not go to the root of the permission and could not invalidate the grant as a whole.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the dismissal of the judicial review claim.
2. Queen’s Bench Division, Administrative Court: Sir Michael Harrison, sitting as a Deputy Judge, dismissed the claim for judicial review of the planning permission: [2008] EWHC 3275 (Admin).