Atkins & Ors v Tandridge City Council

Existing lawful planning use is not lost merely because works improve or enhance the activity. A new chapter in planning history arises only where the change is sufficiently radical to amount to a material change of use or creation of a new planning unit. Whether that has occurred is a question of fact and degree.

In Green Belt cases, very special circumstances require the harm by reason of inappropriate development and any other harm to be clearly outweighed by other considerations. The decision-maker must address that policy balance, but need not resolve every technical dispute or impose every potentially available control. The court must not re-strike a lawful planning judgment.

The claimants sought judicial review in two related applications concerning a motocross circuit operated near their homes. The first challenge concerned the council’s refusal to enforce against engineering works which altered the track. The second challenged planning permission for a landscaped noise attenuation bund and associated use of additional land.

The claimants argued that the works had extinguished the existing lawful use recorded by a certificate of lawfulness and that the council had irrationally concluded that very special circumstances clearly outweighed Green Belt and other harm. The central issues were whether the lawful use remained available and whether the grant of permission was legally defensible.

1. JR1 dismissed. The council had accepted that the enforcement report overstated the precision required for remedial steps in an enforcement notice. That error did not determine the legality of its overall decision, because the expediency of enforcement remained a planning judgment.
2. The council was entitled to treat the physical works as connected with the existing motocross use and to conclude that enforcement was disproportionate. The correct question was whether the works created an intensification amounting to a material change of use or a new chapter in planning history. Applying Jennings Motors v Secretary of State [1982] JPL 181, that was a question of fact and degree. The works enhanced the quality and attractiveness of the existing activity but did not radically alter it or intensify it sufficiently to create a new use.
3. JR2 dismissed. The planning application was properly considered on the basis that the majority of the site had an existing lawful motocross use. The Green Belt issue was governed by paragraph 88 of the NPPF. Very special circumstances required the harm from inappropriate development and harm to openness to be clearly outweighed.
4. The members were entitled to conclude that the bund would improve amenity by reducing noise, bring the use under planning control and impose restrictions on operation. They were not required to undertake the same forensic analysis of the technical noise evidence as the parties’ experts. The existence of stricter or more precise conditions which might have been imposed did not make the chosen controls irrational.
5. The reasons were sufficiently clear from the council’s referral letter. The court’s role was to assess legality and rationality, not to re-strike the planning balance. The detailed technical noise issues remained open for determination in the separate proceedings concerning the noise abatement notice.