Huang Binbin, R (on the application of) v Vale of White Horse District Council & Ors

A planning authority assessing whether a mixed use amounts to a material change must identify the character of the established lawful use and compare it with the activities and effects of the current use. The comparison is one of fact and degree. It may take account of off-site impacts, intensity, available records, site observations and reasonable evaluative assumptions where historic evidence is incomplete.

A decision not to enforce attracts a wide margin of discretion and is reviewable only on ordinary public-law grounds. The authority must ask the right questions and make reasonable enquiries, but need not obtain unobtainable precision or commission further surveys merely because they might be desirable. The authority may conduct its own planning assessment rather than adopt another public body’s assessment.

The claimant sought judicial review of the defendant local planning authority’s decision not to take enforcement action concerning a site formerly used as a coal yard. The site was being used for a combination of concrete mixing, waste management, vehicle and trailer storage, storage and distribution businesses, and mowing-equipment storage.

The claim raised two issues: whether the current mixed use constituted a material change of use from the last established lawful coal-yard use, and whether the authority lawfully decided that enforcement was not expedient under section 172(1)(b) of the Town and Country Planning Act 1990. The claimant challenged the sufficiency of the authority’s comparison, its treatment of evidence concerning processing and traffic, its response to the waste authority’s views, the extent of its enquiries and its treatment of possible planning conditions.

1. Outcome. The judicial review claim was dismissed. Both grounds of challenge failed.
2. Material change of use. The authority lawfully identified the character of the former coal-yard use and the present mixed use. It considered open storage and distribution, vehicle movements, loading and unloading, processing, ancillary activities, intensity and off-site effects. The assessment was properly directed to whether the definable character of the use had materially changed.
3. The report had to be read fairly and as a whole. It was not appropriate to isolate the broad descriptions in particular paragraphs or read the report linearly. The authority was entitled to use aerial photographs, historic material, planning contravention notice responses, the enforcement appeal evidence, drone footage and a site visit. The limited evidence concerning the former use did not make the decision unlawful. The statute required a realistic assessment rather than unobtainable precision.
4. The authority was entitled to assess the whole mixed use rather than focus only on the waste operation. It was also entitled to undertake its own planning assessment and was not required to give the waste authority’s enforcement-appeal assessment enhanced status. The two bodies had considered different alleged breaches and different planning units.
5. Differences of opinion about the evidence did not establish an error of fact. The authority had a lawful evidential basis for concluding that there was no demonstrated increase in traffic movements or planning harm compared with the former coal-yard use.
6. Extent of enquiries. The authority was required to make reasonable enquiries, judged by a Wednesbury standard. It was not required to commission new surveys or modelling where it had assembled information from multiple sources and a reasonable authority could be satisfied that it possessed sufficient information.
7. Expediency. The decision whether to enforce involved a wide statutory discretion. The conclusion that enforcement was not expedient because the current use was not shown to be more harmful than the lawful former use was lawfully open to the authority. The possibility of imposing conditions did not require enforcement where the authority was not satisfied that additional planning harm existed. The absence of a separate discussion of operating hours was not irrational, given the absence of hours restrictions on the former use and the parallel pollution-control protection.