Planning Court rejects statutory review challenge over permission for motocross site in Wales

The case was brought in the High Court by John Kerr, who lives near to the track at Rhydblawd Farm, Builth Wells, after an inspector appointed by Welsh Ministers overturned the rejection by Powys County Council of an application by site operators Nightfly and Philip Wilding.

This turned on the content of a certificate of lawful existing use or development (CLEUD) issued in 1999, which permitted motocross events subject to various restrictions.

His Honour Judge Keyser KC, sitting as a judge of the High Court, heard Mr Kerr sought a statutory review under section 288 of the Town and Country Planning Act 1990 of the inspector’s decision to allow the appeal of Nightfly and Mr Wilding against Powys’s refusal to grant outline planning permission for motocross activities and the erection of a site building, seven log cabins for holiday use and various amenities and infrastructure.

Mr Kerr challenged the inspector’s decision on what the judge called “three closely related grounds”.

These were that the inspector erred in law in concluding that information describing a lawful use in a CLEUD may not be incorporated by reference, and that certain letters issued in December 1998 were not "details accompanying the application" and so the inspector’s decision was Wednesbury unreasonable.

The third was that the inspector failed to take account of a material consideration of the baseline against which the appeal fell to be determined.

HHJ Keyser heard Nightfly and Mr Wilding applied in 2022 for planning permission.

After the case reached planning inspector AL McCooey he allowed the appeal and noted in his decision letter that Powys’s interpretation of documents issued in the 1990s “would require a prospective purchaser of the land to obtain the file and carefully examine its contents in an effort to consider which other letters were of relevance to the [CLEUD]. This does not accord with the relevant caselaw”.

Mr McCooey said there was no limitation on the numbers of motorcycles in the CLEUD, which was where any such limitations must be set out.

He went on to note that Powys claimed information submitted in support of the CLEUD application specified that the three motorcycle scrambling events may be for a duration of three days maximum.

“I can find no support for this contention in the certificate or the application or the agent's replies referred to above,” Mr McCooey found. "There is no readily accessible information on either the duration or the number of motorcycles that take part in the events. And as in the reference to practice sessions on Sundays there are no restrictions on the hours of operation of the events.”

HHJ Keyser said the real issue before him was whether Mr McCooey was right to conclude that the CLEUD did not impose any restriction on the number of motorcycles that might lawfully be used on the site, which was a question of the correct construction of the CLEUD and a matter of law.

The judge said the first ground - that the inspector erred in law - “does not have independent significance, because the complaint, even if valid, goes nowhere if the inspector reached the correct conclusion that the CLEUD did not impose any restriction on the number of motorcycles. In fact, I do not think that the criticism in ground 1 is fair.”

Mr McCooey had been “properly mindful of the importance, emphasised by the Welsh Office Circular, of setting out restrictions on use clearly and precisely”.

The judge said: ”Insofar as the claimant's contention might possibly have some specious attraction (although I do not see it), it could only derive from reading the tailpiece ('in accordance with details accompanying the application and in the information given on the application form’) with a blinkered fixation on the restriction that is the focus of interest.”

HHJ Keyser said he agreed with Mr McCooey that the CLEUD did not contain any restriction on the number of motorcycles, and cited 10 reasons to support this conclusion.

These included that “the CLEUD does not on its face provide for any restriction on the number of motorcycles”, and that Mr McCooey’s opinion that the contents of letters sent at the time of the CLEUD were not 'details accompanying the application’, “far from being Wednesbury unreasonable, was clearly correct”.

Mark Smulian