Court upholds Council’s refusal to take enforcement action where there was limited information about the character of a former coal yard use
Planning & environment, Public law & judicial review, Local government
The High Court has dismissed a challenge to Vale of White Horse District Council’s decision not to take enforcement action against the unauthorised use of a former coal yard in Radley, Abingdon.
The judgment:
- Confirms that the correct approach to assessing the materiality of a change of use is to consider the character and impacts of the activities taking place ‘before’ and ‘after’.
- Confirms that the precision that can be obtained about the character and impacts of the baseline lawful use may be limited, and that the Tameside duty to carry out sufficient enquiries did not require new surveys or modelling to be commissioned in order to fill in gaps in the evidence.
- Emphasises the breadth of the discretion available to local authorities in deciding whether to take enforcement action.
The coal yard had been operational with express planning permission since the late 1950s but that use had ceased in around 2009. The site had then been used for a range of activities without express permission.
Enforcement notice
The County Council issued an enforcement notice against the skip hire and waste processing activity that was taking place, but this was overturned on appeal due to the failure to identify the wider mixed use of the site, which also included a concrete mixing business and various storage and distribution uses. The Claimant then sought to persuade Vale of White Horse DC to take enforcement action against that wider mixed use.
The Council correctly applied the approach set out in Westminster City Council v British Waterway Board [1985] AC 676 and Hertfordshire County Council v Secretary of State [2012] EWCA Civ 1473 to identify the activities involved in the lawful coal yard use and the unauthorised mixed use and assess their respective character and impacts. A central issue in undertaking that exercise was the absence of surviving evidence of the specific impacts of the coal yard use, given it had ceased approximately 17 years ago and the intensity of use would have varied over its 50+ year lifetime.
Gaps in evidence
The Court has confirmed that, faced with such ‘gaps’ in evidence, the Council was not obliged to commission new modelling or surveys to obtain better evidence of the impacts of a ‘typical’ coal yard use. The precision that could be obtained about the ‘before’/baseline situation might be limited. The judge stated that “What is required is that the authority considering enforcement action asks the right questions and applies their mind to what the evidence shows in assessing whether there has been a breach of planning control”.
The judgement is available here.
Emma Dring of Cornerstone Barristers acted for the Vale of White Horse District Council in this matter, instructed by Vivien Williams.
