John Kerr v Welsh Ministers & Ors

This is the application of Mr John Kerr (“the claimant”) for statutory review under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) of the decision dated 18 August 2025 (“the Decision”) of an inspector (“the Inspector”) appointed by the Welsh Ministers (“the first defendant”) to allow the appeal of Nightfly Limited and Mr Philip Wilding (“the third and fourth defendants”) against the refusal of Powys County Council (“the second defendant”) to grant outline planning permission for the following development at certain land at Rhydblawd Farm, Disserth, Builth Wells, Powys (“the Site”):

“Use of the site for motocross activities including use of existing scramble track; erection of a building for use as a Motocross Experience Centre with associated parking area; GRP equipment cabinet; siting of 7 no. log cabins for holiday use with access tracks; installation of 2 no. foul water receptacles & associated infrastructure; improvements to existing roadways & improvements to 2 no. highway entrances; formation of passing bay; 4 new bridges to replace existing and 1 new bridge over ford together with all associated works”.

The claimant, who lives near the Site and has a legitimate interest in the Inspector’s Decision, advances three closely related grounds of challenge to the Decision:

Permission on all three grounds was granted by His Honour Judge Jarman KC, sitting as a judge of the High Court, on 17 December 2025.

On 19 October 1998 the person who then owned the Site applied to the second defendant for a CLEUD in respect of an existing use (“the CLEUD Application”). In section 6 of the application form the existing use was described as follows: “Existing farmland with occassional [sic] (weekly) use for motocross – practice and events”. In section 7, in answer to the question “When was the use or activity begun …?”, the answer given was: “Events started 1985 with practice prior to the date. See enclosed list of events.” Section 10 of the application form requested, “Give any additional information you consider necessary to substantiate your claim”; in response there was written: “by letter”. Section 11 requested, “List here all the documents, drawings or plans which accompany this application”; in response was written:

“Letters (2)

Maps (4)

Paper cuttings (4)

Statements (49)”.

Section 12 of the application form was a declaration in the following terms:

“I/we hereby apply for a lawful use or development certificate under section 191 of the Town and Country Planning Act 1990 in respect of the existing use, operation or activity described in this application and the documents, drawings and plans which accompany it”.

The CLEUD Application was submitted by the applicant’s agent, an executive officer of the Farmers’ Union of Wales, under cover of a letter dated 14 October 1998. The letter listed as enclosures:

“Letters 2

Maps 4

Paper cuttings 4

Statements 43

Application Form”.

The letters and statements evidenced the use of the Site for practice and events. They said nothing about the number of motorcycles at practices or events.

Between the date of submission of the CLEUD Application and the issue of the CLEUD, numerous additional letters and statements in support of the application were sent to the second defendant.

The second defendant acknowledged receipt of the CLEUD Application by letter dated 21 October 1998 and thereafter requested and held a meeting with the applicant. On 11 November 1998 it wrote to the applicant’s agent requesting confirmation that the list of events that it had compiled from the supporting evidence was correct (there was also a request for information about possible changes to the line of the scrambling track). That request was clarified in a further letter dated 20 November 1998.

A further request was made in a letter from the second defendant to the applicant’s agent on 8 December 1998, which read in material part:

“Further to our telephone conversation on the 2nd December I am forwarding this letter to request additional information and clarification of issues regarding the above application for a Certificate of Lawfulness. In order to identify exactly the extent of the scrambling track I would be obliged if you forward a detailed map of the scrambling track.

A further point of clarification is required which is fundamental to the overall determination of the application, i.e. what exactly is your client applying for in terms of intensity. The submitted application form indicates that the application site is farmland with occasional use for motorcross and practice events. However a covering letter from the applicant indicates that he is applying for Wednesday and Sunday afternoon. Clearly the Planning Department can only issue a Certificate of Lawfulness on the basis of the use being sought. Consequently, therefore there is a need to clarify what exactly does the applicant wish to be considered for the Certificate by means of the intensity of use of the site. This should if applicable, differentiate the number of practice days sought and number and duration of events. I have listed the following questions which need to be addressed.

…

5.

The precise details of what your client is applying for? This should be defined in terms of the actual number of events, times of practice, number of practice sessions requested, maximum numbers of bikes on the track at an[y] one time?”

By letter dated 23 December 1998 the applicant’s agent responded to the second defendant’s enquiries. The relevant part of the response is as follows.

“Question 5: Mr Morris is applying for the right to continue using the track for trial/enduro and practice schools.

Number of events, maximum number of events in the past has been seven.

Number of bikes depends on entries (as in any other sphere of sport or show).

Times of practice Wednesday afternoons and Sundays.

As already stated in a letter from R. Morris (copy enclosed).

The application form also makes reference i.e. occasional (weekly).

Maximum number of bikes on the track at any one time 10/12.”

I shall refer to the letters of 8 December and 23 December 1998 as “the December Letters”.

There was one further material exchange of correspondence, although it said nothing concerning the number of motorcycles. On 2 February 1999 the second defendant wrote to the applicant’s agent regarding “the scope of the material points before the Authority and also the nature of any decision made.” Parts of the letter read as follows:

“… In terms of the contents of [a CLEUD], part 22 of [Welsh Office Circular 88/92] indicates that it is vital for the Certificate to indicate precisely the area of land to which it relates and precise details of what use are [sic] found to be lawful. It further indicates ‘it will be important for it to state the limits of the use at a particular date.’ These limitations will then be used as a yardstick for the Authority to monitor activities later to look at whether an intensification occurs which would merit a planning application.

The reason for indicating the above is that the evidence which has been presented so far in my view supports the Certificate in the context of the practice days on Wednesday afternoons and Sundays. The information from both individuals and clubs as to their frequent use for practice and general recreation would on the balance of probability support the issue of a Certificate in that respect.

The critical issue here relates to precisely what you are applying for in terms of the number of events. … [T]he use of that land over the last ten years can only be seen as having one organised event/competition [a year] and my view is that unless you have further information about other events/competitions, then a Certificate could not be issued for in excess of the two practice days requested together with one event.

Should you be applying for seven events then my view is that the Certificate would have to be refused as there is not sufficient evidence presently to support that number. I therefore see you having two options, one of amending the number of events applied for to one, or submitting further details from organisations of actual events having occurred.”

The applicant’s agent replied on 12 March 1999, enclosing “correspondence that make [sic] reference to events held on the above land over the period requested” and expressing the hope that the CLEUD could now be issued.

The second defendant issued the CLEUD on 25 March 1999. The following parts of the CLEUD are relevant for present purposes:

“The POWYS COUNTY COUNCIL (RADNORSHIRE) hereby certify that on 25th March, 1999 the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto and outlined in red on the plan attached to this certificate, was lawful within the meaning of section 191 of the Town and Country Planning Act 1990 (as amended), for the following reason:

The application is to establish whether the use of land as a motorcycle scramble track was lawful for use for practising on Sunday and Wednesday afternoons and for three motorcycle scrambling events per annum. …

… In this instance, the overwhelming evidence is that regular practice sessions have occurred and the applicant has supplied information that 3 organised events have occurred annually over the last 10 years.

Therefore, on the balance of probability the use of the site for practices on Sunday and Wednesday afternoons is immune from enforcement action and therefore would be lawful under Section 191 of the Town and Country Planning Act 1990 and also on the information presented on the balance of probability the use of the site for 3 organised events per annum would also be immune from action and hence lawful by virtue of Section 191 of the Town and Country Planning Act 1990.”

The Notes to the CLEUD included:

“3.

This certificate applies only to the extent of the use described in the First Schedule and to the land specified in the Second Schedule and identified on the attached plan. Any use which is materially different from that described or which relates to other land may render the owner or occupier liable to enforcement action.”

The First Schedule to the CLEUD was in the following terms:

“The use of land at [the Site] for motorcycle scrambling practice sessions on Sunday and Wednesday afternoons and the staging of 3 motorcycle scrambling events per annum in accordance with details accompanying the application and in the information given on the application form”.

The third and fourth defendants made their application for planning permission on 15 July 2022. The terms of the proposed development are set out in paragraph 1 above. The second defendant refused the application by notice dated 20 July 2023.

The third and fourth defendants appealed against the refusal under section 78 of the 1990 Act. The first defendant appointed an Inspector, Mr A. L. McCooey, to determine the appeal. He held an inquiry from 7 to 11 April and on 29 April 2025 and made a site visit on 11 April 2025. By the Decision, dated 18 August 2025, he allowed the appeal and granted planning permission for the proposed use.

In the section headed “Procedural Matters and Background”, the Decision read:

“2.

The site contains an existing motorbike scrambling track, which has operated for some years. There is an extant Lawful Development Certificate (LDC) for this use, which allows for use of the land for motorcycle scrambling sessions on Wednesday afternoons and Sundays and the staging of three motorcycle scrambling events per annum in accordance with details accompanying the application and in the information given on the application form. It was common ground that afternoon means from 12 noon until daylight ends.

…

9.

The proposal involves use of the track as per the LDC subject to controls on hours and that one of the three events would be all-electric motorbikes. The additional use on other days would be for electric motorbike experience days between the hours of 10:00 to 12:00 and 14:00 to 16:00. There would be up to 10 visitors on electric motorbikes and 2 instructors on petrol motorbikes. Full details of the proposed use in terms of hours of operation and type/number of motorcycles are set out in Annex 1.”

The Inspector identified the main issues in paragraph 11 of the Decision. The first of these was

“The claimed fall-back position with regard to the existing use of the site in the context of the granted Lawful Development Certificate for motorcycle scrambling practice sessions and events ref: PR547.00;”

In paragraphs 12 to 22 of the Decision the Inspector set out his reasoning and conclusions on the fall-back position. I set out here extended extracts from those paragraphs.

“14.

Welsh Office Circular 24/97 Enforcing Planning Control Legislative Provisions and Procedural Requirements … elaborates and provides guidance on Section 191(5). It explains that the terms of a LDC must be precisely drafted in all respects and state the limits of the use as a point of reference against which any subsequent change may be assessed. It is therefore important to include such limits in the description of the use.

15.

Broxbourne BC v Secretary of State for the Environment [1980] QB 1 is the relevant caselaw cited by the appellant. The findings of this judgement support the need for planning authorities to exercise great care concerning the terms of established use certificates (predecessors to LDCs) which they issue and ensure that the use is expressly limited to the precise use in question. The points made in this judgement are of equal relevance to LDCs.

16.

The Council claims that the phrase ‘in accordance with details accompanying the application and in the information given on the application form’ imposes some additional limitations on the LDC. Most importantly in this regard, reference is made to a letter from the Council dated 8 December 1998 and the Agent’s reply of 23 December. The answers to the queries raised include an indication of the maximum number of motorcycles on the track at any one time as 10/12. I do not dispute that this letter sought additional information and clarification. However, upon receipt of this letter only some of the information was included in the First Schedule of the LDC i.e. use of the site for practice sessions on Sunday and Wednesday afternoons and the staging of 3 motorcycle scrambling events per annum. The agent’s response of 23 December 1998 is not information given on the application form or details accompanying the application, which was submitted in October 1998. The Council’s interpretation 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 LDC. This does not accord with the relevant caselaw.

17.

There is no limitation on the numbers of motorcycles in the LDC itself (or on the form or accompanying information). To my mind, the statute and guidance are clear: the LDC itself must clearly set out any limitations. Reliance on a rather vague ‘tailpiece’ on its own would not suffice. If all this information was considered to be important it should have been added to First Schedule which describes the use. It is of note that some information was added, but nothing was specified in terms of any numbers of motorcycles. This would have been a straightforward and brief addition to the First Schedule. Also of note is the fact that there are no references to numbers of motorcycles in either the reasons for issuing the Certificate or the officer report that considers the application.

18.

The LPA claim that information submitted in support of the LDC application specified that the three motorcycle scrambling events may be for a duration of 3 days maximum. I can find no support for this contention in the certificate or the application or the agent’s replies referred to above. 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.

19.

The LPA also treats the alleged restriction on numbers as an absolute number. The specified limits on an LDC are not legally equivalent to a planning condition or limitation. As noted in circular 24/97, they are a point of reference against which any subsequent change can be assessed. Any future change would have to be considered against the benchmark to conclude whether a material change of use had occurred. Any increase in the numbers of motorcycles would have to be considered and a judgement made as to whether a material change of use as a result of intensification had resulted.

20.

I therefore conclude that the use is as specified on the LDC itself with no restrictions on the numbers of motorcycles that may be used. …

21.

Having concluded on the interpretation of the LDC, I turn to the fallback position. I note the caselaw referred to by the appellant’s Counsel in which the various legal authorities related to real prospect of a fallback position. The courts have defined a real prospect of a fallback development as the antithesis of one that is merely theoretical. The basic principle is that for a prospect to be a real prospect it does not have to be probable or likely: a possibility would suffice. The role of planning judgement is critical.

22.

In this case there is a conclusive presumption of the lawfulness of the existing use as defined in the LDC and assessed above. The appellant owns the site and has invested in the business. There is a stated intention to operate from the site within the parameters of the LDC were this appeal to fail. I conclude that there is a real prospect of a fallback development taking place in these circumstances and therefore this represents the baseline against which the proposal must be assessed.”

After discussing the other issues that fell to be considered, the Inspector set out his Conclusion as follows:

“67.

Having assessed the proposal on the basis of the evidence in the context of the existing LDC, I conclude that the proposal would comply with the development plan overall and would comply with Planning Policy Wales, TAN 5, Tan 11, Tan 18 and other relevant national policy and guidance. I therefore conclude that the planning permission should be granted subject to the conditions set out in the attached annex. I accord the benefits of the proposal and the completed planning obligation weight in reaching this decision.

68.

In reaching my decision, I have taken into account the requirements of sections 3 and 5 of the Well-Being of Future Generations (Wales) Act 2015. I consider that this decision is in accordance with the Act’s sustainable development principle through its contribution towards one or more of the Welsh Ministers’ well-being objectives.”

Section 191 of the 1990 Act provides in part:

“(1)

If any person wishes to ascertain whether—

(a)

any existing use of buildings or other land is lawful;

…

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

…

(4)

If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(5)

A certificate under this section shall—

(a)

specify the land to which it relates;

(b)

describe the use, operations or other matter in question …;

(c)

give the reasons for determining the use, operations or other matter to be lawful; and

(d)

specify the date of the application for the certificate.

(6)

The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”

Section 193 provides in material part as follows.

“(4)

A certificate under either [section 191 or section 192] may be issued—

(a)

for the whole or part of the land specified in the application; and

(b)

where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them;

and shall be in such form as may be prescribed by a development order.

…

(6)

In section 69 references to applications for planning permission shall include references to applications for certificates under section 191 or 192.”

Section 69 of the 1990 Act, as amended, makes provision in respect of the register of applications.

“(1)

The local planning authority must keep a register containing such information as is prescribed as to–

(a)

applications for planning permission;

(aza)

applications for permission in principle;

(aa)

applications for non-material changes to planning permission under section 96A;

(c)

local development orders;

(cza)

Mayoral development orders;

(ca)

neighbourhood planning matters;

(d)

simplified planning zone schemes;

(e)

applications for approval of biodiversity gain plans under Part 2 of Schedule 7A.

(2)

The register must contain–

(a)

information as to the manner in which applications mentioned in subsection (1)(a), (aa), (aza) and (e) and requests mentioned in subsection (1)(b) have been dealt with; …

…

(5)

A development order may also make provision –

(a)

for a specified part of the register to contain copies of applications or requests and of any other documents or material submitted with them; …”

The “development order” mentioned in section 193(4) was, at the time of the issue of the CLEUD, The Town and Country Planning (General Development Procedure) Order 1995 (“the 1995 Order”). Counsel referred me to the text of its successor in Wales, The Town and Country Planning (Development Management Procedure) (Wales) (Order) 2012 (“the 2012 Order”).

In the 1995 Order, Article 24 makes provision in respect of CLEUDs and reads in material part as follows:

“(1)

An application for a certificate under section 191(1) or 192(1) of the Act (certificates of lawfulness of existing or proposed use or development) shall be in writing and shall, in addition to specifying the land and describing the use, operations or other matter in question in accordance with those sections, include the following information—

(a)

the paragraph of section 191(1) or, as the case may be, section 192(1), under which the application is made;

(b)

in the case of an application under section 191(1), the date on which the use, operations or other matter began or, in the case of operations carried out without planning permission, the date on which the operations were substantially completed;

(c)

in the case of an application under section 191(1)(a), the name of any use class specified in an order under section 55(2)(f) of the Act (meaning of ‘development’) which the applicant considers applicable to the use existing at the date of the application;

…

(f)

the applicant’s reasons, if any, for regarding the use, operations or other matter described in the application as lawful; and

(g)

such other information as the applicant considers to be relevant to the application.

(2)

An application to which paragraph (1) applies shall be accompanied by—

(a)

a plan identifying the land to which the application relates;

(b)

such evidence verifying the information included in the application as the applicant can provide; and

(c)

a statement setting out the applicant’s interest in the land, the name and address of any other person known to the applicant to have an interest in the land and whether any such other person has been notified of the application.

…

(7)

The local planning authority may by notice in writing require the applicant to provide such further information as may be specified to enable them to deal with the application.

…

(11)

A certificate under section 191 or 192 of the Act shall be in the form set out in Schedule 4, or in a form substantially to the like effect.”

Schedule 4 to the 1995 Order contained a specimen form, which was adopted by the second defendant when it issued the CLEUD in respect of the Site. Note (d) to the form stipulated the insertion in the First Schedule to the CLEUD of “full description of use, operations or other matter, if necessary, by reference to details in the application or submitted plans …”

In the 2012 Order, Article 28 and Schedule 7 reproduce in materially identical terms the provisions of Article 24 and Schedule 4 of the 1995 Order.

The provisions of the 1995 Order relating to the register of applications (section 69) were contained in Article 25. For convenience, I set out only the corresponding provisions in Article 29 of the 2012 Order, where the wording is only slightly different.

“(1)

Each local planning authority must keep a register in three Parts of every application for planning permission and every local development order (if any) relating to their area.

…

(9)

The register must also contain the following information in respect of every application for a certificate under section 191 or 192 of the 1990 Act (certificates of lawfulness of existing or proposed use or development) relating to the local planning authority's area—

(a)

the name and address of the applicant;

(b)

the date of the application;

(c)

the address or location of the land to which the application relates;

(d)

the description of the use, operations or other matter included in the application;

(e)

the decision, if any, of the local planning authority in respect of the application and the date of such decision; and

(f)

the reference number, date and effect of any decision of the Welsh Ministers on an appeal in respect of the application.”

Welsh Office Circular 24/97, Enforcing Planning Control: Legislative Provisions and Procedural Requirements, contains guidance relating to the form and content of lawful development certificates. Annex 8, paragraph 8.16, was referred to by the Inspector and reads:

“Subsection (5) of section 191 provides for certain matters a LDC must contain. The LDC is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site-plan); precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when. For example, if a certificate is for a use of land - unless the use falls within one of the ‘use classes’ specified in the UCO current at the time, or the certificate is granted on the basis that a specific grant of planning permission confers lawfulness on the use - it is important for it to state the limits of the use at a particular date. These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date, against which any subsequent change may be assessed. If the use subsequently intensifies, or changes in some way to the point where a ‘material’ change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A LDC must therefore be precisely drafted in all respects. (See also 8.11 about the need for applications to be specific.)”

That guidance reflects the “moral” expressed by Robert Goff J, with whose judgment Lord Widgery CJ and Kilner Brown J agreed, in Broxbourne Borough Council v Secretary of State for the Environment [1980 QB 1, 11:

“[P]lanning authorities should exercise great care concerning the terms of established use certificates which they issue. If a certificate is not drawn with care and expressly limited to the precise use in question, then its issue can lead to the consequence that the authority may, through its own act, find itself thereafter precluded from preventing a use for which planning permission would not have been granted simply because the certificate had been issued in terms wider than were necessary.”

A number of cases have considered the general principles of construction relevant to planning documents. It is convenient to begin with R v Ashford Borough Council, ex p. Shepway District Council [199] PLCR 12, where Keene J was concerned with a grant of outline planning permission. He said at page 19 (his fifth principle is not relevant for present purposes):

“The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:

(1)

The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough BoroughCouncil v. Secretary of State for the Environment (1995) J.P.L. 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 Q.B. 196.

(2)

This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v. Secretary of State (ante); Wilson v. West Sussex County Council [1963] 2 Q.B. 764; and SloughEstates Limited v. Slough Borough Council [1971] A.C. 958.

(3)

For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ‘... in accordance with the plans and application ...’ or ‘... on the terms of the application ...’, and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough BoroughCouncilv. Secretary of State for the Environment (ante).

(4)

If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v. Cartwright (1992) J.P.L. 138 at 139; Slough Estates Limited v. SloughBorough Council (ante); Creighton Estates Limited v. London CountyCouncil, The Times, March 20, 1958.”

In Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476 the Court of Appeal made clear that what was said in Ashford required modification in respect of the construction of a grant of full planning permission, because such a permission did not purport to be a complete and self-contained description of the permitted development. At [20]-[21] the Court approved the following passage from the judgment of Sullivan J at first instance:

“23.

… In the Ashford case Keene J was considering the proper interpretation of an outline planning permission. The issue was whether, in construing that planning permission, regard could be had to a letter which had been included in an environmental statement that had accompanied the application for planning permission. The reason given for normally not having regard to the application is that ‘the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application. (see principle (2))

24.

If it is plain on the face of the permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an ‘ambiguity’. On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.”

The Supreme Court considered the principles applicable to the construction of public documents in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85, which concerned a consent under section 36 of the Electricity Act 1989. Lord Hodge, with whom the other Justices agreed, said:

“33.

Whether words are to be implied into a document depends on the interpretation of the words which the author or authors have used. The first question therefore is how to interpret the express words, in this case the section 36 consent. There is a modern tendency in the law to break down divisions in the rules on the interpretation of different kinds of document, both private and public, and to look for more general rules on how to ascertain the meaning of words. In particular, there has been a harmonisation of the interpretation of contracts, unilateral notices, patents and also testamentary documents. This can be seen, for example, in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 per Lord Clarke at paras 14 to 23 (contracts), Mannai Investment Co Ltd v Eagle StarLife Assurance Co Ltd [1997] AC 749 per Lord Steyn at pp 770C-771D and Lord Hoffmann at pp 779H-780F (unilateral notices), Kirin-Amgen Incv Hoechst Marion Roussel Ltd [2005] 1 All ER 667, per Lord Hoffmann at paras 27 to 35 (patents), and Marley v Rawlings [2015] AC 129, per Lord Neuberger at paras 18-23 (testamentary documents). Differences in the nature of documents will influence the extent to which the court may look at the factual background to assist interpretation. Thus third parties may have an interest in a public document, such as a planning permission or a consent under section 36 of the 1989 Act, in contrast with many contracts. As a result, the shared knowledge of the applicant for permission and the drafter of the condition does not have the relevance to the process of interpretation that the shared knowledge of parties to a contract, in which there may be no third party interest, has. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission or a section 36 consent: R v Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12, per Keene J at pp 19C-20B; CarterCommercial Developments Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994, [2003] JPL 1048, per Buxton LJ at para 13, at para 27 per Arden LJ. It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability. In section 36(6) of the 1989 Act the construction of a generating station otherwise than in accordance with the consent is a criminal offence. This calls for clarity and precision in the drafting of conditions.

34.

When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”

In his concurring judgment in Trump International, Lord Carnwath said:

“66.

[I]n agreement also with Lord Hodge, I do not think it is right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents. As has been seen, that was not how it was regarded by Lord Denning in Fawcett. Any such document of course must be interpreted in its particular legal and factual context. One aspect of that context is that a planning permission is a public document which may be relied on by parties unrelated to those originally involved. (Similar considerations may apply to other forms of legal document, for example leases which may need to be interpreted many years, or decades, after the original parties have disappeared or ceased to have any interest.) It must also be borne in mind that planning conditions may be used to support criminal proceedings. Those are good reasons for a relatively cautious approach, for example in the well-established rules limiting the categories of documents which may be used in interpreting a planning permission (helpfully summarised in the judgment of Keene J in the Shepway case at pp 19-20). But such considerations arise from the legal framework within which planning permissions are granted. They do not require the adoption of a completely different approach to their interpretation.”

In Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317, Lord Carnwath, with whose judgment the other Justices agreed, remarked further on interpretation. Having referred to relevant passages in the judgments in Trump International, he concluded:

“19.

In summary, whatever the legal character of the document in question, the starting point and usually the end point is to find ‘the natural and ordinary meaning’ of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”

At [28] Lord Carnwath said that the Court of Appeal had been correct to say that a planning permission must be seen through the eyes of “the reasonable reader”; but he added that “such a reader should be assumed to start by taking the document at face value”.

The courts have confirmed that the foregoing principles of construction apply to CLEUDs. In Crewe and Nantwich Borough Council v Secretary of State for the Environment, Transport and Regions (4 August 2000, unreported) Robin Purchas QC, sitting as a deputy High Court judge, set out section 191(5) of the 1990 Act and continued:

“6.

Thus the certificate is determinative of the use or other development of land at the date specified in the certificate, that is the date of the relevant application. The courts have made it clear that the planning authority and the Secretary of State or his inspector on appeal should be precise in defining the use or other operations the subject of the certificate, (Broxbourne Borough Council v Secretary of State for the Environment [1979] 38 P&CR 381 per Robert Goff J (as he then was) at pages 390 and 391; Main v Secretary of State for the Environment [1998] 77 P&CR 300). Similar advice is also given in Annex 8 of Circular 10/97 paragraphs 8.16 and following.”

Accordingly, Mr Purchas QC rejected a submission that the approach to construing a lawful use certificate should be the same as that to construing a decision letter. He said:

“13.

… A decision letter satisfies the procedural requirement for the Secretary of State or his inspector to give reasons for his decision. A lawful use certificate is required under section 191 as a statement of lawful use rights over land. It would not in my judgment generally be appropriate to resort to the decision letter, let alone to evidence at the inquiry, to discover the meaning of the lawful use certificate. Thus, I agree with Mr Owen that the lawful use certificate should be construed on its face without reference to extraneous documents, including in this case the decision letter, unless they were expressly included as part of the certificate.”

For the application of the same principles to CLEUDs, see also Breckland District Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 292 (Admin), per Lang J at [30]-[33]. In Adams v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3076 (Admin), the same judge held that, “since a planning permission and conditions were expressly referenced in the certificate [of lawfulness for a proposed use or development, pursuant to section 192 of the 1990 Act], the Inspector was entitled to examine the planning permission as an aid to interpretation, in order to determine which was the extant permission and the relevant conditions”: see the discussion at [38]-[43].

As regards the interpretation of decisions of planning inspectors appointed by the government, it seems to me that the same principles are to be applied mutatis mutandis as apply to challenges to inspectors’ decisions under section 288 of the 1990 Act. Those principles were stated by Lindblom J in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), [2017] PTSR 1283, at [19] and approved by the Court of Appeal (Jackson, McCombe and Lindblom LJJ) in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746. For present purposes I need only refer to the first and second principles.

“(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’ (see the judgment of Forbes J. in Seddon Properties vSecretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).”

The three grounds of the present claim have been set out in paragraph 2 above. In the light of the facts set out above, it is apparent that the real issue concerns the question whether the Inspector 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. This is a question of the correct construction of the CLEUD and is accordingly a matter of law.

That being so, the first ground advanced on behalf of the claimant (that the Inspector misdirected himself that information describing a lawful use in a CLEUD may not be incorporated by reference) 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 Leader’s submission in respect of ground 1, as clarified in oral argument, was not that the Inspector wrongly thought that nothing could be incorporated by reference into a CLEUD; rather, it was that in paragraph 17 of the Decision the Inspector misdirected himself that limitations or restrictions could not be incorporated by reference but must be stated expressly on the face of the CLEUD. In my view, a fair and reasonable reading of the Decision does not lead to any such conclusion. The Decision was written with regard to the particular facts of the case. The Inspector was properly mindful of the importance, emphasised by the Welsh Office Circular, of setting out restrictions on use clearly and precisely. His conclusion was that the “tailpiece”—that is, the words “in accordance with details accompanying the application and in the information given on the application form”—was insufficient to incorporate a restriction on the number of motorcycles. I do not understand the Inspector to be setting out, or acting upon, any wider proposition of law.

As to the substantive issue in this case, I agree with the conclusion of the Inspector. In my judgment, the CLEUD did not contain any restriction on the number of motorcycles. This conclusion is supported by the following considerations, several of which are closely interrelated.

First, the CLEUD does not on its face provide for any restriction on the number of motorcycles.

Second, while I accept that in principle such a restriction could be included by means of incorporation by reference, such incorporation would need to be clear. This is important, most particularly because the user of land needs to be able to know with clarity and precision whether a particular use of land will contravene planning control.

Third, in my judgment, the Inspector’s opinion that the contents of the December Letters were not “details accompanying the application”, far from being Wednesbury unreasonable, was clearly correct. The CLEUD Application identified the documents, drawings and plans that accompanied the application: see paragraph 4 above. The December Letters and any new details they contained simply did not accompany the application. They came after it. The attempt by the claimant to extend the meaning of “accompany” and related words not only departs from their natural and ordinary meaning but would undermine the definiteness of sections 11 and 12 of the CLEUD Application form and make uncertain and ambiguous the scope of what was being referred to.

Fourth, the claimant’s case is open to the objection that, as the Inspector noted (paragraph 18 of the Decision), there is no “readily accessible information” regarding the number of motorcycles permitted at any one time and (paragraph 16 of the Decision) that, if the claimant’s case were right, a prospective purchaser of the Site would have to obtain the second defendant’s file itself and carefully examine its contents in an effort to work out which extraneous material was relevant to identifying the scope of the use certified as lawful.

Fifth, 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. As Miss Sargent observed on behalf of the first defendant, section 191(4) of the 1990 Act distinguishes between (i) the description of the use (whether as set out in the application or as modified or substituted by the local planning authority) and (ii) the information provided to satisfy the local planning authority of the lawfulness of that use. The letters and other documents mentioned in sections 10, 11 and 12 of the CLEUD Application were “information” comprising for the most part evidence that was submitted in order to satisfy the local planning authority of the lawfulness of the use described in the application—or, if the local planning authority considered it appropriate, of a use set out in a modified or substituted description. Therefore, even if the December Letters could be said to have accompanied the CLEUD Application, the claimant’s contention that a restriction on the number of motorcycles was incorporated by reference would mean one of two things: either all information in documents provided by or on behalf of the CLEUD applicant was incorporated by reference; or certain information in those documents would form part of the description of the lawful activity while other information would be supportive evidence only. The former alternative cannot be right, because most of the information is provided by way of evidence, not to constitute a description of the use for the purpose of the CLEUD. The latter alternative would mean that the correct interpretation of the CLEUD would require not only identification of the documents that might be said to have accompanied the CLEUD Application form, although they did not accompany it but were provided later, but also a judgement as to which parts of the documentation were incorporated into the description of the lawful use (whether as restrictions or otherwise) and which parts were not. This, of course, is in the context of the First Schedule specifying the number and frequency of sessions and events but saying nothing about the number of motorcycles.

Sixth, although Mr Leader submits that the information sought in the letter of 8 December 1998 was “fundamental” to the determination of the CLEUD Application, it clearly was not. If it had been, it would all have been set out in the First Schedule to the CLEUD—which, as the Inspector observed, would have been a straightforward matter. The question of what was fundamental to the determination of the CLEUD Application is to be answered by reference to the CLEUD, not to the terms of a letter.

Seventh, the claimant is not assisted by the fact that the letter of 8 December 1998 expressed “a need to clarify what exactly does the applicant wish to be considered for the Certificate by means of the intensity of use of the site” and asked that the “precise details” of what was being applied for “be defined in terms of … maximum numbers of bikes on the track at an[y] one time”. This is simply because, although perhaps the second defendant could have specified in the CLEUD a restriction on the number of motorcycles, it did not do so. As the Inspector correctly observed in paragraph 17 of the Decision,

“It is of note that some information was added, but nothing was specified in terms of any numbers of motorcycles. This would have been a straightforward and brief addition to the First Schedule. Also of note is the fact that there are no references to numbers of motorcycles in either the reasons for issuing the Certificate or the officer report that considers the application.”

If a restriction on the number of motorcycles would have been appropriate for inclusion in the CLEUD (and I say nothing as to whether or not it would have been appropriate), the proper response to its omission is not to attempt to shoehorn it in by means of the tailpiece but to have proper regard for the future to the importance of precision and specificity in CLEUDs, as counselled by the Welsh Office Circular and the Broxbourne case.

Eighth, to suppose that the letter of 23 December 1998 is incorporated into the description of the certified use would result in ambiguity. Thus the CLEUD refers to three scrambling events per annum, whereas the letter refers to a maximum number of seven events. More strikingly still, the letter gives the number of motorcycles on the track at any one time as “10/12”.

Ninth, the reasoning in the CLEUD does not support the claimant’s case. This, again, was a point noted by the Inspector. The focus is on the questions of when and how often the Site may lawfully be used for motorcycle scrambling. The reasoning says nothing about the number of motorcycles. See paragraph 12 above for examples of the consistent tenor of the CLEUD.

Tenth, Mr Leader submitted that the letter of 8 December 1998 must be a request under article 24(7) of the 1995 Order (article 28(9) of the 2012 Order) and was therefore a request to which section 69(5)(a) of the 1990 Act applied. I had some difficulty in following this submission. Mr Leader did not refer me to any provision of the 1995 Order or the 2012 Order that was said to require the letter of 8 December 1998 to be on the register. He referred me to article 29(9) of the 2012 Order (previously article 26(6) of the 1995 Order), which however requires that the “description” of the use etc be contained in the register but says nothing about requests. Further, it is far from clear that a local planning authority’s requirement for further information (article 24(7) of the 1995 Order) is a request within the meaning of section 69(5)(a) of the 1990 Act. Section 69(2)(a) refers to certain applications and to “requests mentioned in subsection (1)(b)”. Section 69(1)(b) was repealed by the Localism Act 2011. It referred to “requests for statements of development principles”. That, I think, is what section 69(5)(a) means by “requests”.

For the reasons set out above, the claim is dismissed.

I am grateful to Mr Leader, Miss McCormack and Miss Sargent for their clear and helpful written and oral submissions.