Huang Binbin, R (on the application of) v Vale of White Horse District Council & Ors [2026] EWHC 1312 (Admin)

[2026] EWHC 1312 (Admin)Case No AC-2025-LON-003250
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 June 2026
Before
DAN KOLINSKY KC(sitting as a Deputy Judge of the High Court)
THE KING
Between
(on the application of HUANG BINBIN)ClaimantVALE OF WHITE HORSE DISTRICT COUNCILDefendantOXFORDSHIRE COUNTY COUNCILInterested PartyADAM JAMES PROPERITES LIMITEDInterested PartyOXFORD SKIP HIRE LIMITEDInterested PartyNICK JOHNSON (T/A NICK JOHNSON MOTOR COMPANY)Interested PartyDAVID O’LEARY (T/A COOL TRAILERS)Interested PartySTEPHEN WREYFORD (T/A H&S FENCING AND SHEDS)Interested PartyMANOR MIX CONCRETE LIMITEDInterested PartyRICHARD TARLINGInterested Party
Andrew Byass (instructed by Taylor Wessing LLP) for ClaimantEmma Dring (instructed by the Vale of White Horse District Council) for Defendant for The Interested Parties did not appear and were not representedHearing Hearing date: 28 April 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 2 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.……………………DAN KOLINSKY KC (SITTING AS A DEPUTY HIGH COURT JUDGE)DAN KOLINSKY KC:
[1]This claim concerns a challenge to the Defendant planning authority’s decision dated 12 August 2025 (“the Decision”) not to take enforcement action against the activities taking place at the Former Coal Yard, Thrupp Lane, Radley Abingdon (“the Site”).[2]The Claimant is one of the owners of Wick Hall which together with its surrounding lands borders the northern and western boundary of the Site.[3]The Defendant is the local planning authority.[4]Oxfordshire County Council (“OCC”) is the waste authority and highway authority. It is the First Interested Party. The Second Interested Party is the owner of the Site. The Third to Eighth Interested Parties are occupiers of the Site. None of the Interested Parties have played an active part in these proceedings.[5]Permission to proceed with the judicial review claim was granted on the papers by David Elvin KC sitting as a Deputy High Court Judge on 3 December 2025.[6]There are two issues in the claim. First, whether the Defendant lawfully determined that the present mixed use of the Site did not constitute a material change of use from the lawful coal yard use. Second, whether the Defendant lawfully decided that it was not expedient to take enforcement action under s.172(1)(b) of the Town and Country Planning Act 1990 (“the 1990 Act”).[7]This judgment is structured as follows:-a. Backgroundb. The Decisionc. Applicable Lawd. The evidence relied on by the Claimante. Submissions (overview)f. Ground 1g. Ground 2h. Conclusions. Part A: Background[8]In 1957 planning permission was granted for the Site to be used as a coal yard. The permission did not contain any conditions limiting the hours of operation.[9]The coal yard use of the Site ceased in approximately 2009. Since then, the Site has been used for various activities without express planning permission. It is common ground that the coal yard use was the last established lawful use of the Site.[10]An environmental permit was granted by the Environment Agency to Oxford Skip Hire Limited (“OSHL”) on 4 November 2021 to operate a waste transfer station at the Site. OSHL commenced operations in March 2022. OSHL sought retrospective planning permission for change of use to waste transfer station and recycling facility on 5 July 2023. This application was withdrawn on 24 July 2025.[11]On 30 November 2023, OCC (as waste authority) issued an enforcement notice alleging the introduction of an unauthorised waste use on part of the Site. The notice alleged a material change of use from coal yard to use for “the importation, storage, processing and transfer of waste material”.[12]Following an appeal by OSHL, a Planning Inspector quashed the enforcement notice in an appeal decision dated 9 September 2024. The Inspector noted the lack of a clear demarcation between the waste activity and other activity on the Site. She considered that the planning unit remained the whole of the Site. She decided that the enforcement notice (erroneously) did not identify that the Site was in mixed use and did not identify all the different components of the mixed use.[13]A debate followed between the Defendant and OCC as to the availability of enforcement powers.[14]The Claimant, who had participated as an interested person at the enforcement notice hearing, pressed the Defendant to take enforcement action.[15]The Claimant brought a judicial review claim against the Defendant on 13 June 2025. The focus of that claim was whether the Defendant had exclusive authority to take enforcement action pursuant to paragraph 11 of schedule 1 of the 1990 Act. In response, the Defendant accepted that it had power to take enforcement action and confirmed that it was actively considering whether to do so. The Defendant argued that the claim was academic. Pursuant to an order of Lang J dated 31 July 2025, the Defendant filed a position statement indicating its decision in respect of whether to take enforcement action. That response exhibited a decision recorded in a delegated report dated 12 August 2025 not to take enforcement action which is the Decision (i.e. the subject of challenge in these proceedings).[16]The Claimant discontinued the first judicial review claim which she accepted had become academic. In doing so, she reserved her position to challenge the Decision. She duly did so in this claim. Part B: The Decision[17]The delegated report (“the Report”) considered whether enforcement action should be taken against “an alleged breach of planning control involving, the material change of use of land from a coal yard (sui generis) to a mixed use (sui generis) comprising: 1) a concrete mixing business; 2) skip hire and waste management facility; 3) storage of cars; 4) storage and distribution of sheds, decks, fences and gates; 5) storage of refrigerated trailers for the purpose of hire; and 6) the storage and distribution of mowing equipment” (para 1.1).[18]The Report noted at para 2.5 that there was no evidence of any planning conditions restricting the hours of use of the former coal yard.[19]The current use was identified at para 2.7 as consisting of six businesses:-a. First, the open storage of motor vehicles on two different parts of the site, in connection with a car sales business that operates elsewhere.b. Second, the open storage of refrigerated trailers in connection with a hire business.c. Third, the storage, distribution and off-site installation of fences, decks, sheds and gates which was primarily storage and ancillary office purposes with some limited processing, involving the cutting of timber.d. Fourth, the bulk delivery of sand, aggregate and cement to the site by HGVs which was noted to be primarily a storage facility.e. Fifth, the storage of second-hand agricultural/commercial mowing equipment.f. Sixth, OSHL’s use of the Site which was described as follows. “This business is concerned with the management of waste. It involves household, commercial and industrial dry waste being brought to the site, stored, sorted and transferred from the site for disposal or recycling elsewhere. This is mainly an open yard activityoperating from part of the site that has been loosely sectioned off by the use of moveable concrete barriers. Recently, however, the business has also occupied part of a pre-existing workshop building where waste is stored and sorted”.[20]Para 2.8 of the Report noted the lack of clear demarcation between the various uses and related this to the Inspector’s conclusions in the appeal decision.[21]Para 2.11 recorded that the author had visited the Site. The Report also referred to drone footage of the Site. The Report noted some recent changes to the distribution of uses across the Site. Para 2.13 recorded that planning contravention notices had been served and responses received from the various occupiers. It noted that the current mix of uses had not subsisted for a continuous period of ten years and thus there was no immunity from enforcement in respect of the uses.[22]The presence of an unauthorised building was discussed in para 2.17. The Report concluded that this had been erected in 2020 and was immune from enforcement. There is no challenge to this conclusion.[23]Section 3 of the Report set out the planning history. Section 4 set out relevant planning policy. Section 5 contains the evaluation which is the focus on the two issues in these proceedings.[24]Para 5.4 noted that the former coal yard use remained the last lawful use of the Site. It stated that the materiality of any change of use must be assessed against that use. The Report identified the nature of the former coal yard use as follows. “It is likely that the former coal yard use involved the following activities:(i) the open yard storage and distribution of bulk goods (i.e. coal and coke);(ii) the overnight parking and possibly maintenance of commercial delivery vehicles;(iii) the movement of heavy delivery vehicles to and from the site;(iv) the loading and unloading of goods by both mechanical and gravity fed means (frontend loaders, hoppers and silos);(v) an element of processing involved in the bagging of coal;(vi) the use of moveable concrete dividers to section-off parts of the site for different purposes and separate different stored materials;(vii) ancillary office activities;(viii) ancillary employee parking and amenities; and(ix) use of a weighbridge”.[25]An aerial photo of the site from 1999 when the coal yard was still in active use was reproduced in the report (figure 7).[26]Para 5.7 stated “The current mixed use of the site exhibits characteristics similar to the former coal yard use, as described above, including:• open yard storage and distribution of bulky goods and materials;• overnight storage of delivery vehicles;• loading and unloading of goods and materials by both mechanical and gravity fed means (frontend loader, hopper, silo and other moveable plant)• the use of moveable concrete dividers to section-off parts of the site for different purposes and separate different stored materials;• some processing of materials (i.e. sorting of waste, sawing of timber);• ancillary office activities;• ancillary employee parking and other amenities; and• use of the weighbridge”.[27]Para 5.8 stated that the current mix of use had “not resulted in any material change of use of the land or breach of planning control”. It went on to consider whether there was evidence of intensification (in para 5.9) in the following terms: “…in the circumstances of the present case there is no evidence to suggest that that has occurred. While little information survives regarding the intensity of the former coal yard use, as the basis for direct comparison, it can be seen from the aerial photograph at Figure 7 above that this is a sizeable site, which was completely covered by the former coal yard use. No doubt there was a significant amount of activity generated by the coal yard use, giving rise to noise, dust and other disturbances from onsite loading, unloading and processing activities; and the movement of heavy vehicles to and from the site over Thrupp Lane. These are in fact the same planning issues that also characterise the current mixed use of the site, but there is no evidence to suggest that the impacts of the current use are any greater than the former coal yard use or that the character of the yard has materially changed due to intensification”.[28]Para 5.10 dealt with traffic movements. It referred to evidence at the enforcement appeal and concluded: “There is therefore no basis to conclude that the current mixed use has resulted in any increase in vehicle movements (HGV, LGV or standard vehicles); nor is there any basis to refute the appellant’s claim that the current use of the site has not resulted in any net change to traffic movements, which was based upon a survey of comparable coal yard sites”.[29]At para 5.11, the Report stated that there was no evidence of a more intensive use of the site from the former lawful use. At para 5.12, it observed: “In the case of the coal yard, it is likely that the intensity of the use varied over the life of the business, no doubt diminishing towards the end of its occupation of the site, which occurred at some point after 2009. The intensity of activity of the coal yard use in its heyday has likely faded from (or outlived) the memories of many local residents”.[30]The Report’s evaluation of the expediency of enforcement action is structured around five planning considerations (green belt impacts, amenity, impacts on character and landscape, impacts on historical environment (a scheduled monument) and highway safety). For present purposes, we are concerned with amenity and highway.[31]The amenity section is contained in paras 5.32-5.38. It recapped on the analysis that the existing mixed use of the site exhibits characteristics similar to the former lawful use of the site as a coal yard. In respect of processing (in footnote 12), it stated as follows: “In the case of the coal yard this would have included the bagging of coal and coke products for distribution off-site; and in the case of the current mixed use the sorting of waste material pending transfer off-site and the cutting of timber”.[32]The Report noted that there was little remaining evidence regarding the intensity of the former coal yard use, against which to directly assess the relative impacts of the current mixed use. “However, it is a sizeable site and the aerial photograph at Figure 7 shows that the former coal yard use, covered the entire site. No doubt there was a significant amount of activity generated by the former use, giving rise to noise, dust and other disturbances from the onsite loading, unloading and processing of coal; and the movement of heavy vehicles to and from the site over Thrupp Lane”.[33]The Report continued as follows: “Indeed, the relative impacts might even be less in the case of the current mixed use for the following reasons:• the more passive storage elements of the current mixed use (i.e. storage of cars, refrigerated trailers, sheds, fences and mowing equipment) are likely to give rise to significantly fewer traffic movements, noise, dust or other causes of disturbance than the former coal yard use. These more passive elements of the mixed use are situated towards the front of the site adjacent to the neighbouring properties. Whereas the concrete business and waste handling facility, which exhibit characteristics more akin to the former coal yard use, are now largely confined to the rear half of the site away from the neighbouring properties.• It is evident that a considerable amount of dust was generated from the handling of coal products on the site, which can be seen in the blackened colour of the site in the aerial photograph at Figure 7. Although the existing mixed use is likely to give rise to some dust generation associated with sorting of materials in connection with the waste management facility and in the handling of sand and aggregate in connection with the concrete business, the evidence of dust is not as readily apparent either in aerial photographs or onsite. [OSHL] operates from the site with the benefit of an environmental permit granted by the Environment Agency as a transfer station for non-hazardous household, commercial and industrial waste. It also enjoys the benefit of an existing building for the undercover sorting of waste material. If operated in accordance with its environmental permit, this use should not give rise to the range of other issues referred to in the above policies, including contamination, odours, vermin, litter, etc. I have seen no evidence of waste material littering or escaping the site during my own visits to the site; nor have I experienced any odour problems. The waste materials processed on site appear to be largely inert / non-putrescible in nature”. [OSHL] operates from the site with the benefit of an environmental permit granted by the Environment Agency as a transfer station for non-hazardous household, commercial and industrial waste. It also enjoys the benefit of an existing building for the undercover sorting of waste material. If operated in accordance with its environmental permit, this use should not give rise to the range of other issues referred to in the above policies, including contamination, odours, vermin, litter, etc. I have seen no evidence of waste material littering or escaping the site during my own visits to the site; nor have I experienced any odour problems. The waste materials processed on site appear to be largely inert / non-putrescible in nature”.[34]Para 5.36-5.37 dealt with visual intrusion compared to the former use. Para 5.38 concluded in respect of amenity as follows:
“The adverse impact of the development on residential amenity was included among the reasons underpinning OCC’s decision to enforce against the use of the site by [OSHL]. It was their conclusion that the above use resulted in an “unacceptable adverse impact on the local environment; human health and safety and residential amenity including from: noise; dust, visual intrusion and traffic”
. In my opinion, this assessment does not give due regard to the extent to which these same elements were characteristic of the previous lawful use of the site as coal yard”.[35]Highway safety was discussed in paras 5.51-5.54. The Report set out relevant policies. It then referenced the concerns expressed by OCC at the enforcement appeal as to a detrimental impact on the safety and convenience of the highway network.[36]The Report noted OCC’s acknowledgement “… in Highway terms, the only accurate measure of intensification of the overall coal yard use … is to compare the total number of vehicle movements associated with the overall coal yard site in the ‘here and now’, and compare them to the former coal yard use” (emphasis original). The Report then stated:
“However, this direct comparison is not possible as there is no surviving information regarding the level of traffic that was generated by the former coal yard use, against which to assess the relative impacts of the current mixed use. There is therefore no basis to conclude that the current mixed use has resulted in any increase in vehicle movements (HGV, LGV or standard vehicles) that would, in OCC’s own words, “have a detrimental impact on the safety and convenience of the highway network”
. Indeed, it was the appellant’s claim in the 2024 Appeal, based upon a survey of comparable coal yard sites, that the current use of the site has not resulted in any net change to traffic movements. If the current mixed use of the site does represent a material change of the use from the former coal yard use, then a local planning authority in the normal course of events might seek to impose conditions aimed at achieving some incremental improvement to the access arrangements, when granting any planning permission. However, this does not, in my opinion, constitute sufficient grounds to enforce so as to require the current use of the site to cease altogether, in circumstances where: • the site has previously been granted planning permission as an employment site, specifically a coal yard; • the site has a long history of such lawful use; and • there is no evidence to suggest that the current comparable use has a materially greater impact on highway safety than the previous lawful use”. If the current mixed use of the site does represent a material change of the use from the former coal yard use, then a local planning authority in the normal course of events might seek to impose conditions aimed at achieving some incremental improvement to the access arrangements, when granting any planning permission. However, this does not, in my opinion, constitute sufficient grounds to enforce so as to require the current use of the site to cease altogether, in circumstances where:[37]The Report drew the threads together in para6.1 and6.2 as follows:
“The existing mixed use of the investigation site is comprised of the same mix of uses that characterised the former lawful use of the land as a coal yard and the impacts of the development on the Green Belt, amenity, local character, landscape, the historic environment and highway safety are also materially the same. The current mixed use of the land does not therefore constitute a material change of use of the land. Accordingly, there has been no breach of planning control as the basis for enforcement action. Notwithstanding the above overriding conclusion that no material change of use has occurred, it would not be expedient to enforce against the existing mixed use of the site in any event, as there is insufficient evidence to support the conclusion that the existing use is any more harmful in planning terms to the previous lawful use of the land as a coal yard”
. Part C: Applicable Law Statutory Provisions Part C: Applicable Law

Statutory Provisions

[38]Section 55(1) of the 1990 Act provides that a material change in the use of land constitutes development.[39]Section 172(1) of the 1990 Act empowers a local planning authority to issue an enforcement notice “when it appears to them -(a) that there has been a breach of planning control; and(b) that it is expedient to issue the notice, having regard to the development plan and other material considerations”. Material Change of Use[40]In the House of Lords’ decision in Westminster City Council v British Waterway Board [1985] AC 676, an issue arose in the context of a dispute as to the renewal of a business tenancy as to whether the landlord had discharged the onus of proving that they had a reasonable prospect of obtaining planning permission necessary to carry out their intention of occupying premises for the purpose of their own business. To resolve that question, it was necessary to understand the established existing use which did not have any grant of planning permission. The use was described as a street cleaning depot. In that context, Lord Bridge gave the following guidance (at 683G-684A):
“To determine the scope, for planning purposes, of an existing use of land …..it is necessary to answer two questions which are primarily questions of fact. First, what is the precise character of the established use? Second, what is the range of uses sufficiently similar in character to the established use to be capable of replacing the established use without involving a material change?”
(emphasis original). He further observed:
“Behind this second question, lies a potential question of law in that there may be some uses of such a character that a reasonable tribunal of fact, directing itself correctly in law, must necessarily conclude that they lie within that range or beyond it, as the case may be”
. He further observed:[41]In answering those questions, the House of Lords rejected the proposition that the use was properly described as for a street cleaning depot. Lord Bridge noted that:
“Those uses…included workshops, offices stores, messing facilities and parking for a variety of vehicles both under cover and in the open. This is just such a mixture of uses as would be required by a wide variety of undertakings whose business was the operation of some kind of vehicular transport and who required a base from which to operate.”
He rejected the relevance of the purpose of the vehicles parked on the site to the correct identification of the permitted use (see 684E).[42]Lord Bridge’s analysis arose in respect of de facto established use rather than use permitted by express planning permission. The decision confirms (as noted in the Encyclopaedia of Planning Law (para 55.37)) that a change in the mere identity of the person carrying out a use or the owners of goods or the source of supply of articles treated on land will not amount to a material change of use.[43]The decision of the Court of Appeal in Hertfordshire County Council v Secretary of State [2012] EWCA Civ 1473 explains the focus for evaluating whether a material change of use has occurred. The issue in that case was whether there had been a material change of use by reason of the intensification of a scrap metal yard use. An Inspector’s decision that no material change of use had occurred was upheld by the High Court and the Court of Appeal. In reviewing the authorities at paras 9-12, the Court of Appeal (Pill LJ) highlighted the critical question as being whether there had been a material change in the definable character of the use of the land (see para 9). The analysis focussed on the use taking place on the site but off-site impacts were a material factor in considering whether there had been a material change of use (see paras 12 and 25). Review of Enforcement Decisions[44]In R (Community Against Dean Super Quarry Ltd) v Cornwall County Council [2017] Env LR 26 at para 25, Hickinbottom J (as he then was) encapsulated the approach to challenges to enforcement decisions as follows:
“Where a developer is acting in breach of planning control, the statutory scheme assigns the primary responsibility for deciding whether to take enforcement steps—and, if so, what steps should be taken and when—to the relevant local authority. The statutory language used makes it clear that the authority’s discretion in relation to matters of enforcement—if, what and when—is wide. That is particularly the case in respect of enforcement notices, the power to issue a notice arising only “where it appears to them… that it is expedient to issue the notice”
. That is language denoting an especially wide margin of discretion. Any enforcement decision is only challengeable on public law grounds. Because of the wide margin of discretion afforded to authorities, where the assertion is that the decision made is unreasonable or disproportionate, the court will be particularly cautious about intervening. Intervention is likely to be rare. However, circumstances may make it appropriate”.[45]The judgment Mr Ockleton, Vice President of the Upper Tribunal (sitting as a Deputy Judge of the High Court) in R (Neophytou) v Enfield Council [2022] EWHC 521 at paras 15-19 examines the approach to review in the context where allegations are made that the decision not to take enforcement action is taken on a mistaken factual basis.a. In paragraph 15, the Deputy Judge noted the availability of challenge on ordinary judicial review grounds such as a failure to take account of relevant factors or irrationality.b. In para 16, he reviewed the grounds of review for error of fact as encapsulated in E v SSHD [2004] QB 1044 (CA) namely(a) mistake as to existing fact,(b) which is established,(c) where the claimant is not responsible and(d) which plays a material part in the decision.c. In para 17-19, he emphasised the need for the fact to be established. He cited R (Chalford St Peter Parish Council) v Chiltern District Council [2013] EWHC 2073 at para 21 and [2014] EWCA Civ 1393 at para 133 to demonstrate that where there is a “lively dispute” as to what “conflicting evidence” shows, this is not an established fact. Evidential controversy is an insufficient basis for bringing a challenge within the scope of E v SSHD” (see para 19). Extent of Enquiries[46]The decision of Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1064-65 confirms that there are circumstances in which a decision maker must make sufficient enquiries to inform their decision. Practical guidance as to how this applies is given by Underhill LJ in R (Balajigari) v SSHD [2019] 1 WLR 4647 at para 70 (drawing on the judgment of Haddon-Cave J (as he then was) in R (Plantagenet Alliance Ltd) v Secretary of State for

Justice [2014] EWHC 1662 (Admin) at paras. 99-100) as follows:

“ First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”
Those principles need tailoring in the present context of a local authority’s investigation of enforcement. They indicate that challenges to the extent of enquiries undertaken are judged by a Wednesbury standard. The focus is on the material before the authority when it made its decision. They recognise that it may be necessary for an authority to seek information from others with particular knowledge. Review of Delegated Reports

Review of Delegated Reports

[47]In R (Hayes) v Wychavon [2019] PTSR 1163 Lang J at para 26, drew together some well-known principles for the review of planning officer reports. These include a caution against “excessive and unnecessary detail” and confirmation that reports “do not (and should not) seek to be exhaustive”. In the case of a delegated report (as here), those principles require some tailoring but the caution against excessive detail and defensive drafting remains equally apt. In Arsenal Football Club v SSCLG [2014] EWHC 2620 (Admin) Cranston J cautioned against a linear, segmented reading of a planning decision (in that case in an Inspector’s decision). Planning reports must be read fairly and as a whole. Part D: The Claimant’s Evidence Witness Statements of Mr Mann[48]The claim is supported by two witness statements from Mr Nigel Mann Bsc, Msc, MIOA, AIEMA. The first is dated 30 September 2025 and was filed in support of the claim shortly after the claim form was lodged. Mr Mann is experienced in the assessment of noise and air quality and in enforcement matters. His first statement(a) critiques the Decision,(b) describes his own visit to the site and investigations and(c) draws on his wider experience of regulating noise and air quality to express his professional opinion as to the differences is use. His second statement deals with the question of where noise generating uses are taking place on the Site.[49]In considering this evidence, three points need to be borne in mind.[50]First, the Claimant has not sought permission to rely on expert evidence. The Administrative Court Guide (2025) at paras 23.2.2-23.2.6 is clear that permission is required to rely on expert evidence in a judicial review claim. It is anticipated that such permission will be given rarely and the necessity for such evidence needs to be established.[51]Second, the content of this statement was not before the Defendant when it made the challenged decision. The Claimant could have supplied evidence to the Defendant which it wanted it to take account of in making its determination as to enforcement action. She did not do so. The Court is concerned with the lawfulness of the Defendant’s decision on the information available to it (subject to the legality of deciding the matter without further enquiries). Mr Mann’s evidence is not sensitive to that limited focus.[52]Third, as Mr Ockeleton emphasised in Neophytou, it is necessary to be discerning as to what factual matters are established, as distinct from, debates as to how planning judgment should be exercised on which many different perspectives may be advanced. The decision maker on questions of fact is the Defendant. Its decision could be erroneous in law on the ground of error of fact if the error falls within the principles established in E v SSHD. However, a strongly held difference of perspective should not be conflated with an error of established fact. Mr Mann’s evidence does not sit within this legal framework.[53]Mr Byass for the Claimant fairly accepted the difficulty which flows from the Claimant not having obtained permission to rely on expert evidence. He relied on Mr Mann’s evidence primarily as far as it explained what were observable facts from his site visit. Mr Byass submitted that the points which Mr Mann made about the waste processes on Site were consistent with other material (particularly OCC’s statement of case from OCC in the enforcement appeal) which was available to and considered by the Defendant when it made its decision. Part E Submissions (overview)[54]The essence of Mr Byass’ submissions on behalf of the Claimant was that the Defendant had not sufficiently identified the before and after situations to assess whether a material change of use had taken place.[55]He argued that the activities and impacts which constituted the coal yard use had not been identified in sufficient detail. This, he submitted, had prevented a legally adequate comparison being undertaken with the uses taking place on the site.[56]In particular, he emphasised a lack of detail as to the waste processing activities in the before and after situations (focussing on the activities and their impacts in terms of noise and dust) and a failure to grapple with highway impacts.[57]Mr Byass relied on the expertise of OCC in waste matters and argued that the Defendant had not given legally sufficient reasons for departing from their assessment.[58]Mr Byass accepted that the challenge to the expediency decision was parasitic upon the challenge to the determination that there had not been a material change of use. In respect of expediency, he submitted there was an erroneous assessment of the possibility of regularising the position through conditions.[59]On behalf of the Defendant, Ms Dring emphasised that the Defendant had evaluated the position as well as it could on the available evidence. The existence of limited evidence as to the precise nature of the coal yard use was understandable given that the use had ceased over 17 years ago. She submitted that the Defendant had asked itself the right questions and undertaken a lawful assessment applying the approach in British Waterways Board and Hertfordshire.[60]Ms Dring submitted that the extent of investigations required were limited by what was reasonable and realistic. She stressed that the Defendant had relied on information provided in response to planning contravention notices, evaluated the position based on a site visit and had properly reflected on the evidence of the OCC and the OSHL in the enforcement appeal.[61]Ms Dring stressed that the analysis in respect of whether a material change of use had occurred and the evaluation of expediency were connected and the Report should be read together and as a whole; not in a linear or compartmentalised way. Part F: Ground 1 (approach to material change of use) Sufficiency of evaluation of the before and after situation[62]Mr Byass’ submissions were framed around what he characterised as the Defendant’s evaluation of the before and after situation.[63]Mr Byass noted that it was clear that the uses had changed and the only question was whether the change was material (i.e. applying the language of Lord Bridge whether the existing uses were sufficiently similar in character to the coal yard use). Mr Byass submitted that the character of the uses had been identified at a high level in paras 5.6 and 5.7 of the Report. He submitted that the conclusion in para 5.8 of the Report that there was no material change of use because of the similarities of characteristics was based on broad characterisations which did not address the different noise impacts arising from OSHL’s activities such as metal on metal contact when manoeuvring waste skips and the use of equipment in the waste activities. To support this argument, Mr Byass drew on Mr Mann’s evidence and submitted that the points which Mr Mann made were consistent with the analysis of OCC at the enforcement hearing.[64]In assessing the way that the Report approached this question, it is necessary to read the whole of the report rather than to confine the analysis to the broad characterisation of uses in paras 5.6 and 5.7. As I read the Report, the Defendant evaluated the character of the use and the evidence of their effects as part of reaching two interrelated assessments(a) whether a material change of use had occurred (applying the analytical framework in British Waterways Board) and(b) whether it was expedient to bring enforcement action. Ms Dring was right to submit that it is necessary to avoid falling into the trap of reading the Report in a linear way (adopting as she did the language used by Cranston J in Arsenal). The conclusion at para 5.8 was informed by the discussion of the nature of the uses and their effects elsewhere in the Report.[65]In respect of the coal yard use, the position was that the Defendant had to exercise its evaluative judgment to assess the character of that use. In that context, it was reasonable to rely on the photographic evidence which was available and to undertake an informed evaluation of the nature of activities which would have constituted that use. Moreover, it was reasonable to reflect on the intensity of that use and its effects through the realistic proposition that that intensity of the coal yard use varied over time and its “heyday” would have been earlier (see para 5.12). The Defendant had to make an assessment in an imperfect evidential situation. It had to assess the uses and the effects which would have flowed from the authorised use. It also took account (rightly) of the absence of any specific conditions limiting the hours of operation.[66]In respect of the evaluation of the present situation, contrary to Mr Byass’ argument, the Report went beyond the broad classification of the constituent elements of the use. As Ms Dring submitted, the following points are apparent when the Report is read as a whole.a. First, as evaluated in the amenity part of the expediency assessment, the mix of uses currently on site contained more passive storage elements than uses where active processes were occurring on site (see para 5.34).b. Second, some processing activity was noted to be taking place in a building.c. Third, the waste use was subject to an environmental permit which limited the waste to non-hazardous household, commercial and industrial waste and regulated noise, odours and contamination (para 5.35).d. Fourth, the author of the report had undertaken a site visit which was specifically drawn on in the assessment of impacts on amenity (see para 5.35).[67]Mr Byass’ relied on the evaluation of OCC which referred to noise from the processing activity and the use of machinery. However, the Defendant had to undertake its own evaluation rather than just adopting OCC’s analysis. As is apparent from the Report (and in particular the points that I have highlighted above), the Defendant based its evaluation on the composite impact of the mix of uses. This necessarily differed in its focus from OCC’s evaluation (which was directed only at the OSHL waste use on part of the Site, due to the different focus of the allegation in the enforcement notice).[68]The Report at para 5.38 is explicit as to the reason for the difference of evaluation of amenity impacts. The final sentence explains that the OCC assessment “does not give due regard to the extent to which these same elements were characteristic of the previous lawful use of the site”.[69]Read fairly and as a whole, the Report addressed the before and after situations and reflected on the character of the use taking place, their intensity and effects. The before assessment necessarily required making deductions from limited information. However, the Report identified the component parts of the use, addressed their likely intensity over time, reflected on the impacts on amenity of such uses and reasonably acknowledged the limitations of the evidence base. This was a tailored application of the exercise contemplated by British Waterways Board (which was cited at para 5.5). It focused its evaluation of whether there had been a material change of use on points that were consistent with the Court of Appeal’s approach in Hertfordshire (namely focussing on whether the definable character of the use of the Site had materially changed, taking account of the activities and off-site impacts). The precision that could be obtained as to the baseline (or “before” situation in Mr Byass’ terminology) was necessarily limited. However, the Report asked the right questions, evaluated the evidence available thoughtfully and explained how the evidence had been assessed.[70]As to the current uses, the Report examined the whole mix of activities and noted their differing impacts. It took account of the permit and what was observable on site. It explained why its conclusions were not the same as the case which OCC had advanced in the enforcement appeal.[71]Mr Byass characterised the Defendant’s analysis an “unvirtuous circle” (which he suggested had three self-reinforcing stages - start with not knowing, find that there is no evidence and then decide that there has been no change). However, in my judgment this characterisation does not fairly reflect the assessment undertaken in the Report read as a whole. The evaluation was necessarily one of fact and degree. The evaluation took account of all of the activities (emphasising that many of the activities were passive). It recognised that some (not all) of the activities took place in a building. It took account of the permit and its requirements. It drew on observations from the site visit (and had access to photographs and drone footage). This was a multi-faceted assessment for the Defendant as the planning authority and one with which the Court will not lightly interfere (as emphasised by Hickinbottom J in Community Against Dean Super Quarry Ltd ). The level of detail was primarily a matter of judgement for the Defendant.[72]Ms Dring was right to emphasise the importance of the word “appear” in s.172 of the 1990 Act. In a situation where the evidence is imprecise and incomplete, the statute requires a realistic assessment; not unobtainable precision. 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 Report did this - taking account of evidence at the enforcement appeal, responses to planning contravention notices, historic records, evaluative assessment from known facts, aerial photographs and the planning officer’s site observations.[73]I reject the Claimant’s criticism of the sufficiency of the evaluation undertaken in respect of the before and after situation. Assumptions as to Processing in a Building[74]Mr Byass submitted that the Report wrongly proceeded on the basis that processing took place within a building. This argument does not fairly reflect the content of the Report read as a whole. It is correct that the Report observed that some of the processing took place in a building (see para 5.35). However, OSHL’s activity was described as being “mainly open yard activity” (see para 2.7). The evaluation was based on a site visit (and reference to drone footage) and took account of the responses received to the planning contravention notices which reflected some changes in the location of uses from the situation which had been evaluated by OCC. I reject the criticism that the Defendant misunderstood where processing was occurring on the Site. Traffic Impacts[75]Mr Byass criticised the approach in the Report to traffic impacts. He submitted that the evidence before the enforcement appeal had only compared the use of the waste site with the previous coal yard use. It was therefore incorrect he submitted for the Report to refer to OSHL’s claim based on a survey of comparable coal yards that the current use of the site had not resulted in any net change to traffic movements (para 5.53).[76]I am satisfied that Ms Dring’s answer to this point is correct. OSHL had, in para 13 of their highway rebuttal note, undertaken an evaluation of the projected vehicle movements from the coal yard with “the trips generated by [OSHL] and all other existing businesses….on the wider coal yard site”. Thus, there was an evidential foundation to the conclusion expressed in para 5.53 of the Report that there was “no basis to conclude that the current mix of uses has resulted in increased vehicle movements” to the detriment of the highway network.[77]This debate must be evaluated in the legal framework explained in Neophytou which rightly cautious against equating the existence of differing strongly held views with incontrovertible errors of fact. A decision as to enforcement action can be impugned where there is an error of fact; not a strong disagreement with a planning assessment. Approach to OCC’s Objection[78]In his written submissions, Mr Byass argued that the position of OCC as the waste authority should be treated as akin to an expert national agency (such as Natural England) as discussed in R (Wyatt) v Fareham Borough Council [2023] PTSR 1952 (CA) at para 9(4)). Mr Byass rightly did not press that analogy in oral submissions. As Ms Dring submitted, the analogy is inapt. First, OCC’s statement of case at the enforcement hearing is not analogous to a specific consultation response on a planning application from a designated statutory consultee with specific expertise. The consultation response is specifically targeted at the planning application in question. OCC’s statement of case was prepared for a different purpose. Second, the Defendant is the local planning authority. It has expertise in assessing planning matters including whether a material change of use has taken place and impacts on amenity. This is not to diminish the expertise of OCC but simply to point out that the distribution of expertise is not equivalent to the position discussed in para 9(4) of Wyatt. Third, on any view, the Defendant was required to undertake its own assessment. Whilst, it was part of that exercise to take account of the views of OCC (as it did), it was not required to treat those as having enhanced status. Fourth, as is clear from the context, OCC’s assessments concerned a different alleged breach of planning control (and were based on what the Inspector concluded was the wrong planning unit). That layer of complexity does not exist in respect of the views of statutory consultees referred to in Wyatt.[79]On a fair reading, the Report took account of OCC’s position in the enforcement appeal but tailored its analysis to the different question it had to answer namely whether the current mix of uses represented a material change of use from the lawful coal use. There was no legal error based on an analogy with Wyatt.[80]In oral submissions, Mr Byass also sought to draw some support from the caselaw on consistency which applies to planning Inspectors’ decisions in the well-known case of North Wiltshire DC v Secretary of State for the Environment (1992) 65 P&CR 137. The principle is that where a previous decision is materially indistinguishable then due to the importance of consistency reasons should be given from departing from it. I consider that this analogy does not assist Mr Byass’ argument because(a) the circumstances are materially distinguishable as the Report is evaluating the use of the whole of the Site not just the waste use and(b) in any event, the Report explained why it differed from OCC’s approach (see for example, the last sentence of para 5.38). Extent of Enquiries[81]On the approach to further enquiries, Mr Byass cited R (Law Society) v Lord Chancellor [2024] 1 WLR 3097 at para 208-210. Mr Byass argued that this supported the proposition that reasonable enquiries may involve commissioning new evidence. The context of that case (criminal legal aid funding) is very different to the present case. In the factual circumstances of the Law Society case, a model existed which could easily test iterations of the uplift to fees – see para 208 (at p.3146H). As Ms Dring submitted, one cannot extract from that very specific situation a wider principle that a decision maker must commission new surveys or undertake new modelling.[82]Rather, as Underhill LJ’s judgment in (Balajigari) explains, the extent of the enquiries to be undertaken must be assessed on Wednesbury principles. In my view, it cannot be said that no reasonable authority would have proceeded on the information (drawn from multiple sources) which the Report had assembled. Scope of Permit[83]In his written submissions, Mr Byass argued that the report was defective in failing to take account of all of the uses which could be undertaken under the terms of the environmental permit which OSHL holds. His argument was that account should be taken of the potential for waste streams of a very different nature to the waste currently being processed on site. However, he rightly did not press this point in oral submissions. As Ms Dring submitted, the question which arises under s.172(1) of the 1990 Act is whether it appears to the Defendant that there has been a breach of planning control. It is concerned with what is happening not with potential occurrences. Overall Conclusions on Ground 1[84]Drawing these threads together, I conclude that the Defendant approached its evaluation of whether there had been a material change of use on the correct basis. It identified the character of the coal yard use and the present mix of activities. It acknowledged the likely fluctuation in intensity and impacts of the coal yard use. It compared these to the activities in fact taking place on the site informed by the documentary material in the enforcement appeal, its own enquiries and a site visit. It reached a lawful and rational conclusion that there had been no change in the character of the use (taking account of the activities themselves and their off-site effects). It explained why it differed from OCC’s conclusions (which had addressed a different question). It was not irrational to make its decision on the information which it had assembled.[85]I therefore reject the first ground of challenge. Ground 2[86]Mr Byass fairly and correctly accepted that(a) ground 2 only arises if ground 1 is made out and(b) that ground 2 is largely parasitic on ground 1.[87]The correctness of the latter point is demonstrated by the fact that I have drawn extensively on the discussion of expediency in respect of amenity (and to some extent highway impacts) in reaching my conclusions on ground 1.[88]I deal therefore briefly with two discrete points advanced under this ground. These concern whether it would be appropriate to take enforcement action to regularise the position.[89]As Ms Dring submitted, planning conditions could only be imposed if an enforcement notice were issued and it was determined that conditions were necessary in the context of a ground (a) appeal. Mr Byass accepted this.[90]The Report noted the possibility of securing conditions in respect of traffic movements through enforcement action (in para 5.54) but did not consider it expedient to do so because the Defendant was not satisfied that the current uses generated more traffic than the coal yard use.[91]I have already dealt with the challenge to that conclusion and decided that it was lawfully open to the Defendant. I see no separate error in the fact that the Defendant applied its mind to the possibility of enforcing to secure conditions but decided against it (essentially because it was not satisfied that there was planning harm compared to the lawful planning use).[92]In respect of hours of operation, the Report did not separately comment on this issue. The position was that there had been no limitations on the hours of use of the coal yard.[93]In the present situation, the environmental permit itself does not contain any specific limits on the hours of operations. However, as Ms Dring submitted condition 3.3.1 of the environmental permit seeks to prevent “noise and vibration at levels likely to cause pollution outside the site”. The definition of “pollution” in the permit includes: “emissions which may” “be harmful to human health or the quality of the environment” and “emissions which may” “impair or interfere with amenities”.[94]Given the lack of hours of operation in the coal yard use and the existence of some protection under the parallel pollution control regime, I do not consider there was any error in the approach of the Report to expediency in failing to comment distinctly on hours of operation. This was not a consideration which was so obviously material that it was irrational not to discuss it separately (see paras 27 and 28 of R (Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2020] UKSC 3 at paras 31-32).[95]The approach to expediency flowed from the Defendant’s overall conclusion that there was “insufficient evidence to support the conclusion that the existing use is any more harmful in planning terms [than] the previous lawful use of the [Site] as a coal yard”.[96]Given the breadth of the Defendant’s discretion, I do not consider that the Claimant has established any error of law in the approach to expediency.[97]I therefore reject ground 2. Conclusion[98]The statutory scheme confers responsibility on the Defendant to assess whether there has been a breach of planning control and confers wide discretion whether to take enforcement action. In addressing the Claimant’s arguments, I have concluded that the Defendant asked itself the right questions and reached conclusions on the available evidence which were lawfully open to it. It did not act irrationally in acting on the information which it had obtained.[99]I recognise that the lack of express planning permissions at the Site has understandably caused concern for people in the area including the Claimant. The situation is made more complicated by the lack of certainty as to the precise extent of the permitted coal yard use which creates a challenging starting point for evaluating whether the activities now taking place are lawful.100. I have concluded that the Defendant made a lawful assessment of the relevant circumstances in deciding not to take enforcement action in the Decision.101. This judicial review claim is dismissed.102. I conclude by expressing my gratitude to Counsel for their helpful and focussed submissions in writing and orally.