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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Binbin, R (On the Application Of) v Vale of White Horse District Council [2026] EWHC 1312 (Admin) (02 June 2026) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2026/1312.html Cite as: [2026] EWHC 1312 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy Judge of the High Court)
____________________
| THE KING (on the application of HUANG BINBIN) | Claimant |
|
| - and - |
||
VALE OF WHITE HORSE DISTRICT COUNCIL |
Defendant |
|
| -and- |
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| (1) OXFORDSHIRE COUNTY COUNCIL (2) ADAM JAMES PROPERITES LIMITED (3) OXFORD SKIP HIRE LIMITED (4) NICK JOHNSON (T/A NICK JOHNSON MOTOR COMPANY) (5) DAVID O'LEARY (T/A COOL TRAILERS) (6) STEPHEN WREYFORD (T/A H&S FENCING AND SHEDS) (7) MANOR MIX CONCRETE LIMITED (8) RICHARD TARLING |
Interested Parties |
____________________
Emma Dring (instructed by the
Vale
of
White
Horse
District Council) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 28 April 2026
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
This 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:
a. Background
b. The Decision
c. Applicable Law
d. The evidence relied on by the Claimant
e. Submissions (overview)
f. Ground 1
g. Ground 2
h. Conclusions.
various
activities without express planning permission. It is common ground that the coal yard use was the last established lawful use of the Site. a. First, the open storage of motorvehicles
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 activity operating 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".
various
uses and related this to the Inspector's conclusions in the appeal decision.
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."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".
- 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".
"…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".
"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".
"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".
"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".
vehicles
to and from the site over Thrupp Lane". "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".
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".
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 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".
Statutory Provisions
Material Change of Use
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".
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).
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
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".
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 Ev
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
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
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
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.
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.
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.
visit
and had properly reflected on the evidence of the OCC and the OSHL in the enforcement appeal. Part F: Ground 1 (approach to material change of use)
Sufficiency of evaluation of the before and after situation
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. 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 sitevisit
which was specifically drawn on in the assessment of impacts on amenity (see para 5.35).
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.Assumptions as to Processing in a Building
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
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.
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
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.
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
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.
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
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
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.
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".
v North Yorkshire County Council [2020] UKSC 3 at paras 31-32).