England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2015

Mr Justice Dove :

Introduction

1. In around the 1990's a motocross circuit was established at Churchill Farm New Chapel, Surrey. The claimants live nearby. The defendant is the local planning authority and the interested parties are those interested in the ownership or operation of the circuit.
2. On 11^th August 2008 the defendant granted a certificate of lawful use which described the activity which it was recording as lawful as follows:

"the use of the land shown edged green on the attached Plan B for commercial motocross events on more than the 14 days per annum permitted under Part 4 Class B of Schedule to the Town and Country Planning (general permitted development) Order 1995 together with car parking ancillary to the said motocross events"

3. Evidence which the claimants have gleaned from videos which were posted on the internet in about 2008 through to around 2010 illustrate that the motocross activities were occurring on a largely flat track without extensive numbers of significant jumps or other similar features. In early 2011 it seems that earth moving was undertaken at the site and videos taken from that time illustrate motocross riders navigating much larger deflections in the surface of the track and achieving jumps. Information obtained from social media demonstrates that in April 2013 considerable further work was undertaken to the track in order to increase the number of jumps and other physical features which it contained so as to add to the complexity of the course and the excitement of those riding on it. The changes which occurred in the track over the course of time, but particularly in spring 2013, are also illustrated by aerial photographs. These show that the extent of the spread of the track also altered during this time.
4. On 26^th April 2013 an application was made by the first interested party who is a landowner for erection of a six metre high acoustic bund around the perimeter of the circuit. In the meantime the defendant had given consideration as to whether or not to enforce against the engineering works which have been described above and which had taken place at the track. A site visit occurred on 25^th April 2013, the day before the application was submitted, and at that visit and afterwards the interested party maintained that the importation of the material and the works that had been undertaken were in fact works of repair to the track. The defendant did not accept that and on 14^th November 2013 took a report to committee in relation to whether or not take enforcement action. Two options were presented by the officers to the members. The officer's recommendation was to adopt option two. The options were described as follows:

"There are two options for members to consider

Option One

Committee may conclude that the jumps and runs do not constitute appropriate facilities for outdoor sport or recreation and thus constitute inappropriate development in the Green Belt. They result firstly in a breach of planning control and secondly it is proportionate and appropriate to serve and enforcement notice to remedy that breach.

The disadvantage of this option is one of drafting the Notice. The steps specified in the Notice to achieve compliance, must be precise and unambiguous, for example the tonnage of soil required to be moved, or the height of the jumps and contours must be reduced. Officers have been unable to establish as a matter of fact, the scale of any previously existing jumps or runs on the site prior to these works being carried out. Therefore before drafting an enforcement notice there will need to be considerable further investigation, if possible, to establish exactly what existed on the site previously.

Option Two

Committee may conclude that whilst there appears to breach of planning control and the development that has been carried out requires planning permission, on the balance of probability there are likely to have been such structures pre-existing on the land which are now lawful. The scale of the jumps are not unusual for this type of sporting activity and on this basis may be considered to be appropriate in terms of Green Belt policy and the NPPF.

Therefore, in the circumstances of this case, it is not appropriate or proportionate to pursue formal enforcement action at this time."

5. The members accepted the officer's recommendation and adopted option two. Shortly thereafter on 25^th November 2013 the defendant served a noise abatement notice under s80 of the Environmental Protection Act 1990. The requirements of the notice were specified as follows:

"1. Limit the use of motocross bikes to one weekday per week and one Saturday per calendar month between the hours of 10am to 2pm"

6. On 27^th November 2013 an appeal against the notice was lodged by the interested parties. The claimants have since served a Notice on the first interested party under s82 of the Environmental Protection Act 1990 and that case has been joined with the appeal against the noise abatement notice. The hearing of both of these cases are awaiting the outcome of this case.
7. On 20^th March 2014 the application for the perimeter acoustic bund was refused. The officer's conclusions on very special circumstances in terms of Green Belt policy which were adopted by the members were as follows:

"Very Special Circumstances

40. The NPPF states that very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness and any other harm is clearly outweighed by other considerations. The issue is therefore whether the proposal is necessary to reduce noise levels and if so, whether the reduction in noise levels is sufficient to represent the requisite very special circumstances required to overcome the harm by inappropriateness, and other harm as identified.

41. The bund is proposed in order to mitigate the noise arising from the lawful moto-cross suite and following discussion with Tandridge District Council's Environmental Health Officer. Of note is that an Abatement Notice has been imposed under separate legislation on the grounds that the noise arising from the use of this site, as it as been operated/managed in recent years, amounts to a statutory nuisance. The Abatement Notice restricts the number of days on which the lawful use can operate to one day a week and one weekend day a month. The applicant is currently appealing that Abatement Notice, and as such it is not currently known whether further mitigation of noise through the provision of a bund is required and if it is, how extensive that mitigation would need to be. As such, it is not possible to fully weigh the need to mitigate noise against the harm that the formation of the bund would cause.

42. Furthermore, even if it were considered necessary in order to be considered as a very special circumstance, either individually or combined with other factors, it would clearly have to mitigate effectively the harm arising from this use. The application seeks to demonstrate that a bund of this size would mitigate the noise levels arising and as part of the supporting documentation includes a Noise Assessment (dated October 2013), which models the noise of the motorcycles against the background noise levels as established through measurements carried out over 2 days at Domewood and The Plantation. It concludes that the proposed bund would reduce noise levels below the background level for Mill Lane and Domewood but not below that for The Plantation and Stubpond Lane although it would not exceed the 'Limit Level' of plus 5dB(A).

43. However, the Council's Environmental Health Officer has raised some concerns over aspects of the modelling (i.e. over the maximum number of bikes using the site at any one time), and also advises that there remains uncertainty over the degree of attenuation that the bund would provide if constructed at 6m for its entirety. He concludes that the submitted information fails to assess the proposal against the worst case scenario and as a result of this recommends that the bund is constructed higher than is currently being proposed along two of its sides. On the basis of this advice, it is concluded that as proposed the bund would not adequately mitigate against the noise and as such it cannot be concluded that this constitutes a very special circumstance to sufficiently and clearly outweigh the significant Green Belt harm as previously identified. The proposal therefore conflicts with Saved Policy RE2 of the Tandridge District Local Plan 2001 and the provisions of the NPPF."

8. The reasons for refusing the application included the failure to comply with Green Belt policy, the impact of proposed development on the character and appearance of the area and also the contention that insufficient justification for the use of inert materials to make the bund had been provided. This reason for refusal was pursuant to observations made by Surrey County Council minerals planners who were, in general terms, opposed to the use of inert materials which might otherwise be available to restore mineral workings unless their use brought about identified environmental benefits.
9. On 3^rd July 2014 the interested party landowner made another application. This time the application was described as follows:

"The use of the land for commercial motocross events on more than 14 days per annum permitted under part 4(b) of schedule 2 to the Town and Country (General Permitted Development) Order 1995 together with car parking ancillary to said motocross events along with associated works and the provision of a landscaped noise attenuation barrier"

10. On this occasion the perimeter earth bund was described in drawings as intended to be 7 metres in height as opposed to the earlier proposal which was for a bund of 6 metres in height. Noise evidence was produced in support of the application. The interested party relied in particular on a report from consultants, Vanguardia, which had been produced in support of the earlier application in April 2013. That work proceeded on the basis of taking noise measurements from motocross motorcycles whilst being ridden on a straight, on a corner and on a jump. That noise data was then used within a computer generated noise model which the consultants developed which enabled noise contours to be produced both with and without the 6 metre bund which was the subject of the earlier proposal. The noise modelling proceeded on the basis that 30 motorbikes were included within the model spread evenly around the track. The model assumed that the noise sources from the motorbikes were 1 metre above the ground level on areas of flat track and 2 metres above ground when they were on a jump. Background noise levels were taken at one of the residential receptor locations namely Domewood and the values obtained gave a background noise of 44.2 dB(A) L90. The output of the model showed that the bund produced reductions in noise at all of the residential locations of between 7.5 and 11.6 dB and at Domewood the predicted noise levels after the bund had been introduced were predicted to be 4dB below the measured background.
11. A further report was produced in July 2014 which modelled the noise in a similar way but in this instance introduced the 7 metre bund proposal as the noise mitigation which was being tested. That report stated at paragraph 3.4 as follows:

"3.4 Since the previous report was issued the model has been modified to correlate with actual measured data with no mitigation the model has been verified and is accurate to within 2dB."

12. It is necessary to record that the report does not appear to provide that data or the exercise that was undertaken in order to verify the model. The conclusion of the report was that the defendant had been properly advised that the permanent mitigation measures proposed should ensure that noise levels from the track did not exceed existing background by more than 5dB. Since, as set out above, the existing background had been measured at 44dB(A) L90 the target level was, applying this approach, 49dB(A). The report stated that the nearest residential property was 600 metres away. The predicted noise measurement from the model 600 metres from the site following introduction of the bund was reduced by 10dB(A) from 55 to 45dB(A) bringing the noise level below the target level which had been identified.
13. In September 2014 a further noise report was produced by the interested party's consultant in support of the application because it had been pointed out to them firstly, that there were nearer residential properties at Leylands Farm and The Plantation and, secondly, because the defendant had clarified that they wished to see a limit imposed which included an extra 5dB(A) for tonal correction in the light of the nature of the noise emitted from the activity. In the event following discussions it was agreed that the approach should be that the mitigation should achieve a reduction so as to bring noise levels down to levels equal to surveyed background levels without the track operating, allowing for a 1dB(A) tolerance. The report noted that background levels at The Plantation were higher than Churchill House and were around 48dB(A)L90. At Laylands Farm it was asserted that the bund would reduce noise to background levels.
14. The claimants objected to the application. In support of their objection they commissioned their own noise evidence from Cole Jarman. Cole Jarman firstly undertook extensive noise monitoring in the vicinity of the site in July and August 2014. This noise monitoring included taking measurements at times when the motocross track was in use for an event. They also provided to the defendant their expert opinion on noise issues in reports dated 12^th September 2014. In particular they noted a number of uncertainties in relation to the analysis provided by the interested party's consultants. In respect of Leyland's Farm the consultants noted that whilst that property was not identified on the noise contour plot produced by the model nevertheless the predicted levels exceeded what the interested party's consultants themselves had surveyed as being the prevailing background in that location namely 44dB(A). Further, Cole Jarman had measured background noise levels at Layland's Farm and recorded levels well below 44dB(A). All of this in their opinion led to a different conclusion as to whether or not the council's targets for noise from the track could be met. Whilst they did not dispute that the target proposed was suitable to achieve a satisfactory standard of residential amenity their concern was the validity of the conclusion that the modelling demonstrated that this would be the case. Concerns were also raised about the impact of wind speed and wind direction on the reliability of the results obtained by the model. They also expressed concern about uncertainties created by the fact that observations showed the motorbikes jumping far higher that that which had been modelled by the interested party's consultant which would, of course, compromise the effectiveness of the bund as the noise source would be higher and therefore the operative extent of the bund reduced. Finally they noted that the data said to verify the model and the verification exercise had not been explicitly presented in the interested party's consultant's materials.
15. The debate about the proper assessment of noise continued during autumn 2014. The interested party's consultants undertook further noise measurements to substantiate their conclusions as to the appropriate identification of the operative background. The council sought external advice principally in relation to the Noise Abatement Notice. During the course of his investigations the council's noise consultant measured a background noise reading of 36.5dB(A) at Churchill Farm House which was, when it came to their attention, relied upon by Cole Jarman to substantiate their case that background levels in the vicinity of the site were in fact far lower that those which had been relied upon by the interested party's consultant.
16. The application was reported to committee on 15^th January 2015. Surrey County Council re-iterated their concerns about ensuring that any use of inert material was necessary so as to secure identified environmental benefits. The advice which was provided by the environmental health officer was as follows:

"28. Chief Community Services Officer – Environmental Health – the applicant suggested that installation of an acoustic bund in 2011 following complaints about noise form motocross, following intensification of use at the site with the benefit of a CLEUD. It was agreed that a suitable bund would be a positive step in mitigation the noise providing it met certain criteria. It was originally agreed that a Noise Level Rating of 5dB above background (this to include a 5dB addition for the nature of the noise) would be acceptable but following discussions with the applicant's noise consultants simplified noise criteria have been agreed, these being that noise from the motocross shall be no louder than the background noise levels of LA90 at the nearest noise sensitive property, which their consultants have now measured as a longer term average of 42dB.

Support is expressed for the application on noise grounds, as it is accepted that the proposed engineering solution, namely the earth bund, will have a positive effect on reducing noise levels from the sue of the track. However, the following points are raised which should be considered:

1. The locality of the site is subject to high levels of aircraft noise, which while not constant, are substantial nevertheless. It is therefore desirable to protect the remaining residential amenity in regards to noise as far as is practicable.

2. The motorbikes on the track jump significant distances in the air during the course of the events, which will have a serious effect on the performance of the barrier at various points during the lap of the circuit.

In view of these matters, it is suggested that even with the track bund there would need to be other methods of controlling the noise from the motocross track. The most effective means would be to limit the number of times the track may be used, and limit the length of time of each event.

Therefore in order to protect the existing general amenity of the locality from erosion due to noise, it is suggested that the following conditions should be added -

1. The motocross track shall not be used for more than three weekdays (Monday to Friday) per week, or for more that two Saturdays per calendar month, and at no time on a Sunday or Public Bank Holiday.

2. No use of the motocross track shall be permitted before 10:00 or after 15:00 which includes any noise measurement testing."

17. The officer's assessment of the merits of the application ranged across a number of topics. It is not necessary, obviously, to rehearse all of those matters for the purposes of this judgment. However it is important to note that officers gave consideration at the outset of their assessment to the status of the CLEUD and the existing use as follows:

"32. Third parties have also queried the Certificate of Lawfulness for Existing Use relating to use of part of this site for moto-cross purposes and whether or not this can be relied upon given the changes to levels through the formation of jumps etc and the resulting intensification in use. In terms of the area forming part of the lawful moto-cross site, the Council has previously accepted that various changes and repairs have been made to the track incrementally over the years and more latterly between 2013 and 2013. It was investigated in February 2011 when repairs to the existing track and jumps were found to have been carried out along with works to re-contour jumps of between 1 and 1.5m in height. At that stage it was concluded that these repairs did not constitute breaches of planning control. The Council accepts that more extensive works were carried out in later 2012/early 2013 to contour the site and create various more substantial dirt jumps/contours and that these constitute 'engineering operations' and would require planning permission. At the Council's Planning Committee meeting on 14^th November 2013 it was resolved not to proceed with enforcement action on the basis that whilst there appeared to be operational development and in breach of planning control by the construction of the jumps and contours on the balance of probability there were likely to have been such structures pre-existing on the lad which were at that time lawful. The scale of the jumps was not unusual for this type of sporting activity and therefore may be considered acceptable on Green Belt grounds, given that the NPPF allows for the provision of appropriate facilities for outdoor sport and outdoor recreation, inter alia, as long as it preserves the openness of the Green Belt.

33. Furthermore, the Council, having sought legal advice from Counsel, does not agree that the carrying out of the above operational development at the site for moto-cross purposes causes the extant lawful moto-cross use of the site to be rendered unlawful. In addition it is considered that the motocross activities do not constitute an intensification of that activity such as to render it a material change of use of the planning unit beyond the commercial use permitted by the Certificate, which grants an unlimited numbers of days' use and which does not limit rider numbers, event duration or any other element of the permitted activity provided they are undertaken within the area edged green on the plan associated with that certificate. It is noted that third parties are currently seeking a Judicial review of the Council's decision not to proceed with enforcement action in November 2013 and that this issue remains outstanding."

18. Officers concluded that the building of the bund would have a clear and significant impact on the openness of the Green Belt and amounted to inappropriate development within the definition of Green Belt policy on the basis of that impact. Additionally it was concluded that the change of use of the area of land outside that defined by the CLEUD amounted to inappropriate development in the Green Belt. As a result very special circumstances within the terms of Green Belt policy were required in order to outweigh this harm to the Green Belt and the other harm which had been identified. That other harm included in the officer's view the impact on the character and appearance of the area caused by the bund which was considered by officers to be an alien and incongruous feature. In relation to the issues raised on waste and minerals the officers provided as follows:

"43. They [Surrey County Council as waste and minerals authority] advised that in order for the proposal to be acceptable in relation to these policies, substantial wider environmental benefits would need to be demonstrated, and that these could include an improvement to the noise climate for neighbouring occupiers but that such benefits would need to be substantial, and it would need to be demonstrated both that the material could not be sourced from within the site and that the works would have a 'substantial noticeable positive effect' on the noise climate. Whilst confirmation was provided that the material could not be sourced from the site, it was noted that it had not been concluded either that the bund was necessary (as the noise abatement notice may be upheld) or that a 6m high bund would effectively mitigate against the noise.

44. SCC (Waste and Minerals) raise no objection to this current application on the understanding (from the application details) that the bund would address issues concerning the generation of noise from the site. They estimate from the figures provided by the applicant that the larger bund would require an additional 15,000 tonnes of waste material (45,000 tones was the previous estimate) which whilst a 'material amount' is not a significant increase when considered in the context of the proposal as a whole. Their advice and absence of objection is however based on the conclusion that the bund would have a significant and positive impact on the noise climate, and that the potential diversion of this volume of material from other projects including the restoration of mineral workings would therefore be justified by the environmental benefits of the proposal. As set out above, a different conclusion has bee reached in terms of the benefits of the proposal, and on this basis it is considered that the proposals are contrary to Surrey Waste Plan Policies CW6, WD7, WD8 and Surrey Minerals Plan Core Strategy DPD Policy MC17. The absence of sufficient justification for the diversion from restoration projects of inert waste material in this quantity also constitutes Green Belt other harm."

19. In respect of the very special circumstances case officers concluded as follows:

"56. It is acknowledged that as the existing use of the majority of the site is lawful, this use is unrestricted in planning terms, i.e. there are no planning conditions controlling days/hours when the motocross can operate. The use for commercial moto-cross generates noise, impacting upon properties in the vicinity, and on the basis that these noise levels have amounted to a statutory nuisance, a Noise Abatement Notice was served in 2013. This currently limits the use of the track to 1 weekday per week and 1 weekend day per month. However, this Notice has been appealed by the owners and in the event that is quashed or carried by the Magistrates, the frequency and intensity of the use could increase and there would be no mechanism through the planning process to control the use of the site and the noise that it generates beyond that which may be deemed acceptable by the Court .

57. The formation of the bund therefore provides the opportunity to permanently mitigate against the impact of the noise arising from the lawful use of the track potentially to an extent beyond that which may result from the appeal against the NAN. The Council's Environmental Health Officer supports the erection of the bund to the height proposed as it would have a 'positive effect on reducing noise levels from the use of the track'. However, he advises also that due to the high levels of aircraft noise experienced by properties in the area (which also impact on residential amenity) and the height to which motorbikes using the track can jump, further methods of controlling the noise are necessary, i.e. by limiting the number of times that the track may be used and the length of each event. The EHO suggests that use is limited to three weekdays per week, and two Saturdays per month, with no use on Sundays or Bank Holidays and also that the use of the track should be limited to between 10:00 and 15:00. What this indicates is that the inappropriate development, in the form of the bund, is not enough in itself to mitigate the noise harm.

58. As the application also includes within its description the use of the site, and the defined site, includes the southern part of the site which did not form part of the CLEUD granted in 2008, there exists also the opportunity to regularise the use of this land and to impose conditions to bring the entire site within planning control, including those relating to hours/days when the track can be used. Operational aspects of the use, such as the formation of jumps including their height, position and scale, could also be controlled. Such controls could potentially reduce the height riders attain beyond the height of the bund.

59. However, the bund would be very harmful to the Green Belt openness due to its size and scale, resulting also in encroachment into the countryside. This harm is given substantial weight in the balancing exercise, as required under paragraph 88 of the NPPF. Despite its landscaped appearance, it would also constitute an incongruous and unnatural feature in the landscape, both identified as 'other harm'. As set out in the NPPF, the necessary very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness and any other harm are clearly outweighed by other considerations.

60. It is acknowledged that a number of other factors have been put forward by the applicant as potential components of a very special circumstance case, however, for the reasons set out above these are given either very limited or no weight. The mitigation of noise impact and the opportunity to bring the entire site and its use within planning control therefore form the weighty elements of the very special circumstances case. However, as set out above, the proposed bund would result in significant harm to openness and other harm. Furthermore, the extent to which the bund would mitigate against harmful noise levels cannot be fully quantified, the Council's Environmental Health Officer only being able to advise that it would have a 'positive effect' on reducing noise levels. In addition, the need for further controls over the use of the track would appear to indicate that noise levels could still cause a nuisance, albeit not necessarily a statutory one, taking into account the particular type of disturbance caused by the noise emitted by motorbikes of this type. The applicant considers the proposed hours of operation to be unacceptably restrictive, primarily on the grounds that the use of the main track is lawful and currently unrestricted by planning conditions and has stated that if permission were to be granted subject to conditions limiting use to these days/hours, an appeal would be lodged and the bund would not be constructed pending the outcome of the appeal process. The applicant's suggested limits on the use of the track relate only to hours of operation, which they propose as being between 10:00 and 17:00, with longer hours for departures and arrivals (08:30 to 18:30) (with no restriction on the number of days that the track can be used).

61. It is considered that the opportunity to bring the entire site within planning control is a factor capable of being afforded significant weight as part of a very special circumstances case. However, this weight is moderated by the degree of uncertainty surrounding the effectiveness of the bunds as indicated by the need for further controls over use. Furthermore, the mechanism for achieving the noise reduction, i.e. the bund, would result in substantial harm to Green Belt openness. It is therefore considered that insufficient very special circumstances cannot be considered to exist which clearly outweigh the harm by reason of inappropriateness, harm to openness and other identified harm. The proposals are therefore contrary to Local Plan Policies DP10 and DP13."

20. The officer's overall conclusion leading to a recommendation that planning permission should be refused on three grounds related to the impact on the Green Belt, the impact of the character and appearance of the area and the inappropriate use of inert waste were set out as follows:

"62. Whilst recognising that the proposed bund would have some positive effect on reducing noise levels, and that the proposal provides the opportunity for controlling the future intensity of the use of the site, it is not considered that these factors clearly outweigh the harm by reason of inappropriateness, substantial harm to openness and other harm. The proposal is also considered harmful in relation to its impact on the character of the area, and in relation to waste and minerals policies. The operative word in the application of Very Special Circumstances in Green Belt policy is 'clearly'. As set out above there is no clarity that the substantial piece of operational development will provide the level of benefit necessary to justify the substantial incursion into the Green Belt. For these reasons, it is recommended that the application is refused.

63. It is open to the decision maker to conclude either that there is no other harm caused by the proposals and that the benefits clearly outweigh the defined harm to the Green Belt, or indeed that there is harm from the development but that the harm by reason of inappropriateness (the defined harm to the Green Belt) and the other harm is clearly outweighed by any benefits felt to be derived from the proposal, the most significant and eighty of which is the opportunity that the application provides for bringing the site within planning control. It is possible in planning terms to conclude that a level of harm is acceptable provided it is outweighed (in the case of the Green Belt harm must be clearly outweighed) by other material considerations."

21. Members declined to follow the officer's advice and resolved that they were prepared to grant planning permission. They were unable to do so straight away as it was necessary for the application to be referred to the Secretary of State for him to consider whether or not he wished to call the matter in for his own determination. A letter was written by the defendant on 23^rd January 2015 referring the matter to the Secretary of State. In that letter the basis upon which the members decided that they were minded to grant planning permission was set out as follows:

"The application relates to an area of land which was historically used for agricultural purposes but part of which, approximately 75%, is now in lawful use as a moto-cross track and for which a Certificate of Lawfulness for an Existing Use was granted in 2008 under our reference TA/2008/368. This application seeks the provision of a landscaped noise attenuation barrier measuring 8m in height but settling at 7m in height, which would enclose the land authorised for moto-cross use, the junior moto-cross track and the parking area. It would measure 860m in length and have a base width of 13m-14m. The proposal is also for the change of use of land falling outside the area deemed lawful by the Certificate of Lawfulness granted in 2008. The application sire, as identified by the red edging, covers and area of 6.9ha.

The officer's report concluded that the landscaped noise attenuation barrier and the change of use amounted to inappropriate development in the Green Belt. The proposed barrier, on grounds of its height, scale and massing and the fact that it encloses a larger part of the field that the lawful moto-cross track, was considered to have clear and substantial impact upon the openness of the Green Belt and furthermore was considered to fail to protect the countryside from encroachment, one of the purposes of including land in the Green Belt. The officer report also identified other harm in relation to the impact upon the character and appearance of the rural area and the fact that the proposal would involve the importation of inert waste material, without sufficient justification in the form of environmental benefit.

The Planning Committee in its consideration of this proposal accepted that there would be harm to the openness of the Green Belt. It did not consider that there would be any other harm, concluding that the proposal would not result in harm on character or appearance grounds due to the undulating land levels, the fact that it would be landscaped, with extensive planting, would be seen in relation to the adjoining woodland, and that it would have a positive effect when compared to the existing visual effect. With regards to the other identified harm the Committee noted the comments of Surrey County Council's Waste and Minerals team, concluding that no objections were being raised by SCC as waste and minerals authority.

The Planning Committee considered whether or not there were any factors which constituted the requisite very special circumstances needed to clearly outweigh the harm by reason of inappropriateness and harm to openness. It was noted that the Council's Environmental Health Officer advised that the proposal would result in an improvement to amenity with a reduction in noise levels when compared to the existing use. In addition it was noted that the proposal would bring the currently uncontrolled use under planning control. It was also concluded that the proposal should be subject to restrictions to hours of operation, with more restrictive hours of operation on a Sunday. Based on these factors the Committee resolved to grant planning permission on the grounds that the proposed benefits arising from the proposal would be so significant as to overcome the harm to the Green Belt, subject to the imposition of conditions restricting the hours of operation, as detailed within the draft permission."

22. On 13^th February 2015 the Secretary of State decided that he did not wish to call the application in for his own determination. On 19^th February 2015 planning permission was granted subject to a number of conditions in particular condition 13 which provided as follows:

"13. No person connected to the moto-cross activities herby permitted shall be permitted to be on the premises outside the following times: 08:30-18:30 Monday – Saturday; and 08:30-16:30 on Sundays

And the use shall not take place other than between the hours of: 10:00 and 17:00 Monday – Saturday and 10:00 – 15:00 on Sundays."

23. For the sake of completeness, and prior to moving to consider the grounds of the applications before me, it is necessary to note that after the close of the proceedings I received, direct and unsolicited, letters from both the interested parties. They had not appeared or been represented at the hearing, although they had been served with the proceedings. In the letters they disputed some of the factual submissions which had been made by the claimants and made observations about the planning merits of the proposals. This intervention was entirely unsatisfactory procedurally and necessitated circulating the correspondence to the other parties and enquiring as to whether any party wished the hearing to be re-opened. None did, although comments were provided by the claimant and the defendant on the matters which had been raised by the interested parties. During the course of this round of correspondence solicitors on behalf of the first interested party requested that his client's letter be withdrawn from me.
24. A number of observations should be made. Firstly, it was wholly inappropriate for the interested parties to write in as they did, an error which was compounded by the failure to copy in the other parties. Secondly, once I had received the correspondence it was not possible for it to be disregarded, and it has occasioned delay as the views of the other parties had to be sought. Thirdly, the correspondence added nothing of any substance to the matters to be determined in this case. The facts I have set out above are the facts upon which the defendant took its decisions which are the subject of review in this case. As presented by the claimant the facts were not disputed by the defendant and for my purposes in resolving the issues which are raised in this case the facts as understood by the defendant which are of prime importance. My conclusions have not therefore been affected by the matters raised in the correspondence.

The applications and their grounds in brief

25. There are two applications for judicial review before the court and they are both listed for a "rolled-up" hearing of both permission and the substantive merits if permission is granted. The first judicial review known as 'JR1' is the contention that the defendant's ongoing failure to enforce against the use of the motor-cross track and the deposit of materials during the re-working of the levels of the track in 2013 was and remains unlawful. In brief it is contended that the re-working of the track rendered it and the use which it accommodated so radically different that the pre-existing use of the land recognised by the CLEUD had in effect been lost and a new chapter in the planning history had been brought about. Enforcement action should be taken against that activity, it is submitted, and the Council were wrongly advised in relation to any complexity in specifying the necessary steps to achieve that.
26. The second Judicial review or 'JR2' is a challenge to the grant of planning permission in relation to the 2014 application. This is made firstly on the basis of the failure to consider properly the lawful use of the land at present. The Council ought to have determined the application, it is submitted, on the basis that the present use of the site was not lawful and did not have the benefit of a CLEUD. Secondly, it is contended that in the light of the uncertainties about the effects of the noise mitigation proposed the defendant could not have rationally concluded that very special circumstances had been established which would clearly outweigh the harm to the Green Belt and any other harm arising in the case.

The Law

27. The development, as defined by s55 of the Town and Country Planning Act 1990, is controlled principally by the grant of planning permission or the enforcement of breaches of planning control. The question has arisen in the past as to the effect on existing planning rights of the grant of new consents or the unpermitted emergence of new development (whether operational or by way of change of use). The starting point for the consideration of this issue is the case of Prosser v MHLG 1968 LGR 109 DC in which planning permission was granted for rebuilding a petrol service station attached to which was a condition prohibiting retail sales apart from motor accessories. The occupier of the site, having implemented the permission, started selling cars from it and in a subsequent enforcement appeal against that use claimed that this was an established lawful use on the basis of it having occurred at the site prior to the planning permission. That claim was dismissed both in the appeal to the Secretary of State against the enforcement notice and also the challenge to that decision in the Divisional Court. Lord Parker CJ concluded as follows:

"Assuming, therefore, everything in Mr Butter's favour, assuming that there was at all material times prior to April, of 1964, an existing use right running on this land for the display and sale of motor cars, yet by adopting the permission granted in April, of 1964, the appellant's predecessor, as it seems to me, gave up any possible existing use rights in that regard which he may have had. The planning history of this site, as it were, seems to me to begin a fresh on April 4^th, 1964, with the grant of this permission, a permission which was taken up and used, and the sole question here is: has there been a breach of that condition? It is admitted that there has, and accordingly in my judgment the appeal on this point should be dismissed."

28. This case was relied upon by the Divisional Court in the case of Petticoat Lane Rentals Limited v Secretary of State (1974) WLR 1112. This case concerned a burnt out site which had a lawful use for a market but which was granted a planning permission for a new commercial building. When the building had been constructed the market had carried on, on the ground floor of the building and it was contended that this use was lawful. The use was successfully enforced against and the Divisional Court held that was correctly so. Widgery LJ concluded as follows:

"For my part I also think it [Prossors] was entirely correctly decided, but I think that in extending and applying it we should tread wearily and allow our experience to guide us as that experience is obtained. Accordingly I decline to use any general terms in saying what Prossors case decides or how it applies to the present situation, but I am quite confident that the principle in Prossors case can be applied where, as here, one has a clear area of land subsequently developed by the erection of a building over the whole of that land.

Where that happens - and it certainly happened in the case before us – in my judgment one gets an entirely new planning unit created by the new building. Land as such is merged in that new building and a new planning unit with no planning history is achieved. That new planning unit, the new building, starts with a nil use, that is to say, immediately after it was completed it was used for nothing, and thereafter any use to which it is put is a change of use, and if that use is not authorised by the planning permission, it is a use which can be restrained by planning control. As in Prossors case it seems to me to make no difference whether the old use sought to be restored was expressly extinguished by the new planning permission, or whether it was merely omitted from the terms of the grant in that permission. The fact that it is not authorised means that it is something which necessarily can be controlled because it is a change of use from the nil use which follows the erection of a new planning unit."

29. In their brief judgments Bridge J (as he then was) and Lord Parker CJ reserved the position of whether that would be the case in the absence of a condition where the building covered a part of a site which otherwise remained in a lawful use.
30. This thesis of existing or lawful uses being extinguished by operational works or changes of use creating a new planning unit was endorsed by the House of Lords in the case of Newbury Council v Environment Secretary [1981] AC 578 in particular in the speech of Lord Scarman who observed as follows:

"Prossors case has been followed in a number of cases. Their effect is accurately summarised by Browne LJ in the passage from his judgement which I have already quoted. Prossors case was approved by the Court of Appeal in Grey v MHLG 68 LGR 15 and by the Divisional Court (Lord Parker CJ presiding) in Petticoat Lane Rentals Limited v Secretary of State for the Environment [1971] 1 WLR 1112. It has never, however, been applied – so far as the researches of counsel have been able to ascertain – to a change of use case. In every case the permitted development which has been held to begin a new planning history has been operational in character: i.e., it altered the physical nature of the land by building, mining or other engineering works.

Mr Widdicombe for the company submitted at the outset of his argument – and at that stage he was supported by Mr Newey for the Minister – that the principle in Prossors case is not applicable to a 'change of use' case, where there is no building or other physical operation covered by the planning permission. Clearly it would be much more difficult to establish the creating of a new planning unit or the beginning of a new chapter of planning history where the unnecessary permission which has been granted subject to conditions purports to authorise only a change of use. But such cases can exist, as at a later stage in the argument counsel for the Minister was able to show: e.g., where permission is granted to change the use of residential premises in single occupation to a multi-occupational use. There is in such a case a wholly new departure, a new chapter of planning history. It would be a negation of sound planning if the conditions attached to the multi-occupation use could be avoided merely because prior to such use the premises had the benefit of an existing residential use and single occupation. I conclude, therefore, that Prossors principle is of general application where it can be shown that a new planning unit has been brought into existence by the grant and exercise of a new planning permission. But, where Prossors case does not apply, the grant of an unnecessary planning permission does not preclude a land owner from relying on an existing use right.

Upon the facts of this case, it is, however, not possible to apply the Prossor principle. Planning – wise on the facts as found by the Inspector and accepted by the Minister, was no departure from the previous use substantial enough to justify the inference that a new unit had been created or a new planning history begun. I, therefore, reject the submission to the contrary made on behalf of the Council."

31. The legal principles to which this case gave rise were further synthesised by the Court of Appeal in the case of Jennings Motors v Secretary of State [1982] JPL 181. In that case a site had an established lawful use for taxi, car and coach hire, vehicle repair and car sales. The occupiers built a building on part of the site without planning permission. The local planning authority did not take enforcement proceedings against the building but instead alleged a material change of use of the building and required its discontinuance. The appeal was dismissed and the Divisional Court upheld that decision on the basis that where a building was erected on part of a site, that part of the site was merged in it and a new planning unit created with no permitted use. There was, it was therefore concluded, a change of use from a nil use to the use of the building in the same use as the rest of the site. This analysis which had prevailed both at the appeal against the enforcement notice and in the Divisional Court was rejected in the Court of Appeal. Lord Denning MR stated as follows:

"In the light of experience, I think that we should discard the theory of the 'new planning unit' in future it should no longer be thought that a new building creates a 'new planning unit' that starts with a 'nil use', certainly not when it is just the replacement of an old building. The better theory is the opening of a 'new chapter in planning history.' This may take place when there is a radical change in the nature of the buildings on the site or the uses to which they are put – so radical that it can be looked on as a fresh start altogether in the character of the site. If there is such a change and the occupier applies for permission and gets it subject to conditions – and acts on that permission – he cannot afterwards revert to any previous existing use rights."

32. Oliver LJ analysed the position in this way:

"In my judgment, this is the essence of the matter. Where there has been a total change in the physical nature of the premises, it is easy to infer – indeed, the inference may be irresistible – that reliance on any prior user is being abandoned and a new planning history is to begin. Such an inference may equally be drawn – and may equally be irresistible – where there is no change, or a less radical change, in the physical nature of the site and a change in what I may call it's planning status that it is inconsistent with the preservation of a prior existing use – for instance, its subdivision into smaller units of occupation or its incorporation into a larger single unit.

Whether the alteration is of such a character as to produce this result is, I think, in every case, a question of fact degree.

How, then, does the matter stand when, as in the instant case, what has occurred is that there has been some physical alteration to part only of an occupation site, for instance, by the erection on it of a new building or the alteration of an existing building, or an application or in grant of planning permission subject to conditions inconsistent with the prior user? This may pose very difficult problems in the interpretation of the facts, particularly where, as here, there is a mixed site or where a particular use has been intensified as a result of the change. These are, however, problems only of fact and degree, not of principle, and they are not insoluble."

33. If enforcement procedures are to be invoked then parameters exist in relation to the remedial steps which can be prescribed in the event of development being established. In Makanjuola v SSCG 2013 EWHC 3528 Stewart J made clear that if works are integral to or part and parcel of an unauthorised use of land and they had not been undertaken for a different and lawful use and could not be used for the lawful use even if the unauthorised use ceased, then they can be enforced against in their entirety, even if part of those works were completed more than four years previously. It will not be sufficient if the works are integral to or part and parcel of the present and authorised use of land, if the works had been undertaken for a different and lawful use and could be used for that other lawful use even if the unauthorised use ceased (see Bowring v Secretary of State [2013] EWHC 1115). The question of whether operational works are part and parcel of a material change of use is a question of fact for the decision maker (see Murfitt v Secretary of State (1980) 40 PNCR 254 and Somak Travel v Secretary of State [1988] 55 PNCR 250).
34. In relation to the Green Belt policy considerations which arise when considering an application in Green Belt land the framework provides at paragraph 88 as follows:

"88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by way of inappropriateness and any other harm is clearly outweighed by any other considerations."

35. The need for Green Belt harm and other harm to be clearly outweighed has been emphasised by Mr Justice Sullivan (as he then was) in Doncaster NBC v Secretary of State [2002] EWHC 808 at paragraph 67 and 70 of his judgment and by the Court of Appeal in Wychavon District Council v Secretary of State [2008] EWCA Civ 692 (at paragraph 26) endorsing the formulation in Doncaster which at paragraph 70 read as follows:

"Given that inappropriate development is by definition harmful, the proper approach is whether the harm by reason of inappropriateness and the further harm, albeit limited, cause to the openness and purpose of the Green Belt, was clearly outweighed by the benefit to the appellant's family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy."

36. No submission was made in the course of argument, in my view entirely correctly, that any different approach was justified by the replacement of PPG2 with paragraph 88 of the Framework in respect of this cardinal test of how to apply Green Belt policy in a development control context. In particular the approach that there is a need for harm to be clearly outweighed is still reflected in the Framework.

Grounds

37. In my view it is important to start the consideration of the merits of the cases with JR1. It is accepted by the defendant that if it loses JR1 then, as night follows day, it must lose JR2 because it would have considered the application for planning permission on the wrong footing namely that the existing use was lawful. Thus it makes good sense to start with assessing the merits of JR1.
38. The foundation for considering whether or not the defendant's continuing stance of not taking enforcement proceedings is to be found in the Enforcement Report of 14^th November 2013 referred to above. It was accepted in the course of submissions by the defendant that the concerns which were recorded in respect of option one were overstated and legally erroneous. It will be clear from what has been set out above as to the correct legal approach to the requirements of an Enforcement Notice that the steps specified in any Enforcement Notice in the present case would not necessarily need to specify the tonnages of material to be removed, and it was accepted that steps could have been devised which were legally robust so as to enable the site to be returned to its previous appearance. However, that point is not determinative of whether or not the defendant's stance is, overall, one which is unlawful. For the following reasons I am satisfied that the approach taken by the defendants to the existing use is one which is legally defensible.
39. Firstly, it is important to observe that the defendant reached a positive conclusion within option two that whilst there appeared to be a breach of control the use of enforcement powers was not in the circumstances of the case proportionate. The issue of whether or not it was expedient to enforce in the circumstances of the particular case was a planning judgment which was open to them. At that stage the existing use of the site was unquestioned and bearing in mind the association between the physical works which had taken place and the motocross use it was open to them to conclude that (bearing in mind Green Belt policy) what had taken place was justified in planning terms to the extent that it was appropriate not to take enforcement action.
40. After the enforcement report was presented to members and a decision taken the issue was raised by the claimants as to whether or not the existing use remained valid and the interested party could continue to rely upon the CLEUD. The questions that were raised as to the existing use and its legality were considered in the committee report on the 2014 application as set out above. It is clear that officers approached the matter as a question of whether the works to the track created an intensification which led to a material change in the character of the use of the land. They concluded that they had not. In my view that was an approach which discloses no error of law: the correct question was addressed and an answer was reached which, as a matter of fact and degree coupled with planning judgment, was open to the defendant.
41. There was here no material change of use that could amount to some new chapter in the planning history. Whether or not the works created some new chapter in the planning history was, in the language of Oliver LJ in Jennings, a question of 'fact and degree'. What had happened involved an enhancement or improvement in the quality of the existing use and no doubt its attractiveness to riders, but it did not involve a radical alteration of the activity or an intensification of it of such a magnitude as to create a material change in the use. Again, the conclusion that was reached by the officers and adopted by the members clearly took account of the relevant material considerations and reached a conclusion which was unimpeachable. Whilst therefore I am satisfied that the points raised in JR1 are legitimately arguable, ultimately they do not succeed as it has not been possible to demonstrate any legal error in the council's approach which is determinative of the issue and I am satisfied that the correct questions were addressed in concluding as to whether or not enforcement action should be taken and the CLEUD could be relied upon.
42. In relation to JR2 the conclusion which I have reached on JR1 disposes of the question of whether or not the decision in relation to the planning application (which obviously embraced both the use and the inclusion within that use of additional land beyond the CLEUD area as well as the creation of the bund) proceeded on the correct basis namely that there was an existing lawful use of the site for motocross activity. The question which remains in relation to JR2 is whether or not the conclusion of members that very special circumstances existed so as to justify the grant of planning permission in the light of the proper application of Green Belt policy was one which was open to them and was adequately reasoned. In particular, as set out above, the contention made by the claimants is that members could not have rationally concluded that the harm to Green Belt and any other harm was clearly outweighed by the matters identified by members as very special circumstances namely the positive effect of the creation of the bund on noise levels in the area, the subjection of the existing use which was otherwise wholly uncontrolled to planning control and the restriction of hours of operation of the use on a Sunday.
43. The principle concerns which were raised in the submissions in this part of the case were as follows:

a) There were significant uncertainties surrounding the Environmental Health Officer's advice that the bund would have a positive effect even accepting his views at face value. He had noted in his advice to the committee that there were levels of existing aircraft noise which gave raise to concern in respect of the noise climate in the area and further that there were concerns and uncertainties in relation to the height to which motorbikes would jump whilst using the track. In truth it was submitted his conclusion about positive effects was circumscribed by his conclusion that other methods to control the noise were required beyond the bund, involving conditions controlling both the days and also the hours of use, in order to secure a reasonable outcome in relation to the noise environment.

b) It was submitted that there is no evidence that members looked behind the conclusions of the EHO in reaching their decision. Notwithstanding this submission it was contended that if they had done so and if they had examined the material that was the background to the Environmental Health Officer's advice in the form of the noise expert's reports which have been set out above the members would have discovered further uncertainties in the noise analysis which had been considered by the EHO in order to reach his conclusions. Those uncertainties related to the impact on noise of variable weather conditions (in particular wind speed and direction), what was the correct value for the measurement of background noise in the vicinity of the site and the reliability of the noise modelling. The discussion of the noise evidence set out above illustrates these uncertainties.

c) The Environmental Health Officer's advice that has been quoted above was predicated on a suite of measures including restrictive conditions. Building on the submission in sub paragraph (a) above it was submitted that in truth the EHO's advice was a relaxation from the Noise Abatement Notice which contained conditions which the defendant thought was necessary in order to control and abate a statutory nuisance. Attention was drawn to the fact that in his advice the Environmental Health Officer concluded that there should be no relaxation of the Noise Abatement Notice even after the planning permission had been implemented in accordance with his advice no doubt in order to assess the extent to which the creation of the bund was an effective means of controlling the noise from the motocross track. Attention was drawn in submissions to the comparison between the restrictions on the abatement notice (which it will be recalled restricted the use to one occasion per week on weekdays and on one Saturday per month between the hours of 10am to 2pm) and the recommendation of the Environmental Health Officer (which restricted the use to three days per week and two Saturdays per month again between 10am and 2pm). Members then granted planning permission subject to conditions in effect permitting the use of the track every day of the week between 10am to 5pm on weekdays and Saturdays and 10am to 3pm every Sunday. It was submitted that this was in reality no control over the use at all in terms of restricting the times when the use wished to be operational.

d) It was further submitted that notwithstanding the debate about a target noise level which had occurred between the experts so as to ensure an appropriate quality of residential amenity at nearby homes, no such target noise level had been identified or fixed by condition at the boundary of the affected properties.

e) It was submitted, building upon the submissions set out above about the uncertainties surrounding the noise evidence, that there was no reliable or quantified evidence to identify the actual extent of the amelioration of noise from the use which would be achieved by the implementation of the bund.

44. There is no doubt that these are powerful points bearing upon the planning judgment which had to be reached in this case. It also needs to be borne in mind that they arise in the context of the strictures of Green Belt policy. Bearing in mind the encapsulation of the test contained in the Doncaster case and set out above it was, as members were reminded in the committee report, necessary to show that Green Belt harm and any other harm were clearly outweighed by the matters relied upon as very special circumstances.
45. That said, whilst the balance which needs to be struck ways heavily against the grant of planning permission for inappropriate development in the Green Belt, it is nevertheless a balance. Provided the members have had regard to legitimate material considerations which bear upon the exercise of their judgment, and they have reached their conclusions employing the reasoning process required by Green Belt policy, it is not for the court to re-strike that balance. The reasons for the member's conclusions in this case are encapsulated in the letter written to the Secretary of State on 23^rd January 2015. It is clear from that letter that the members identified harm to the openness of the Green Belt and that very special circumstances were required. They were not prepared to accept that there was other harm in the form of adverse impact on the character and appearance of the area bearing in mind the site's landscape context and the landscaping measures which were proposed. There is, rightly, no challenge to that conclusion on the planning merits relating to that issue.
46. Complaint is made that they did not identify other harm grounded in the conclusions of Surrey County Council. The difficulty with that submission is whether or not Surrey County Council's objection achieves traction in terms of planning harm depends on the conclusion which is reached as to whether or not there would be a justifiable benefit to the environment (in particular in relation to noise) as a consequence of the inert material being used to construct the bund. It is clear that the members concluded that 'the proposal would result in an improvement to amenity with a reduction in noise levels when compared to the existing use'. That was a conclusion they were entitled to reach bearing in mind the generality of the conclusions of the Environmental Health Officer that in principle the construction of the bund would provide noise mitigation. That conclusion also addressed the issues which were raised by Surrey County Council and effectively nullified any basis upon which the development could be refused as an inappropriate use of inert materials.
47. The harm that needed to be fed into the policy equation was therefore that related to the harm by reason of the inappropriateness of the development coupled with the harm to the openness of the Green Belt. Members concluded that this harm was clearly outweighed by the improvement to amenity caused by the reduction in noise levels from the bund together with bringing the existing use under planning control (with the suite of conditions which were proposed in relation to landscaping on the site) together with the conditions imposed in relation to the hours of operation as compared to the existing uncontrolled use. It is obvious that members did not approach the issue of noise with the same degree of forensic precision in relation to the evidence that had been undertaken by the Environmental Health Officer or the noise consultants instructed by the claimant. That is not to say that they needed to in order to reach a rational decision. They took an approach that might be said to be unrefined and unsophisticated to the question of noise arising in the case, namely that the earth bund and such noise reduction as it might deliver would be undoubtedly beneficial and indisputably an improvement to an undefined but perceptible extent over the present situation bearing in mind that the existing use was going to persist. They therefore took a broad approach to the issue and concluded that the weight to be attached to that benefit together with such limitations on the activity as they thought were appropriate (albeit very limited) were sufficient to clearly outweigh the harm that they had identified again bearing in mind the lawful existence of the activity. In my view it was not necessary for them to delve into the questions associated with the detail of the noise evidence in order to reach that conclusion. They had sufficient material to justify such a conclusion based upon the advice from the Environmental Health Officer.
48. Equally, it is correct to observe, that there were other conditions which they could have imposed to control in greater detail the noise levels at potentially affected residential properties. The existence, however, of the opportunity to impose those conditions was a matter for them to assess in striking the overall balance and the fact that they only felt it necessary to effectively impose restrictions on hours on a Sunday was a conclusion open to them. In short, the fact that more strict controls could have been imposed does not render their judgment irrational. The assessment of those conditions that were necessary in the circumstances was a matter for their judgment. Furthermore, whilst others might have considered the imposition of a boundary condition at the affected residential properties would have been a means of addressing the uncertainties which are identified in the submissions I have set out above it is important to bear in mind that that was not an approach which was advocated by the Environmental Health Officer. Thus the potential existence of other more definitive or more restrictive conditions does not undermine the rationality of the decision which the members reached.
49. It will be apparent from the preceding discussion that I am un-persuaded by the complaints that the member's conclusions were inadequately reasoned. Their reasons are clear from the letter of 23^rd January 2015 and can be understood and analysed from it. Whilst the member's approach to striking the planning balance which has been described above had to bear in mind the existence of the lawful use of the motocross track on the majority of the land comprised in the application no doubt different considerations will arise in the proceedings in relation to the Noise Abatement Notice. As was stressed at the hearing that is a measure under separate legislation and which is designed to engage with what the defendant considers is presently a statutory nuisance being created by the operation of the site in the absence of control on its days and hours of use specified in the Noise Abatement Notice. I have no doubt that the detailed technical issues which I have recorded in my summary of the submissions set out above in paragraph 40 will be explored in depth in the proceedings relating to that Notice. Whilst, therefore, for the reasons I have given above those detailed technical issues did not require definitive resolution for members to reach a lawful decision given the broader approach which they took to striking the balance in terms of the Green Belt policy in the context of a planning decision, the examination of those matters no doubt remain open for examination in the context of the proceedings relating to the Noise Abatement Notice.
50. For the reasons which I have set out above it is clear to me that JR2 was arguable on both of the bases advanced, but, ultimately I am not satisfied that the claimants succeed when the merits are fully examined. In those circumstances both JR1 and JR2 must be dismissed.