Motocross racing CLEUD in AONB quashed

A controversial noisy motocross development in part of the North Pennines AONB in Northumberland, sought regularisation of its use by applying for a Certificate of Existing Lawful Use or Development (CLEUD). The Parish Council judicially reviewed the County Council’s failure to gather proper information about the activities. As permitted unlimited use of this motocross track would have been immune from enforcement.

Richard Buxton Solicitors was instructed in this unusual case where the County Council issued a CLEUD permitting the use without qualification. And that was despite its issuing an enforcement notice for the use of the site (later withdrawn due to a procedural error), and having refused two planning applications and four similar CLEUD applications.

CLEUDs are issued when the applicant can prove that a particular use has continued for the 10 years prior (in the case of development works, for four years). The certification cannot go beyond what is proved and will normally be conditioned to that effect. In this case some use had indeed occurred for well over 10 years, but the applicant failed to provide adequate evidence about the use over the 10 years preceding the application (when it had in fact intensified). The County Council’s failure to investigate lawfully was the first ground of claim; the second was its failure to consider obligations arising under environmental impact assessment (EIA) rules, possibly to require discontinuance of the use exercising powers under s.102 Town and Country Planning Act 1990. The Court granted permission to proceed on both grounds of claim and the County Council conceded.

The application for the impugned CLEUD relied on it established use of a motocross track in excess of 14 days a year, contrary to Part 4 of the GDPO 2015. However, and contrary to the information submitted, the Council issued a CLEUD that determined it was lawful for unrestricted use of the motocross track and access track without any conditions. The report that accompanied the decision failed to consider whether the Site could be used for racing for 365 days, whether the certificate is being granted only for the maximum number of days of proven use in any of the qualifying years (2010 – 2020), and whether it was appropriate to condition operational dates and times of usage on the track. Simply put, the issued CLEUD allowed the Interested Party to operate the motocross track absent any condition that it could be used in this way: Flint at [29] – [30]. The failure to do this amounted to an error of law and made it impossible from a planning control perspective to assess intensification of use beyond that actually established by the Interested Party at the point of his application.

The consent order as agreed was to quash on ground 1 only, although each party reserved its position in relation to the second ground of claim. Following the quashing of the original consent, the subsequent CLEUD was refused by Northumberland County Council.

Counsel for the Claimant was Joel Semakula of Landmark Chambers. Original referral from the Environmental Law Foundation (ELF).