Kerr v Welsh Ministers: when a lawful development certificate says nothing about motorcycle numbers, it means nothing about them

The High Court has dismissed a statutory review challenge to a planning inspector's decision granting outline planning permission for a motocross experience centre in Powys, confirming that a certificate of lawful existing use or development (CLEUD) imposing no numerical limit on motorcycles cannot acquire one by implication from letters exchanged during the application process.

The claimant, John Kerr, lived near the site at Rhydbladd Farm, Disserth, and challenged the inspector's treatment of the fall-back position under a CLEUD issued in 1999. That certificate, granted by Powys County Council, described the lawful use as motorcycle scrambling practice on Sunday and Wednesday afternoons and three organised events per annum, "in accordance with details accompanying the application and in the information given on the application form." The First Schedule said nothing about the maximum number of bikes on track at any one time.

The council had, in December 1998, written to the applicant's agent asking for clarification of intensity, including "maximum numbers of bikes on the track at any one time." The agent replied with a figure of 10 to 12. The claimant argued that this exchange — the December Letters — was incorporated into the CLEUD's description of lawful use by the tailpiece language, thereby imposing a numerical cap that would bear on the proper assessment of the fall-back position.

His Honour Judge Keyser KC, sitting as a judge of the High Court in the Planning Court at Cardiff, rejected that argument across a sequence of closely reasoned conclusions.

The most straightforward of these was definitional. Section 11 of the CLEUD application form had listed the documents accompanying the application — two letters, four maps, four press cuttings and 49 statements — all submitted in October 1998. The December Letters came afterwards. They did not accompany the application; they post-dated it. Extending the word "accompany" to cover subsequent correspondence, the judge held, would deprive the application form's listing provisions of their purpose and introduce uncertainty into the scope of the certified use. That finding alone disposed of ground two, and the judge went further to describe it as not merely defensible but clearly correct — nowhere near the Wednesbury threshold.

Equally telling was the statutory distinction drawn from section 191(4) of the Town and Country Planning Act 1990, which separates the description of the use from the information provided to establish its lawfulness. Most of what accompanied a CLEUD application — witness statements, correspondence, press cuttings — is evidence going to lawfulness, not to defining the use itself. To treat selected passages from that material as incorporated restrictions would require a secondary judgement about which parts of the documentation describe the use and which merely support it: an exercise no prospective purchaser consulting only the public register could reliably perform.

The judge also noted the internal inconsistency the claimant's construction would produce. The December Letters referred to a maximum of seven events, while the CLEUD itself certified three. Any attempt to read in the agent's figure of "10/12" motorcycles as a binding restriction would simultaneously introduce a conflicting ceiling on events — an outcome that could not have been intended.

The reasoning of the CLEUD itself reinforced the position. Its recitals addressed when and how frequently the site could lawfully be used; they said nothing about numbers of bikes. Had the council considered a numerical restriction important — and the December correspondence showed it had considered the question — inclusion in the First Schedule would have been straightforward.

HHJ Keyser KC declined to find that ground one (whether the inspector had wrongly stated that limitations could never be incorporated by reference) had independent legal significance, since the substantive conclusion on the CLEUD's proper construction was in any event correct. The inspector had not propounded a general rule against incorporation by reference; he had found the tailpiece insufficient on the facts of this case.

The claim was dismissed. The permitted development — motocross track use, a Motocross Experience Centre, seven holiday log cabins and ancillary infrastructure — may proceed on the basis of the planning permission granted by the inspector in August 2025.