![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dunsfold Park Ltd v Secretary of State for Communities and Local Government & Anor [2013] EWHC 1878 (Admin) (03 July 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/1878.html Cite as: [2013] EWHC 1878 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DUNSFOLD PARK LIMITED |
Claimant |
|
- and - |
||
1. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 2. WAVERLEY BOROUGH COUNCIL |
Defendants |
____________________
John
Steel QC and Stephen Whale (instructed by Sharpe Pritchard) for the Claimant
Paul Greatorex (instructed by Treasury Solicitor) for the 1st Defendant
The 2nd Defendant did not appear and was not represented
Hearing dates: 23-24 April 2013
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR JUSTICE FOSKETT:
Introduction
Background
12. The Aerodrome was constructed in 1942 by the Canadian Army and civilian contractors as part of the Allied war effort in World War II, the work officially commencing on 11 May 1942 . An aerial photograph in evidence dated 1 October 1942 shows that on that date the Aerodrome included runways, hard standings and a perimeter track together with grassed areas in between identical to orvery
similar to those facilities today. On 15 October 1942, an "Opening-Up Order" for the Aerodrome was issued. The official opening of the Aerodrome took place the next day, it being considered complete enough to be handed over to the Royal Canadian Air Force ("RCAF"). The Canadian Army moved out, and personnel from the Royal Air Force ("RAF") Regiment and the RCAF moved in. On 3 December 1942, squadron aircraft moved in (400 Squadron RCAF, followed five days later by 414 Squadron RCAF).
13. Thereafter and for the duration of World War II, the Aerodrome functioned as a military aerodrome both as a base for defensive air operations and in connection with the Allied invasion and liberation of occupied Europe during and following D-Day. As such, it was a base for a substantial number of aircraft used by a substantial contingent of military personnel including from the RCAF, the RAF, the United States Army Air Forces ("USAAF") and the Royal Dutch Naval Air Service. The use of the Aerodrome during this period will have embraced all those activities normally associated with an operational military airfield of that period, including combat flying operations, the transport and dispersal of personnel and goods, training and aircraft repair. Flyingvisits
continued during August and September 1945, despite the surrender of the Japanese on 15 August 1945 and the end of World War II. 16 Squadron remained at the Aerodrome until 20 October 1945, and aircraft continued to arrive throughout October to December 1945 upon return from operations in Norway. RAF aircraft remained at the Aerodrome at least until May 1946, and RAF flying activities took place at the Aerodrome in that year.
14. Dakota aircraft landed Canadian wounded at the Aerodrome in 1944. Famous wartime passengers on flights in and out of Dunsfold during World War II include Supreme Commander General Dwight D. Eisenhower and the war correspondent (as he then was) Ernest Hemingway. There was an Auster light aircraft arrival at and departure from the Aerodrome in April 1945. On 3 April 1945, the Aerodrome was chosen to become an Air Arrival Centre for POWs evacuated from mainland Europe. The first aircraft arrived at the Aerodrome as part of this role on 21 April 1945, when a Stirling aircraft landed at the Aerodrome carrying 28 POWs followed shortly afterwards by another Stirling carrying 42 more men. This AAC role ended on 25 June 1945, by which time 47,529 former POWs had been flown into the Aerodrome from overseas.
15. The Aerodrome was used for the aerial transport and dispersal of personnel and goods during the period 1942-1946. Its role in World War II included the aerial transport and dispersal of men, munitions, supplies, spares, equipment. The Aerodrome will have had a storage and distribution function in relation to those activities. There is evidence that these activities continued during the immediate post-war period. Supply and Transport flights into the Aerodrome from Norway took place in November-December 1945. It appears that a substantial quantity of spares was brought into the Aerodrome for packing and labelling during that period. On one occasion, ground crews are known to have dumped a large quantity into the adjacent canal.
16. In August 1946 the RAF declared the site to have the status of an "inactive" military installation. The Aerodrome remained a usable facility.
17. On 9 August 1946, the Air Ministry instructed the RAF to make many of the Aerodrome's facilities available for use by Skyways Ltd until further notice. On 1 September 1946, delegates of Skyways Limited and Dunsfold (Skyways) as a civilian air base were present and represented at the 1946 annual conference of the Aeronautical Engineers' Association. On 2 September 1946, the Aerodrome was transferred from 11 Group Fighter Command to 24 Group Technical Training Command. On 11 October 1946 it was announced that Skyways Ltd had been granted temporary loan of the Aerodrome for the maintenance of its aircraft under contract to the then British Overseas Airways Corporation ("BOAC") and British European Airways ("BEA"). The Air Ministry nevertheless maintained that the Aerodrome would definitely be required long-term for flying use by the RAF.
18. Skyways began operating at the Aerodrome in 1946. Skyways occupied and used the Aerodrome as a base for its passenger and freight operations, maintenance, repair, re-erection and crew changes. The physical extent, general layout and basic components of the facilities at the Aerodrome during the Skyways era (materially unchanged from the 1942-1946 era) is evidenced by contemporary aerial photographs and contemporary magazine articles.
19. A contemporary description of the physical extent and basic components of the facility operated by Skyways at the Aerodrome is found in the extract from Flight magazine dated 29 May 1947 [which] describes a "dispersed type layout" comprising a "full size airfield" with "good runways, hangars, control tower, living sites" and "workshops". The extract speaks of some 1,300 staff at the Aerodrome, together with an additional 350 aircrew personnel. There was a 24-hour working schedule. A "large proportion" of the ground staff lived at the Aerodrome in the former wartime accommodation on the site. A maintenance staff of about 1000 persons was responsible for repairing and overhauling all Skyways' aircraft. Skyways' actual flying services operated from either London Airport (now Heathrow) or from Northolt, Middlesex.
20. The range of maintenance services then offered by Skyways at the Aerodrome is shown on a contemporary advertisement . An article in "The Aeroplane" dated 30 May 1947 gives a similar account of Skyways' operations at the Aerodrome. The Aerodrome is described as "Skyways' headquarters" where "all the major maintenance work of the fleet is done"; "originally an RAF aerodrome, laid out in the standard pattern, and to this has now been added homes for nearly 400 of the staff, largely solving the problem of accommodation"; there was a shuttle bus service carrying staff from living quarters to hangars and workshops. An account is given of the repair and maintenance activities undertaken in individual hangars and workshops. There was a pilot and air crew training facility on site. The emphasis is on the efficiency and excellent quality of the maintenance services undertaken by Skyways at the Aerodrome.
21. .
22. Notwithstanding the coming into force of the Town and Country Planning Act 1947, Skyways did not require planning permission to continue the existing use of the Aerodrome as at the appointed day (1 July 1948).
23. [There was] contemporary consideration by the local authorities of the future use of the Aerodrome. In November 1947, the South-West Surrey Planning Committee is reported to have accepted that the Aerodrome was now a permanent feature, albeit that the Committee strongly recommended that commercial enterprise should be removed from the Aerodrome.
24. In February 1948 the District Council is reported to have learnt that the Aerodrome was to remain as an industrial concern for at least 10 more years with Skyways expected to stay for 4-5 more years. This contradicted an Air Ministry statement as to future RAF use of the Aerodrome. In May 1948, Skyways' operations were increased when BOAC chartered its Skymasters for more oil company traffic to and from the Persian Gulf.
25. The Berlin Airlift officially began on 24-28 June 1946, with the air forces of the USA and Britain transporting goods to West Berlin from British aerodromes in particular. The civil aircraft effort as part of the Berlin Airlift began on 4 August 1948, and Skyways aircraft based at the Aerodrome took part from the outset. Skyways aircraft made 2,749 sorties to (West) Germany in the course of the Berlin Airlift during 1948-1949.
26. In January 1949, Skyways aeroplanes (a 53-seater Skymaster and two 40-seater Yorks) left the Aerodrome for Singapore as part of an operation to transport the Palestine Police Force to Malaya. On 28 April 1949, "Flight" magazine published an air charter guide [which] stated that the Aerodrome was one of Skyway's bases, that it had five types of aircraft in its fleet and that it carried out all types of operation specialising in "long-haul passenger work".
27. In October 1949, Godalming Town Council is reported to have recommended that the Aerodrome should remain a civil aerodrome even if Skyways were to leave. Surrey County Council and the District Council are reported to have adopted a different position. The Aerodrome having apparently already been secretly designated as a reserve airfield for the RAF Fighter Command together with Blackbushe, Hampshire, it was in December 1949 assigned to the top secret United States Air Force Fighter Reinforcement Scheme and it was in consequence marked down to receive a security squadron of F-84 fighters. In March 1950, Surrey County Council reportedly expressed dissatisfaction at the delay in moving Skyways from the Aerodrome. Skyways went intovoluntary
liquidation the same month, although it re-formed on a limited basis with a much reduced fleet and workforce. There is some evidence that Skyways continued to operate at the Aerodrome until 1952, when it transferred elsewhere.
28. In December 1950, the Ministry of Supply suggested the Aerodrome as a site for Hawker Aircraft Ltd ("Hawker"). In March 1951, Hawker was granted a long lease of the Aerodrome.
29. In 1950 Hawker was an aircraft manufacturer operating a factory for that purpose in Kingston, Surrey. Hawker required a separate facility at which to assemble and flight test its jet aircraft, following delivery by road from the production lines at Kingston. Hawkers also required a facility for experimental testing and development of new aircraft models.
30. On 9 March 1951, Hawker applied to the local planning authority (then Hambledon RDC) for planning permission for "Erection, Repair and Flight Testing of Aircraft" at the Aerodrome. On the application form, it described the use of the land at that time as being for three purposes, namely "Repair, Re-erection and Flight Testing of Aircraft." The boundary of this application land is indicated by way of a dashed line on a plan accompanying the application .
31. On 13 April 1951, the local planning authority granted planning permission on Hawker's application . [It] is a permanent planning permission .
32. A substantial number of planning permissions were subsequently granted with respect to the Aerodrome between 13 April 1951 and 24 April 2000. Of these planning permissions, the majority authorised operational development within the Aerodrome and are accordingly of no direct relevance to the determination of [the] appeal.
33. Hawker's operations at the Aerodrome began in late 1951, after the grant of planning permission on 13 April 1951 . Aircraft assembled at the Aerodrome were produced at the Hawker factory in Kingston-upon-Thames, before being transported to the Aerodrome by road for final assembly.
34. . The evidence shows that, from 1951 onwards, the scale of Hawker's operations at the Aerodrome increased significantly . Mr McCue summarises the use of the Aerodrome during the period 1951 to 2002 in these terms
Intensive use of the Aerodrome for aircraft design, development, flight testing, assembly, production and maintenance.
[Waverley Borough Council] considers that flights at the Aerodrome between 13 April 1951 and 7 August 2002 were authorised for planning purposes byvirtue
of [the planning permission granted on 13 April 1951.]
35. In 1963, Hawker was rebranded as Hawker Siddeley Aviation Ltd. In 1977, this company became a component of the newly-formed British Aerospace. The latter was in turn succeeded by BAe Systems plc ("BAe").
36. In or about 2000 BAe ceased its aircraft assembly operations at the Aerodrome. The three hard runways at the Aerodrome remained serviceable. BAe undertook ferry and shuttle flights into and out of the Aerodrome between 2000 and 7 August 2002. Between 1998 and 2002 [Waverley Borough Council] granted BAe (inter alia) the following planning permissions in respect of the Aerodrome - WA98/1013, WA99/1913, WA99/1924, WA99/1925.
37. On 7 August 2002, BAe granted to [the Claimant] a long lease of land at the Aerodrome for a term of 999 years from 25 December 2001. The land demised under that lease includes the majority of the application site. BAe remains the freehold owner of the land demised under the lease .
38. An area of land and buildings in the northern sector of the Aerodrome is within the freehold ownership of Bricklead Limited and Brickneat Limited, which companies are wholly owned subsidiary companies of [the Claimant] . Since 2003 that area of land and the buildings situated within it have been in multiple occupation and used for a range of commercial and industrial activities.
39. Statutory declarations produced in support of [the Claimant's] application and its appeal describe a range of flying activities at the Aerodrome during the period since 2002. [Waverley Borough Council's] position as local planning authority is that any such flying activities have been authorised by planning permissions granted in respect of the Aerodrome since 1998 and are subject to the conditions imposed on those planning permissions. The relevant planning permissions include WA98/1013, WA99/1913, WA99/1924, WA99/1925, WA02/2046, WA04/0880, WA/2007/0372 and APP/R3650/A/07/2045619/NWF."
"No aircraft shall be flown to or from the site except by employees of the firms operating at the site and customers or companies associated with Dunsfold Park."
"8. Except with the prior written approval of the Local Planning Authority, the total number of aircraft movements (including helicopter movements) operating to and from the site shall not exceed 5,000 in any calendar year. Within this overall total of 5,000 movements the number of aircraft movements consisting of the arrival or departure of aircraft for assembly, repair or flight testing of aircraft and the arrival or departure of aircraft with equipment and parts in connection with aircraft assembly and repair work at Dunsfold Park shall not exceed 2,500 movements annually. Within the overall total of 5,000 movements, the number of movements associated with the movement of staff, executives and customers of companies associated with Dunsfold Park shall not exceed 2,500 movements annually. For the purposes of this permission, an aircraft (or helicopter) movement shall include a take-off or landing.
11. Without the prior approval in writing of the Local Planning Authority, there shall not except in the case of emergency be:
(a) Any flying of aircraft except between the hours of 0730 to 1930 during the period 1 October to 31 March inclusive and between the hours of 0730 to 2030 during the period 1 April to 30 September inclusive.
(b) Any flying of aircraft between 1500 hours on Saturdays and 0730 on Mondays.
(c) Any ground running aircraft engines, apart from essential testing preliminary to flight take-off, between the hours of 1830 and 0730 nor between 1500 hours on Saturdays and 0730 on Mondays.
18. There shall be no more than 2,723 total roadvehicular
movements (excluding pedal and motor cycles) per day allowed to gain access to any part of the airfield. For the purpose of this condition a
vehicular
movement shall include a movement into or out of the site. Before the implementation of this permission a management and monitoring agreement shall be agreed with the Local Planning Authority and thereafter adhered to for the duration of the planning permission, ie to 30 April 2018. Within the terms of the management and monitoring agreement the applicant is required to set down Automatic Traffic Count systems or other appropriate devices at the
vehicular
accesses to the aerodrome that record and differentiate HGVs from other
vehicular
traffic so as to provide evidence that the requirements of this condition are being met. Copies of the monitoring data shall be submitted to the Local Planning Authority at a frequency or triggers to be agreed with the Local Planning Authority before implementation of this permission.
23. HGV movements to and from the site shall not exceed 10 movements between the hours of 2300 hours and 0600 hours at each of the main access points to the site at Stovolds Hill and the site from Compass Gate.
24. The Applicant shall notify the Local Planning Authority in writing specifying the date on which the Applicant intends to implement the planning permission.
Reason
In order that the planning and enforcement position is clear and to avoid ambiguity in the management of the site."
The 1951 planning permission
"The Hambledon Rural District Council ... DO HEREBY signify in writing their approval, subject to the conditions (if any) specified in the Second Schedule hereto, of the application for permission for the development specified in the First Schedule hereto deposited by you on the 9/3/51
Erection Repair and flight testing of aircraft at Dunsfold Aerodrome, Dunsfold and Alfold Parishes
Novariations
from the deposited plans and particulars will be permitted unless previously authorised by the Hambledon Rural District Council."
"As a preliminary matter, I record that for many years, all concerned believed the 1951 permission to have been temporary but all are now agreed that it was and is a permanent permission, following the decision in I'm Your Man Ltdv
SSE 1999 77 P&CR 251, as the permission itself contains no condition or other purported restriction limiting its duration. I share that opinion. Because of the mistaken belief however, a number of later 'continuing use' permissions were sought and obtained ."
The lawful use certificate application
"Use of the application land as an aerodrome for aviation activities, including for the start up, taxiing, engine testing, ground running, take off and landing of aircraft, without condition, restriction or limitation as to:
Number of aircraft
Number of take offs and landings
Type of aircraft (whether fixed wing or rotary, civil or military, commercial or private, training or non-training and whatever the origin or destination of the flight)
Size of aircraft
Weight of aircraft
Number of crew and passengers
Type and amount of freight
Duration
Period of use (hours, days, nights, weeks, weekends etc)
Surface traffic generation
Number of employees employed on or off the application land or persons generally on or off the application land
Noise, air quality other emissions and environmental effects
Or otherwise"
Section 191
"(1) If any person wishes to ascertain whether
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matters to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed ."
"A Lawful Development Certificate is a legal document stating the lawfulness of past, present or future development. If granted by the local planning authority, the certificate means that enforcement action cannot be carried out to the development referred to in the certificate,
However, the certificate will not protect from enforcement action by the planning authority if the specified use is then changed 'materially' without a planning application for it.
The certificate is not a planning permission. The planning merits of the use, operation or activity in the application are not relevant. The issue of a certificate depends entirely on factual evidence about the history and planning status of the building or other land and the interpretation of any relevant planning law or judicial authority. The responsibility is on the applicant to provide evidence to support the application.
Section 10 of the Planning and Compensation Act 1991 established a procedure that enables anyone who wishes to do so, to apply to the local planning authority to determine whether a proposed use or operation, or an existing operational development or an existing use of land, or any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, is lawful, and if so, be granted a certificate to that effect.
A certificate granted for a proposed, or an existing use, operation or activity will specify (by reference to a plan or drawing) the area of land included in the certificate and describe the precise nature of the use, operation or activity which is lawful. The certificate will give the reason for determining the use or operation to be lawful and specify the date of the application for the certificate ."
Inspector's decision in summary
- that a new chapter in the planning history of the aerodrome was opened, and a material change of use occurred to one outside the scope of the 1951 permission on the cessation of the use by BAe and takeover of the aerodrome by the [Claimant];
- that planning permission was required and was first granted for that change of use on 17 April 2003, and is now the subject of one or other of the permissions granted on 11 March 2008 and 18 June 2008;
- that for present purposes, it does not matter which of those permissions has been implemented but that as a question of fact, the uses authorised by them have commenced, and one or other of them has been implemented even if there has been a breach of condition(s);
- that whichever of those permissions has been implemented, each contains
valid
and enforceable conditions which govern aviation activities in such a way as presently to deny the [Claimant's] entitlement to the certificate sought;
- that even if neither of those permissions is in force (for whatever reason), the 1951 permission does not include a use of the airfield, either by itself or as part of the wider aerodrome, for unrestricted aviation activities.
a) That the 1951 planning permission was in force and governed the use of the site until the cessation of the activities of BAe in 2002, but that thereafter the permitted flying activities were governed by one or other of the temporary permissions granted thereafter, the relevant and extant permissions for the purposes of considering the application under section 191 being either that granted on 11 March 2008 (WA/2007/0372: see paragraph 14 above) or that granted on 18 June 2008 (WA/2007/0373 as allowed on appeal: see paragraphs 10 and 15 above). In other words, whatever right the 1951 planning permission did grant in relation to aviation activity, that right was "lost" byvirtue
of the implementation of one or other of those temporary permissions and since the uses authorised by them had been "begun" (using the terminology of the Act) it is of no consequence to decide which of the two had been implemented the implementation as a matter of fact of one or other was sufficient to govern the permitted aviation activities which activities were plainly not "unrestricted".
b) Even if those conclusions were wrong and the 1951 planning permission was still extant, the terms of that permission were not such as to permit unrestricted aviation activity and thus the certificate claimed under section 191 could not be granted.
"A conclusion on the 2008 permissions might be sufficient to determine the appeal if it was unfavourable to the Appellants. Because the Appellants now argue that they did not need those (and the preceding) permissions however, I would necessarily have to examine the effect of the 1951 permission; and then in turn, whether that permission was itself unnecessary, depending on the use of the land on the appointed day ."
The Inspector's more detailed reasoning on his principal conclusions and the criticisms made of it
(i) The need for planning permissions in 2008
"39. On the evidence before me, the only plan submitted was a site plan drawn around the wider aerodrome boundaries, while the only "particulars" were the application itself and the accompanying letter, though neither are cited specifically. The source of the belief that the permission was temporary was the answer given to a question on the type of permission sought in the application, namely: "Temporary by arrangement with the Ministry of Supply. Say seven years." Nothing was stated in the permission itself however, whether by condition or otherwise.
40. Whether this 'keep it simple' approach is preferable to the 24 conditions imposed on the first 2008 permission I leave for others to ponder. It at least has the advantage of brevity when it comes to interpreting the effect of the permission and I find no need to look elsewhere in order to do so. Indeed, it is hard to see where else one might look. As above, the expression "erection of aircraft" was later equated with their "production" and I see no reason to take a differentview.
At the least, it necessarily would include ancillary activities within the planning unit leading to the achievement of that purpose, so long as they retained their ancillary status and the ancillary link was maintained. "Repair" largely speaks for itself, and again would have covered necessary ancillary activities.
41. "Flight testing" may have been specifically included, rather than some wider term, because of the Air Ministry's stipulation that, in aviation terms, Dunsfold should only be used for that purpose. It may also have been in recognition, as Mr McCue mentioned, of the greater intensity of flight activity anticipated, though there is nothing to confirm that. However the term came to be used, the fact remains that the permission could have referred to general aviation activities, or have contained some other description, if that had been the intention. On the face of it and on its plain meaning, it authorised flight testing and no more than that, though other aspects I address below."
"43. The date of BAe's finalvacation
of the site is less important than the fact that, since 2003, the land and buildings in the northern area (and indeed some other parts of the aerodrome land) have been occupied and used for a range of commercial and industrial activities. As the ATM records and other evidence indicates, the flying of aircraft has also continued to a greater or lesser extent throughout."
"48. Since the first two permissions are now time expired in any event, the question can be put in terms of whether the [Claimant's] use of the site immediately before the [2008] permissions were obtained fell within the scope of the 1951 permission. If it did, then the [2008] permissions were unnecessary and the [Claimant] can rely on it."
"49. For immediate purposes therefore, the extent of activities [during the Hawker/BAe period: see paragraph 8 above] is of little consequence to the planning position in 2002/3 . The 1951 permission was not restrictive as to the number of occupiers but was specific in the mix of uses it prescribed. That is not surprising given that it was granted in contemplation of occupation by a single manufacturer but one of avery
particular kind where it was felt necessary to describe the use specifically rather than as a general industrial permission.
50. It is not for me to attempt to classify the use to which each and every occupier in March 2008 (or in April 2011) put their individual part of the aerodrome, nor was such an analysis carried out by either party. The onus however remains with the [Claimant]. [The Chief Executive of the Claimant who gave evidence] put the number of occupiers not directly connected with aviation "in the order of 50". Even if correct that says nothing of the proportion of floorspace they take up, the extent of their activities, nor gives any details of what they actually do. What it does say is that about half the occupiers have or had no connection with aviation at all.
51. [The Project Manager of Dunsfold Aerodrome who gave evidence] described some of the actual uses to which buildings were put in BAe's time. Of the 'current uses' noted only one makes any mention at all of aircraft or aviation (hangar T2B ), though a great many are expressed in general terms such as 'storage'. [The witness] also acknowledged that by April 2011, none of the occupiers were engaged in the production of new aircraft. The impression - and it can be no more than that - I obtained from walking around the northern area is that, save for the other original hangar (T2A), only a small proportion of the built floorspace is now given over to activities that could genuinely be said to fall within the specific terms of the permission.
52. Whatever the status or effect of the Air Ministry stipulation [see paragraph 41 of the decision letter quoted in paragraph 38 above] it did not amount to a condition or restriction in planning terms. The permission itself contained no restrictions, for example, on the number of Air Traffic Movements or on hours of operation, but it is too specific to amount to a permission for general aviation activities or for purposes other than flight testing. Rather, it authorised that as a necessary part of a composite or mixed use of the whole planning unit, whether that was of aircraft assembled at Dunsfold or brought in from elsewhere. That does not mean that no other flying could take place (subject to any non-planning restrictions). Given the nature of the undertaking and thevery
existence of the airfield, the flying of aircraft (not on test) to and from it would in my opinion generally have been lawful if ancillary or incidental to the primary use. As to air traffic unrelated to that use, it is unhelpful to ask whether this or that particular flight was or was not lawful within the terms of the permission. The question would have been whether any such activities being carried on at any given time amounted to a breach of planning control. As ever that would have been a question of fact and degree at that time.
53. It was not part of the Council's case that the development of the northern area into a business park had resulted in the creation of many different planning units. That might have been a difficult argument in the light of the approach taken to the temporary 'all encompassing' permissions. Equally, I doubt that would prevent the Council enforcing against a change of use say, of one of the buildings, to a use outside those specified. Both parties referred to a number of authorities on the questions of changes in occupation, the sub-division of a larger planning unit and the possible resulting material change of use or lack of it. I entirely accept the propositions that neither a change in occupier nor in the number of them will necessarily result in such a change.
54. The immediate question however is as indicated, not one of fact and degree as between Hawker/BAe and the [Claimants] but whether the use in 2008 fell within the scope of the 1951 permission. Whatever has happened on the airfield itself since BAe's departure, as a simple question of fact, there are now a great many independent and diverse occupiers of parts of the aerodrome whose business is wholly unrelated to the erection, repair or flight testing of aircraft. That in my judgment is sufficient of itself to hold that a new chapter in the planning history of the site has been opened with a range and type of uses now and in 2008 going far beyond thevery
specific terms of the 1951 permission. On that basis, and on the balance of probabilities, the Appellants needed planning permission in 2003 and continued to need it on the expiry of each of the first two temporary permissions."
"55. If my first conclusion is wrong [i.e. that there was a change of use as between Skyways and Hawkers giving rise to the need for the 1951 permission] then the argument might be made that the issue here should be based on a 'fact and degree' comparison between BAe's and the [Claimant's] use, rather than compliance with the 1951 permission. The proper assessment then however would in myview
be whether the [Claimant's] use was materially different to the use (as I have found it) on the appointed day, since it was not part of the [Claimant's] case that there had been some intervening change of use which had become lawful through the passage of time.
56. Such comparisons are useful however, even if only to test further my last conclusion (at para 54.). I have already referred to some of the considerable body of evidence given at the inquiry about activities over the 50 or so years of Hawker/BAe's occupation, including some carried on by other companies. The thrust of it however, acknowledged in cross examination by both Mr McCue and Mr Roberts [who was a former Test Pilot & Chief Test Pilot with Hawker/BAe between 1979 and 1994 and gave evidence on behalf of the Claimant], was that non-production or flight testing activities undertaken were nevertheless mostly if not predominantly related to Hawker/BAe's wider operation. That included activities within the present application site such as flying operations, training, the transport of personnel, customers and othervisitors,
storage, external testing and assembly and the passage of inbound and outbound freight. Just as with Skyways however, those activities were for the most part inextricably associated with Hawker/BAe's occupation of the northern part of the aerodrome.
57. Particular reference was made to the 'RCR hangar', [which] had a separate road access and is shown in a number of plans as outside the aerodrome boundaries. A specific permission was first granted for its erection and use for the development and installation of 'aviation electronics' [which] was latervaried
on appeal in 1994, the permission being subject to a condition limiting the use to the "storing, maintaining and overhauling of aircraft and aircraft components and the manufacture of aircraft components ancillary to those uses and for no other purpose," with other industrial and storage uses specifically excluded. It is hard to imagine a use more consistent with BAe's or indeed the 1951 permission. Permission was granted on appeal in January 2002 for a change to Class B1(c) and B8 uses, the aviation use having by then apparently all but ceased .
58. Personnel from other companies I do not doubt were often accommodated by Hawker/BAe. The evidence indicated that they too were largely engaged in research, development or testing of new aviation related equipment, even if for their own ends. That is hardly equivalent to the diverse multi-occupation seen today where, as Mr Roberts commented, the site was a secure one which the Ministry of Defence would not have allowed Hawkers/BAe to "open up" to uncontrolled commercial occupation. Other flying activities were also carried on, such as use by the Red Arrows aerobatic team, and some Ministry or private use when requested and authorised, but as Mr Roberts put it, the aerodrome was "not a commercial operation for the benefit of all comers." Nor was it, on the evidence, in the Skyways' era, despite the AIP descriptions.
59. The potential consequences or impact of changes in planning terms may not of themselves constitute a material change of use, but can certainly support a finding of one. Indeed, in borderline cases, the courts have accepted that it is proper to assess materiality in planning terms, having regard to the possible effect on local amenity. In the present case, there are first, obvious potential consequences in the change from a 'single purpose occupier' to multi-occupation for the supply and take up of employment land in the District.
60. The potential impact of "the proposal" was also discussed in the 2008 appeal decision. The Inspector noted that the Appellants wanted to "alter the balance of the permitted uses" to allow for more B8 storage at the expense of B1 or B2 uses. He recorded that "both main parties accepted that B8 uses have a greater likelihood of producing HGV movements." There followed considerable discussion of that aspect and the need for conditions governing it. I too heard evidence from a local resident of the disturbance caused by such traffic. The Inspector then agreed that the "exact uses" should be set out and "other possible uses" should be restricted both to prevent excessive noise and disturbance and because of the unsustainable transport location. Open storage was to be limited to specified areas onvisual
impact grounds.
61. Avariety
of other conditions were also imposed but the point for present purposes is not so much that they were often designed to prevent any greater impact than under BAe's occupation which some undoubtedly were but that the ones I have highlighted reflected a change in the primary use of the aerodrome as a whole, particularly storage and distribution. Where before storage especially would have been a necessary ancillary use, its elevation to part of a wider mixed use carried significant consequences. The fact that the change of use of a building in Class B1 or B2 use to a use within Class B8 is normally permitted under the 1995 General Permitted Development Order does not mean that the change from the specific use authorised in 1951 to the present range of uses, or from the use on the appointed day, was not material.
62. These comparative observations only serve to support and reinforce my conclusion that the [Claimant's] use of the aerodrome in 2008 (or at any time since 2002) fell outside the scope of the 1951 permission. Whatever the starting point moreover, taking account of all these matters, I am in no doubt that the Appellants were correct in applying for planning permission in 2002, 2004 and 2007, even if their motive was only to provide "commercial comfort" to their clients. Further, while the level of use of the airfield may havevaried,
there is nothing to lead me to regard it as anything other than part of the wider planning unit at those times, as it had been throughout."
"This permission has been implemented and is the permission under which Dunsfold Park Ltd currently operate the temporary use of most of the buildings on the site."
"The note was said to have been made in particular to support the Appellants' contention of a 'fallback' position at that time. Be that as it may, I know of nothing that precludes them now advancing a different argument in support of this appeal, whatever the reasons for that and however 'attractive' or otherwise that may appear."
(ii) The "planning unit" mistake
"The development, therefore, authorised by the 1951 planning permission is the erection, repair and flight testing of aircraft at Dunsfold aerodrome. The site plan shows the applicable land to include the aerodrome as a whole. It is a full planning permission authorising a specified set of activities to be carried out in respect of aircraft at the aerodrome. As is apparent from the site plan, the specified activities were authorised to be carried out at an existing aerodrome comprising an airfield and an existing supply of land and buildings. The planning permission did not authorise any operational development. The planning permission was for a permanent use of the aerodrome for the specified activities."
"I entirely accept the propositions that neither a change in occupier nor in the number of them will necessarily result in such a change."
(iii) The failure to make the correct comparison
(iv) The implementation of the 2008 permissions
"It is strictly unnecessary for the purposes of the present case to resolve which of WA/2007/0372 and WA/2007/0373 has been implemented. These were duplicate applications. Whilst they differ in certain detailed respects as to their terms and conditions, those differences are immaterial to the question whether the use of the airfield for unrestricted aviation activities was lawful as at 31 March 2011. The relevant facts are (i) that both authorised the continuing use of buildings and land at the aerodrome for industrial and commercial purposes for a temporary period extending beyond 31 March 2011 and (ii) did so subject to substantially similar conditional controls governing aviation activities at the aerodrome."
65. I have already referred to some of the differences between the two 2008 permissions. Both contain a condition requiring the [Claimants] to notify the Council of the "commencement and implementation" of the permission. Plainly, that cannot be a 'condition precedent'. The fact that no such notification has been given would amount to a breach of condition, nothing more, if either permission has in fact been implemented. Its absence might make enforcement more difficult but if duplicate notices were issued and appealed, it would not be the first time an Inspector has been asked to rule on which of them should be upheld, depending on the facts as he or she found them. I therefore see no insurmountable difficulty arising on this point.
66. Both permissions contained a similar condition limiting the number of daily traffic movements. Both also included the [provisions referred to in paragraphs 14 and 15 above]. It was not disputed that no such 'management and monitoring agreement', nor the 'frequency or trigger' for submission of the data has been agreed.
67. A similar if shorter condition had been imposed on permission No WA02/2046 [and] in permission WA/04/0880 . The Council's committee report in February 2008 records that it was "technically correct" that the earlier conditions had been breached but that details of the monitoring arrangements had been notified to them. It was however still felt appropriate to ensure thatvehicle
movements were accurately recorded and monitored. The Inspector in 2008 clearly had some apparently limited statistical information available but did not record any particular
views
about the need for a 'management and monitoring' agreement when imposing effectively the same condition as the Council's. Indeed, as the Inspector recorded, the Appellants then already had a planning permission .
68. The Appellants' argument in short is that the failure to comply with the condition(s) means that neither permission has been implemented. The first point to make is that I have not a scintilla of doubt nor in fairness, was there any dispute - that as a question of fact, the uses set out in the relevant schedules have commenced and if with thevariations
to be expected over time, are continuing. Further, that has been the case, if again with
variations,
since the grant of permission WA/02/2046.
69. I have taken account of thevarious
authorities cited by the parties . In the most recent Greyfort case, the relevant condition required agreement as to ground floor levels "before any work is commenced on the site." That however was a permission for operational development where the setting of the floor levels was seen as of "considerable importance" and the condition was held to be a clear and express prohibition on the carrying out of any work before the levels had been agreed.
70. The question of traffic levels has clearly also been of "considerable importance" in the consideration of these and earlier permissions. The failure to comply with the conditions has to be seen in the context not only of the Council's apparent attitude to it in 2007 however, but also the fact that the uses (or most of them) had by then been carried on for some time, the conditions imposed numerical traffic limits and the permissions are themselves temporary and overlap their predecessor.
71. The phrase "before implementation of this permission" I thus regard as intended merely to indicate the time by which the event should have happened and beyond which the Council would be entitled, if expedient, to take enforcement action for breach of condition. It does not amount to an express prohibition, as might clauses such as "no buildings shall be occupied until ." Or even "this permission shall not be implemented until. " In fact, none of the conditions since 2003 have been complied with (at least in relation to management and monitoring) but the Council to date have not found it expedient to take enforcement action. That of itself may be seen as a measure of the importance the Council attaches to them. Looked at overall, the relevant parts of the conditions are neither sufficiently fundamental to the permissions nor sufficiently prohibitive to amount to a 'condition precedent' within the Whitley principles. Put another way, common sense dictates that these permissions (or at least one of them) have been implemented, but there has been a breach of condition which can probably be enforced against."
The aviation activity permitted by the 1951 permission
Conclusion
Note 1 It is always possible to look at extraneous material to resolve an ambiguity on the face of a planning permission: see R v Ashford Borough Council, ex p Shepway District Council [1999] PLCR 12, 19-20. [Back]