QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF BROMLEY||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(1ST DEFENDANT)|
|SECRETARY OF STATE FOR TRANSPORT||(2nd DEFENDANT)|
|BIGGIN HILL AIRPORT LIMITED||(3rd DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS N LIEVEN (instructed by THE TREASURY SOLICITOR) appeared on behalf of the 1st and 2nd DEFENDANTS
THE THIRD DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
Crown Copyright ©
Monday, 9th June 2003
"... if there are no other acceptable and practicable locations within the operational areas of the airport where the development could take place." (11.3.9)
"Option D: West Camp. West camp is potentially available for this hangar development. For the appellant it was agreed that it is an acceptable location in principle. No evidence is produced to show that this site is not available. Indeed, those acting for the appellant expressly chose not to provide such evidence as they had in relation to the availability of this site. Accordingly, there is no evidential basis upon which the appellant can assert that this is not an available alternative location."
"West Camp is under the ownership and control of [Formula One Administration] FOA who have their own outstanding proposals for the area which are the subject of a resolution to grant on the part of the Council but proposed to be conditioned to occupancy personal to that company. There is no evidence that West Camp is available."
"I do not accept the Council's contention that West Camp is potentially available. (6.2.36) It is not part of the land leased by BHAL, and does not fall within the boundary of the airport. The relevant area, including hangar aprons and a length of taxiway Hotel, are in the ownership/control of FOA. Insofar as this is an operational taxiway, and it was in use as such at the time of my site inspection, the fact that it is not under the control of BHAL and that its use as a taxiway by aircraft is only by agreement with FOA, is somewhat surprising. The significance of this situation for airport operations relates to the restricted clearance along taxiway Alpha in the vicinity of East Camp which prevents the use of that taxiway by larger aircraft. While BHAL's wish that this part of West Camp should be reintegrated with the remainder of the airport is understandable, that is not in BHAL's gift. Unless and until BHAL secure an interest in that area they will be unable to make the site available to Jet Aviation for FBO purposes. I draw no inference from the fact that BHAL's company witness was not prepared to comment on confidential discussions it may or may not have had with FOA.(6.2.46)."
"... that site D at West Camp is not a realistic alternative site for an FBO in the light of its present ownership, and there is currently no evidence to indicate that that situation will change in the near future."
"Neither option represents an operationally practical location for the appeal proposal."(11.3.20)
"There is no evidence upon which the Secretaries of State can properly be satisfied that Options F and G are not available alternative locations for Jet Aviation's operations. Indeed, if the Airport's previous correspondence is to be believed and to carry any weight, this was at one stage the Airport's own suggested form of development.
The Airport's Objectives for runway 11/29." (6.2.56)
"From the above there is no basis upon which the Secretaries of State can be satisfied that this area is not an available alternative location for the development requirements of Jet Aviation. The company are operating from the Airport currently and wish to improve their facilities for the future. There is no evidence that the time-scale for such development is essential. The Airport believes Runway 11/29 to be economically unsustainable in the long term. The Airport has yet to carry out any cost/benefit analysis of its closure, including the benefit of allowing Jet Aviation and others to redevelop the freed up area. Any such closure could be brought about at any stage by the CAA in any event. Without the cost/benefit analysis performed, the Secretaries of State cannot be satisfied that this area is not available. However, even on a basic cost/benefit analysis, it is clear that the cost of repairs of the runway far outstrips the revenue it is creating. Insofar as the Airport requires another runway for cross-wind occasions, this is very rare (3 per cent) of movements, and no evidence is provided as to the ability of the 3rd runway to provide such facilities (if they are economically sustainable). The overall longer term development strategy is to close this runway. There is therefore no basis in planning terms for this potentially permanent encroachment into the Green Belt (one of the highest protective designations possible) when such encroachment could be avoided by development in another area subject only to removal of economically unsustainable existing development in that area."
"The solutions advanced on behalf of the Council lead to the loss of runway 11/29, which BHAL wish to maintain for as long as possible because of its use by businesses involved in pilot training." (7.2.26)
"However, the continued use of runway 11/29 as a runway is uncertain for several reasons including its impact on BHAL revenues, and with this its continued acceptability to CAA, and potential future development options."
"The runway is acknowledged to be in poor condition requiring regular maintenance in the form of 'patching' to maintain it at a standard acceptable to CAA for continued use for takeoffs and landings by light aircraft. The full rebuilding of the runway would cost of the order of £2 million, while slurry seal 'patching' repairs, which would provide a somewhat shorter life to the runway, would cost of the order of £250,000. These costs compare with direct annual income from landing fees from mainly training aircraft using this runway of £25,000."
"... included both the poor condition of runway 11/29 and the continued availability of runway 05/23 as an emergency runway for light aircraft in the event of heavy cross-winds on runway 03/21. For the appellant it was stated that the closure of runway 11/29 was not dependant on the future provision of a passenger terminal. In the long term its retention was economically unsustainable, although BHAL are not looking to close it in the short term. The company also anticipate that if CAA becomes further concerned about the state of the runway it would seek to reduce its serviceable length, rather than close it in its entirety. It is the company's position that this runway is of particular benefit to those companies who provided light aircraft pilot training as it allows those business to continue to train in a variety of weather conditions.(7.2.26) However, there is clearly uncertainty as to the future use of 11/29 as an operational runway in the short to medium term."
"Although I have accepted that there is uncertainty as to the future of runway 11/29, I do not accept the Council's assessment that BHAL has a strategic objective to close this runway. I am satisfied, however, that if BHAL's long-term aspirations for a greater aviation role for the airport were forthcoming, then the runway could close, if operationally necessary, irrespective of maintenance costs or CAA certification concerns at that time."
"The uncertainty as to the future role of Biggin Hill in supplying aviation facilities in the Region over and above its current role, has implications for the availability of land within the airport for other aviation uses, particularly business aviation. Against the background of all these uncertainties it is not possible to say that the appeal site is the only site within the airport boundary that will be suitable for the location, in both planning and operational terms, of a hangar of the size of the appeal proposal. For example, the closure of runway 11/29 would remove obstacle limitation surface constraints at the eastern end of South Camp..."
"It is particularly unfortunate for Jet Aviation that this proposal has come forward at a time of such uncertainty. That company understandably wishes to proceed with the development of its 'commercial offer' in what is acknowledged to be a competitive industry, but this does not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances when there remains potential for other land to come forward which more closely accords with the UDP policy at South Camp."
"It is clear that its permanent retention as an operational runway could not be economically justified on the basis of the landing and takeoff revenues it generates, although I accept that it has wider 'flexibility' benefits for those companies and pilots using light aircraft."
"The time-scales for these decisions would appear to be relatively short term, whereas decisions relating to the provision of the major hangarage for the principle FBO at Biggin Hill concern development that, when built, will be in place for many years. In reaching these conclusions I am not suggesting that runway 11/29 should close, but rather that such a significant decision as a development of the scale of the appeal proposal needs to be taken in the context of the overall development of aviation facilities at Biggin Hill."
"My overall conclusion on this issue is that the very special circumstances necessary to justify permitting inappropriate development in the Green Belt, in this case the non-availability of an other more appropriate location within the operational airport, have not been established beyond reasonable doubt, and that this uncertainty amounts to sufficient reason for a refusal of planning permission on the grounds of conflict with the adopted UDP, and in particular, Policies G2, BHA2 and BHA8, and I shall recommend accordingly."
"... that very special circumstances can only support the appeal proposal if there are no other acceptable and practicable locations within the operational areas of the airport where the development could take place."
"With respect to sites F and G at South Camp, the Secretaries of State note that the Inspector considers that in the context of the continued use of runway 11/29, neither option represents an operationally practical location for the appeal proposal. (11.3.20) The Secretaries of State consider this to be significant. They observe that there is uncertainty over the continued use of runway 11/29, but that BHAL are not looking to close it in the short term (IR 11.3.22). They accept that the appeal proposal has come forward at a time of uncertainty as to the future role of Biggin Hill (11.3.26) and, had there been clearer evidence of potential for other land to come forward which more closely accords with the UDP policy at South Camp, they would have accepted that the company's wish to proceed with the development in what is acknowledged to be a competitive industry would not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances. They accept there is an argument that decisions about development on the scale proposed in the appeal ought to be taken into the context of the overall development of aviation facilities at the airport (IR 11.3.29)."
"However, the proposal has to be considered in the light of the circumstances currently applying, and on the basis of these, the Secretaries of State are not satisfied that there is currently a suitable site available within the airport, other than the appeal site, on which to locate the hangar. The Inspector has concluded (IR 11.3.38) that very special circumstances necessary to justify permitting inappropriate development in the Green Belt, in this case the non-availability of another more appropriate location within the operational airport, have not been established beyond reasonable doubt. However, as the Secretaries of State are not satisfied that an alternative site for the hangar is currently available within the airport, they do not agree with this conclusion."
"12. The Secretaries of State note that the UDP objective for Biggin Hill referred to in paragraph 6 above in addition to seeking to protect the Green Belt, makes provision for a gradual improvement of the airport, in terms of the type of operation, its appearance and its facilities, including controlled growth of business aviation. They agree with the Inspector (11.3.4) that the appeal proposal in terms of its size is not unreasonable or excessive in the context of the business aviation industry and it is not excessive in the context of Biggin Hill Airport as a recognised centre of business aviation. They further share his view (11.3.9) that the scale of the appeal proposal is reasonable in operational terms and that it will contribute to the longer term financial security of the Airport.
"13. Accordingly, on the issue of whether there are very special circumstances, the Secretaries of State have concluded that there is an operational need for the proposed development and that the absence of a reasonable alternative location for the appeal proposal and the fact that there are a number of other matters supporting the development as set out above, amount to very special circumstances which outweigh the harm to the Green Belt."
"... had there been clearer evidence of potential for other land to come forward which more closely accords with the UDP policy at South Camp, they would have accepted that the company's wish to proceed with the development in what is acknowledged to be a competitive industry would not amount to sufficient reason for allowing this appeal on the grounds of very special circumstances."
"Condition 8 would make occupation of the building personal to Jet Aviation. This was acceptable to the appellant in principle. In circumstances where the permission is to be granted on the basis of very special circumstances relating to a particular company, in this case Jet Aviation, then such a condition is entirely appropriate to prevent the building being occupied in the first instance by a company who may not be able to establish those, or other very special circumstances, that justified its occupation of the development. I am satisfied that condition 8 should be imposed."
"I consider a condition requiring the demolition of the hangar in the event of Jet Aviation ceasing to occupy the premises to be unacceptable. From the outset such a condition may prevent conventional funding. It would also be contrary to that part of the Council's objective for Biggin Hill of achieving the gradual improvement of the airport in terms of the type of operations, its appearance and its facilities, including controlled growth of business aviation. The Airport would benefit from the presence of an FBO, initially to be Jet Aviation but, in the event of Jet Aviation ceasing to occupy the hangar at some date in the future, BHAL would undoubtedly wish to see another FBO operating from the airport. The appeal building would also be a costly, and hence valuable, permanent structure and to require its demolition solely on the basis that its original occupier no longer wished to occupy it would amount to a wanton waste of resources that is totally contrary to the principles of sustainability."
"The Secretaries of State agree with the Inspector's conclusions regarding conditions (IR 11.6.2-11), other than in the case of proposed condition 8 which would make the occupation of the building personal to Jet Aviation. The Inspector is satisfied that this condition, should be imposed (IR 11.6.7) but, in the Secretaries of States' view, such a condition would be unreasonable. Among the factors in support of the proposal there are a number that are not personal to the appellant, including the lack of an alternative site and the UDP objective of securing a gradual improvement of the airport. Paragraph 94 of the Annex to Circular 11/95 states that if a service, or the employment it generates, is needed in an area, there is no planning reason why it should not be provided by one firm rather than another. Since the proposed development is not one that could readily be used other than as a hangar, without a further planning permission, the Secretaries of State do not consider that a restriction on occupancy is justified..."
"The Airport would benefit from the presence of an FBO, initially to be Jet Aviation but, in the event of Jet Aviation ceasing to occupy the hangar at some date in the future, BHAL would undoubtedly wish to see another FBO operating from the airport."
"If a service... is needed in an area [in the present case, if an FBO activity is needed at Biggin Hill] then there is no planning reason why it should be provided by one firm rather than another."