England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2004

Mr Justice Forbes:

1. Introduction. The Claimant is the owner of land known as Weston Business Park, Locking Moor Road, Weston Super Mare ("the business park"). The business park adjoins a site operated by the Interested Party under the name of the International Helicopter Museum ("the museum").
2. The Defendant Council ("the Council") is the local planning authority for the area. As such, it is the authority responsible for taking enforcement action in respect of any breaches of planning control in its area.
3. In these two linked actions, the Claimant seeks relief by way of judicial review of two decisions of the Council, taken on 5^th February 2003 and 8^th October 2003 respectively, to the effect that no enforcement action should be taken with regard to the use of the museum (i) for "helicopter experience flights" (hereafter "helicopter experience flights") and (ii) for helicopter flights to and from the museum by visitors to the museum (hereafter "helicopter flights by visitors"), on the basis that, at present levels, both categories of flights were considered to be ancillary to the use of the International Helicopter Museum as a museum. Stated shortly, it is the Claimant's case that the Council's conclusion that each of these two categories of helicopter flights is ancillary to the use of the museum is wrong in law (see Grounds 1 and 2 of the Grounds of Challenge).
4. The Factual Background. The International Helicopter Museum is situated on land that was formerly part of Weston-super-Mare Airfield. Planning permission for the provision of an office, workshop and display areas for the museum was granted on 31^st January 1988. Condition 5 of the planning permission was in the following terms:

"5. The premises shall be used as a museum only and for no other purpose including any other purpose in Class D1 of the Town and Country Planning (Use Classes) Order 1987 or any provision equivalent to that class in any statutory instrument revoking and re-enacting that Order."

5. As indicated in condition 5 to the planning consent, planning permission for use as a museum falls within Class D1 of the Use Classes Order 1987. Class D1 includes the following uses: (a) provision of medical or health services; (b) a crèche, day nursery or day centre; (c) provision of education; (d) display of works of art; (e) museum; (f) public library or reading room; (g) public hall or exhibition hall; and (h) public workshop or religious instruction. In the absence of a condition such as condition 5, use of the land as a museum could lawfully be changed to any of the other uses within Class D1, without the need for planning permission. However, in the present case, the effect of condition 5 is to restrict the lawful use of the land to use as a museum within Class D1(e) of the Use Classes Order.
6. There was no specific reference in either the application for planning consent or the planning permission itself to any use of the museum site for the taking off and/or landing of helicopters. However, the plan submitted with the approved application did indicate a take-off and landing area for helicopters by means of the conventional symbol of a capital H enclosed in a circle.
7. From a relatively early stage after the museum was opened in 1988, part of its site has been used for the take-off and landing of helicopters. However, this did not occur very frequently until 1995, during which year there appears to have been a significant increase in helicopter flights. It is said that the increase in this particular use of the museum site has continued to the present day. Thus, in the period 1999 to 2001, there were (on average) more than 90 days per year on which helicopter flights to or from the museum took place.
8. The Claimant is concerned that the take-off and landing of helicopters at the museum causes significant noise disturbance to the tenants at and causes dust and debris to be blown into premises on the business park. As a result, the Claimant has made numerous complaints to the Council, asking it to take appropriate enforcement action against the museum.
9. In January 2002, the museum applied for a Certificate of Lawfulness for an existing use, namely unlimited use of the land as an aerodrome by powered helicopters for general aviation, commercial air transport/aerial work and state aircraft operations.
10. In due course, the Council's planning officers ("the officers") prepared a detailed report and recommendation concerning the museum's application for the consideration of the Council's Planning Committee. After summarising the relevant history of the site and the evidence relating to its use for helicopter flights, the officers' report concluded as follows:

"11. CONCLUSION

there has been some flying of helicopters on the site over the last ten years.

the intensity of flying increased less than ten years ago to an extent that could be regarded as a change of use.

some of these helicopter flights have been ancillary to the use of the museum.

the applicant has been unable to provide clear and specific evidence of the scale of use that is not ancillary to use of the museum that has been carried on over a period of ten years.

In conclusion it is recommended that the Certificate of Lawfulness for use of land at the helicopter museum for unlimited use … as an aerodrome by powered helicopters for general aviation … should be refused on the grounds that on the balance of probabilities the applicant has failed to provide clear and specific evidence of such use over a continuous period of ten years or of the scale of use that is not ancillary to the use of the museum.

(It is to be noted that the Council will have to make a decision as to what it regards as ancillary use, and thus permitted use, in any enforcement action it may decide to take)."

11. It can be seen that it was the officers' view that that the recent increase in helicopter flights was such that the activity could be regarded as a material change of use (see the second bullet point of the officers' conclusion). However, it was also the officers' advice that some of the helicopter flights could be considered as ancillary to the use of the site as a museum, although no attempt was made at that stage to define the nature and extent of this particular ancillary use. However, the officers did draw attention to the need for the Council to make a decision as to what helicopter flights were considered ancillary to the use of the site as a museum when deciding what, if any, enforcement action should be taken.
12. On 21^st August 2002, the Council's Planning Committee ("the Planning Committee") refused to grant the Certificate of Lawfulness and at the same meeting resolved that "prior to considering formal enforcement action (1) further discussions take place with the Helicopter Museum to confirm the definition and scope of the ancillary flying activities that may take place; and (2) a further report be brought back to the Committee on the matter."
13. In due course, the officers prepared a further report dated 18^th September 2002 to advise the Planning Committee "of the next steps to be taken following the refusal of the application [for a Certificate of Lawful Use] and to address the issue of enforcement action against the breach of planning control." The officers advised (inter alia) that some helicopter flights could take place and would not involve any breach of planning control, on the basis that the flights were ancillary to the operation of the museum. The officers therefore recommended that, prior to considering formal enforcement action, further discussions should take place with the museum to agree and define the scope of the ancillary flying activities that could take place.
14. In accordance with the recommendation of the September 2002 report, further discussions and correspondence about the matter took place between the museum and the Council's planning officers during October and November 2002. This was followed by a further officers' report to the Planning Committee for its meeting on 20^th November 2002, which contained (inter alia) the following passages:

"This report sets out the Council's current opinion as to what flights and activities the museum may undertake within the scope of its permitted use as a "museum". It concludes that whilst further investigation is warranted due to the complexity of the issue, the power to take enforcement action against unauthorised flying should be delegated to the Director to pursue.

…

Issue 1 – What flights may lawfully take place either to or from the Helicopter museum?

It is considered that helicopters may land at, and take off, from the museum premises providing that the principal purpose of the flight is to visit the museum for the purpose of viewing the exhibits on display as fee paying bona fide visitors. Helicopters flying to and from the museum for any other purpose than to view the exhibits being displayed is not considered to be an ancillary use although this is disputed by the Museum.

Helicopters that are to be displayed by the museum as exhibits, or are being exhibited at specifically organised museum events at the museum may land and take off from the premises.

Issue 2 – What flights or activities may not take place from the helicopter museum?

The following flights, on the facts currently available, are not considered to be ancillary to the use of the museum.

Pleasure flights or sight seeing flights that are operated by an independent company, where payment is made by passengers directly to that company and the purpose of the visit to the museum is to take part in a flight.

The landing of helicopters at the museum in order to refuel or buy fuel. Only fuel required in order to undertake the ground running demonstration of exhibitors should be available on site.

Flights by third parties for private purposes not connected to the use of the site as a museum.

The storage or keeping of helicopters which are not exhibits [or not] used for spare parts to assist the restoration of exhibits.

Assessment

As set out in the previous report to the Committee on 18 September the fact that breaches of planning control may be identified does not mean that enforcement action must automatically be taken. The Local Planning Authority must consider, having regard to the development plan, whether it is expedient to take enforcement action.

In this case the noise of helicopters taking off and landing is a source of disturbance to local residents and its continuation in an uncontrolled manner could prejudice long term development proposals in the area. It is therefore recommended that the Museum be advised that this use should cease.

The Museum however has asked for further meetings to seek to clarify further the definition of what may be carried on as an ancillary activity to the use as a museum. Given the fact that there are no clear definitions of what is an "ancillary use " in this situation, further investigations will need to take place on the issues the Museum has raised.

A further report will be brought back to Committee if necessary. …"

15. It can be seen that, although "helicopter flights by visitors" were identified as ancillary to museum use in the officers' November report to Committee, the report did not deal with the question of "helicopter experience flights", because the museum had not, at that stage, suggested that it proposed carrying out that particular type of flight (see paragraph 17, below) as part of its museum activities.
16. At its meeting on 20^th November, the Planning Committee resolved that the matter be deferred in order that contact could be made with other Local Authorities and information obtained that would assist in clarifying and determining how similar museums were operated.
17. Other Local Authorities were then contacted and relevant information was duly sought. As a result, the officers produced a further report to the Planning Committee for its meeting on 22^nd January 2003, which contained (inter alia) the following material passages:

"From the information received, it has become apparent that obtaining a close comparison case to that of the Helicopter Museum, and how it operates, has not been possible. The museums listed in the annex are all related to aviation and exhibit collections of aircraft and associated memorabilia but none have the same pattern of use as the Helicopter Museum.

The majority of the museums identified, are located adjacent to or adjoining an operational airfield. As such, visitors to the museums can experience flights by observing them land and take off, as part of the daily routine of the airfields. In some situations, the operational airfields are home to companies that provide "pleasure flight" services for the members of the public. …

Therefore, having considered the information provided and having evaluated the evidence available, the following issues can be addressed.

Issue 1 – What flights may lawfully take place either to or from the Helicopter museum?

The key point in addressing this issue is the purpose of the flight. For example, it is considered that helicopters may land at, and take off from, the museum premises providing that the principal purpose of the flight is to visit the museum for the purpose of viewing the exhibits on display as fee paying bona fide visitors. This would be akin to a museum visitor arriving by car. Helicopters that are to be displayed by the museum as exhibits, or are being exhibited or demonstrated at specifically organised museum events at the museum may also land and take off from the premises. On the other hand, helicopters flying to and from the museum for any other purpose are much less likely to be an ancillary use and require closer examination. …

Assessment

…It is clear from the investigations that have been carried out that there is a wide range of transport related museums which include rides and moving exhibits as part of the museum's activities. The key factor in determining whether such activities form a lawful part of the use is the degree to which it is connected to the primary use of the site as a museum. Therefore, as stated above, the use of the museum for completely unrelated flying activities would not be a lawful use.

In this case, however, since the issue of unauthorised flying has been debated, it has become apparent that the Helicopter Museum is intending to revise its flying operations to make them more explicitly linked to its learning and discovery function. For the forthcoming season, the Museum has indicated an intention to stop "Pleasure Flights" and instead offer "Helicopter Experience Flights" where visitors to the museum can learn at first hand how a helicopter flies. It is said that during these flights, pilots will demonstrate how the controls work and demonstrate various manoeuvres from take off to landing. Publicity material indicates that "Helicopter Experience Flights" will be bought as part of a combined ticket to include admission to the museum. This is an important change and, if carried out as described may mean that these flights could arguably be ancillary to the museum use. …

The use as unrestricted "pleasure flights" would cause harm to amenity and is considered unacceptable. In terms of other activities, the use of the site for the sale of fuel to passing helicopters or trips by helicopters not visiting the site for purposes directly connected to the use as a museum, are not ancillary uses …

Similarly, the keeping and flying of a private helicopter for purposes unconnected to the museum is not an ancillary use …

RECOMMENDATION

(a) That the Museum be advised that the following are not ancillary to the use of the museum:

Take off and landings related to:-

Pleasure flights or sight seeing flights where the primary purpose of the visit by the passenger to the museum is to take part in a sight seeing flight;

Visits of helicopters at the museum in order to refuel or buy fuel;

Flights by third parties for private purposes not connected to the use of the site as a museum; and

The storage or keeping of helicopters which are not exhibits or used for spare parts to assist the restoration of exhibits

And the Director of Development and Environment in consultation with the Solicitor to the Council be authorised to take ENFORCEMENT ACTIONS including any court action if applicable, to secure the cessation of these non-ancillary activities should they continue;

(b) That the Director of Development and Environment be authorised to instruct a noise consultant to advise on the limits that could be applied to the definition of ancillary flying activities and that the principle of "air experience flights" as an ancillary use be the subject of further consideration. …"

18. It is to be noted that the officers' January 2003 report to Committee again identified helicopter fights by visitors as ancillary to the museum use and went on to indicate that the museum's proposed "helicopter experience flights" could also (arguably) constitute an ancillary use.
19. On 22^nd January 2003, the Planning Committee referred the matter to the Council's Planning and Regulatory Committee ("the Regulatory Committee"). On 5^th February 2003 ("the 5^th February decision"), the Regulatory Committee decided against instructing a noise consultant on the grounds of expense and decided to proceed as follows (see the terms of the Council Minutes of the meeting):

"RESOLVED

(1) that the museum be advised that the following are not ancillary to the use of the museum:-

take off and landings related to:-

pleasure flights or sight seeing flights where the primary purpose of the visit by the passenger to the museum is to take part in a sight seeing flight;

visits of helicopters at the museum in order to refuel or buy fuel;

flights by third parties for private purposes not connected to the use of the site as a museum; and

the storage or keeping of helicopters which are not exhibits or used for spare parts to assist the restoration of exhibits

and the Director of Development and Environment, in consultation with the Solicitor to the Council, be authorised to take ENFORCEMENT ACTIONS including any Court action if applicable, to secure the cessation of these non-ancillary activities should they continue;

(2) without prejudice to any decision that the Council might make on the acceptability of flying activities, the Helicopter Museum be invited to submit a planning application for the use of the site for non-ancillary activities listed below:

the landing of helicopters at the museum in order to refuel of buy fuel;

take off and landings by third parties for private purposes not connected to the use of the site as a museum;

the storage or keeping of helicopters which are not exhibits or used for spare parts to assist the restoration of exhibits."

20. The 5^th February decision is the first of the two decisions of the Council that are the subject of challenge and is the subject of the first of the two linked actions. It is to be noted that in the list of flying activities that are identified in that decision as not being ancillary to the museum use, there is no reference to either helicopter flights by visitors or to helicopter experience flights ("the relevant types of helicopter flight").
21. As it seems to me, an obvious implication from the wording of its 5^th February decision is an apparent acceptance by the Council that each of the relevant types of helicopter flight was (at least potentially) ancillary to the museum use, particularly having regard to the advice given by its officers. However, as Mr Brown observed on behalf of the Claimant, the Council's decision not to adopt its officers' advice that a noise consultant be retained to advise on the appropriate limits to be applied to ancillary flying activities, effectively meant that there were no specific noise limits or other constraints on either type of helicopter flight that would ensure its ancillary or incidental nature. As it seems to me, however, this potential difficulty was overcome by the Council expressly confining its decision to the present levels of the relevant flying activities: see paragraphs 27 and 38 below.
22. On 1^st May 2003, the Claimant issued the first of these two linked actions. Included in the original grounds of challenge was an alternative submission that, in its 5^th February decision, the Council had simply failed to consider the status of helicopter flights by visitors and helicopter experience flights. However, this particular ground was overtaken by events (i.e. by the Council's decision of 8^th October 2003; see below) and was not pursued.
23. On 5^th June 2003, after consideration of the first action on the papers, Sullivan J. refused the Claimant permission to apply for Judicial Review. On 22^nd July 2003, following an oral hearing of the Claimant's renewed application for permission, at which (inter alia) submissions were made by both parties as to the nature and effect of the 5^th February decision, Blackburne J. granted permission to apply for Judicial Review in the first action.
24. On 8^th October 2003, the matter came before the Regulatory Committee for further consideration by the Council. The officers' report to Committee for the purposes of its meeting on 8^th October commenced with the following summary:

"1. SUMMARY

This report updates members on a High Court Judicial Review application which has been made … in respect of the resolution of the … Committee at its meeting on 5 February 2003.

The question has been raised as to whether the Council made a decision as to whether certain helicopter flights were ancillary to the use of the land as a museum.

It is recommended that a decision is now made upon such matters."

25. The officers' 8^th October report contained a detailed account and assessment of the current situation (including a summary of Counsel's legal advice) before reaching the following conclusion:

"12. CONCLUSION

Air experience flights and flights by visitors coming to view exhibits in the museum are at present levels, as a matter of law, ancillary to the use of the museum. No enforcement action can therefore be taken.

Should the nature of the flying activities change, or prove to be different, then a further report would be made to this Committee and the issue of enforcement action would be raised at that stage."

26. Accordingly, the officers' recommendations to Committee were expressed in the following terms:

"RECOMMENDATIONS

The Committee is recommended to decide

A. That at present levels the following activities are ancillary to the primary use of the museum, namely the use of the land of the museum for:

i the static and working display of helicopters, on the ground and in the air, with or without passengers who are visitors to the museum;

ii helicopter "air experience" flights with passengers who are visitors to the museum;

iii helicopter flights to and from the museum and in order to visit the museum, with or without passengers who are visitors to the museum.

B. That having regard to the decision in (A), that no enforcement action is taken at present and that the situation be monitored in the future to ensure that the activities remain ancillary to the primary use of the museum."…

27. At its meeting held on 8^th October 2003, the Regulatory Committee decided to accept the officers' recommendation and expressed its decision in identical terms ("the 8^th October decision"), as follows (see the terms of the Council Minutes of the meeting):

"RESOLVED:

(1) that at present levels the following activities are ancillary to the primary use of the museum, namely the use of the land of the museum for:-

(i) the static and working display of helicopters, on the ground and in the air, with or without passengers who are visitors to the museum;

(ii) helicopter "air experience" flights with passengers who are visitors to the museum;

(iii) helicopter flights to and from the museum and in order to visit the museum, with or without passengers who are visitors to the museum.

(2) that having regard to the decision in (1), that no enforcement action is taken at present and that the situation be monitored in the future to ensure that the activities remain ancillary to the primary use of the museum."

28. The 8^th October decision is the second of the two decisions by the Council. It is the subject of the second of the two linked actions, the second of which was issued on 5^th November 2003. At the outset of the hearing of these proceedings, I gave permission to the Claimant to apply for Judicial Review in the second action. The two actions then proceeded as one set of proceedings, the overall nature and effect being as summarised in paragraph 3 above. I therefore now turn to consider the submissions made by the parties.
29. The Parties' Submissions. Mr Brown accepted that planning permission to use land for a particular purpose carries with it permission to use the land in question for purposes that are "ancillary" to the main, permitted use. He submitted that the proper approach to the question whether a particular use is ancillary to the lawful permitted use has been clearly stated in the decision of the Court of Appeal in Harrods v. Secretary of State for the Environment, Transport and the Regions (2002) JPL 1258 ("the Harrods case"). That particular case concerned the central question whether the use of the Harrods building to land the owner's helicopter could be regarded as ancillary to the lawful primary use of the premises as a shop.
30. Mr Brown further submitted that the approach adopted by the Court of Appeal in the Harrods case when considering the central question was entirely consistent with ministerial guidance on the aim of the Use Classes Order 1987: see paragraph 3 of Circular 13/87, which is in the following terms:

"The aim of the new Order is twofold:-

(i) to reduce the number of classes while retaining effective control over changes of use which, because of environmental consequences or relationship with other uses, need to be subject to specific planning applications; and

(ii) to ensure that the scope of each class is wide enough to take in changes which generally do not need to be subject to specific control.

It serves no-one's interest to require planning permission for types of development that generally do not damage amenity. Equally, the Secretaries of State are in no doubt that effective control must be retained over changes of use that have a material impact, in land-use planning terms, on the local amenity or environment."

31. The particular passage in the Harrods case upon which Mr Brown relied is to be found in paragraphs 20 to 23 of the judgment of Schiemann L.J, where he said this:

"20. In my judgment, the proper approach to these cases by the local planning authority is to start by considering whether what is involved amounts to a material change of use. That is the statutory test. The case law reveals the application of that test to a variety of different situations. In the course of doing that different phrases have been used. I gave some examples in my judgment in Millington, which Sullivan J. cited in the present case. But it would be wrong to substitute some phrase from one or other judgment for the statutory formula. Those phrases are merely an aid to judicial exegesis.

21. In the present case what the Secretary of State in effect did was to ask himself whether, ignoring the Use Classes Order, the introduction of a facility for operating helicopters from the roof of the store amounted to a material change of use of the store, a change from retail use to retail use plus helicopter use. He answered that question in the affirmative. In my judgement he was, as a matter of law, entitled to come to that conclusion.

22. It is important to emphasise that when a shop owner wants to introduce an activity which is reasonably incidental to the running of his shop but which is not reasonably incidental to the running of most shops, he is not necessarily introducing an activity which will produce a material change of use. That is a matter of fact and degree which can be evaluated without reference to the Use Classes Order. If the Secretary of State approached matters in a legally permissible way so far as the first question is concerned, namely, is this on the face of it a material change of use, does the Use Classes Order make any difference so as to vitiate his answer? In my judgment the Secretary of State was entitled to conclude that it does not. The judge was right to reject Mr Roots' approach. It is not appropriate to concentrate on what is incidental to this particular shop, given the way it is run, and given its needs. The right approach is to see what shops in general have as reasonably incidental activities. And the reason that is the right approach is, in my judgment, the reason given by Mr Sales. Planning is concerned with balancing the interests of the community with the interests of the landowner – and one of the things one seeks to avoid is having too much regulation – but on the other hand another thing one seeks to avoid is giving the opportunity to by pass a careful scrutiny of activities which do impact severely (or can do) on neighbours.

23. A person who moves next door to a shop can expect normal shopping activities to go on there without there being a requirement for planning permission. A person who moves next door to Harrods can expect things that are normal there and in other emporia of that sort of size. But if what an appellant wants to introduce is not generally associated with what goes on in shops then it seems probable that Parliament intended that neighbours should have the chance to object to the grant of planning permission and thus force the owner to go through the appropriate procedures to get his planning permission. And it is probably a fair comment (although it is legally irrelevant) that the fact that this appeal is being pursued through one court after another is an indication that Harrods are not particularly hopeful of actually getting a planning permission. In any event they have not chosen to apply. They may turn out to have been unduly pessimistic. That is not for this court to judge."

32. Mr Brown's first and principal criticism of the Council's decision-making was that, having regard to what was said by the Court of Appeal in the Harrods case to be the proper approach by the local planning authority to cases of this type, the officers' approach to the question whether the relevant types of helicopter flight were ancillary to the museum use ("the central question") was so flawed (for the reasons set out below) that the Council's decisions of 5^th February and 8^th October (both of which involved acceptance of almost the entirety of the officers' reasoning and recommendations) were wrong in law.
33. Mr Brown pointed out that there was no reference in any of the officers' reports to the Harrods case or to the principles that it sets out. It was Mr Brown's submission that the analysis adopted by the officers, when considering the central question, involved a significant departure from the proper approach as stated by the Court of Appeal in the Harrods case in a number of important respects, as follows.

(i) In none of their reports did the officers begin by posing the correct question, namely whether there has been (or would be) a material change of use. Instead, the report of 5^th February 2003 commences with the assertion that "the key point is the purpose of the flight" and the report of 8^th October 2003 indicates that the central question depends on "the character of the use and the functional relationship between the primary use and the other (potentially ancillary) use." Mr Brown submitted that an approach to the central question that relied on the "functional relationship" between the primary use and potentially ancillary use was wholly inconsistent with the correct approach as stated in the Harrods case.

(ii) It was Mr Brown's submission that the planning permission that was granted was completely non-specific as to the type of museum. He therefore submitted that the officers should have considered what incidental activities can reasonably be expected of museums in general, rather than considering the position in relation to a transport/aviation museum. Mr Brown contended that the officers (and thus the Council) had therefore wrongly concentrated on the nature of the particular premises – an approach that the Court of Appeal in the Harrods case had specifically indicated was wrong.

(iii) Mr Brown submitted that, in considering whether the relevant types of helicopter flight are ancillary to the museum use, the Council (and its officers) had not asked the crucial question whether, having regard to the nature of the activity, Parliament intended that neighbours should have the opportunity to object to the grant of planning permission and thus force the owner to go through the appropriate procedures to get that planning permission. Mr Brown suggested that, far from considering this crucial question, the officers' reports conspicuously failed to address the impact of the flights on neighbouring properties in any way.

34. Stated broadly, it was Mr Brown's submission that the Council's decision on the central question was wrong in law because it had failed to adopt the correct approach, as stated in the Harrods case, and it had asked itself the wrong question.
35. On behalf of the Council, Mr Steel QC submitted (correctly, in my view) that the Council's decision-making had not been in conflict with the Harrods case. It was his submission that, read as a whole, it was clear from their reports that the officers (and thus the Council) had considered whether the helicopter flights to and from the museum amounted to a material change of use. I agree with that submission. Thus, some types of helicopter flights (e.g. pleasure or sight seeing flights or refuelling stops) were clearly considered to involve a material change of use for which planning permission would be required, whereas the present level of relevant types of helicopter flight was considered to be an incidence of and thus ancillary to the museum use.
36. In my view, the latter conclusion was clearly one that was open to the Council. I agree with Mr Steel's submission that working and functioning displays of exhibits, both indoors and outdoors and involving active participation by visitors to a museum, are a normal and common feature of a museum (particularly ones dedicated to transport and/or aviation). In my view, such activities can properly be regarded as reasonably incidental to museums in general or, at the very least, to transport and/or aviation museums in general. In my view, therefore, the Council did not fall into error in considering what activities can properly be regarded as incidental to transport and/or aviation museums.
37. I also agree with Mr Steel's submission that, on a fair reading of the officers' reports as whole, it is clear that the Council's decision, that the relevant types of helicopter flight were ancillary to the museum use, was one that was reached as a matter of fact and degree and in the light of the present level of those activities at the museum. I agree with Mr Steel that this was a conclusion to which the Council was entitled to come on the information and evidence available to it and is a conclusion that is susceptible to challenge only on the grounds of Wednesbury unreasonableness.
38. I also consider that it is important to emphasise that the Council's decision does not provide a completely blank cheque to the museum for any amount of this type of helicopter flying activity. The situation is to be monitored in the future so as to ensure that each of the flying activities in question, as a matter of fact and degree, remains ancillary to the museum use and has not intensified to the point that it does amount to a material change of use. If the monitoring reveals such an intensification of either of the relevant types of helicopter flight as does amount to a material change of use, then the museum will be obliged to apply for planning permission for the activity in question or risk enforcement proceedings being taken by the Council.
39. I also agree with Mr Steel's submission that there is nothing in the judgments of the Court of Appeal in the Harrods case to suggest that the "functionality test" is wrong in principle. In my view, the functionality test is (as submitted by Mr Steel) a useful means of identifying those activities that are not capable of being ancillary to the permitted use, thus clearing the way for considering whether, as a matter of fact and degree, the activity in question amounts to a material change of use or is an incidence of and thus ancillary to the permitted use.
40. Mr Brown's second and alternative submission was that, if the Council's approach to the central question did accord with that stated in the Harrods case to be the proper approach, then the decision reached by the Council was Wednesbury unreasonable. Mr Brown submitted that if it was appropriate to consider the more limited question, whether it is normal for transport/aviation museums to have associated flights that are ancillary to the permitted museum use, then the Council's decision, that the relevant types of helicopter flight were ancillary to the museum use in this particular case, was irrational in view of the information that was available to it.
41. It was Mr Brown's submission that the research carried out by the officers into the activities of other museums had revealed that, whilst many aviation museums operate adjacent to airfields from which various types of flight are available, there is no other museum where flights are directly linked to the museum site itself. Mr Brown suggested that this demonstrates that there was no justification for the conclusion that such a flying activity can be ancillary to the museum use, particularly having regard to the noise and disturbance that will be occasioned by such an activity. In those circumstances, Mr Brown submitted, no local planning authority could reasonably conclude that either of the relevant types of helicopter flight was ancillary to the museum use in this case.
42. I am satisfied that there is no substance in this particular criticism of the Council's decision-making. In my view, the short answer is that the mere fact no other aviation museum was identified by the officers as having the same pattern of use as the museum in question, does not mean, ipso facto, that neither of the relevant types of helicopter flight can be an incidence of and ancillary to the museum use. For the reasons already given in the preceding paragraphs, I am satisfied that the Council approached the central question correctly. As I have already stated, on all the evidence and information available to it, the Council decided that, at present levels, neither of the relevant types of helicopter flight amounted to a material change of use and could properly be regarded as reasonably incidental to the museum use. In my view, that was (as submitted by Mr Steel) a conclusion to which the Council was fully entitled to come. It cannot possibly be stigmatised as irrational and I reject Mr Brown's submissions to the contrary effect.
43. Conclusion. For the foregoing reasons, I have come to the firm conclusion that this application must be and is hereby dismissed.