British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Administrative Court) Decisions
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: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1878.html
Cite as: [2013] EWHC 1878 (Admin)
[New search] [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 |
____________________
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
____________________
Crown Copyright ©
- This case concerns what for many years was called Dunsfold Aerodrome. For some years it has been called Dunsfold Park following the obtaining by the Claimant in 2002 of a 999-year lease of the land and its associated buildings. It is located in the Surrey countryside about 8 miles to the south of Godalming and a mile or so to the west of Cranleigh.
- Dunsfold Aerodrome was constructed a little over 70 years ago during World War II in the spring and summer of 1942 by the Canadian Army and civilian contractors. The first aircraft to land at the aerodrome was Tiger Moth BB728 on 20 June 1942: it landed on part of the perimeter track (see paragraph 20 below). The history of the site from then is traced more fully in the document quoted in paragraphs 5-9 below.
- It is currently more famously used as the venue for the filming of the television programme 'Top Gear'. Other activities also take place there, both on the airfield proper and in the associated buildings to the north. As the Inspector whose decision is under challenge in these proceedings put it, "there are currently some 100 mostly commercial occupiers across the aerodrome as a whole". Of the buildings in that northern area two consist of the original type T2 hangar constructed at or about the same time as the airfield and which are known or identified in the documentation as the 'T2A' and 'T2B' hangars.
- The issue raised in this application is whether the Claimant is entitled to a certificate of lawful use under section 191(1)(a) of the Town and Country Planning Act 1990 as amended ("the 1990 Act") in relation to the existing uses on the application site. Those uses, it is said, include unrestricted aviation activities. The Second Defendant decided that it should not grant such a certificate and the First Defendant, by his Inspector (Mr. R.O. Evans), dismissed the appeal in a decision letter dated 5 April 2012. This followed a public inquiry heard on 31 January, 1, 2, 3 and 7 February 2012. By this application the Claimant seeks an order under section 288 of the 1990 Act quashing that decision.
- A great deal of the factual background is undisputed and the parties sensibly agreed for the Inspector's benefit a comprehensive 'Statement of Common Ground'. Since it will be impossible to understand the way in which the arguments have been developed before me without some knowledge of that background I propose to quote extensively from that document. It should, perhaps, be acknowledged publicly at the outset that much of the historical material upon which the parties relied when drawing up this document found its origin in the book entitled 'Dunsfold: Surrey's Most Secret Airfield' by Paul McCue (first published in 1992 by Air Research Publications). Mr McCue gave evidence to the Inspector.
- The early history (1942-46) is recorded in this way:
- The next chapter in the aerodrome's history was a period of about 4-6 years when a company known as Skyways Limited ('Skyways') occupied and used the site:
- The Skyways phase seems to have petered out to a large extent by mid-1950. The next (very significant) period in the aerodrome's history spanned some 50 years ending when the Claimant acquired its interest in the site in 2002. This is the way that period was described in the 'Statement of Common Ground':
- As already indicated, the Claimant's interest in the site was acquired in 2002. That started the current phase in its history. It was described in this way in the 'Statement of Common Ground':
- The significance or otherwise of the planning permissions identified in paragraph 39 of the 'Statement of Common Ground' (one of which was granted on appeal) will emerge later, but those referred to specifically as of importance by the Inspector for the purposes of his decision were WA02/2046 (granted on 17 April 2003), WA/2007/0372 (granted on 11 March 2008) and APP/R3650/A/07/2045619/NWF (which was a permission granted on appeal by an Inspector - Mr David Vickery - in a decision letter dated 18 June 2008 from a refusal by the planning authority of application WA/2007/0373). I will describe each of those briefly, but I will refer also in passing to WA/04/0880 because of the circumstances in which its potential relevance arises later (see paragraph 47).
- WA/2002/2046 granted a temporary permission until 30 April 2005 to change the use of the buildings and land to B1, B2 & B8 including 2.2 ha of outdoor storage and air flight capability ancillary to those uses, the permission to be subject to certain conditions including one that prescribed the uses which included "the assembly, repair and flight testing of aircraft."
- This temporary permission was extended (and various conditions of it were extended) in 2005 under application WA/2004/0880 to 30 April 2010. That permission also contained condition 8 which was in the following terms:
- A further condition was a restriction on the total number of vehicular movements each day to 2723 movements, with the requirement also of a management and monitoring agreement with Waverley Borough Council "before implementation of this permission" (cf. condition 18 of permission WA/2007/0372 referred to in paragraph 14 below).
- Under WA/2007/0372 a further temporary period until 30 April 2018 was granted "to co-exist with extant temporary and permanent permissions" subject to conditions (with reasons given) which included -
- Application WA/2007/0373 was a duplicate application to application WA/2007/0372. The result of the appeal was that the Inspector (in a decision letter dated 18 June 2008) granted a temporary planning permission until 1 June 2018. Condition 7 of WA/2007/0373 is exactly the same as the wording of Condition 8 of WA/2007/0372 and Condition 11 is exactly the same in each case. Condition 14 of WA/2007/0373 differs from Condition 18 of WA/2007/0372 only in respect of the date at which the temporary permission expires. Condition 19 of WA/2007/0373 provides that "[the] applicant shall notify in writing to the Local Planning Authority the commencement and implementation of this permission". The justification for that condition was said by the Inspector who determined the appeal to be the need, given the existence of a similar duplicate permission, "to know for enforcement purposes exactly which permission [the Claimant] has implemented."
- The rationale for the sequence of temporary permissions from 2003 onwards was, according to the Inspector who dealt with the appeal in WA/2007/0373, "to give [the local planning authority] time to prepare a coherent strategic planning policy for the site whilst still allowing an economic use of the site and its buildings." It is, of course, to be noted that the principle that aircraft should fly into and away from the airfield has never been questioned.
- It is necessary now to return to the 1951 permission since it lies at the heart of the issues raised.
- Although the Inspector was invited to consider the planning implications of the use of the site prior to the planning permission granted on 13 April 1951 (see paragraphs 30-33 of the 'Statement of Common Ground' quoted in paragraph 8 above) on the basis that the development permitted by that permission had never "begun", the Inspector concluded that it had been implemented following a material change in use of the land in or around 1951. That conclusion is now not challenged by the Claimant. It follows that the starting-point for considering the relevant planning history for the purposes of the section 191 application is that planning permission.
- Its terms were set out briefly in the above paragraphs of the 'Statement of Common Ground'. It is important to describe those terms more fully.
- The plan attached to the planning application dated 9 March 1951 (see paragraph 30 of the 'Statement of Common Ground' quoted in paragraph 8 above) embraced the whole of Dunsfold Aerodrome including the other areas of the aerodrome outside the perimeter track such as the "Northern Area" (see paragraph 38 of the 'Statement of Common Ground' quoted in paragraph 9 above). The perimeter track represents the effective physical boundary of the area where flying activities take place (that area being usually referred to as the "airfield" to distinguish it from the "aerodrome"). The buildings in the "Northern Area" or "northern sector" are outside that perimeter track (including, of course, the original type T2 hangars: see paragraph 3 above). The application area for the purposes of the present application for a certificate of lawful use excludes that northern area. The 1951 permission, which was a full permission and related to the whole area of the aerodrome, was in the following terms:
- As will appear in due course, one significant part of the argument advanced on the Claimant's behalf by Mr John Steel QC and Mr Stephen Whale depends upon the meaning to be attached to the words "Erection - Repair and flight testing of aircraft". Nothing turns on the condition in the Second Schedule.
- It is, perhaps, a somewhat odd feature of the overall background to this case that the 1951 planning permission had for many years been regarded universally as a temporary permission. This is evidenced by the fact that in 1980 the local planning authority granted application WA/1980/0697 for the "continued use of Dunsfold aerodrome for the erection, repair and flight testing of aircraft" as a temporary permission until 30 April 2000 and in 1998 (on application WA/1998/1013) by removal of the "temporary" feature of the previous permission, but limiting the use for the specified purposes to "British Aerospace only". However, by the time of the appeal before the Inspector whose decision is under challenge in these proceedings it was agreed by all parties that the 1951 permission was a permanent permission. The Inspector put it this way at paragraph 25 of the decision letter:
- I will return to the interpretation of the 1951 planning permission in due course (see paragraphs 38 and 81-87 below), but I should record at this stage the precise terms of the application under section 191.
- Under the relevant section of the application form the use for which a certificate of lawful use or development was sought on behalf of the Claimant was specified as follows:
- This has been described accurately as "unrestricted aviation activity".
- The application made was not, of course, an application for planning permission as such or for an established use certificate; neither was it made as a response to an enforcement process. This was an application for a certificate of lawful use or development - in other words, what was sought was effectively a simple declared acceptance that the uses specified were lawful.
- It is common ground that the onus was upon the Claimant at the inquiry to establish the lawfulness of the use of the site at the date of the application, namely, 30 March 2011 (received 4 April 2011).
- This may be a convenient point at which to note the terms of the relevant part of section 191. It provides as follows:
- The Planning Portal offers the following guidance about such a certificate:
- This provision is to be contrasted with section 192 which permits the grant of a certificate of lawfulness in relation to some proposed use or development of land. The application under consideration in this case was under section 191.
- Mr Steel and Mr Whale suggest that one of the first questions for the decision-maker concerning any application under section 191 is whether any planning permission relating to the application site is extant and available to be relied upon at the date of making the application. The decision-maker is then required to interpret the planning permission to determine whether at the date of making the application the use contended for in the application is lawful. If so, unless any other restrictions apply, a positive certificate to the effect that the use was lawful would follow. I do not think that there is any issue with that broad statement.
- It will be necessary to record the Inspector's reasoning in more detail in due course because of the criticisms to which it is subjected on behalf of the Claimant. However, its essence can be captured in the following propositions taken from his conclusions, the starting point being that the 1951 permission was a permanent permission (see paragraph 22 above) "which included flight testing as part of the primary mixed use". The ensuing propositions were as follows:
- 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.
- The way in which those conclusions were expressed reflect the way in which the issues were presented to the Inspector and the way in which the parties had agreed that the appeal before him had to be resolved, but essentially leaving out of account the issues that had been raised concerning the pre-1951 planning permission use of the site which have now been accepted as resolved (see paragraph 18 above).
- In summary, the Inspector's conclusions were as follows:
- As thus formulated and summarised, the Inspector's conclusions can be seen as involving a decision that since one or other of the 2008 permissions was implemented effectively, no decision concerning the meaning of the 1951 permission was called for. Mr Steel and Mr Whale submit that the true effect of the 1951 permission is crucial to the issue of the potential impact of the 2008 permissions because, if they are correct in the interpretation of the 1951 permission for which they contend, neither of those temporary permissions was necessary and the Claimant would, subject to the question of whether either was in fact lawfully implemented, be able to revert to and rely upon the 1951 permission. The Inspector appears to accept this at paragraph 8 of the decision letter where he says this:
- What the Inspector went on to do was to examine the background chronologically which, with respect, was plainly a sensible and logical approach to adopt to a planning issue with such a long and arguably complex history.
- I did not understand Mr Greatorex to dispute the logic behind requiring consideration of the meaning of the 1951 permission before considering the necessity and/or impact of the 2008 permissions, though his short submission is that whatever the wording of the 1951 permission means it does not mean that "unrestricted aviation activity" may take place and that, given the clear finding of fact that one or other of the 2008 permissions was lawfully implemented, either conclusion is determinative of the application under section 191. I will, of course, return to these issues later, but I should say a little more about the Inspector's more detailed reasoning underlying the conclusions to which I have referred because that reasoning is so roundly condemned on behalf of the Claimant.
- As I have indicated (paragraph 36 above), the Inspector adopted a chronological analysis to his approach. I need to say little, if anything, about what the Inspector said about the pre-1951 permission factual position because it is that permission that affords the starting-point for present purposes. The Inspector set out the terms of the 1951 permission (see paragraph 20 above) and then said this:
- The Inspector did indeed deal further with the interpretation of this permission and I will return to that conclusion later (see paragraphs 81-86 below).
- The Inspector then referred to the cessation of BAe's activities and went on to say this:
- Having referred then to the terms of the various temporary permissions granted to the Claimant he went on to address the question of whether any of those temporary permissions, but most particularly those granted in 2008, were necessary at all. He put the issue thus:
- As indicated previously (see paragraph 32 above), the Inspector formed the view that as from about 2003, when the Claimant effectively took occupation of the site, "a new chapter in the planning history of the site" was opened going beyond the "very specific terms of the 1951 permission" with the result that planning permissions were indeed required for the activities contemplated thereafter. As will appear (see paragraphs 46-51 below), this is the position that the Claimant effectively adopted when applying for a planning permission in 2009. I will return to that issue later. However, the route by which the Inspector arrived at this conclusion can be seen from the following paragraphs in the decision letter:
- I will return to the criticisms made of this reasoning thus far at a later stage (see paragraphs 53-65 below). In essence, however, the Inspector (a) considered the meaning and extent of the 1951 planning permission at least in part by reference to the use to which the buildings in the northern area were being put at the time of the permission (that area, of course, being outside the area delineated in the section 191 application) and (b) decided that since "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", the current uses could not be "within the very specific terms of the 1951 permission". His conclusion as to the meaning of the 1951 permission (namely, that it was "specific in the mix of uses prescribed") was a reflection of the view he had expressed earlier at paragraph 41 of the decision letter (see paragraph 38 above) that it did not permit "general aviation activities" and that "flight testing" connoted a more limited use.
- One criticism made by Mr Steel and Mr Whale is that the Inspector did not undertake a comparison between the activities being carried out "on the ground" in the period between, say, 2000 and 2002 (when BAe ceased its operations finally and which were accepted by the planning authority as being within the 1951 permission) and the situation "on the ground" in 2008. In that connection the question of whether the "ground" in the northern area should or should not be included in the comparative exercise also arises. However, before returning to the question of that comparative exercise and in order to complete the picture of this aspect of the Inspector's reasoning, I should refer to what he said after the conclusion at which he arrived in paragraph 54 of the decision letter (see paragraph 42 above). It is clear from what I shall record that he had the issue of comparisons in mind. He continued thus:
- The Inspector's conclusion, therefore, in summary was that the Claimant's use of the aerodrome from the outset of its occupation of the site from 2002 (and certainly by 2008) fell outside the scope of the 1951 permission. His conclusion was based upon the proposition that, with the departure of BAe and the cessation of its aircraft manufacturing activities (activities thus carried out by a 'single-purpose occupier'), any flying activities at the aerodrome thereafter could not be associated with the "erection, repair or flight testing" of aircraft, a conclusion reinforced by the fact that the buildings in the northern area (which constituted an integral part of the "planning unit" that needed to be considered for this purpose) became occupied and used for a range of commercial and industrial activities, virtually all of which had no connection with aviation or aircraft production. It was this that led him to the view that a new chapter in the planning history of the site began and that planning permissions were required for aviation use of the airfield thereafter.
- As I have indicated (paragraph 42 above), this position was indeed reflected in the way the Claimant approached an application for planning permission made in 2009. I do not have full details of what development was proposed in that application, but I note from the proof of evidence of Mr Ian Ellis, the Planning Consultant who gave evidence to the Inspector in the present matter on behalf of the local planning authority, that it was for "a new settlement at Dunsfold Aerodrome" which was referred to as "residential" by another witness. The planning consultants who acted for the Claimant in that application (and who had apparently acted for the Claimant for a number of years and indeed had acted prior to and at the inquiry in 2008 before Mr Vickery) prepared a Note dated 30 March 2009 for the public inquiry into this new settlement proposal entitled "DUNSFOLD AERODROME Note of the main planning permissions upon which Dunsfold Park Ltd rely".
- In paragraph 8 of that Note various temporary permissions are noted of which, according to the Note, "[the] most significant [of which], in terms of permitted uses and floor space, are 'rolling' permissions for the use of virtually all of the buildings at the aerodrome for unspecified B1 and/or B2 and/or B8 uses". Those temporary permissions are identified as WA/02/2046 (see paragraph 11 above), WA/04/0880 (see paragraphs 12-13 above) and WA/2007/0372 and APP/R3650/A/07/2045619/NWF (see paragraphs 14-15 above). In relation to WA/04/0880 the following is stated in the Note:
- That permission imposed the restriction on flying activities referred to in paragraph 12 above and the condition concerning vehicular movements referred to in paragraph 13 above.
- The argument was advanced on behalf of the local planning authority before the Inspector that the present application represents, in effect, an abandonment of that position because that position is inconvenient to the validity of the present application. I do not understand Mr Steel and Mr Whale to deny that the two positions are inconsistent, but they contend, so far as it is of importance to my decision, that there is nothing illegitimate in this approach, relying on Newbury District Council v Secretary of State for the Environment [1981] AC 578.
- Having reviewed the relevant temporary permissions, the Inspector simply said this:
- That, if I may say so, seems to be entirely in accord with the principle set out in the Newbury District Council case. The position may not be particularly attractive, but the absence of any kind of estoppel or similar principle in planning law renders this kind of position acceptable. Indeed in the context of this case, it should be noted that it had not been acknowledged until recently that the 1951 planning permission was a permanent permission and, against that background, it is not wholly surprising that some applications historically are to be viewed in a different light. I am content to leave that issue on that basis in this case. Mr Greatorex did refer me to Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304 and suggested, as I understood him, that it affords a basis for my declining to hear an argument in which two mutually inconsistent positions are taken. I do not see any need to reach a conclusion on that submission in this case.
- It is important, therefore, to return to the reasoning to which I have referred (paragraphs 42 and 44 above) and determine if the criticisms made of it are valid. It is somewhat difficult to determine a logical order in which to consider these criticisms because some overlap with each other. I am conscious also that Mr Greatorex submits that there is a very simple answer to this appeal which, if accepted, renders most of the criticisms made irrelevant. Whilst I do not think it could possibly be said that this site presents simple issues, as will appear in due course (paragraphs 82-86), I am of the view that there is a relatively simple answer to the present appeal. Nonetheless, should that view prove to be wrong and, in any event out of deference to the arguments I have heard, I will try to summarise the principal points made and my answer to them.
- Mr Steel and Mr Whale contend that the Inspector's reliance upon the concept of the "planning unit" in relation to the interpretation of the 1951 planning permission was an erroneous approach. They say that in paragraphs 40, 52, 53 and 62 of the decision letter (see paragraphs 38, 42 and 44 above) he applied the "planning unit" approach to the interpretation of the permission which was an impermissible approach. It is, they submit, an approach devised as a means of determining the most appropriate physical area against which to assess the materiality of change of use for the purposes of what is now section 55 of the 1990 Act and not to arrive at the meaning of a planning permission.
- The issue at which this submission is directed is the extent to which it is permissible to take account of the changed uses of the northern area (see paragraphs 20, 40 and 42 above) when deciding what is permitted on the airfield proper (see paragraph 20 above). The submission is made that the Inspector failed properly to focus on the application site (which excluded the northern area) and determine whether the current lawful use of that site was as applied for, regardless of any change of use which may or may not have occurred on any other part of the aerodrome.
- I accept, of course, that the concept of a "planning unit" normally arises in the context to which Mr Steel and Mr Whale refer. It must, of course, be borne in mind that a number of the issues that the Inspector had to consider (which are now no longer relevant) related to issues of material change of use. There was, for example, argument before the Inspector about the identification of the relevant planning unit for the purposes of determining the appeal for that purpose. Counsel for the local planning authority submitted, in his written closing submissions, that "from the appointed day in 1948 until the cessation of BAe's operations in the early 2000s the airfield formed part of the larger unit of occupation that was the aerodrome". He submitted that throughout the period "both physically and functionally, the airfield formed an integral part of a larger planning unit extending across the whole of the aerodrome".
- Mr Greatorex does not concede that the concept of a planning unit cannot, as a matter of principle and under any circumstances, have any part to play in the interpretation of a planning permission. What he does say, in my view with justification, is that the Inspector here used the expression as convenient shorthand for the area covered by the 1951 planning permission which was the focus of the relevant parts of the decision letter. The Claimant had deliberately chosen to confine the ambit of its section 191 application to the airfield per se. Counsel for the local planning authority submitted to the Inspector that the planning permission fell to be determined by reference to its express terms, those terms including the delimitation of the site to which the permission related. In my judgment, that is the true context in which the Inspector's observations must be seen when determining the meaning of the 1951 planning permission. I will return to this aspect shortly, but it is convenient to note what counsel for the local planning authority had submitted:
- He went on to submit that (1) the clear purpose and intent of the planning permission was to authorise a series of specified activities to be carried out to and in relation to aircraft and was only concerned with aviation related activities; (2) it did not permit flight testing only as part of an integrated use of the aerodrome by a single occupier with the result that the use of the aerodrome for flight testing and aircraft manufactured or erected elsewhere and flown in for that purpose would be within the scope of the permission; (3) it did not permit three independent separate uses, but the uses as specified to be read conjunctively rather than disjunctively; (4) it did not (and did not purport to) authorise general or unrestricted aviation activities at the aerodrome or the airfield, but only aviation activities that related to the erection, repair and testing of aircraft. It did not, he submitted, grant planning permission for an 'airfield'.
- The Inspector's assessment of the position after the cessation of BAe's activities was to the effect that, given that a very limited proportion of the floor space of the buildings in the northern sector was devoted to any aviation-related business, and indeed most of the occupiers of that part of the site carried on business that was wholly unrelated to the erection, repair or flight testing of aircraft, it was an obvious conclusion that (a) things on the ground had changed materially after BAe left the site and (b) accordingly planning permission for those changed uses was necessary. Although he did not express himself precisely in these terms, the corollary is that since flying activities were restricted by the 1951 planning permission to flight testing, if none (or virtually none) of the businesses were engaged in anything remotely related to aviation-related work (certainly concerning the construction or repair of aircraft) it would be impossible for any flights into and out of the associated airfield to be related to flight testing of aircraft constructed or repaired by businesses on the aerodrome which is in part what that permission granted. That other flights involving testing could take place in the context of businesses that did not occupy the site would not affect the validity of that proposition.
- I cannot, for my part, see how conclusions to this effect can be criticised, whether or not the concept of "planning unit" was deployed correctly in the analysis. The planning permission to be considered was a planning permission for the aerodrome, not the airfield per se. I do not see, certainly in the context of this case, how it is, or could be, realistic to try to give meaning to the 1951 planning permission without some appreciation of the context in which it was granted. It was, as a matter of fact, granted to one occupier of the site that was engaged in the construction, repair and flight testing of aircraft. As the Inspector observed, ancillary flying activities associated with that permission would be permissible on the airfield and, as the local planning authority conceded, the permission embraced the flight testing of aircraft manufactured or erected elsewhere to be flown in for this purpose.
- Whether the planning permission is looked at in the factual context that obtained at the time it was granted (which, exceptionally, might be a legitimate approach to its interpretation[1]) or simply (and more conventionally) that its express terms related to the whole aerodrome and the mixed uses specified to take place at the aerodrome, the Inspector was of the view that it was not legitimate to try to give meaning to this planning permission without considering the whole site the subject of the permission. Whilst Mr Steel and Mr Whale are, of course, right to emphasise that the section 191 application related only to the airfield, I do not see how the Inspector can be criticised for, as it were, refusing to "turn a planning blind eye" to the northern sector which is unarguably an integral part of the aerodrome to which the 1951 planning permission applies.
- I do not see the conclusion reached in this case as offending the principle that a change of identity of an occupier of a site (indeed with the possible substitution of a number of occupiers) does not necessarily result in a material change of use: cf. Lewis v Secretary of Estate for the Environment (1972) 23 P. & C.R. 125. The Inspector was mindful of the principle because he said this:
- I have already alluded to the criticism that Mr Steel and Mr Whale make in this context that the Inspector did not make a comparison between the actual use of the site during the BAe era prior to 2002 and the Claimant's use thereafter. I think the reason they advance this is that their submission would be that there was no material difference between what was happening in the latter stages of BAe's occupation (which, it was common ground, was permitted by the 1951 permission) and what the position was after the Claimant took possession of the site. Reference was made during the Inquiry to some schedules produced for the purposes of WA/2007/0373 (see paragraph 15 above) which sought to compare the pre-2002 building uses in the northern sector with those post-2002.
- It seems to me that the suggestion that the failure to engage in this comparative exercise either constitutes, or has contributed to, an error of law on the Inspector's part is ill-founded. It is, of course, possible to see the forensic attraction of endeavouring to submit that "nothing had changed" between the latter stages of the BAe use of the site and the beginning of the Claimant's period of use of the site. However, the local planning authority's case was that since 2002 "the aerodrome ceased to be used to any significant degree for the purposes formerly undertaken by BAe [and in their place] the [Claimant] has operated the aerodrome as a business park/industrial estate for a range of commercial occupiers and activities". Although the Claimant accepted that there had been an increase in the number of occupiers compared with the BAe era, the fact that a large number had nothing to do with aviation related activities was submitted not to be relevant given the nature of the planning permission itself. Ultimately, the Inspector had an evaluation of fact to make for the purposes of deciding whether the 2008 planning permissions were required, namely, whether what occurred prior to 2008 (but after 2002) represented a material change of use compared with the situation prior to 2002. If it did, a planning permission was, or planning permissions were, required.
- There was, in my view, ample evidence for the Inspector to conclude as he did and I can see no basis upon which I could or should interfere with that finding. Nothing has been advanced, in my view, which undermines the conclusion that he drew, namely, that a material change of use did occur after 2002 that required a planning permission.
- The next issue to be addressed is whether either of the two 2008 permissions had been implemented. I will turn to that issue now.
- I have set out the Inspector's summarised conclusion concerning this at paragraph 32 above.
- Mr Steel and Mr Whale made a number of criticisms of this conclusion. In the first place, they contend (combining this with, in effect, a reasons challenge) that the Inspector did not say which of the two planning permissions had been implemented.
- It seems to be clear that the Inspector had accepted the argument of Counsel for the local planning authority which was to the following effect:
- Mr Steel and Mr Whale say correctly, of course, that these two permissions were each subject to a condition that the development to which they related should be "begun" no later than the expiration of three years beginning with the date on which they were granted and that "begun" for this purpose means the earliest date on which any "material operation" comprised in the development begins to be carried out: see section 56(2) of the 1990 Act. They suggest that of the types of "material operation" set out in section 56(4) the only one relevant is that set out in section 56(4)(e), namely, "any change in the use of any land which constitutes material development".
- They contend that the Inspector makes no finding of any material operation after 11 March 2008 or 18 June 2008 so as lawfully to "begin" the development to which the two planning permissions related. They emphasise the word "lawfully" for the reason to which the Inspector's reasoning set out in the next paragraph relates and to which I will revert shortly (see paragraphs 72-76 below). On the basis that the two 2008 permissions were not "begun," it is contended that the conditions purporting to control aviation activities were never engaged and that both permissions lapsed on their third anniversary.
- What the Inspector did say about this feature of the case is as follows:
- In paragraph 69 the Inspector referred to a number of authorities to which he had been referred on the issue of whether the 2008 permissions had been "lawfully implemented". They were Whitley & Sons Co Ltd v Secretary of State for Wales (1992) 64 P. & C.R. 296; R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin) and Greyfort Properties Ltd v Secretary of State for Communities and Local Government & Torbay Council [2011] EWCA Civ 908.
- A detailed exegesis of those decisions is not necessary for the purposes of this judgment. In essence what was argued on behalf of the Claimant before the Inspector was that the failure to comply with condition 18 of the 11 March 2008 permission and condition 14 of the 18 June 2008 permission (see paragraphs 14 and 15 above), "both being highly material conditions which each went to the heart of the planning permissions", resulted in the development granted permission by each planning permission not being "lawfully and effectively begun". That which demonstrates that each condition went to the heart of the permission, it is argued, was that each contained two requirements to discharge before lawful implementation, no "management and monitoring agreement" was ever agreed or adhered to, no "frequency or triggers" were ever agreed, no Automatic Traffic Count systems or other appropriate devices were ever set in place at the vehicular accesses, whether to record and differentiate HGVs from other vehicular traffic or otherwise, and that the need for these conditions was dictated by the local planning authority and the highways authority because, without them, permission would have been refused. In short it was contended that conditions 18 and 14 were true conditions precedent and the Inspector erred in law in finding otherwise.
- Whilst, of course, one could envisage a situation in which a judgment made by an Inspector as to whether a condition "went to the heart" of a planning permission involved an error of law, essentially this kind of exercise is a "fact and degree" decision with a margin of judgment in the process of evaluation. For the reasons he gave, neither condition was "sufficiently fundamental to the permissions nor sufficiently prohibitive to amount to a 'condition precedent' within the Whitley principles" and that, as it seems to me, was a judgment he was entitled to make in the circumstances. He had the advantage of hearing the evidence and argument over several days. Furthermore, most of the reasons advanced for reaching a contrary view (as summarised in paragraph 73 above) amount to no more than a recitation of the existence of the breaches of the various conditions and not to factors that enhance the importance of the conditions themselves. The Inspector recorded in paragraph 67 of his reasoning the attitude of the planning authority to the nature of the breaches and thus the intrinsic importance of them. He did also note that the Claimant had notified the planning authority of the "details of the monitoring arrangements".
- In addition, whether one or other of the permissions was otherwise implemented also seems to me essentially to be an issue of fact. Here it was common ground that the site had been used continuously by the Claimant in accordance with the permissions granted. Mr Greatorex submitted that the B1, B2 and B8 uses, which were continuing in the northern sector, had nothing to do with the 1951 permission and must, therefore, be taken to have been authorised by the post-2002 permissions of which the two 2008 permissions were merely, or at least largely, renewals of earlier permissions. Paragraph 68 of the Inspector's decision letter appears to take that position and I cannot see any error of law in the reasoning process.
- Accordingly, I consider that the Inspector was entitled to conclude, not merely that the 2008 permissions were (or at least one of them was) as a matter of fact "implemented", but also to conclude that the conditions that were breached were not "conditions precedent" within the Whitley principles such that the conditions relating to the restriction on aviation activities must be taken also to have been engaged.
- Does it matter, as Mr Steel and Mr Whale contend, that the Inspector did not decide which permission had been implemented? They suggest that it is not an academic issue since the two permissions are of different duration and contain entirely different conditions. They emphasise that the Inspector (Mr Vickery) in 2008 acknowledged that it was necessary for the local planning authority to know for enforcement purposes exactly which permission the Claimant had implemented. It is suggested that both the Claimant and the local planning authority are in the dark about this and, so far as the Claimant is concerned, it is unable to advise its tenants or would-be tenants which planning permission supposedly governs use of the aerodrome.
- The short answer to those points is (a) that the local planning authority did not submit at the inquiry that a decision on this issue was necessary (see paragraph 68 above) and it is not clear that the Claimant invited a conclusion on this issue either, (b) that it did not matter for the purposes of the issue before the Inspector and (c) that if it has to be resolved it will have to be resolved in the context of an issue specifically requiring a decision.
- The conclusion referred to in paragraph 76 above, of course, if correct, means that the Claimant is not entitled to the certificate sought under section 191.
- Should that conclusion be wrong, I must return to the question of whether the 1951 permission permits unrestricted aviation activities. In one sense, the wheel has turned full circle from the starting point in relation to the question of whether the 2008 permissions were necessary at all (see paragraphs 38-52 above). However, I will deal independently with this issue because there were certain arguments concerning the meaning of the 1951 permission that I did not address directly when considering the Inspector's approach to its meaning in that context.
- For this purpose, I approach the question on the basis that only the words of the planning permission, taken with the plan attached to it, fall to be considered. Whatever use the Inspector may have made of the concept of a "planning unit" (see paragraphs 53-61 above), he did express the clear view (see paragraph 41 of the decision letter quoted in paragraph 38 above) that the wording of the planning permission did not grant unrestricted aviation activity - it was necessarily limited to flight testing associated with the erection and repair of aircraft.
- Mr Greatorex submitted that this was, in effect, the whole answer to this case. He said that the 1951 permission does not permit general and unrestricted aviation activities and it is impossible to read it otherwise. Put shortly, I have to say that I agree. If it had been the intention of the local planning authority in 1951 to grant the right to carry on unrestricted aviation activities, there must have been a number of formulations that could have been used to achieve it, but no such formulation was used. So far as permission for flights were concerned, it seems clear beyond doubt that flights for the testing of aircraft were the only flights that were permitted.
- It is, of course, possible to see in theory that this could involve unrestricted aviation activity, albeit only for flight testing purposes. Arguably, that could have led to a very large number of flights each day if a large number of aircraft needed testing or if an aircraft or a few aircraft required a considerable number of test flights during the course of a day. One can see that, theoretically at least, its phraseology did not limit the amount of aviation activity on a daily basis. It is, I think, this feature that Mr Steel and Mr Whale rely upon when they submit that, in land use terms, there is no material difference between "flight testing" and other types of flying - each involves start up, taxiing, engine testing, ground running and take off and landing. They submit that the purpose or intention of the flight cannot be impliedly restricted by law. They suggest that the Inspector's approach (and indeed the approach that I adopt) simply involves a highly restrictive interpretation of the planning permission and some form of implied restriction of that permission.
- I am unable to accept these criticisms. In the first place, all that is involved in this process is taking the words of the planning permission as they are to be found and asking oneself the question "do they permit unrestricted aviation activity?" To my mind, there is only one answer and, I fear, the subtleties of the arguments to the contrary have eluded me. I do not, for my part, see this conclusion as offending the principle that restrictions cannot be implied into a planning permission: see I'm Your Man Ltd v Secretary of State for the Environment (1998) 77 P.C.R. 251. There is, to my mind, a clear difference between implying something into a planning permission which is not there in the first place and simply seeking to give meaning to the express terms of the permission. This is a familiar concept in the private law field of the law of contract and there are some analogies in this particular context. However, be that as it may, the one principle that is clear is that the words of a planning permission must ordinarily be given their normal meaning. Here, the use authorised by the permission, to the extent that it is divorced from the other two activities permitted, is that of "flight testing" and nothing more. I can see that there might have been some enforcement questions had they ever arisen in the past, but that is a different issue.
- Mr Steel and Mr Whale have also submitted that the correct reading of the 1951 permission demonstrates that it permits three distinct and separate uses of the land in connection with aircraft, namely, (1) erection, assembly and manufacture, (2) repair and (3) flight testing. They submit that any one of these uses may be carried out separately without the other. I did not understand Mr Greatorex to disagree with this proposition in principle, although the submissions of the local planning authority (see paragraph 57 above) had, on one interpretation, strayed fairly close to submitting the contrary. However, whatever subtleties there may be, or may have been, in the arguments advanced, they do not result in the conclusion that the Inspector was guilty of any error of law when he concluded that "flight testing" did not equate to unrestricted aviation activity. Mr Greatorex was, in my judgment, right to say that it is important not to read the decision letter by importing words or expressions from one part of some complex reasoning to seek to undermine what, on its face, seems to be a clear conclusion in another part. Whilst the permission did grant permission for three independent uses "at Dunsfold aerodrome", if, with the passage of time, one or other of these uses had ceased or changed significantly, the question of whether there had been a material change of use would have arisen. That is an issue which the Inspector had to address, but it was not the issue that fell for determination when assessing the meaning of the words of the planning permission.
- In my judgment, the Inspector was right simply to say that 'flight testing' was a narrower concept than unrestricted aviation activity and that he cannot be criticised for stopping at that point. Mr Steel and Mr Whale suggest that he should have asked himself what was within the scope of the term flight testing, but that he failed to do so.
- There are two observations I would make about that: first, the whole purpose of section 191, as it seems to me, is to invite a specific answer to a specific question, namely, whether a defined existing activity is lawful which, for the purposes of this case, essentially translates into the question of whether the activity is permitted by an identified planning permission. It is not a process by which an applicant is entitled to an answer to the general question "what can I do with this permission?" Second, so far as this particular case is concerned, it seems to me that what constitutes "flight testing" can be determined only by reference to the context of the particular site with its obvious physical and planning constraints.
- The kind of questions that need to be answered in relation to the future use of the aerodrome are much better answered in the context of an application or appeal where the full planning merits can be determined, rather than within the relatively narrow parameters of a section 191 application (cf. paragraph 29 above). Clearly, if the answer to the question raised in the section 191 application had been an easy one to give, then that process would have been an obvious one to choose; but that is not the case here.
- I have focused on those aspects of the arguments deployed before me that seemed to me to be more likely to advance the case of the Claimant, rather than dealing with each and every nuance and every authority cited. I have, however, considered all the arguments and none has changed the views I have already expressed.
- For the reasons I have given, I consider that the Inspector reached the right conclusion on the appeal before him following what undoubtedly was a complicated hearing which dealt with a lengthy and complex history of a site that itself presents a good many planning issues to resolve. In the fullness of time they will doubtless be resolved, but not, in my view, in the context of the application which has led to this appeal.
- I am extremely grateful to all Counsel for their industry and their assistance.
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 or very 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. Flying visits 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 into voluntary 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 by virtue 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 road vehicular 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
No variations 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 Ltd v 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
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" by virtue 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 different view. 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 final vacation 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 a very 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 the very 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 the very 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 my view 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 other visitors, 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 later varied 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 on visual impact grounds.
61. A variety 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 have varied, 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 that vehicle 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 the variations 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 the various 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]