Respondent council granting certificates of proposed lawful development for former RAF site – Change of user from military to civilian – Applicants seeking to quash grant of certificates – Whether respondents erred in law in failing to consider possible future intensification of activity at site – Whether respondents erred in failing to consider imposition of limitation on certificates – Section 192 of Town and Country Planning Act 1990 – Application dismissed
In 1998 the Ministry of Defence (MoD) contracted to sell RAF Manston (the site) to the Wiggins Group plc, a property development company that intended to pursue a programme of expansion of the commercial use of the site. The MoD sought to establish that the whole airfield and associated buildings could be used for civilian airfield purposes. In July 1998 Thanet District Council (the respondents) granted the MoD two certificates of proposed lawful development, which approved as lawful: (i) the proposed use of the airfield for civilian purposes; and (ii) the retention of a series of buildings that had been erected without planning consent. These two certificates were not challenged.
In May 1998 the MoD applied to the respondents for a certificate of lawful proposed development under section 192 of the Town and Country Planning Act 1990, which, in effect, sought a declaration of lawfulness of the proposed change to civilian use of the buildings authorised to be retained by the July 1998 certificate. In April 1999 a further application was submitted to the respondents, relating to the whole of the site, which described the proposed development as “use of RAF Manston, including buildings, by commercial civilian user”. In July 1999 the respondents issued both certificates.
The applicants sought to quash the grant of the two later certificates. They submitted that, when considering whether to grant the certificates, the respondents erred in law by failing to consider the question of the possible intensification of activity at the site, which may have amounted to a material change of use. The applicants submitted that the respondents should not have granted open-ended certificates. They should have considered including some form of limitation, to guard against future intensification of activity and to reflect the lawful level of use of the airport. Kent International Airport (KIA) was the owner of London Manston airport, which included the areas at the site covered by the certificates and was joined as an affected third party. The respondents and KIA submitted that the respondent council were not required to consider intensification either as a matter of principle or as a matter of practicality.
Held: The application was dismissed.
A local authority did not have an implied power to modify a description of the proposed use contained in a section 192 application. That did not mean that the respondents were powerless when faced with a generalised section 192 application. They could, in appropriate cases, ask for more details about the use concerned, before making a finding as to its lawfulness. There may be cases where intensification was not in issue, or where it was impractical to devise a limitation to impose upon the certificate. It was easy to state in principle that intensification may be of such a scale as to constitute a material change of use, but it was far more difficult to apply in practice. Precision was equally desirable in both section 191 and section 192 applications, but there were practical limitations in putting that into effect under section 192. In the instant case, a realistic limitation could not have been devised. Even if it could have been, it would have had no practical effect given the earlier certificates. Brooks & Burton Ltd v Secretary of State for the Environment [1977] 2 EGLR 139 and Broxbourne Borough Council v Secretary of State for the Environment [1979] 1 EGLR 149 considered.
John Steel QC and Douglas Edwards (instructed by Richard Buxton, of Cambridge) appeared for the applicants; Richard Humphreys (instructed by the solicitor to Thanet District Council) appeared for the respondents; Alun Alesbury (instructed by Wiggins Group) appeared for the third party.
Sarah Addenbrooke, barrister