Applicant proposing heliport facility on vessel navigating up and down the Thames — Applicant and local authority seeking declarations from High Court as to impact of planning legislation on proposal — Whether proposal was change of use of land — Whether any change of use would constitute development — Whether planning permission would be granted by the general development order — Declarations made by High Court — Appeal allowed
The applicant proposed to establish a heliport facility on a vessel which would navigate up and down a 10-mile stretch of the Thames stopping in mid-river at one or other of 22 sites between Chelsea Harbour and Greenwich to enable helicopters to land and take off from the vessel. The applicant and a planning authority sought a declaration of law from the High Court as to the impact of town and country planning legislation on the proposal.
The issue was whether the proposal was development by the making of material change in the use of land. It was common ground that land as defined in section 336(1) of the Town and Country Planning Act 1990 did not include the water flowing in the river, but did include the river bed and banks. The applicant contended that the existing use of the river bed was to support and contain water for navigation and that the proposal would not alter that use. In the alternative, the applicant contended that since the boat would not be in any one place for more that 28 days at one time, planning permission for the development would be granted by the general development order. The judge made declarations to the effect that the proposal would constitute a change of use of land within section 55 of the 1990 Act and would constitute a development within the meaning of section 55. The judge also made a declaration to the effect that the proposal would not constitute development which would be permitted by the general development order. The applicant appealed.
Held The applicant’s appeal was allowed.
1. To establish whether there had been a change in the use of land it was necessary to consider whether anything had changed on the land which was capable of being material from an environmental point of view. The river land was used for bearing the weight of water and ships which did not attract helicopter traffic and the proposal was to use the land for bearing the weight of water and ships which did attract helicopter traffic. Therefore the proposal could constitute a change in the use of land for the purposes of section 55 of the 1990 Act.
2. It was not appropriate for the court to make a declaration as to whether the material change would constitute development because that was a matter for the relevant planning authorities.
3. There was nothing in the 1990 Act, or case law, which precluded some or all of the sites being considered as one planning unit for the purpose of ascertaining whether there was a development carried on for more that 28 days. Therefore it was not appropriate to make a declaration that planning permission would be granted by the general development order. Accordingly the order of the judge was to be set aside and substituted by the declaration that: “Helicopters landing on or taking off from a vessel floating but not moored on the tidal River Thames … could constitute a change in use of the land for the purposes of section 55 of the Town and Country Planning Act 1990”.
Michael FitzGerald QC and Robert Fookes (instructed by Frere Cholmeley Bischoff) appeared for the appellant; David Widdicombe QC and Michael Druce (instructed by the solicitor to Tower Hamlets London Borough Council) appeared for the respondents.
