1.3 Applications for these certificates were submitted to the Respondent by the Ministry of Defence. At the time of submission of those applications the Ministry of Defence were in the process of disposing of the former operational airbase at RAF Manston. On 31 August 1999 the forn1er RAF Manston was purchased by the Wiggins Group PLC.

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2.1 The application for a certificate of lawful development No. TH/98/0400 related to the buildings at RAF Manston, Kent". It was submitted to the Respondent on 11 May 1988. This application is included at bundle p.9 and a plan identifying the buildings to which the application relates is identified on the plan produced in exhibit ADB.3 to David Bruce's affirmation.

2.2 The application described the proposed development as:
"Use of buildings in Schedule 2 in association with use of airfield at RAF Manston for civilian purposes"

2.3 The existing use of the buildings is described in the application as follows: "As listed in Schedule 2 in association with the military usage of the airfield at RAF Manston."

2.4 On 8 July 1999. the Respondent granted a certificate of lawful proposed use pursuant to the application (B.45) The proposed use is described in the First Schedule of the certificate as follows "Certificate of lawful development for the proposed use of the existing airfield buildings listed in the attached schedule in association with use of the airfield for civilian purposes"

2.5 The reason for granting this certificate is stated in the certificate to be as follows:
" In the opinion of the Local Planning Authority the change of ownership of the land in question from Crown owned airport to civilian owned airport, does not in itself [constitute] a material change of use of the land edged red. As the land in question has been used for airport purposes for a period in excess of 10 years, no specific planning permission is required, unless there occurs some other material change in circumstances."

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3.1 The application for certificate No.TH/99/0377 was submitted to the Respondent on 28 April 1999, This application is included in the bundle at p.1-3

3.2 The application describes the proposed development as follows:
"Use of RAF Manston, including buildings, by commercial civilian user."

3.3 The existing use of the land to which the application related is described as follows:
"Military (and part commercial civilian) airfield with aircraft movements and associated buildings."

3.4 On 8 July 1999, the Respondent granted a certificate of proposed lawful use or development pursuant to the application (B,41 :) The proposed use or development is described in the First Schedule of the certificate as follows:

"Certificate of lawful development in respect of the use of crown owned airfield land and buildings for Commercial civilian use."

3.5 The reason for granting this certificate is stated in the certificate to be as follows:
" In the opinion of the Local Planning Authority the change of ownership of the land in question from Crown owned airport to civilian owned airport, does not in it self [constitute] a material change of use of the land edged red. As the land in question has been used for airport purposes for a period in excess of 10 years, no specific planning permission is required, unless there occurs some other material change in circumstances."

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4.1 Section 192 of the Town and Country Planning Act 1990 (TCPA 1990) (as amended)

4.2 A similar procedure is provided by s.191 TCPA 1990 for certificates of lawful existing or development ( or CLEUDS). The procedure for submission and grant of certificates pursuant to s.192 is provided by Town and Country Planning (General Development Procedure) Order 1995 art.24.

DETR Circular 10/97 provides guidance from the Secretary of State for the Environment, Transport and the Regions in respect of "Enforcing Panning Control". Annex 8 to this Circular provides guidance in respect of the determination and issue of certificates pursuant to ss. 191 and 192 TCPA 1990. The guidance emphasises the importance of precision in identifying and describing the lawful use or development in the certificate, Para. 8.28, in respect of certificates of lawful proposed use or development, (CLOPUDs), provide as follows:

"Subsection (3) of section 192 is the counterpart, for proposed uses or operations, of section 191 (5). It provides that a LDC granted under section 192 shall specify the land to which it relates; describe the use or operations in question (where appropriate, identifying a use by reference to the relevant "use class"); give the reason why carrying out the proposal would be lawful; and specifying the date of the application. Although this certificate would not be the equivalent in law, to a grant of planning permission for proposed development, it will indicate that unless any relevant factor has changed since the application date specified in the certificate, it would be lawful to proceed with the proposal. It is therefore vital to ensure that the terms of the certificate are precise and there is no room for doubt about what is lawful at a particular date "

(See also paras.8.16 -8.22 and in particular, para.8.21 which advises that uses or development to which a certificate relates should be defined with sufficient precision to avoid future unrestricted intensification.)

4.4 In Broxbourne Borough Council v SoSE [1980] QB the Divisional Court considered the extend of an "established use certificate" Granted under s.52 TCPA.. 1971 in the following terms:
"It is hereby certified that the use of the above land and buildings for storage, sawing, re-sawing and disposal of timber in the round and the storage, maintenance, repair overhaul of vehicles and plant incidental thereto, was on October 3, 1972, established within the meaning of paragraph ( a) of section 94( 1 ) of the Town and Country Planning Act 1971."
The issue for the determination of the Divisional Court was whether the Secretary of State was correct in concluding that a certificate in the above terms was sufficient to pemit, without an express grant of planning permission, the intensive use of thc relevant land for a "bulk storage depot for timber planks" by a substantial commercial operator.

4.5 In respect of this issue Robert Goff J. (as he then was) held as follows:
"Mr Fay for the local planning authority submitted that in so approaching the matter, the Secretary of State erred in law. He submitted that the proper course for the Secretary of State was to compare the existing use with the last preceding use as it in fact existed in order to decide whether there had been in fact a material change in the use of the land. Section 94(7) constituted, he submitted, no bar to such an inquiry because that subsection provided only that an established use certificate should be conclusive as respects any matter stated therein, and the certificate in question was wholly silent as to the scope and intensity of the use at the time it was issued (p.10 A-C)
In my judgment, this criticism of the Secretary of State's approach is not well founded. The purpose of an established use certificate is clear. It does not render a use lawful. To that extent it is unlike a grant of planning permission. Therefore, if, for example, the use specified in an established use certificate is abandoned, it cannot lawfully be resumed. Its function is to render the specified use, as long as it persists, immune from an enforcement notice It, therefore, precludes the necessity of investigating events which may have occurred many years before as to what was the established use at the date of the issue of the certificate." if Mr Fays submission were to be correct, it would deprive an established use certificate of all efficacy. In each case it would be necessary to investigate the actual use at the date of the issue of the certificate in under to ascertain whether there had in tact been a material change of use, a fresh investigation which it was the object of the established use certification procedure to obviate (p, 1O.C-E)
Nor, in my judgment, does it assist Mr. Fay to argue that the certificate specifies no particular level or intensity of activity, and, therefore, to submit that the level or intensity of activity, and, therefore, to submit that the level or intensity of activity was not a matter stated in the certificate and so was a matter on which the certificate was not conclusive. The short answer on this point is that the use was matter stated in the certificate. Since no limit was placed upon either part of the site to be so used or the intensity of the use, the use so specified was without limit as to space within the site or intensity. Mr. Fay cannot, therefore, now complain that the Secretary of State has erred in law in holding that there has been no material change of use by reason of the area of the site now employed or the present intensity of use. (p.10F-G)

But the case has a moral. It demonstrates that planning authorities should exercise great care concerning thc terms of established use certificates which they issue. If a certificate is not drawn with care and expressly limited to the precise use in question, then its issue can lead to the consequence that the authority may, through its own act, find itself thereafter precluded trom preventing a use for which planning permission would not have been granted simply because the certificate had been issued in terms wider than were necessary. (p.11 C-D)
See also Kilner: Brown J. at page 11 D-F

4.6 It is to be observed that the Broxbourn decision was concerned with "established use certificates" granted pursuant to s.52 TCPA 1971. There are material differences between certificates granted under that provision and those granted pursuant to the "new" procedure under ss. 191 - 192 TCPA 1990 in particular a use is "lawful" if certified pursuant to 1990 Act. Therefore, it is submitted, that the importance identified by Robert Goff and Kilner Brown JJ. of strictly and precisely identifying the use or development within a certificate is heightened.

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Intensification may amount to a material change of use for which planning consent is required (see Brooks and Burton. v. SoSE. [1977] 1 WLR 1294 ). Whether a material change of use occurs through intensification is a matter of fact and degree for the local planning authority A decision as to whether intensification has occurred is to be considered against the planning base-line situation of the existing lawful use.

5.2 The proposed use described in certificates TH/99/0377and TH/99/0400 have the effect of certifying as lawful the civilian use of that part of Manston Airport and its buildings to which each certificate relates without any limitation as to the number of aircraft movements.
The effect of the certificates as granted would permit unfettered intensification in the use of the airport and its buildings beyond the level of use that had historically existed at the date of the applications. The description of the proposed use or development set out in the certificates as granted is sufficiently wide such that there would be no power for the Respondent to enforce against such future intensification (see Circular 10/97; Broxbournc case )

5.4 Both the Respondent and the Wiggins Group plc have been asked expressly whether the description of the proposed use provided in the certificates TW99/0377 and TIV98/0400 is to be read as imposing any limitation on the level of air traffic movements. No substantive reply has been forthcoming from either the Respondent or the Wiggins Group plc (see Witness Statement of Richard Buxton paras 5-9, exhibits RB/l and RB/2).

5.5 The Respondent local planning authority, when considering the applications for certificates TH/99/0377 and "IH/98/0400, had before them information as to the level of military and civilian aircraft movcmcnts at Manston for the years 1993 - 1997 (exhibit MDB.1 to Mr Brown's witness statement). However. no information had been provided as to the nature and extent of the proposed civilian use of the airport by the Wiggins Group (the new owners). In particular, no infomlation had been provided as to the number of air traffic movements which were anticipated, the types of aircraft or the hours of operation.

5.6 The Respondent's Director of Planning Services presented a report to the Planning Committcc when the applications for certificates TH/99/0377 and TH/98/4000 were considered In this report the Committee were informed that the new owners of Manston "intend to pursue a programme of expansion of the commercial use of the former miliary airfield". This intention of Wiggins Group PLC as the new owners of RAF Manston is borne out by subsequent press reports and the proposal to, inter alia. replace and regrade passenger aprons, etc at the airport (see Witness Statement of Richard Buxton paras.9-12, exhibits RB/3-RB/4).

5.7 However, the report fails to inform the Planning Committee:

(a) that intensification or use of the airoort may amount to a material change of use; and~
(b) that proposed development for which certificates were sought and subsequently granted permit unfettered intensification of the use of the airport for civilian purposes; and

(c) that the Respondent was entitled (and advised by DETR guidance) to consider carefully the potential for intensification of use of the airport beyond historic leveIs and to consider the imposition of a limitation within the description of the proposed use to reflect what was considered to he the lawful level of use.

5.8 In that thc Planning Committee of the Respondent plainly relied upon the report of the Director of Planning in determining the applications for certificates TH/99/377 and TW98/400 the Respondent:

a) failed to consider the question of possible intensification: and

b) thereby failed to consider whether to include a limitation to reflect the lawful level of use of the airport.

6. Relevance of Certificates granted in 1998

6.1 Two certificates of lawful proposed use or development were granted by the Respondent during 1998. These certificates as referred to at para.5 of the notice of application.

6.2 Certificate TH/98/O399 was granted on 4 June 1998 and authorised retention of existing airfield buildings (see exhibit ADB.2 to affirmation of Mr.Bruce).

6.3 Certificate TW98/9398 was granted on 28 July 1998 and certified as lawful the "proposed use of the airfield for civilian purposes". The land to which that certificate related is identified in the Second Schedule to the certificate as follows:
"Location' RAF Manston, Kent (restricted to the area edged red on plan attached to this certificate) "

6.4 Certificate TH/98/0398 and the plan attached thereto are included in exhibit ADB.2 to Mr Bruce's affirmation.

6.5 It is accepted that these certificates were not and are not challenged by way of Judicial Review and therefore remain lawful.

6.6 Mr. Bruce, in his affirmation suggests that the existence of these certificates is fatal or of material relevance to Applicants' challenge to the later certificates (TH/99/0377 and TH/98/0400) (see eg. paras. 41-42).

6.7 Certificate TH/98/O399, which authorises the retention of buildings, is not material to either the use of those buildings for commercial civilian purposes nor to the use of the remainder of the Manston.

6.8 Certificate TH/98/0398 relating to the use of the Manston for civilian purposes relates to a different area of land to certificate TW99/0400 (which is the subject of the challenge). (Compare plans at ADB.2 (plan attached to certificate TH/98/0398) with plan at ADB 3 (final page) being the plan to which certificate TH/99/0377 (under challenge) relates).

6.9 The fact that certificate TH/99/0377 is more extensive that the earlier certificate is acknowledged in the Director' of Planning's report to the Planning Committee which considered certificate TH/99/0377 ( para, 1.3 bundle p.38) and in David Bruce's affirmation (para.31).