5.The Committee report in relation to 98/400 and 99/377 is to be found at pp. 38-40 of Exhibit "SR1". This report explains that

(1) following the decision to cease the use of Manston airfield for military purposes and to dispose of the site, the Ministry of Defence sought to establish that the whole airfield and associated buildings (i.e. not just the existing civilian airport buildings) could be used for civilian airfield purposes;

(2) Certificates 98/398 and 98/399 had been granted relating, respectively, to (a) the use of the runway and land for civilian purposes and (b) the lawful existence of the buildings.

(3) in relation to application 98/400 (use of existing military and airfield buildings legal advice had been sought and subsequently application 99/377 had been submitted in relation to the use of all the land transferred to the new airfield owners (now Kent International Airport PLC-"KIA") for commercial civilian use (including land previously excluded from the earlier certificate);

(4) the advice of Counsel for the applicants (for the certificates) was there was no difference between Crown use and civilian use; and the legal advice received by the Council was that:

(a) the simple change of owner or occupier did not constitutc a material change in use; and

(b) the civilian use of military buildings (or land) which had a directly comparable civilian use would not constitute a material change in the use of those buildings (or land)

(5) on the basis of the legal advice each building and its use had been reviewed and it had been concluded that no buildings on site had a use for which there was no equivalent civilian use;

(6) application 99/377 had been submitted on the basis that it was now accepted that the whole area shown on the accompanying plan constituted one planning unit.

Grounds of challenge

6. It appears from the Form 86A that there are two points taken ('A' and 'B' below) although there is no reference to 'B' in the Skeleton Argument. Ground 'A' appears to have changed in the Skeleton Argument submitted on behalf of the Applicants. Both versions of Ground A are addressed below.

Ground (A)

There was a failure to consider whether the proposed civilian use of the airfield amounted to a change in the nature or character of the use of the airfield or buildings and there was no information before the Committee as to whether such a Challenge would be likely to occur (paragraph 27 and 29)

Response

8.The legal position is settled.

(a) "What is really to be considered is the character of the Use of the land, not the particular purpose of a particular occupier." : Lord Parker C.J, in East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, 491 which decision was applied by the House of Lords in Westminster City Council v Great Portland Estates PLC [1985] AC 661,669:

(b) "The identity of the occupier .. is irrelevant", Lord Diplock (by adoption) in Westminster City Council v British Waterways Board [1985] 1 AC 676, 684; see, too Lewis v" Secretary of State for the Environment [1972] 23 P&CR 125 (change from maintenance and repair of vehicles belonging to a particular company to maintenance and repair of vehicles belonging to the public at large not material). The culmination of development of the civilian side of the airport arose with the various consents for the passenger terminal which was granted planning consent as early as 1965 with a design capacity to enable it to handle one million passengers a year without any restrictions on the hours of operation..."

(c) As regards the use of the military buildings, there was also the correspondence from Comax (pp.24-29 of .'SRI ") and the expert view expressed therein that

"... the majority of existing buildings and facilities are clearly used in direct support of airfield operations and are exactly what you expect to be available for the flying activities which have been taking place at RAF Manston over the years. Self-evidently, the core activity has been substantially in favour of civil movements, which will be the future use of airfield."

10. At pages 5-10 of the Applicant's Skeleton it is argued for the first time in these proceedings that the Council failed to consider whether to specify the lawful level of use of the airport on the certificate. The following points can be made:

(a) The case of Broxbourne Borough Council v. Secretary of State for the Environment (1980) QB1 is referred to by the Applicants but that case concerned an 'established use' certificate (issued pursuant to section 64 of the Town and Country Planning Act 1971 which is broadly the equivalent of what is now a certificate of lawful existing use ('CLEUD') and was a certificate to the effect that a particular use had subsisted for a particular period of time;

(b) By contrast the present case is concerned with certificates of proposed lawful use (Clopuds) where the issue is simply whether the use proposed by the particular applicant would be lawful:

(c) 'There is no power to modify the description set out in the application for a Clopud, in sharp contrast with an application for a Clued: see section 191(4);

(d) Reference is also made by the Applicants to DETR Circular 10197 which gives guidance to local planning authorities. Whilst the advice concerning Cleuds is to the effect that the certificate should 'state the limits of the use at a particular date" (para.8.16) (consistently with the Broxbourne case), the advice in relation to Clopuds is simply that the terms of the certificate should be "precise [so that] there is no doubt about what is lawful at a particular date" (para.8.28) Both certificates are precise;

(e) It was the view of the Council that there was no material difference between the previous and the proposed use.

(f) Thus there is no legal requirement nor policy advice to impose a limitation, indeed there is an inability to modify the description of the proposed use:

(g) Further, it is relevant to bear in mind that by virtue of section 294(1) no enforcement action could be taken against the military use because it had been crown development. Therefore the military use was lawful and unfettered. The civilian use of the runway was not crown development and it is not accepted in any event that it constituted a material change of use; but even if it did it had been inexistence for more than 10 years and was therefore immune from enforcement action by virtue of section 171B(3) of the 1990 Act. It is difficult to see how any limitation could have been imposed in any event.

11. In addition, there are powers vested in the Secretary of State to ensure, if necessary that, " noise is controlled (whatever the hour of day or day of week). (See below.)

12. In any event Certificate 98/398 which certifies as lawful the proposed use of the runway/airfield for civilian purposes has not been challenged. Since it appears that the paramount concern of the Applicants is noise from aircraft it is difficult to see the purpose of these present proceedings, even though the challenged certificates (in terms of the use of land) embrace slightly larger areas of land.

Ground (B)

The Committee was not informed that there is a statutory bar on civilian aircraft noise nuisance actions but that this bar does not apply to military aircraft and that therefore those affected by aircraft noise no longer have a remedy in nuisance.

Response

13. This point ignores the fact there is already substantial civilian aircraft movement at Manston (see above),

14. Further, the Department of the Environment, Transport and the Regions make it plain (see their letter of 14th October 1999 to Richard Buxton; Solicitors, at pages 3-4 of "ADB8") that if it were necessary power exists under section 5 of the Civil Aviation Act 1982 to "specify" the aerodrome so as to control noise.

15. If an aerodrome is "specified" then the CAA, in exercising its aerodrome licensing functions is required "to have regard to the need to minimise so far as reasonably practicable (a) any adverse effects on the environment, and (b) any disturbance to the public, from noise ...attributable to the use of aircraft for the purpose of civilian aviation." (Whilst an aerodrome cannot be specified if it is already "designated" for the purposes of section 78 of the Civil Aviation Act 1982, that latter section itself empowers the Secretary of State to require operators of aircraft to mitigate the effect of noise connected with the taking off or landing of aircraft at the aerodrome; further to prohibit aircraft of specified descriptions and/or to specify the maximum number of occasions on which they may be permitted to land or take off.) Sections 76 and 77 enable Air Navigation Orders to regulate the height of flight over property and the conditions under which noise may bc caused by aircraft on aerodromes, failure to comply with which ANO permit... an action for nuisance to be brought.

16. Therefore Ground B proceeds upon a misunderstanding as to the legal powers available.