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CO/3030/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
BETWEEN:
THE QUEEN
and
THANET DISTRICT COUNCIL Respondent
(1) RICHARD TAPP
(2) DAVID BRITTON. Applicants
KENT INTERNATIONAL AIRPORT PLC Affected Third Party
SKELETON ARGUMENT FOR AFFECTED THIRD PARTY (Kent International Airport PLC)
For hearing: 5th~6th July 2000
Time Estimate: 1.5 days
PRELIMINARY NOTE: At the time of drafting this Skeleton the Applicants have not yet provided a paginated Court bundle. If practicable an annotated version of this skeleton including Bundle Page references will be produced nearer to the hearing date.
Introduction
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1. The interest of Kent International Airport PLC ("KIA") in these proceedings is as the owner of London Manston airport, which includes most of the former RAF Manston, and in particular the whole of the areas covered by the Lawful Use Certificates which are the subject of these proceedings. Completion of the sale of the relevant land by the Ministry of Defence to KIA -took place on 31st August 1999. KIA is a subsidiary of the Wiggins Group
PLC.
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2. This skeleton argument seeks to deal with the case made by the Applicants as set out in the skeleton argument lodged on their behalf, which differs somewhat from the original grounds upon which relief was sought. In particular it is noted that no point is now pursued in relation to the relative ease of bringing noise nuisance actions in respect of civilian or military airfields, as made in Paragraph 28 of the original grounds for relief,
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3. Conversely it is noted that a considerable amount of new documentation and correspondence is exhibited to the new witness statement of Mr. Richard Buxton which the applicants now seek to introduce. While some of that statement is in answer to points made in Mr, Bruce's affirmation on behalf of KIA, it is not entirely clear what the relevance of much of the appended documentation is said to be to the issues arising on this Judicial Review Application.
Submissions
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4. The gist of the Applicants' case appears to be that it was unlawful for Thanet District Council to grant the challenged Certificates (of Lawfulness of Proposed Use) in respect of civilian user of Manston Airfield without expressly imposing upon those certificates some kind of restriction or limitation as to the number of aircraft movements held to be permissible, or (more widely) "the lawful level of use of the airport". It seems to be regarded as significant that the Officer's Report to the Council's relevant committee included the observation that the new owners "intend to pursue a programme of expansion of the commercial use of the former 'military airfield." (Exhibit SR1, p.39, para 3.1). It is not entirely clear whether this latter point is regarded as fundamental to the Applicants' case .
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5. The concern of the Applicants is understood to be that without some kind of quantitative restriction embodied within the Certificates they might allow some undesirable intensification of use which would otherwise be unlawful.
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6. In answer to these points, submissions are made on behalf of KIA under a number of headings, as follows :
(i) What are CLOPUDs for, and what must they include?
(ii) The relevant history here, and what the Council knew of it.
(iii} The pre-existing unchallenged CLOPUDs.
(iv) The concept of "intensification"
(v) Was the Council legally obliged to address "intensification" in setting the terms of the CLOPUDs?
(vi) other matters :
(a) Lack of real practical point to these
proceedings.
(b) Harm caused by these proceedings.
(c) Lack of full frankness by App1icants.
(d) Recent further correspondence.
(i) What are CLOPUDS for, and what must they include?
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7. Certificates of Lawfulness of Proposed Use or Development (CLOPUDs) under Section 192 of the Town and Country Planning Act 1990. (as amended), unlike planning permissions, do not grant to applicants rights they did not have before. They merely record in a convenient form something which would already be lawful even without the existence of the CLOPUD. They do this, in effect, by expressing agreement with the applicant that some proposed use specified in the application would be lawful. ("Lawful is defined in (s191(2). Apart from s193(4), which is not relevant to the present case, there does not appear to be a power for the local authority to alter the description of the proposed use contained in the application for CLOPUD under Section 192. This is unlike the
position for certificates about existing uses under s.191(4)
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8. There is no requirement, explicit or implicit, in the Act or regulations made under it that the description in a CLOPUD must go in to any degree of quantitative precision in specifying the use concerned. A description is all that is required.
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9. In any event it would be extremely unusual that the scope of what is lawful use based on existing use rights would be closely governed in a numeric sense by statistics about the precise "amount" of use made of site in its previous use. The lawfulness (or otherwise) of a proposed use is much more based on whether it shares the same essential character as the
previous one (as opposed to being materially -in a planning sense -different from it) .This point is further commented on below in observations about "intensification"' as a planning concept.
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10. It is actually not logically possible in the case of a CLOPUD -a certificate of lawfulness of a proposed use - reliably to put any quantitative figure in advance on the extent of the proposed use which will be lawful. There is no basis for saying that all that is lawful in the future is some kind of numerical equivalent to a pre-existing level of use - and this becomes even more untenable if that level itself has fluctuated. Nor is there any basis for saying in advance, for example, that the proposed use is only lawful up to some prescribed percentage above a numerical figure
thought to represent previous use. How would that figure be assessed? Average? Highest previous figure? Typical recent figure? over what period? In any event there is no basis for an "additional percentage" view in such cases. Whether a future increase in level of use is so severe as take the use into the category of
having materially changed in planning terms so as to require a new permission is something that can only be judged as a matter of fact and degree at the relevant time, not prescribed in advance.
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11. A significant logical distinction needs to be drawn in this respect between CLOPUD's, i.e. certificates about proposed uses under Section 192, and CLEUDs, i. e. certificates about existing uses, under Section 191. It may well be that in the case of CLEUD's there is a stronger
logical and practical case for a local authority wishing the certificate to contain or reflect numerical information about the extent of the pre-existing use, though even here neither the statute nor the regulations under it require any such information to be included.
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12. It should be noted that the Broxbourne case -[1980) OB1 -referred to by the Applicants concerned not a CLOPUD but what was effectively the precursor of the CLEUD nnder the 1971 Act -the old "established use certificate". The judgments and obiter remarks referred to need to be read in that context. Even there Robert Goff J did not urge that such certificates ought to (still less must) contain statistical or numerical limitations. merely that planning authorities should seek to define
"established uses" with care and precision.
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13. The more recent Government advice referred to by the Applicants from DETR Circular 10/97, at paragraph S.28. in
relation to CLOPUD's, advises no more than that it is important to ensure that the terms of the certificate are "precise". No kind of quantitative
formulation is urged upon planning authorities. The other paragraphs referred to by the Applicants are about CLEUDs not CLOPUDs.
(ii) The relevant history here, and what the Council knew of it.
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14. It should perhaps be noted -Officers Report in SR1 at p40, para. 4.1 -that this was a matter which the Council's relevant officers had delegated power to decide and so one which was essentially being put to the committee for ratification after the otficers had considered all the original information and "additional information" -para. 4.2 - Which had been provided in connection with the application. It was correctly explained to the committee that this was
essentially a factual and legal determination based on the history and status of the land not something based on the merits of the proposal. In addition, in a context such as this the officers and members can reasonably be assumed to have a certain level of local
knowledge of the previous history of this important site within their District, and there is no legal reason why they should not have taken that into account as well in forming their views in relation to that element of the decision-making process.
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15. In any event, as is clear, the airfield had had an extensive previous history of civilian use even when under RAF control. This was far from being a case where a sudden change was proposed from exclusive RAF military use to wholly new use patterns under civilian control.
As to this see:
Bruce affirmation " -chronology in para. 14 paragraph 44-47.
The Council Director of Planning's Comments in the letter of 5th January "1998" (should read 1999) in ADB6, at Paragraph 2.
The Chapman Warren letter of 11th May 1993 and accompanying usage statistics in MDB1 (filed for the Council showing that the airfield had already had extensive civilian use (exceeding military) over a prolonged period.
The COMAX letter of 12/8/98, which accompanied application TH/98/0400 -in SRl at p24 - with its indication that "self evidently the core activity (at the airfield already) has been substantially in favour of civil movements, which will be the future use of the airfield."
(iii) The pre-existing unchallenged CLOPUD's
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16. As the Applicants accept, two other CLOPUDs in relation to the airfield
(reference TH/98/0398) and TH/98/0399) were issued by the Council in 1998, remain lawful, and are not under challenge. (They are in ADB2). It is accepted that the CLOPUD ref. 0399 concerning physical retention of existing buildings does not cover the same points as the CLOPUDs now under challenge. However CLOPUD ref. 0398 covers the bulk of the aviation-related land at the airfield (apart from the pre-existing "civilian enclave" which has express planning permission and is outside the scope of any of the CLOPUDs, including in particular the runway. This CLOPUD thus, without
artificial restriction or limitation to amount of use conclusively recognises as lawful civilian use of the bulk of the airfield including its most fundamental and vital feature namely the runway area. It is difficult to see how the Cou.ncil could sensibly or properly have purported to impose some kind of quantitative limitation on the two "later" CLOPUDs in the light of the continued existence, lawful and unchallenged, of CLOPUD 0398.
(iv) The concept of "intensification
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27. The Applicants' submissions appear to be predicated on the proposition that it is well-settled and clear in planning law that "intensification", i.e. the mere increase in quantitative terms of what is essentially the same use, will at some identifiable stage constitute a material, change of use requiring planning permission. In consequence, they argue, the Council in issuing a CLOPOD should have addressed this point and framed the document so as to set a quantitative limit (or refused to entertain it without some quantitative limit being incorporated in the use description).
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18. In reality the planning status of the "intensification" concept is much less certain than that. The remarks alluded to from Brooks and Burton (1977) 1 WLR 1294 were effectively obiter (at 1306H- 1307A), and judicial concern about the soundness and usefulness of the conccpt has been expressed in later cases, e.g. Kensington & Chelsea v SSE JPL 50 and Blum v SSE (1987) JPL 278 (at 280/1), KIA does not need to argue (and does not) that quantitative intensification of the same use can never amount to a material change of use which could require planning permission. It is
sufficient to say that it is not a concept of such clear and obvious application that a local authority in considering a CLOPUD application in a case such as this was
misdirection itself if it did not attempt to impose some kind of quantitative limitation in the CLOPUD to guard against the possibility of some future increased level of use which would otherwise clearly be "Unlawful" (without planning permission) being
rendered lawful by the mere existence of the CLOPUD. Reference is made back to the earlier
submissions about the difficulty attaching to any attempt to impose quantities in the CLOPUD (i.e. proposed use) context.
(v) Was the Council legally obliged to address "intensification" in setting the terms of the
CLOPUD's?
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19. For the reasons addressed above, it is submitted that there was no such obligation upon the council, or upon its officers in setting out the background to the matter in the report to the relevant committee. While reasonable care and precision in describing the proposed use is called for (as a matter of good practice rather than law), there is no basis for asserting that one would normally expeect in a CLOPUD context that there should be express inclusion of future quantitative restrictions, or that therefore an authority was misdirecting it-self (or being misdirected) if it did not expressly contemplate the requirement for such inclusion.
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20. In fact the authority's attention was drawn by the Officers Report to the new owners intention "to pursue a programme of expansion of the commercial use" of the airfield, so the possibility of some increase in the level of civilian use of the airfield was clearly in the authority's mind. But this does not mean "intensification" likely to be so extreme as to amount to a material change of use and requiring to be guarded against by difficult-to-formulate quanitative restrictions in the CLOPUD. It has been seen that civilian use was already well established and had fluctuated considerably in the past. The intelligent point had been made (indirectly) to the council in the COMAX letter (SR1, p24) that any significant increase in flying activity would require major development in supporting facilities over which the Local Council would have control anyway. There was simply no good reason for the Council, to feel the need to complicate the CLOPUD in the quantitative way that the Applicants' submissions appear to suggest should have been done.
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21. It is noted in passing that the Applicants do not appear to challenge the proposition that there is no inherent requirement for planning permission when a use being carried on lawfully by the Crown (e.g. through the RAF) is transferred into private hands. Arguments on that had been cogently set out by Chapman Warren, for the MOD, in their letter of 28th April 1999, notably at p. 7 of SR1.
(vi) Other matters
(a) Lack of real practical point to these proceedings
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22. As has already been argued, the existence or otherwise of a CLOPUD does not in any normal circumstances alter the lawful status of what is going on on a piece of land. In other words, KIA can continue to use Manston as a civil airfield, and without any formal quantified restriction as to level of use, and whatever happens to the CLOPUDs under challenge in these proceedings. The CLOPUDs are not actually necessary to this continued use; they merely provide desirable assurance and certainty to the situation. The lack of necessity point is further reinforced by the continued existence, unchallenged, of the 1998 CLOPUD ref. D398, with no quantitative restrictions, covering most of the key areas of the airfield. Quashing the perfectly reasonable later CLOPUPs under challenge therefore seems to be a "remedy" of highly dubious practical value to the Applicants.
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23. It is accepted, having given consideration to points made in later correspondence (much of which Mr. Buxton now seeks to exhibit) that the point about permitted development rights under the General Permitted Development Order made in paragraphs 56-58 of Mr. Bruce's affidavit is not soundly taken as there expressed. It is accepted that the mere existence of use rights inherited from the Crown, whether or not confirmed by a CLOPUD, does not bring in all the permitted development rights under the GPDO which were there alluded to. This acceptance does not however affect KIA's case on the substantive issues relevant in these proceedings.
(b) Harm caused by these proceedings
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24. Although the point has been made that these proceedings do not actually affect the intrinsic lawfulness of what KIA is currently doing at Manston airfield, nevertheless the mere existence of the proceedings causes undesirable uncertainty to a project that has involved a great deal of investment and a considerable number of jobs in the Thanet area. Paragraphs 19-25 and 67-69 of Mr. Bruce's
affirmation are referred to in this regard. It is undesirable that uncertainty of this kind should be allowed to continue for no real practical purpose, at the behest of parties whose main concern
appear to be simply to make difficulties for the civilian airfield use.
(c) Lack of full frankness by the Applicants- 25. The substantive proceedings have now been reached anyway, but KIA do feel aggrieved that leave to bring them in the first place, was obtained on the strength of less than full, disclosure of the background information, all or most of which was accessible to the Applicants. Mr. Bruce's affirmation deals with this point extensively and is not repeated here. Particularly important seem to have been the lack of any real disclosure of the significance and continuing effect of the previous unchallenged CLOPUDs (albeit their existence was briefly mentioned) , in particular the one (0398) relating to civilian use of the bulk of the operational part of the airfield, and the failure to draw any attention to the fact that Manston had already been
predominately a civilian airport in use terms for many years while remaining under
RAF control.
(d) Recent further correspondence - 26. In the latest material he is seeking to introduce, much seems to be made by Mr. Buxton of a letter of 8th March 2000 which he wrote in similar terms to Mr. Bruce as KIA's solicitor, and Thanet District Council (Bundle pp 202, 204). In that letter Mr. Buxton asked three questions and he complains that he has never received a proper answer.
- 27. In reality these questions were not appropriate to be asked in inter-party correspondence, of that kind. The answers are at one level blindingly obvious from the face of the challenged CLOPUDs themselves, or on another level are matters more for
legal submission and comment than answers in correspondence. However, in an appropriately
cooperative spirit, and in the hope that it may assist the court, the following comments are now made:
(a) it is self-evident that CLOPUD TH/99/0377 does not on its face contain a formal restriction on air traffic movements. It did not need to, for the reasons advanced at length in these submissions, and it would in practice have been almost impossible for the Council properly to insist upon a CLOPUD containing express quantitative restrictions in these circumstances. There are however, many practical reasons, alluded to in these submissions why a normally expressed CLOPUD (i.e. with-out express quantitative restrictions) is not in reality "carte blanche" for unlimited expansion at Manston .
(b) Not applicable in the light of the comment on (a) above.
(c) Again what CLOPUD TH/98/0400 means has to be read from the face of the document itself. As a matter of common sense, however, the Council is likely to have taken the view that the use of the airfield for civilian purposes is lawful. In that the Council would have been entirely correct and the lawfulness of that use will remain regardless of the outcome of these proceedings in respect of CLOPUD
TH/99/0377. - 28. The Court is urged to find that this application for Judicial Review is not soundly based and should be rejected.
Alan Alesbury
2 Mitre Court Buildings
The Temple
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