Title 12

LORD JUSTICE BUXTON: This is an appeal from a judgment of Sullivan J delivered on 6th July 2000 which concerns an application for certiorari to quash two certificates of lawfulness of proposed use or development, (which I shall refer to, as did the judge, as LDCs) that were issued by the First Respondent, Thanet District Council on 8th July 1999.

As the history of the matter that I shall shortly refer to will show, those certificates were in fact obtained by the Ministry of Defence, who shortly thereafter transferred the land to which they related to the Wiggins Group PLC, who are the Second Respondent to this application. The application itself is brought by two persons resident near to the land in question.

(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."

It is also germane to make brief reference to section 191 which deals with the issue of certificates of lawfulness of existing as opposed to proposed use or development: the certificates issued in this case being under section 192. It is not necessary to make extensive reference to section 191, save to subsection (4) which reads as follows:

"If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application."

3. The two certificates relate to RAF Manston, an airfield located to the west of Ramsgate in Kent. Prior to, during and after World War Two, RAF Manston was used for military purposes as a fighter and bomber base. Civilian use of the airfield began in the late 1950s or early 1960s. Traffic built up to quite substantial volumes and in 1965 planning permission was granted for a passenger terminal with a design capacity of around one million passengers a year. By the 1980s Kent International Airport PLC ('KIA') operated passenger and cargo flights out of a part of the airfield containing the passenger terminal known as the "civilian enclave". Between 1993 and 1997 the number of military flights declined from nearly 20,000 to around 7,600 a year, whilst the number of civilian flights fluctuated within the range of 35,000 to 46,000 a year.

4. In 1997 the Ministry of Defence announced its intention to dispose of RAF Manston. Following a bidding process, heads of terms were agreed in July 1998 for a sale to The Wiggins Group Plc, ('Wiggins'), which had acquired KIA through a subsidiary. The Ministry of Defence wished to establish that civilian use of the airfield (outside the civilian enclave) would be lawful. Accordingly, in May 1998 the Ministry applied for three LDCs under section 192 of the Town and Country Planning Act 1990: 98/398 for continuation of the use of the airfield for civilian purposes, 98/399 for retention of a large number of buildings on the site and 98/400 for continued use of those buildings in association with the civilian use of the airfield.

'The Thanet District Council hereby confirm that on 14th May 1998 the use described in the First Schedule hereto in respect of the land specified in the Second Schedule hereto and edged red on the plan attached to this certificate would have been lawful within the meaning of section 192 of the Town and Country Planning Act 1990 as amended.'

8. The area edged red on the plan included the main runway and taxiways running off it, but excluded the civilian enclave and a number of buildings used for airfield services (hangers, control tower, fuel installations and the like) lying to the northwest of one of the main taxiways.

11. Application 98/400 was held in abeyance whilst legal advice was sought as to whether the use of the buildings in connection with civilian use of the airfield would constitute a material change of use. Counsel was instructed and advised that a single change of user from military to civilian would not amount to a material change of use. In accordance with counsel's opinion the use of each building was then considered to see whether there would be 'an equivalent citizen use' to the previous military or military/civilian use of the building, that is to say to see whether the actual use of the building, setting aside the identity of the occupier, would not be materially changed as a result of civilian use. The Council concluded that there was 'an equivalent civilian use' in the case of each building and so Certificate 98/400 was issued. It is in the same form as the first two certificates. The First Schedule is in the forming terms:

12. The Schedule then listed rather fewer buildings than had been included in 98/399, but nothing turns on that. Counsel's opinion had also dealt with the extent of the planning unit which could properly be said to comprise the airfield. In the light of counsel's opinion and of the Ministry's wish to include all of the land proposed to be disposed of to Wiggins, a further application was made, 99/377, for a certificate of use of RAF Manston for 'commercial say civilian user'.

13. Having considered a report of the Director of Planning Services which dealt with both the deferred application, 98/400, and 99/377 together, the Council approved both applications and issued the relevant certificates on the 8th July, 1999. The First Schedule to 99/377 describes the proposal as:

'In the opinion of the Local Planning Authority the change of ownership of the land in question from Crown owned airport to civilian owned and operated 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.'

15. The land edged red on the plan referred to in Schedule 2 is substantially the same as the land which is the subject of Certificate 98/398, with the addition of two area: first, there is an area to the north of the main airfield, described in the documents as the Northern Grass area, which contains a grass strip; second, the area to the north-west of the taxiway, containing a number of buildings used for airport services to which I have earlier referred. Certificate 99/377 also included a few individual buildings which are situated within an area that was previously the station domestic area and which had been omitted from 98/398.

16. In these proceedings the first and second applicants, who live or work at the western and eastern ends of the runway respectively, challenge only the two latest certificates, 98/400 and 99/377. There is no challenge to Certificates 98/398 and 98/399. Nor is there any challenge to the advice received by the Council from counsel that a change of user from military to civilian would not amount to a material change of use. The applicants' concern is that the change of military to civilian use of the airport may lead to an increase in activity at the airport, both in the air and on the grounds. Wiggins have made no secret of the fact that, as the Director of Planning reported to his members:

Before the judge, counsel then representing the Applicants complained that in granting certificates 98/400 and 99/377, the council had committed an error of law, because it had failed to recognise that what the judge described as " intensification" (a concept to which I shall have to return) could amount to a material change of use of land; and therefore had given open-ended certificates which permitted unfettered increases in the use of the airport and the buildings upon it. The description of the proposed use of the airfield in 99/377 and of the buildings in 98/400 was criticised as being so open-ended that any future increased or intensified use was open to the Applicant under the terms of the certificate.

Quite apart from that, however, the judge also concluded that even if the local authority were to turn its mind or had turned its mind to the question of limiting the certificates sought in applications 98/400 and 99/377, such consideration would not have led to any outcome of the type or kind sought by the Applicants. That was for two reasons: firstly, that the judge considered that it was difficult or impossible to formulate a reasonable or proper limitation that could have been put on those certificates; and, secondly, he thought that in any event, such an exercise - although he did not use this expression in terms - would have beaten the air. That was because there were already in existence certificates 98/398 in respect of the lawful use of an area of the airport as a civilian airfield and 98/399 in respect of the retention of the existing buildings in that airport area. The judge was persuaded that, effectively, those existing certificates gave to the Applicant all the freedom that was complained of in respect of 99/377. Even if 99/377 had been taken under critical scrutiny, there was, if I can put it in these crude terms, nothing that the local authority could do about it, even if it had the power to do so and had wished to do so.

That view can be put in context by returning to the terms of the four certificates which are already set out in the judgment, which I will summarise in order to illustrate this point. 98/398 relates to the lawful use of an area edged red on the plan appended as a civilian airfield. 98/399 relates to the lawful development in respect of the retention of existing buildings. 98/400, which is one of the certificates that it is sought to quash, is a certificate of lawful development in respect of the proposed use of the existing airfield buildings in association with the use of the Airfield for civilian purposes. 99/377, which is the certificate at which Mr Morgan, who appears in this Court for the Applicants, particularly directed his fire, is in terms of lawful development in respect of the use of Crown owned airfield land and buildings for commercial and civilian airfield use.

"'In the opinion of the Local Planning Authority the change of ownership of the land in question from Crown owned airport to civilian owned and operated airport does not in itself [this then the word is clearly intended to be constitute] a material change of use of the land edged red.

It is important also to note, because it is a point of which a considerable amount is made later in the argument, that the land referred to in certificate 99/377 extended not only to the land referred to in certificate 98/398 and 98/399, the latter being the principal land used for the operation of the airport including the runways, but, in addition, to an area known colloquially as the Northern Grassland. That, as we understood it, was in fact what it says it is, a grassy area, apparently not currently used for airport purposes, and not having upon it, as I understand it, any significant airport buildings nor any tarmaced runway. That land, as well as what one might call the existing operational airport land, is included within the certificate of lawful development, 99/377.

There was no evidence before the court below upon which such conclusions could properly be drawn. The judge below thereby erred in law in reaching the above conclusions which were adverse to the Applicants and relying upon these conclusions in dismissing the application for Judicial Review."

So far as Ground 1 is concerned, I have to say that it is not clear to me that the judge was ever asked to make the finding that he is criticised for not making. What he clearly did was to reach two conclusions. The first was that, on the true construction of section 192, it was not open to the local authority to require an application made to it to be modified. He reached that conclusion by comparing section 192(2), which says that on receiving an application, either there should be issued a certificate of lawful development or the application should be rejected, with section 192(4), which I read earlier in this judgment: that latter section envisaging in the case of a certificate of lawfulness of existing use that a local authority may require the proposal to be modified.

I respectfully agree with that conclusion of the judge, in paragraph 50 of his judgment. He however went on to say that the lack of that specific provision did not make the local authority powerless, if it was faced by an application under section 192 which described the proposed use or development in an overly generalised way. He no doubt had in mind the urgings both in Government Circulars and in decided cases that such certificates should be stated in precise terms. The judge pointed out in paragraph 51 of his judgment that in an appropriate case it would be open to the local authority effectively to say to an applicant: 'we consider that your application is too wide or misleadingly widely stated or not such as we are comfortable with, so we reject it' (which is what they have power to do under section 192(2)), but at the same time indicating that if an application in more limited form were to be proposed it might meet with more success. In other words, the local authority, if I can put it in this way, has a power to encourage or tempt the applicant to mend his ways, but he does not have power within the structure of section 192 itself to require a modification as a condition of granting permission.

In this case the local authority did not take such a stance. It did not express concern about the width of the intended use. The judge clearly reached the conclusion that they did not err in law in so doing: that is to say, he did not commit what, correctly stated, should have been the error complained of in Ground 1 of failing to consider whether encouragement rather than imposition should be directed at the Applicant.

We have not gone into this point in detail in this appeal, and this appeal certainly does not call for any decision on any of the much debated issues that are to be founded in planning jurisprudence under that heading, any more than the judge thought it was necessary to reach any conclusion on them. Putting it as briefly as I may, leading counsel who appeared for the Applicants before the judge adopted a passage in paragraph P55.29 of the Encylopedia of Planning Law and Practice, which the judge set out in paragraph 37 of his judgment. Leaving out references to cases, it read as follows:

In so far as criticism was made of the local authority for not imposing, or at least encouraging, anti-intensification limitations in this certificate, the judge pointed out the difficulty of deciding when, in planning terms, such intensification of use became objectionable. He said this in paragraph 54, and it is a statement with which I respectfully concur:

"It is easy to state the principle that intensification may be of such a degree or on such a scale as to make a material change in the character of a use, it is far more difficult to apply it in practice. There are very few cases of 'mere intensification'. Usually the increase in activity will have led to some other change: from hobby to business, from part to full-time employment, or an increase in one use at the expanse of other uses in a previously mixed use."

In deciding whether such a consideration ought to have been imposed in this case, the judge referred to, and rightly referred to, the practical difficulties of formulating any reasonable limits. It appears that no such limits were posited before him by the Applicants who, according to the judge, said that it was up to the local authority to decide what to say.

Mr Morgan, when pressed by the Court in this appeal, submitted what I have to say is a formidable list of restrictions or limitations that he says should have been required by the local authority, or at least should have been considered by the local authority as being appropriate. Those included the future proposed aircraft movements; types of aircraft using the facility; their flight paths; and the number of flights in any day; details of related ground support activities and the hours of operation; any future proposals that the Applicants might have: which, presumably, would have to be the subject of critical scrutiny by the local authority in order to decide whether they were or were not included within the certificate; and arrangements for matters such as recreational flying and flight training.

I would say two things about that. The first is that, as my Lord Pill LJ pointed out in the course of argument, a complex inquiry such as suggested seems entirely inappropriate for the comparatively (and I underline the word "comparatively") simple operation of considering a section 192 certificate. That is particularly the case if, as Mr Morgan urged, the council must look at and presumably pass judgement on future proposals for development of a facility. Secondly, however, such a complaint or such a suggestion, quite apart from the difficulties of limitation and specification, is entirely inappropriate when looked at specifically in the context of the certificate particularly complained of, that is to say, 99/377.

It will be recalled that what was sought to be certified was the use of Crown owned airfield land and buildings for commercial, civilian and airport use. That was clearly understood by the local authority as relating not merely to the change of ownership but to the change of direction and operation of the existing military use. The reasons given by the Local Planning Authority for granting the certificate, which I have already set out twice in this judgment, plainly related to that and to that alone; that is to say, the planning authority said that the change of ownership in itself would not affect, in planning terms, land that had already been used for airport purposes for a period in excess of ten years. This is a case completely different from the sort of case of existing use that Mr Morgan relied on in, for instance, the Broxbourne case, and completely different from a case that was seeking a certificate of lawfulness of proposed use when the proposed use was something that, if I may put it in these terms, started from scratch. In those circumstances, even if; the local authority had a power to send the application back for further and better particulars, if I can put it in that way, and I accept that it did have, I cannot see that it could possibly be said that it had any duty so to act. That is what the judge thought. He cannot possibly be said to have erred in law in reaching that conclusion.

Quite apart from that, however, the judge was not only justified, but plainly right, in the further reasons that he gave, that even if the Local Planning Authority should have given further thought to the question of the nature of the future use, it would not have reached any conclusion different from that which it in fact reached.

The first is the difficulty of formulating the nature of the future use to which the local authority could properly take objection. Not only the difficulty but, as I have already suggested, the artificiality in this case. Secondly, however, the unchallenged existence of certificates 398 and 399, which enabled the operator of the airport to achieve whatever it is that the Applicants say he should not have been permitted to achieve under 377 unchallenged. That is plain on the face of the matter but is strongly underlined by Mr Morgan's acceptance in the course of argument that 398 and 399 suffered from exactly the same vice that he complained of in respect of 377. Now for reasons good or bad, which are not the concern of this Court and have not been referred to, 398 and 399 went unchallenged. They were, therefore, an unavoidable part of the surrounding circumstances that the local authority would have to take account of, if it had embarked on the course in respect of 377 that the Applicants say that it should have done.

Two points are put at the end of the day against the judge's reliance on those early certificates. The first is that he makes reference in a number of places to the fact that what he had earlier called the civilian enclave, had unlimited rights of flying in the same way as under 398 and 399 did with the main airfield. We were told that the judge was wrong in his assumption about the position of the civilian enclave. It was in fact subject to a section 52 agreement, now replaced by a different agreement, restricting movements of civil jet aircraft outside the hours of 7.30 in the morning to 23.59 in the evening. For my part, I do not think that that misunderstanding by the judge affects his reasoning at all, and it is fair to say that I think Mr Morgan did not suggest that it did. The substantial point that the judge relied on was the extensive power given by 398 and 399.

The point that Mr Morgan did concentrate on was the inclusion within the 377 area of the Northern Grassland. He said that that could be used for airfield operations in a way that previously it could not have been used under 388 and 399. Despite the fact it has no tarmac and no buildings, it could be used for building development connecting with the airfield, and for the flying of aircraft which took off from grass: and no doubt other matters.

The judge was not persuaded that that consideration made a difference. He relied on, or at least referred to, an affirmation by a Mr Bruce, the group solicitor for the Second Respondent, who compared the practical effect of the various certificates. The judge adopted this passage at paragraph 57 of his judgment:

"'The change of use and retention of buildings (including the runway) was in fact not in issue anyway (except in relation to the Northern Grass). The applicant's attack on the second certificates would, even if successful, serve no practical purpose because the airport could in substance continue to operate as before in reliance on the first certificates."

"No evidence has been adduced on behalf of the applicants to refute that contention. There is no sensible reason to believe that intensification on the Northern Grass strip would be of any significance given the unlimited intensification which would be lawful over the remainder of the airfield including the civil enclave."

First of all, the judge was, in my judgement, entitled to form that view in any event, quite apart from what Mr Bruce said about it. Common sense suggests that the inclusion of the northern grass strip is not going to make a significant difference to the liberty to operate this airport in a way in which the Applicants complain. However, he was also entitled to adopt that as the view of a witness whose evidence he had carefully considered as to the practical effect of this operation.

Since the hearing, there has been a further development in respect of which we permitted evidence to be produced de bene esse , which is as follows. Apparently, there was a public meeting in September of last year, at which the Second Respondent stated that they had it in mind to create a new terminal at the airfield and, according to the report in the evidence that we had, said this:

Mr Morgan said that that was a graphic illustration of what could happen, granted the existence of the northern grass strip. He also said that the certificate of intended use would, at the very least, distort the planning process with respect to that terminal. I fear that I do not accept that contention, but I have to say that even if it were correct, it is an unavoidable outcome of the history of planning certificates in this case.

It is, however, to be noted that the Second Respondents clearly understand that substantial building development, even in an area covered by the certificate of use, is going to require planning permission. Whether or not the future of the aerodrome affects the view that is taken of that application, I fear turns largely, as the judge found, on the existence and unchallenged existence of certificates 398 and 399.

For those reasons, therefore, which I have sought to set out at some length, because I well appreciate the concern of the Applicants about this whole matter, I am wholly unconvinced that the judge erred in law, either in the way complained of in the grounds or at all. Despite Mr Morgan's submissions, I am quite certain that this appeal must be dismissed.

The Ministry requested from the First Respondents, the Thanet District Council, a certificate under section 192 of the Town and Country Planning Act 1999 which has the side heading "certificate of lawfulness of proposed use or development". Local residents are understandably concerned about the activities which may follow at the airfield upon a transfer to civilian use.

The general purpose of certificates of this kind under section 191 and 192 of the Act was considered by Robert Goff J in Broxbourne Borough Council -v- Secretary of State for the Environment [1980] QB 1. I respectfully agree with his approach. I do not dissent from the proposition that there will be cases where it is appropriate that certificates do set out in some detail, the existing use or proposed use which is certified to be lawful.

In the case of Main -v- Secretary of State for the Environment and South Oxfordshire District Council (1977) P&CR 300, for example, an applicant for a certificate complained about the detail which had been inserted in the certificate granted by the Secretary of State. The case involved the use of a scrap yard which embraced a number of ancillary or incidental uses. The Applicant contended that the uses on the site should be identified in the certificate as separate and distinct primary uses. That submission was upheld by Mr Malcolm Spence QC, sitting as a Deputy High Court Judge. Mr Spence held that if the certificate was going to condescend to detail, it was not right to include some of that particularity but not all of it.

Other examples of situations in which detail is appropriate are set out in Department of Environment Circular 1097. Those situations are, however, a long way from the present one. I would not discourage a more detailed definition of existing use or proposed uses in appropriate cases.

"..change of ownership of the land in question from Crown owned airport to Civilian owned and operated airport, which does not in itself [constitute] a material change of use of the land edged red. As the land in question has been used for aircraft purposes for a period in excess of 10 years, no specific planning permission is required, unless there occurs some other material change in circumstances."

(It may be in those closing words the draftsman had in mind the provisions of section 192(4) of the Act, but I make no finding as to that). The proposed use certified to be lawful was "certificate of lawful development in respect of the use of Crown owned airfield land and buildings for connected civilian airport use."

What in my judgment each of the certificates provides is no more than that the existing use in each case could lawfully continue. With respect to 98/400, I see no difference between the expression "use of the airfield for civilian purposes" in the Schedule and "equivalent civilian airport use" in the reason given for it.

What Mr Morgan, on behalf of the Appellants, contends is that the certificate should have specified a great deal more detail as to what was lawful. He said that it should specify the numbers of aircraft movements involved; the types of aircraft, for example, whether helicopters or micro-aircraft; the type of use involved; whether commercial, recreational or training use; the flight paths involved; the hours of operation, including whether there would be weekend use, and the number of traffic movements on the ground which should be specified and limited in the certificate. Mr Morgan submits that in the absence of such particularity, the certificates are unlawful.

I am not able to accept that submission. I can find no authority in the statute or in the cases to which we have been referred, which requires the local authority before issuing a certificate, to provide detail of that kind as to what future use would be lawful. It is, in my judgment, quite outside the intention of section 192 that such provision should be made. The application for a certificate would, if Mr Morgan is right, lead to the need for comprehensive enquiries and judgments as to the use of land, a requirement which, in my judgment, is outside the intention of the statute.

It is not necessary to consider the difficult question whether an intensification of use can constitute a change of use in order to decide this case ( Brooks & Burton Limited v- the Secretary of State for the Environment (1997) 1 WLR 1299.) In my judgment, upon the issue of a certificate, if that question arises, the parties would be no better or worse of, depending on whether or not the certificates have been issued. The certificates permit the continuation of the existing use. They do not relate to the question whether an intensification might involve a change of use. That point could be taken whether or not the certificate has been issued.

There is protection for local people in the need for planning permission if new buildings or, for example, a new runway were to be proposed. If the local authority argued, although it is not suggested it would, that planning permission could not be refused, for example, for a new airport terminal because a certificate of lawfulness of proposed use as a civilian airfield had been issued, that argument would, in my judgment, fail. They could not grant planning permission, on the basis that to refuse to do so would be unlawful by reason of the certificate.

Mr Humphreys for the Local Planning Authority, understandably seeks to have it recorded that an intensification of use whether, by way, for example, of night flying or use of different kinds of aircraft not inevitably and necessarily give rise to enforcement action by the council. That, in my judgment, must be right. There could, in some cases, and night flying may be an example, be an increase in use which affected local amenity without the need for a fresh planning application. That, however, would be the case whether or not the certificate had been issued. Without the certificate, it would have been open within the existing established use and it is not suggested by Mr Morgan that an existing use as an airfield does not exist.

For those reasons, and those given by Buxton LJ, I would dismiss this appeal. I also agree with him that upon the facts of this case, the dispute as to the need for detail is very largely academic by reason of the fact that there are other certificates 398 and 399 which have not and could not be challenged. Accordingly, this appeal is dismissed.