Tapp & Anor, R (on the application of) v Thanet District Council

Under section 192 of the Town and Country Planning Act 1990, a local planning authority may issue a certificate of lawfulness of proposed use or development or refuse the application. It cannot require the applicant to modify the application as a condition of certification. Where an application is expressed too broadly, the authority may refuse it and invite a narrower application.

A section 192 certificate need not prescribe detailed limits on aircraft movements, aircraft types, flight paths, operating hours or related activities where the certified use is the continuation of an established airport use. The certificate does not determine whether later intensification amounts to a material change of use. New buildings or a new runway remain subject to planning control.

The Ministry of Defence obtained certificates of lawfulness concerning the continued civilian use of RAF Manston and associated buildings before transferring the airfield to Wiggins Group plc. Local residents sought judicial review of two later certificates under section 192 of the Town and Country Planning Act 1990, arguing that the certificates were unlawfully open-ended and should have limited future intensification.

Sullivan J dismissed the application. The applicants appealed, contending that the Council should have required, or at least considered, detailed limitations on the certified use and that the earlier certificates did not make the challenge academic.

1. Appeal dismissed. The Council’s certificates were lawful, and the judgment of Sullivan J was upheld.
2. Section 192(2) requires the authority either to issue a certificate where the information satisfies it that the proposed use would be lawful, or to refuse the application. Unlike section 191(4), it does not empower the authority to modify the application. An authority faced with an excessively broad or misleading application may refuse it and indicate that a narrower application may succeed, but it cannot impose modification as a condition of certification.
3. The Council was not under a duty to require or encourage further particulars in this case. The proposed use concerned the continuation and civilian operation of an established airport, rather than a use starting from scratch. A detailed inquiry into aircraft movements, aircraft types, flight paths, operating hours and ground activities would be inappropriate for the comparatively simple procedure under section 192.
4. The Court did not need to resolve the wider planning question whether intensification may constitute a material change of use. The certificates certified no more than the continuation of the existing use. They did not decide whether subsequent intensification involved a material change, which could be considered whether or not a certificate had been issued.
5. The earlier unchallenged certificates substantially enabled the airport to operate in the manner feared by the applicants. Accordingly, further consideration of limitations on the later certificates would not have produced a different practical result. The inclusion of the Northern Grassland did not alter that conclusion.
6. Lord Justice Pill additionally observed that a certificate would not prevent planning control over new buildings or a new runway, and would not place the operator in a better position when later intensification or development was considered.

• Court of Appeal (Civil Division): appeal from the judgment of Sullivan J dated 6 July 2000; appeal dismissed.
• Crown Office and Divisional Court: application for judicial review of the certificates dismissed.