Dunsfold Park Ltd v Secretary of State for Communities and Local Government & Anor

A certificate of lawful use must address the specific existing activity described in the application. It is not a mechanism for obtaining general advice about the scope of a planning permission. Planning permissions must ordinarily be interpreted by giving their words their normal meaning. A permission for “flight testing” does not authorise unrestricted aviation activity merely because both activities involve aircraft movements. A change of occupier does not necessarily create a material change of use, but a substantial change from a single aviation-related occupier to diverse commercial and industrial uses may do so. Whether a planning condition is a condition precedent is generally a fact-and-degree question. A permission may be implemented despite breach of a condition which is not sufficiently fundamental or prohibitive.

Dunsfold Park Ltd applied under section 191 of the Town and Country Planning Act 1990 for a certificate confirming that unrestricted aviation activities at Dunsfold Aerodrome were lawful. Waverley Borough Council refused the application, and the Secretary of State’s Inspector dismissed the appeal.

The Inspector concluded that the 1951 planning permission did not authorise unrestricted aviation activity, that the Claimant’s post-2002 use represented a material change requiring later planning permission, and that one or both of the 2008 permissions had been implemented notwithstanding breaches of monitoring conditions. The Claimant sought to quash that decision under section 288. The central issues were the proper interpretation of the 1951 permission, the effect of the later permissions, and whether the claimed use was lawful under section 191.

1. Claim dismissed. The Inspector reached the correct conclusion and the decision was not quashed.
2. The 1951 permission authorised three activities at the aerodrome: erection, repair and flight testing of aircraft. The words had to be given their ordinary meaning. “Flight testing” was narrower than unrestricted aviation activity. The permission therefore did not authorise the use claimed, even though it imposed no numerical limit on flights.
3. The permission related to the whole aerodrome shown on the plan, including the northern area. It was therefore legitimate to consider the context in which it had been granted and the relationship between the airfield and the associated buildings. The Inspector was entitled to find that the post-2002 transition from Hawker/BAe’s aviation-related occupation to diverse independent commercial and industrial occupiers amounted to a material change of use requiring planning permission.
4. The Inspector was also entitled to find that one or both of the 2008 permissions had been implemented. Whether a condition is sufficiently fundamental and prohibitive to operate as a condition precedent is ordinarily a fact-and-degree judgment. The failures to agree and operate the traffic-monitoring arrangements constituted breaches of condition, but did not prevent implementation under the principles in Whitley & Sons Co Ltd v Secretary of State for Wales (1992) 64 P. & C.R. 296.
5. It was unnecessary to decide which duplicate 2008 permission had been implemented because either permission imposed effective restrictions inconsistent with unrestricted aviation activity. The absence of notification of implementation did not make notification a condition precedent.
6. The Claimant was entitled to advance an argument inconsistent with earlier planning applications. The absence of estoppel or an equivalent principle in planning law permitted that approach, consistently with Newbury District Council v Secretary of State for the Environment [1981] AC 578.
7. Section 191 required a specific determination of the defined existing use. It did not require the decision-maker to provide general guidance on everything that might be done under the permission. Wider future planning issues were better addressed through a planning application or appeal.

1. Secretary of State’s Inspector: dismissed the appeal against Waverley Borough Council’s refusal of the section 191 application in a decision letter dated 5 April 2012.
2. High Court (Administrative Court): refused the application under section 288 of the Town and Country Planning Act 1990 and declined to quash the Inspector’s decision.