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

An express planning permission must be construed from the words used on its face. The broader inquiry into uses capable of replacing an established use without material change applies to a de facto use and to the question whether a material change has occurred. It does not define the scope of an express permission.

Material change is a question of fact and degree, determined by comparing actual uses before and after the alleged change. A permission for aircraft production, repair and flight testing did not authorise unrestricted aviation activities. A shift from a composite production and testing use, with ancillary storage, to diverse commercial and industrial uses with storage and distribution as primary uses could constitute a material change.

Dunsfold Park sought a lawful development certificate under section 191 of the Town and Country Planning Act 1990 for unrestricted aviation activities at Dunsfold Aerodrome. The Inspector refused the certificate, finding that the 1951 permission for aircraft production, repair and flight testing did not authorise unrestricted aviation and that post-2000 commercial and industrial uses amounted to a material change.

Foskett J dismissed the company’s application under section 288: [2013] EWHC 1878 (Admin). The appeal concerned the construction of the 1951 permission, the proper comparison for determining material change, and whether the 2008 permissions had been implemented.

The appeal was dismissed. Lord Justice Sullivan gave the judgment, with Lord Justices Treacy and Underhill agreeing.

1. An express planning permission is construed by interpreting the words used on its face. The passage cited from Westminster City Council v British Waterways Board [1985] 1 AC 676 concerned the scope of a de facto established use and the separate question whether a material change had occurred. It did not govern the interpretation of an express permission.
2. The 1951 permission authorised the Aerodrome to be used for aircraft production, repair and flight testing. Properly construed, it did not authorise unrestricted aviation activities, including unrestricted carriage of passengers or freight. Similarity in the fact that aircraft were flown did not remove the different land-use implications of production and testing compared with passenger or freight operations.
3. Whether there had been a material change of use was a question of fact and degree. The Inspector had to compare BAe’s actual pre-2000 use with the Appellant’s actual post-2000 use. The Inspector’s focus on the scope of the 1951 permission was imperfect, but his conclusion was correct. BAe had operated predominantly as a single, large-scale production and testing facility, with storage ancillary to that use. After 2000, the Aerodrome had many diverse occupiers and storage and distribution had become primary uses. That evidence established a new chapter in the planning history and a material change of use.
4. It was unnecessary to decide whether the 2008 permissions had been implemented or contained conditions precedent. If they had not been implemented, the 1951 permission would not have authorised the existing uses, the temporary permissions would have expired, and section 91 of the Town and Country Planning Act 1990 would have prevented late commencement. The uses would consequently have been exposed to enforcement action and could not have obtained lawful development certificates.
5. The Inspector was not required to consider a reduced or conditional certificate where the Appellant had provided no evidential or legal foundation for such a fallback case and had advanced only the proposition that unrestricted aviation use was lawful.

1. Court of Appeal (Civil Division) dismissed Dunsfold Park’s appeal.
2. High Court of Justice, Queen’s Bench Division Foskett J dismissed the application under section 288 of the Town and Country Planning Act 1990; the judgment is reported at [2013] EWHC 1878 (Admin).
3. Planning Inspector dismissed the appeal against refusal of the lawful development certificate and upheld the conclusion that the claimed unrestricted aviation use was not lawful.