IN THE HIGH COURT OF JUSTICE CO 3030/1999
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Thursday, 6th July 2000.
B e f o r e:
MR JUSTICE SULLIVAN
THANET DISTRICT COUNCIL
EX PARTE RICHARD TAPP & DAVID BRITTON
(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
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Official Shorthand Writers to the Court)
MR J STEEL QC & MR EDWARDS appeared on behalf of the applicant (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX).
MR R HUMPHREYS appeared on behalf of the first respondent (instructed by Legal Department, Thanet District Council, Margate CT9 1XZ).
MR A ALESBURY appeared on behalf of the second respondent (instructed by David Bruce, Group Solicitor, Wiggins Group plc, Mayfair, London W1X 5DA).
J U D G M E N T
(As Approved by the Court)
Thursday, 6th July 2000
1. MR JUSTICE SULLIVAN: Factual background
2. This is an application for certiorari to quash two certificates of lawfulness of proposed use or development ("LDCs") issued by Thanet District Council, the first respondent, on the 8th July 1999.
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.
5. In June and July 1998 the applications for the first two certificates were granted. Certificate 98/398 is in the following form:
"The Thanet District Council hereby confirm that on the 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."
6. The First Schedule describes the proposal in these terms:
"Certificate of lawfulness for the proposed use of the airfield for civilian purposes."
7. The Second Schedule describes the location:
"Location: RAF Manston, Kent (restricted to the area edged red on plan attached to this certificate)."
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 (hangars, control tower, fuel installations and the like) lying to the north-west of one of the main taxiways.
9. Certificate 98/399 was in the same form save that the First Schedule described the proposal in these terms:
"Certificate of lawful development in respect of the retention of the following existing airfield buildings."
10. The buildings are then listed and numbered and the numbered buildings are shown on a plan.
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 simple 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 civilian 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 following terms:
"Certificate of lawful development for the proposed use of the existing airfield buildings listed on the attached schedule in association with the use of the airfield for civilian purposes."
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 for use of RAF Manston for "commercial 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:
"Certificate of lawful development in respect of the use of crown owned airfield land and buildings for commercial civilian use."
14. The reason given was:
"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 areas: 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 from military to civilian use of the airport may lead to an increase in activity at the airport, both in the air and on the ground. Wiggins have made no secret of the fact that, as the Director of Planning reported to his members:
"They intend to pursue a programme of expansion of the commercial use of the former military airfield."
17. The applicants' submissions
18. On behalf of the applicants, Mr Steel QC submitted that in granting Certificates 98/400 and 99/377 the Council had erred in law because it had failed to recognise that intensification may amount to a material change of use and had, in consequence, given open ended certificates which permitted unfettered intensification in the use of the airport and the buildings upon it. The description of the proposed use of the airfield in 99/377 and the buildings in 98/400 is so general that it leaves the Council with no power to enforce against future intensification. The Council should have considered the imposition of some form of limitation in the certificates to guard against the possibility of unfettered intensification.
19. To understand that criticism of the local planning authority's decisions it is necessary to set out the relevant statutory framework. Under the Town and Country Planning Act 1990 application may be made for two kinds of LDC. By section 191, an applicant may seek a certificate of lawfulness of existing use or development. Section 191, sub-section (1):
"If any person wishes to ascertain whether -
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful ... he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter."
20. Sub-section (4):
"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."
21. Sub-section (5):
"A certificate under this section shall -
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question ...;
(c) give the reasons for determining the use, operations or other matters to be lawful; and
(d) specify the date of the application for the certificate."
22. Sub-section (6):
"The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
23. Alternatively, an applicant seeking to establish the lawfulness of a proposed use or development may seek a certificate under section 192, which is what was done by the Ministry in the present case. Section 192, sub-section (1):
"If any person wishes to ascertain whether -
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land, would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question."
24. Sub-section (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."
25. Sub-section (3):
"A certificate under this section shall -
(a) specify the land to which it relates;
(b) describe the use or operations in question ...;
(c) give the reasons for determining the use or operations to be lawful; and
(d) specify the date of the application for the certificate."
26. Sub-section (4):
"The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed [subject to a proviso which is not relevant for present purposes]."
27. It will be noted that there is no provision equivalent to sub-section 191(4) contained within section 192. Section 193 contains provisions supplemental to both sections and 191 and 192. Sub-section (4) of section 193 provides:
"A certificate under either of those sections may be issued -
(a) for the whole or part of the land specified in the application; and
(b) where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them; and shall be in such form as may be prescribed by a development order."
28. By article 24 of the Town and Country Planning (General Development Procedure) Order 1995 the local planning authority may, by notice in writing, require an applicant to supply further information. Guidance as to how these provisions should be operated in practice by local planning authorities is contained in Annex 8 to Circular 10 of 197, "Enforcing Planning Control: Legislative Provisions and Procedural Requirements". Under the subheading "The content of an LDC under section 191", paragraph 8.16 says this so as far as material for present purposes:
"The LDC is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates ... precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when ... it is important for it to state the limits of the use at a particular date. These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date, against which any subsequent change may be assessed. If the use subsequently intensifies, or changes in some way to the point where a 'material' change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A LDC must therefore be precisely drafted in all respects."
29. Paragraph 8.17:
"Where (the use is) within a 'use class', a LDC must also specify the relevant 'class'. In all cases the description must be more than simply a title or label, if future interpretational problems are to be avoided. The LDC should therefore state the characteristics of the matter so as to define it unambiguously. This is particularly important for uses which do not fall within any 'use class' (that is a 'sui generis' use). So for example a LDC for a caravan site might typically include the number and type or size of caravan found to be lawful at the application date and, where the use is seasonal, the calendar dates on which the use then took place."
30. Further examples are then given in paragraphs 8.20 and 8.21. In 8.21 it says this:
"It is generally accepted that any 'sui generis' use which is not in a 'use class' in the UCO, such as a builder's yard or many haulage depots, can be 'materially' different in planning terms from another use which nevertheless falls within the same general description. In other words, there can be a 'material' change of use requiring planning permission between, for example, one builder's yard use, or a particular use as a haulage depot, and another. A change of ownership or occupation of land does not, in itself, constitute a material change of use. However, where a builder's yard has only in the past been used by a small jobbing builder for his office, and as a base for one or two vehicles and storing building materials, unless that detail and level of use are specified in the certificate (or by condition or limitation in a permission on which the LDC is based) the LPA will lack effective control in future over any significant intensification of the use (perhaps by a building contractor who introduces the storage of heavy plant and machinery, the mixing of concrete and the manufacture of joinery items on to the land)."
31. Under the subheading "A LDC granted under section 192", paragraph 8.28 says this:
"Sub-section (3) of section 192 is the counterpart for proposed uses or operations, of section 191(5). It provides that a LDC granted under section 192 shall specify the land to which it relates; describe the use or operations in question ... ; give the reason why carrying out the proposal would be lawful; and specify the date of the application. Although this certificate would not be the equivalent, in law, of a grant of planning permission for proposed development, it will indicate that, unless any relevant factor has changed since the application date specified in the certificate, it would be lawful to proceed with the proposal. It is therefore vital to ensure that the terms of the certificate are precise and there is no room for doubt about what is lawful at a particular date."
32. The predecessor to a section 191 LDC was an established use certificate issued under section 94 of the Town and Country Planning Act 1971. In Broxbourne Borough Council v Secretary of State for the Environment (1980), Queen's Bench, page 1, an established use certificate was issued in respect of a site for:
" ... the storage, sawing, resawing and disposal of the timber in the round and the storage, maintenance, repair and overhaul of vehicles and plant incidental thereto."
33. The land was sold to a timber company which commenced to use the site for a bulk storage depot for timber planks and occasional sawing of timber. The local planning authority served an enforcement notice alleging a material change of use. On appeal to the Secretary of State the enforcement notice was quashed on the basis that the certificate was conclusive as to the nature of the established use. The local planning authority had argued that the use had been intensified and the certificate did not set out the level of the use that was established. Robert Goff J, as he then was, said this at 10F:
"Nor, in my judgment, does it assist Mr Fay [counsel for the local authority] to argue that the certificate specifies no particular level or intensity of activity, and, therefore, to submit that the level or intensity of activity was not a matter stated in the certificate and so was a matter on which the certificate was not conclusive. The short answer on this point is that the use was a matter stated in the certificate. Since no limit was placed upon either part of the site to be so used or the intensity of the use, the use so specified was without limit as to space within the site or intensity. Mr Fay cannot, therefore, now complain that the Secretary of State has erred in law in holding that there has been no material change of use by reason of the area of the site now employed or the present intensity of the use."
34. The local planning authority's appeal to the Court of Appeal was dismissed, Robert Goff J adding this, at 11C:
"But the case has a moral. It demonstrates that planning authorities should exercise great care concerning the terms of established use certificates which they issue. If a certificate is not drawn with care and expressly limited to the precise use in question, then its issue can lead to the consequence that the authority may, through its own act, find itself thereafter precluded from preventing a use for which planning permission would not have been granted simply because the certificate has been issued in terms wider than were necessary."
35. Mr Steel acknowledged that there are some differences between an established use certificate under the 1971 Act and LDCs under the 1998 Act, but he submitted that there is the same need for precision to guard against possible intensification and that this need may be even greater when a local planning authority is considering an application under section 192 for a LDC relating to a proposed use. Looking to the future is a more difficult and uncertain exercise than ascertaining the extent of an existing use for the purposes of a LDC under section 191. The need for accuracy in a LDC under section 191 was confirmed by the decisions of this court in Main v Secretary of State for the Environment and South Oxfordshire District Council (1998), volume 77, Property and Compensation Reports, page 300, and Panton and Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse District Council (1999), Journal of Planning Law, page 461.
36. For the proposition that intensification may amount to a material change of use, Mr Steel relied on the decision of the Court of Appeal in Brooks and Burton Ltd v Secretary of State for the Environment (1977), 1 WLR, page 1294. There the Court of Appeal concluded that an enforcement notice had to be quashed because both the old and new uses fell within the same use class, so there could not be a material change of use whether or not there had been significant intensification. Nevertheless, the question of intensification had been argued and Lawton LJ, giving the judgment of the court, reviewed the authorities and said this, at page 1306, letter H:
"We have no doubt that intensification of use can be a material change of use. Whether it is or not depends upon the degree of intensification. Matters of degree are for the Secretary of State to decide."
37. The extent to which, and the circumstances in which, intensification may amount to a material change of use have been the subject of discussion in a number of subsequent cases. Mr Steel was content to adopt as an accurate summary of the position the following passage in paragraph P55.29 of the Encyclopedia of Planning Law and Practice:
"There may be a material change in use where an existing use has become intensified (Brooks and Burton Ltd) but mere intensification of a use does not, in itself, constitute a material change, see, for example, Royal Borough of Kensington and Chelsea v Secretary of State for the Environment (1981) JBL 50, Lilo Blum v Secretary of State for the Environment (1987) JBL 278. It must be intensification of such a degree as to amount to a material change in the character of a use. The doctrine is therefore applied where there is no convenient or distinctive description at hand to distinguish the former and latter uses except in terms of scale. A proposition from the encyclopedia that was endorsed in Lilo Blum v Secretary of State for the Environment (1987) JBL 278, page 281."
38. He submitted that it was clear from the Director of Planning Services Report and the reasons given for issuing the certificates, in particular Certificate 99/377, that the Council had focused upon the change in user, from military to civilian, and had not addressed the issue of intensification. He submitted that issue should have been considered and a limitation should have been placed on the description of airfield activities, for example, by reference to the numbers of air traffic movements, the numbers of passengers, the amount of cargo to be handled or the hours of operation within the certificates. He submitted that the local planning authority had either an implied power to impose such a limitation on the Ministry's generalised description of the proposed use similar to the power expressly conferred by section 191(4), alternatively, it had power to request the Ministry to put forward a more specific description of the proposed use of the airfield for civilian purposes, and if that request was declined, to refuse the applications on the ground that it, the Council, could not be satisfied that such an unspecific use would not involve intensification amounting to a material change of use.
39. The respondents' submissions
40. Mr Humphreys for the respondent council and Mr Alesbury for KIA as an interested third party both acknowledged that the Council had not considered the issue of intensification. They submitted that the Council was not required to do so on two bases: first, as a matter of principle in the light of the statutory framework, and, second, as a matter of practicality in view of the existence of the two unchallenged LDCs, 98/398 and 98/399. For convenience I will refer to the Council and KIA as the "respondents" in this judgment. Whilst there was certain difference of emphasis, their submissions were broadly to the same effect.
41. The respondents submitted that the local planning authority had no implied power when dealing with an application for a certificate under section 192 to modify the description of the proposed development, save to the limited extent permitted by section 193(4), which is of no assistance in the present case.
42. They accepted that the Council had power to seek further particulars, and power to ask an applicant to provide a more precise description of his proposals, but the primary focus had to be on the proposed development as described by the applicant. If the use described in the application would not amount to a material change of use, that was the end of the matter. There was nothing in the 1990 Act to suggest that an applicant was obliged to go into any degree of quantitative precision in describing the proposed use or development.
43. The difficulties inherent in quantifying a proposed use with any degree of precision, as compared with describing an existing use, were pointed out and it was submitted that the contrast between paragraphs 8.16 to 8.21 of Annex A to Circular 10 of 1997, which relate to section 191 LDCs, and paragraph 8.28 of Annex 8, which relates to section 192 LDCs, reflected those practical realities.
44. During the course of submissions the respondents did accept that a local planning authority faced with an application for a certificate under section 192 which described the proposed use as, for example, "caravan site" or "haulage yard" could, if it was concerned that to issue a certificate in such terms might open the door to unfettered intensification, ask the applicant to provide a more precise description of the proposed use, for example, "caravan site for 12 touring caravans" or "haulage yard for 12 HGVs". If precision was not forthcoming from the applicant, then a refusal would be justified if the local planning authority was not able to be satisfied that the use (with the possibility of unfettered intensification) would be lawful.
45. The respondents submitted however that such a possibility might be more theoretical than real given that the concept of intensification as a material change of use is one that is not free from difficulty on the authorities. Mr Humphreys pointed out that the Court of Appeal's Dicta in Brooks and Burton were obiter and were based in turn upon an observation made by Lord Evershed, Master of the Rolls, in Guildford RDC v Fortescue (1959) 2 Queen's Bench 112, page 125, that:
"Mere intensity of user may (as it seems to me; but I must not be taken as deciding this point) affect a definable character of the land."
46. The respondents pointed to the decision of Donaldson LJ, as he then was, in Royal Borough of Kensington and Chelsea v Secretary of State for the Environment and Mia Carla Ltd (1981) JPL page 50, and the decision of Simon Brown J, as he then was, in Lilo Blum v The Secretary of State for the Environment and The London Borough of Richmond upon Thames Council (1987), JPL page 278. To the extent that these authorities recognise that intensification may amount to a material change of use, mere increase in numbers is not sufficient, the increase in activity must be of such a scale as to effect a change in the character of the use. Thus, it would not be practical to express a limitation solely in terms of such quantifiable factors as, for example, the numbers of ATMs, the numbers of passengers, the amount of freight, et cetera. Moreover, a section 192 certificate containing such a limitation might give false comfort; it would be conclusive evidence that such a use so limited was lawful, but would not prevent further intensification beyond that limit, provided it did not result in a change in the character of the use described in the certificate.
47. Applying these considerations to the facts of the present case, the respondents contend that it would not have been appropriate for the Council to consider the question of limiting the description of the proposed use or development in the two later certificates. Even assuming that some acceptable form of limitation could have been devised, which the respondents do not accept, it would have been of no effect given the terms of the two earlier certificates.
48. When the matter came before the Council in the summer of 1999, Certificate 98/398 was conclusive that use of the airfield for civilian purposes without any limit was lawful and Certificate 98/399 was conclusive that retention of the airfield buildings, including those used for airport services to the north-west of the taxiway (which were excluded from 98/398) was also lawful. The Council had been advised that change of use of those buildings from military to "equivalent" civilian use would not amount to a material change of use. The civilian enclave, containing the passenger terminal, was not subject to limitations and did not form part of the land included in any of the certificates. Against this factual background, the Council would not have been in the position to impose any useful limitations on the use of the airfield or buildings even if it had wished to do so.
49. My conclusions
50. I do not accept Mr Steel's submission that a local planning authority has an implied power to modify the applicant's description of the proposed use or development when an application is made for a LDC under section 192. The 1990 Act provides a comprehensive statutory code. Where that code intends that local planning authorities shall have power to issue a certificate in respect of a modified or substituted description of development, or in respect of part only of an application, it says so in express terms: see sub-sections 191(4) and 193(4). The omission from section 192 of any provision equivalent to sub-section 191(4) is a clear indication that the code did not intend to confer an equivalent power. There is no scope for inferring the existence of such a power against the background of such a comprehensive statutory code. Either the power is provided for by the code or it is not.
51. The lack of such a provision does not, however, mean that a local planning authority is powerless when faced with an application under section 192 which describes the proposed use or development in a very generalised way. To take the examples given in paragraphs 8.16 to 8.21 of Annex 8 to Circular 10 of 1997, faced with an application for a certificate under section 192 for a proposed "caravan site" or "builder's yard", I do not see why a local planning authority could not, in an appropriate case, say to the applicant: "Your description of the proposed use is so general that it admits of intensification which may be of such a scale as to change the character of the use, therefore we will not be able to be satisfied for the purposes of section 192(2) that it will be lawful and will have to refuse your application as it stands. If, however, you are prepared to amend the description of the proposed development to say, caravan site for 12 touring caravans or haulage yard for 12 HGVs, we will then be able to grant you a certificate, because we will be able to be satisfied that such a proposed use will be lawful."
52. I emphasise the words "in an appropriate case". There will be many cases where, given, for example, the nature of the existing use, the location or the extent of the site or buildings, intensification will not be an issue. There will be other cases where, for the reasons advanced by the respondents, it will not be practical to devise any sensible limitation upon intensification.
53. I accept the respondents' submissions that the advice in Annex 8 to Circular 10 of 1997 does reflect the very real difference between describing an existing use so that it can be used thereafter as a point of reference, and seeking to place limitations upon a proposed use to ensure that future intensification will not be of such a scale as to change the character of the use. Precision is equally desirable, and for the same reasons, in certificates under both section 191 and 192, but there are practical limitations on putting that principle into effect in the case of certificates under the latter section. In some cases, for example, caravan sites, there may be a relatively simple indicator, in others it may not be possible to devise any practical limitation. A certificate under section 192 could not in any event purport to define conclusively the upper limit of intensification. It could merely certify that, for example, a proposal to use land as a caravan site for 12 touring caravans was lawful, leaving open the question whether any further increase in numbers would be unlawful as a result of intensification.
54. The question left open might well be a vexed question, for the reasons advanced by the respondents. 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 expense of other uses in a previously mixed use.
55. In deciding whether it is an appropriate case to request an applicant to define the proposed use or development with a greater degree of precision, the local planning authority would be entitled to have regard to practical difficulties such as these.
56. Were there such difficulties in the present case? The applicants submit that there had been clear indications of a wish to expand commercial civilian use, therefore this is one of those cases where the local planning authority should have been on its guard against the consequences of intensification. The applicants do not put forward any particular method of quantifying the limitation which they say the local planning authority should have imposed. They contend that it was for the planning authority to devise a suitable quantitative limit. I am far from satisfied, given the background history as to the extent of civilian usage over many years which I have set out above, that a realistic quantified limitation could have been devised. But upon the assumption that it could, would the local planning authority have been in a position to require the Ministry to incorporate such a limit in its description of the proposed use or development? I am in no doubt that the answer to that question is no, having regard to the two earlier certificates. If the local planning authority had considered the matter, they would have been bound to conclude that Certificate 98/398 was conclusive that the (unlimited) use of the airfield for civilian purposes was lawful. The airfield as defined on the plan attached to that certificate included the main runway and taxiways. It excluded the civilian enclave, which was linked to the main runway, but only because the enclave had the benefit of planning permissions which were not subject to any relevant limitations, for example, as to numbers of passengers, amounts of freight, hours of operation, et cetera.
57. It is true that Certificate 98/398 did not include a few buildings in the station's former domestic area, or the Northern Grass Area. Mr Steel submits that I should not speculate as to what form of intensification might be able to occur in those areas; that was a matter for the local planning authority to investigate and it failed to do so. The short answer to that submission is contained in an affirmation produced on behalf of KIA by Mr Bruce, the Group Solicitor for Wiggins. In addition to setting out a great deal of background material as to the extent of civilian usage of the airfield he explains, in outline, the practical effect of the two earlier certificates. By way of conclusion he says this in paragraph 42:
"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."
58. 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.
59. As for the buildings to the north-west of the taxiway, which were excluded from 98/398 but included within 99/377, Mr Steel submitted that Certificate 98/399 merely permitted their retention, it did not deal with how they could lawfully be used. He submitted that there could be substantial commercial use of these buildings, for example, for cargo, and by virtue of 98/377, and the local planning authority had failed to impose any limitation upon such potential.
60. In my judgment that submission does not reflect the reality of the matter as it would have been bound to appear to the local planning authority. First, the buildings in question adjoin the remainder of the airfield, which has (unlimited) civilian use. Second, Certificate 98/399 was conclusive that the retention of the buildings was lawful. That would then naturally raise the question of how could they lawfully be used. They are designed for use in connection with the airfield, being hangars, fuel facilities and the like, and it is common ground that they were in use for airfield purposes by the military. It is also common ground that a change of user from military to civilian would not amount to a material change of use. Thus, it is common ground that, provided there is no intensification of such a scale as to change the character of their use, the retained buildings may be used, and indeed used more intensively, for civilian aviation purposes. Had the Council addressed its mind to the matter in the summer of 1999, it would have been driven inevitably to those conclusions. It follows that the most that it could have suggested would have been some form of limitation upon the use of these particular buildings so that intensification which was of such a scale as to change the character of their use would not take place. Since substantial intensification of use of the retained buildings in civilian occupation would be lawful in any event, such a limitation would have been of no practical value, given that there were no such limits over the remainder of the airfield or within the civilian enclave. In short, I accept the respondent's submissions that such a limitation, even if it could have been devised as a matter of practicality, which I doubt, would have had no practical effect in the circumstances which I have set out above.
61. It follows that these applications must be refused.
62. MR HUMPHREYS: My Lord, I would ask for the first respondent's costs.
63. MR STEEL: My Lord, I cannot resist that application.
64. MR JUSTICE SULLIVAN: Thank you.
65. MR ALESBURY: My Lord, I make an application on behalf of my client's, although not technically the second respondents, the affected third party costs. My Lord, since I know in advance that this is going to be opposed, it may be appropriate that I just say a little to your Lordship about the background to this matter. I do not intend to do so at very great length, but as in many cases in this field when they are more than two parties one has to look at the Bolton remarks of Lord Lloyd.
66. MR JUSTICE SULLIVAN: You start with a slight hill to climb.
67. MR ALESBURY: I start with a slight hill to climb. I have here Lord Lloyd's remarks, in the Planning Law Report of it. It is in the Weekly but I must confess that, for reasons unfathomable to man, I could not find a copy of the Weekly Law Reports in chambers this morning. The bit to do with costs is in Weekly Law Reports as something rather akin to a practice direction.
68. MR JUSTICE SULLIVAN: Yes.
69. MR ALESBURY: But exactly the same passage is in 1995 Pre-Planning Law Report. The report as a whole begins on page 37 but, apart from copying the headnote, I have copied the pages which deal with the costs issue, which are the last three pages from 51 on, and these are exactly the same passages as is in the WLR Report. My Lord, I do not propose to read the whole lot but if one looks at page 51, that is where Lord Lloyd begins dealing with costs and makes the remarks that the parties have been invited to submit representations. It really begins at the bottom of that page, where three full lines from the bottom, Lord Lloyd says:
"Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case."
70. My Lord, in a sense, that is the first foothill of the hill, as it were, that I have to climb, or the first part of the hill. My Lord, then there are a number of remarks at the top of page 52. The first half of page 52 is really Lord Lloyd recounting the way in which the practice had developed, mainly in connection with planning cases of course, Bolton was a section 288 planning case rather than judicial review but I am not essentially taking the point that anything fundamental turns on that. At F on 52 he really begins part of his speech on the new positions:
"What then is the proper approach? As in all questions to do with costs, the fundamental rule is that they are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.
"But the following propositions may be supported:
(1) The Secretary of State, when successful in defending --
MR JUSTICE SULLIVAN: Effectively that is Mr Humphreys.
MR ALESBURY: Effectively that is Mr Humphreys.
"(2) [and here is my hill, as it were] The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case."
71. Then Lord Lloyd's third principle, or third proposition, which may be supported:
"(3) A second set of costs is more likely at first instance --
Well, happily we are at first instance. It is instructive in fact just to look at what their Lordships did about that particular case, although it is not within the numbered principles:
"On the facts of the present case the Secretary of State is clearly entitled to the whole of his costs. The only question is whether Manchester Ship Canal Co should also receive their costs. In my opinion they should. I accept that the issues were all capable of being covered by counsel for the Secretary of State. But the case has a number of special features.
"First, the case raised difficult questions of principle arising out of the change of government policy towards out-of-town shopping centres --
MR JUSTICE SULLIVAN: I am familiar with the background to the case. There was a certain tension because the Secretary of State had changed, and indeed changed his policy, so it might be thought he was rather reluctantly being prodded in the back to defend a decision taken by his predecessor --
MR ALESBURY: There was that, and obviously that particular point does not apply here but if one casts one's eye down to the middle of that paragraph when he gets off that particular point, there is something which, while not directly pertinent, leads onto something I want to say:
"If the appeal had gone the other way, the case would in all likelihood have gone back to him for redetermination de novo. To that extent he had to remain aloof from the parties. On the other hand, the developers were concerned only with the outcome of this particular appeal. They were entitled to take the view that on the facts of this case they had a sufficiently independent interest requiring protection so as to justify separate representation.
"Second, the scale of the development, and the importance of the outcome for the developers, were both of exceptional size and weight."
72. My Lord, turning then from those principles and the way they were put into effect by their Lordships who all agreed with Lord Lloyd in that of my clients, the airfield owners, in this case, I would submit, are very much at an arm's length relationship with the local planning authority in certain parts of this case, and of course there are obviously logical distinctions between this being a LDC case and not a planning permission case. My clients are very much at arm's length relationship with the local planning authority who, of course, frequently have to make decisions to do with the airport in their role, as it were, of upholding the local public interest in the planning sense, and there is in like manner -- not identical -- but there is that creative tension, as it were, tension creative or otherwise actually, between the position of my clients as the airfield owners and the planning authority in respect of this matter; for example, the papers before your Lordship, including some of those that came in late and we have not looked at very much, reveal that there have been tensions and issues between the airport owners and the planning authority over the extent of the planning rights, as it were, on this airfield.
73. My Lord, I do submit then that perhaps even more so than in the general run of Secretary of State cases -- I am not making a point now about the Ship Channel Co in Bolton -- my clients are an interest requiring separate and independent representation in a case like this, as the airfield owners. I also go on, if I may, just to make one or two points about the particular way in which the material and so forth has come before the court in this particular case and, as it were, further justification for my clients' independent presence and, if I can put it this way, contribution to the proceedings. It is -- though I am not asking your Lordship to do a paper weighing exercise, as it were -- in fact my clients who have produced a high proportion of the total of the highly relevant background information put before the court in order to enable the decision, your Lordship's judgment, to be taken in the way in which it has been taken, for example, it is my clients who have actually produced to the court for your Lordship's benefit the previous LDCs, the 1998 certificates, which the applicants had not produced, and it is my clients who have put before the court as well the points and the concerns about lack of full disclosure, which I made some remarks about in my submission to your Lordship earlier.
74. MR JUSTICE SULLIVAN: One possible way of squaring the particular circle might be to acknowledge that Mr Bruce's affirmation and the material produced in it was of considerable assistance.
75. MR ALESBURY: My Lord, yes.
76. MR JUSTICE SULLIVAN: But once that is in, when you actually get down to it, as far as legal submissions are concerned, it is not as though, as I have read the papers or the skeleton, that this is a case where the Council was proposing to concede a lot of points as a public authority that you as a third party might want to argue about. In substance, when we actually get here, you and Mr Humphreys are pretty well rowing along in exactly the same direction and to the same extent, as far as I can see. So it might be suggested that certainly the costs of the affidavit but then query whether, so far as representation in court is concerned, there ought to be only one set of costs, which is the Council's, because it was pretty clear that the Council was going to take on board the points that you would have wished to emphasise. No disrespect to your advocacy in any way, I am not making invidious comparisons, it is just that Mr Humphreys is in pole position on the authorities, he gets his costs in any event.
77. MR ALESBURY: My Lord, yes. In a sense slightly foreshadowing the possibility that a point such as that might be raised, I did stress, as it were, the two-pronged aspect of what Lord Lloyd said at the bottom of page 52, and there were really two bases for the second respondents, whom we effectively are: one, if there was likely to be a separate issue, and I take your Lordship's point on that, once we have actually -- as it has eventuated, and once my clients have put in all the material, it has happily transpired that we are paddling the same canoe. Mr Humphreys and myself essentially take the same line, that is why I sought to stress the point that my clients have an interest which does require separate representation as the owners of this quite important local facility in Thanet and which, in spite of the points I have made about the lack of real effectiveness and so forth, and indeed your Lordship's comments upon them of what the applicants were trying to achieve, nevertheless was intended to be, and in other practical senses to which your Lordship has alluded, has been an undesirable spanner in the works, as it were, in terms of the smooth implementation of my clients' plans for the airfield. For those reasons and the fact that we are very much not the same interest as that of Thanet District Council, although we agree with them on the submissions that we have made here, it is my submission that we are, in Lord Lloyd's words, "an interest which requires separate representation" albeit that, as it has come about we, as I say happily, have been making very similar submissions.
78. Obviously I cannot go on for ever making the point. I have made the point and I submit for that reason my clients have needed to be represented separately and additionally to the Council, and I stressed when I read it, as it were, the analogy, the Bolton and Manchester Ship Canal situation, this airfield is a property of substantial scale and importance for my clients and the applicants will have known, I would respectfully submit, it is just an obvious inference from the circumstances, that challenging the legal bases of my clients' use of this airport was bound to be of great concern to my clients. Taken together, my Lord, with the points that have been made earlier during argument on the substantive hearing about the lack of full and frank disclosure which, of course, was another reason why my clients particularly felt that they needed to be represented and come before the court and make sure that the full picture on the facts was put before the court, and those circumstances taken together, my Lord, I do urge upon your Lordship that this is one of those exceptional cases which Lord LLoyd contemplated where the second respondent's costs are not just those of the affidavit -- anything is more welcome than nothing, I am not making any kind of churlish point in that sense, it might just be appropriate -- and this, I think, is the last point I am going to mention my Lord before I sit down -- if I just draw your Lordship's attention to a letter, in fact, it was an e-mail, but a letter in effect, in the bundle at pages 179 and following. It has not been looked at during the course of the argument. It has a slight confusing heading being at page 179 because -- it is a sort of e-mail back copy. This Ella Spanton, this mysterious Ella Spanton, is in fact Mr Bruce's secretary. When you copy an e-mail back copy that is how it comes out. It was a puzzle to me at first when I saw these things with Ella Spanton on, but it was quite relatively early in the proceedings. I am certainly not asking your Lordship to look at the whole, but if one looks at the fifth of the short paragraphs on the first page one sees that Mr Bruce was saying to the applicants:
"It is very difficult to see what your clients would achieve even if they did succeed, not that it is admitted they will. Your clients have not sought to attack the grant of the two earlier LDCs."
79. MR JUSTICE SULLIVAN: I have read on.
80. MR ALESBURY: Yes.
81. MR JUSTICE SULLIVAN: Essentially he is taking the point that I have concluded in your favour.
82. MR ALESBURY: My Lord, yes. And making the point of criticism about full and frank disclosure and so forth. The point that I make is that it was quite obvious from this letter, which also, at several points during, went on to ask the applicants what they really thought they were hoping to achieve through these proceedings by implication from the remarks about the earlier certificates, making the point that they could not really hope to achieve anything of great practical value, that my clients, I think, put the applicants on notice the sort of results which have eventuated through your Lordship's judgment today was likely, yet, as it were, the applicants persisted. So that is another thread to the submissions I put to your Lordship. I think probably I have taxed your Lordship's patience on this one enough.
83. MR JUSTICE SULLIVAN: Patience gets slightly less as we go after 4.30.
84. MR ALESBURY: I do appreciate that.
85. MR JUSTICE SULLIVAN: Thank you very much. Mr Edwards, could you sensibly resist the proposition that you ought to pay not merely Mr Humphreys' clients' costs but the costs of the preparation of the affidavit.
86. MR EDWARDS: My Lord, I have taken instructions on that and my instructions are to resist in principle the application for costs. I do not intend to trouble your report greatly in terms of time on that.
87. MR JUSTICE SULLIVAN: No.
88. MR EDWARDS: The test --
89. MR JUSTICE SULLIVAN: Can you just focus on why you should not pay for the affidavit, given the extent to which I have found it helpful.
90. MR EDWARDS: Of course my Lord, I will focus on that. The hurdle the second respondents, the interested third party, have to climb is that, in my submission, set out in the Bolton case.
91. MR JUSTICE SULLIVAN: Yes.
92. MR EDWARDS: Which is that there has to be a separate issue to be tried or to be heard which necessitates their attendance before your Lordship. Can I very briefly refer your Lordship to another decision, it is a decision of the Court of Appeal in the Berkeley case. Your Lordship may be familiar with that, I have a transcript for you.
93. MR JUSTICE SULLIVAN: Probably.
94. MR EDWARDS: It is the case that deals with environmental impact assessments. I rely on it, my Lord, because it gives an example of circumstances where issues or arguments similar to those raised by Mr Alesbury were put before the court. I am going to take you to the first few pages of the judgment on costs. If I could ask your Lordship to go to page 4 of the transcript, which is where the issue of the separate costs arises. It is the last full paragraph on the page, my Lord:
"I turn to the costs of Fulham Football Club. This question depends on an application of the principles of discretion authoritatively stated by the House of Lords in Bolton Metropolitan Council v Secretary of State for the Environment..."
95. He sets out the extract from Bolton and then goes on to record the submission by Mr Hicks:
"... the club qualifies for orders for costs here and below within those principles. He has made a number of points. In regard to the environmental assessment question, he has said that the Club, having been throughout represented and fully involved at the public inquiry, was uniquely able to assist the judge as to the information available at the inquiry, in order to help him decide whether, in the absence of an environmental statement, there had, as has since been held, been sufficient information available to take its place. He has made a similar point in regard to the policy question. His third principal point is that it was recognised ahead of the hearing before the judge that the Secretary of State was unlikely to argue the question whether there had been an urban development project. The Club, on the other hand, intended to submit, and did submit, there was no definition of the expression..."
96. The next paragraph:
"... it was helpful for the Club to be represented before the judge. They knew all about the inquiry, at which of course the Secretary of State had not been represented. While I am entirely clear that the Club was entitled to be represented before the judge ... I am nevertheless unable to conclude that they had been able to demonstrate a separate issue, not covered by the Secretary of State, on which they were entitled to be heard, or an interest requiring representation."
97. My Lord, there is a case where, plainly, the evidence from the second respondent was of assistance to the court but that was held not to be sufficient to justify making an order for costs in the case. My Lord, I do not take the point any further. I am relying on that as an authority which may give assistance to your Lordship.
98. My Lord, I am instructed to raise another matter. My clients have taken out insurance for the purposes of this claim. When the issue arose in correspondence that the second respondents may be seeking all of their costs, a letter was sent to them indicating that would result in a further premium being taken out to cover the potential for a full award of cost being made against them. I wonder, my Lord, if I could just hand up a copy of this letter very briefly. Perhaps that is the most expeditious way of dealing with it.
99. MR JUSTICE SULLIVAN: Yes.
100. MR EDWARDS: The letter is from my instructing solicitors dated the 4th July and addressed to Mr Bruce, who is a name familiar to the court. The first two paragraphs explain very much what I have submitted to your Lordship already about the procedure for awards of cost. The last paragraph on the first page is material. Mr Buxton says:
"As you know we have taken out insurance to cover costs liabilities, but, given the fact that we would not expect you to claim costs, we have not included an estimated liability for your costs. Now however we shall have to advise our clients that the risk is there, albeit a remote one, and that they should consider increasing the insurance cover. This will cost approximately £11,000. If you are not awarded costs, we would expect to recover this as a cost from the litigation under the new Access to Justice rules.
"We are urgently taking instructions on this matter. However we wish to give you the opportunity to confirm that you will not in fact seek costs, in order to avoid the need for taking out further insurance at what is likely to end up being your cost - whether you win against Thanet or not."
101. My Lord, again on instruction, if you dismiss the application by the court on behalf of Mr Alesbury for his clients, for the whole or part of their costs, we would ask that your Lordship exercise the discretion that you have to make the cost order in favour of my clients even though they are the unsuccessful party. I realise that is somewhat of an unusual, even bold --
102. MR JUSTICE SULLIVAN: Quite a long shot that one.
103. MR EDWARDS: But I am instructed to make it, and there it is.
104. MR JUSTICE SULLIVAN: Thank you very much.
105. NEW SPEAKER: My Lord, I do not have a right to address you on that.
106. MR JUSTICE SULLIVAN: No, you do not. You do not have to address me on the proposition that you ought to pay Mr Edward's costs, no, that is a bold submission.
107. In the light of the submissions the application is dismissed. The applicants are to pay the first respondents's cost. So far as the second respondents, or rather the interested party's costs, are concerned, I bear in mind the guidance provided by the Bolton case. It seems to me that whilst the evidence file on behalf of the third party has been of particular assistance to the court, and indeed it seems to me that evidence of that kind would have had to be filed really whether by the planning authority or by the interested party in any event as a matter of background, so it is not as though there is a duplication of cost, the evidence really was required in any event, and so the costs of producing that ought to be reflected in an award. I am quite satisfied that once that was produced, there is no reason not to apply the normal rule, that is to say that the developer will not normally be entitled to his costs.
108. It is plain in the light of the way the submissions have been put that there really was not any divergence of view between the planning authority and the interested party, unlike the position of the Secretary of State in the Bolton case. So far as the scale of development and the importance of the outcome for the developers justifying separate representation goes, this is a very far cry from the prospect of a land owner actually losing a planning permission for a sub-regional shopping complex as a result of a change in shopping policy. Indeed, it has been a major trust of the land owner's case that quashing these certificates will really be of very little practical import, and to a very large extent I have accepted the material that underlines that submission.
109. So for those reasons, which in view of the time I express quite shortly, I exercise my discretion in this way, that is to say that the applicants ought to pay the interested party simply the costs of the preparation and service of Mr Bruce's affirmation together with his accompanying exhibits. Beyond that there should be no order in respect of the interested party's costs. For the sake of completeness, I indicate that I do not accede to Mr Edward's application that the applicants ought to be paid their costs by the interested party.
110. MR EDWARDS: Much obliged, my Lord. There is another short application. That is for permission to appeal.
111. MR JUSTICE SULLIVAN: Yes.
112. MR EDWARDS: My Lord, I have discussed that with my instructing solicitor, Mr Steel, in the light of the way the case has progressed. I make the application on two bases: first, the issues for your Lordship raised by this judicial review concern fundamental and important points in relation to the exercise by a local authority of their discretion to grant certificates of lawful proposed development under section 192 of the Town and Country Planning Act; secondly, my Lord, the case raises, we say, important points in relation to how this court should exercise its discretion in terms of how a local planning authority can be expected to react if a matter were remitted to it and further information provided or guidance given to them in an alternative way, and by that, my Lord, I refer to the findings and conclusions that your Lordship has reached in terms of how the local planning authority would react if they were presented with further information about the status and effect of the two earlier (inaudible). Those, simply, are the two points which we would seek to rely on in making this application for permission and take to the Court of Appeal if permission were granted.
113. MR JUSTICE SULLIVAN: Yes, thank you very much. I do not need to trouble either of you. I do not think this is an appropriate case for leave in so far as there are fundamental and important points, I have largely resolved them in the applicant's favour. Where the case has failed, it has been on the particular facts and in the light of those facts it seems to me that an appeal has no reasonable prospect of success. Mr Edwards, if you want appeal you will have to go to the Court of Appeal.
114. Thank you all very much indeed for very interesting applications.