Dunsfold Park Ltd v Secretary of State for Communities and Local Government & Anor [2014] EWCA Civ 627

Case No C1/2013/2388[2014] EWCA Civ 627
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9 April 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
LORD JUSTICE TREACY
LORD JUSTICE UNDERHILL
Between
DUNSFOLD PARK LTDAppellantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT & ANRRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Steel, QC and Mr S Whale (instructed by Sharpe Pritchard) appeared for AppellantMr P Greatorex (instructed by Treasury Solicitors) appeared for First RespondentMr T Mould, QC appeared for Second Respondent
J U D G M E N T

LORD JUSTICE SULLIVAN:

[2]Introduction[3]This is an appeal from the order dated 3 July 2013 of Foskett J dismissing the Appellant's application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash an Inspector's decision dated 5 April 2012 dismissing the Appellant's appeal under section 195 of the Act against the Second Respondent's refusal to grant the Appellant's application for a Lawful Development Certificate (LDC) under section 191 of the Act.[4]The application for the LDC related to the airfield which forms part of Dunsfold Aerodrome at Dunsfold, Cranleigh in Surrey. I will refer to the application site as the airfield and to the larger site as the Aerodrome. The use for which the LDC was sought was the:
"Use of the application land as an aerodrome for aviation activities, including for the start up, taxiing, engine testing, ground running, take off and landing of aircraft, without condition, restriction or limitation as to: Number of aircraft Number of take offs and landings Type of aircraft (whether fixed wing or rotary, civil or military, commercial or private, training or non-training and whatever the origin or destination of the flight) Size of aircraft Weight of aircraft Number of crew and passengers Type and amount of freight Duration Period of use (hours, days, nights, weeks, weekends etc) Surface traffic generation Number of employees employed on or off the application land or persons generally on or off the application land Noise, air quality other emissions and environmental effects Or otherwise..."
[5]Background[6]The background to the appeal is set out in considerable detail in the very comprehensive judgment of Foskett J which is reported at [2013] EWHC 1878 (Admin). It is unnecessary to repeat that detail and I gratefully adopt it.[7]The Inspector's decision[8]Much of the argument at the inquiry before the Inspector was concerned with the use of the Aerodrome on the first appointed day, 1 July 1948. It is unnecessary to consider that matter because there is now no challenge to that aspect of the Inspector's decision.[9]Hawker Aircraft Ltd, one of the predecessors of BAe Systems PLC ("BAe"), took over the Aerodrome in 1951. It required and obtained planning permission for its proposed use. The planning permission dated 13 April 1951 permitted the "erection, repair and flight testing of aircraft at Dunsfold Aerodrome..." It is common ground that the "erection" of aircraft was treated as being synonymous with their production. See paragraph 40 of the decision. The Inspector concluded that BAe's use of the Aerodrome was as a "large scale production and testing facility for new aircraft". See paragraph 37. That use by BAe ceased in about 2000.[10]The Appellant acquired a long lease of the site in December 2001. In 2002 it applied for a temporary planning permission for:
"Change of use of land and buildings at Dunsfold Aerodrome to B1 (office/light industrial), B2 (general industrial), B8 (warehouse/distribution) including 2.22 hectares of outdoor storage and ancillary uses all as per [a schedule that was submitted with the application] together with air flight capability ancillary to those uses."
[11]Planning permission was granted on 17 April 2003 until 30 April 2005 and a further planning permission was granted on 7 January 2005 effectively extending the period of the earlier temporary planning permission until 30 April 2010.[12]Before the Inspector, the Appellant contended that it had been unnecessary for it to have obtained the 2003 and 2005 planning permissions and that it had not needed to and had not implemented them because its use of the land did not amount to a material change of use of that previously made at the Aerodrome by BAe.[13]The Inspector concluded that since 2003 the land and buildings in the northern part of the Aerodrome (to the north of the airfield) had been occupied and used "for a range of commercial and industrial activities" (paragraph 43). In paragraphs 44 and 45 of the decision, the Inspector referred to the 2003 and 2005 planning permissions. In paragraphs 50 and 51, the Inspector said this:
"50. It is not for me to attempt to classify the use to which each and every occupier in March 2008 (or in April 2011) put their individual part of the Aerodrome, nor was such an analysis carried out by either party. The onus, however, remains on the Appellants. Mr McAllister [the Appellant's chief executive] put the number of occupiers not directly connected with aviation "in the order of 50"
. Even if correct, and it was a figure given only in cross-examination, that says nothing of the proportion of floor space they take up, the extent of their activities, nor gives any details of what they actually do. What it does say is that about half the occupiers have or had no connection with aviation at all." "51. Mr Forrester [the Appellant's project manager at the Aerodrome] describes some of the actual uses to which buildings were put in BAe's time. Of the current uses noted [on a core document] only one makes any mention at all of aircraft or aviation (hangar T2B), though a great many are expressed in general terms such as 'storage'. Mr Forrester also acknowledged that by April 2011 none of the occupiers were engaged in the production of new aircraft. The impression -- and it can be no more than that -- I obtained from walking around the northern area is that, save the other original hangar (T2A), only a small proportion of the built floorspace is now given over to activities that could genuinely be said to fall within the specific terms of the permission."[14]In paragraph 54, the Inspector said:
"The immediate question however is as indicated not one of fact and degree as between Hawker/BAe and the Appellants, but whether the use in 2008 fell within the scope of the 1951 permission. Whatever has happened on the airfield since BAe's departure, as a simple question of fact, there are now a great many independent and diverse occupiers of parts of the Aerodrome whose business is wholly unrelated to the erection, repair or flight testing of aircraft. That, in my judgment, is sufficient of itself to hold that a new chapter of planning history of the site has been opened with a range and type of uses now and in 2008 going far beyond the very specific terms of the 1951 permission. On that basis and on the balance of probabilities, the Appellants needed planning permission in 2003 and continued to need it on the expiry of each of the first two temporary permissions."
[15]On 11 March 2008, the Appellant was granted planning permission for a "change of use of buildings and land for B1, B2 and B8 uses for a temporary period until 30 April 2018 to coexist with extant temporary and permanent permissions" at the Aerodrome. It also obtained a similar planning permission, subject to slightly different conditions, on appeal in an Inspector's decision dated 18 June 2008.[16]Condition two on both of the 2008 planning permissions limited the use of the Aerodrome. It is common ground that if either of those two planning permissions was implemented, then the use of the airfield for unrestricted aviation activities would not be a lawful use.[17]Before the Inspector, the Appellant contended that it had not implemented either of the 2008 planning permissions, firstly, because those planning permissions contained a mix of B1, B2 and B8 uses in different proportions which had not been implemented and, secondly, because it had not complied with certain conditions in the planning permissions which it contended were conditions precedent.[18]The Inspector rejected those submissions and concluded that one or other, and for the purposes of his decision, it mattered not which, of the 2008 planning permissions had been implemented. When discussing the 2008 appeal, the Inspector said in paragraphs 61 and 62 of the decision:
"A variety of other conditions were also imposed [in the 2008 planning permissions], but the point for present purposes is not so much that they were often designed to prevent any greater impact than under BAe's occupation -- which some undoubtedly were -- but that the ones I highlighted reflected a change in the primary use of the Aerodrome as a whole, particularly storage and distribution. Where before storage especially would have been a necessary ancillary use, its elevation to part of a wider mixed use carried significant consequences..." "
These cumulative observations only served to support and reinforce my conclusion that the Appellant's use of the Aerodrome in 2008 (or at any time since 2002) fell outside the scope of the 1951 permission. Whatever the starting point moreover, taking account of all these matters, I am in no doubt that the Appellants were correct in applying for planning permission in 2002, 2004 and 2007, even if their motive was only to provide commercial comfort to their clients..."[19]In paragraph 76 of the decision, the Inspector set out his overall conclusions in a number of bullet points. They included the following conclusions:
"• That a new chapter in the planning history of the Aerodrome was opened and a material change of use occurred to one outside the scope of the 1951 permission and one materially different to that on the appointed day on the cessation of the use by BAe and take over of the Aerodrome by the Appellants. • That planning permission was required and was first granted for that change of use on 17 April 2003 and is now the subject of one or other of the permissions granted on 11 March 2008 and 18 June 2008... • That even if neither of those permissions is in force (for whatever reason) the 1951 permission does not include the use of the airfield either by itself or as part of the wider Aerodrome for unrestricted aviation activities."
[20]The judgment below[21]As I have said, the judgment is a very full and comprehensive one. It is not possible to do it full justice. In summary, the judge said that there had been ample evidence on which the Inspector was entitled to conclude that there had been a material change of use in 2002 that required a grant of planning permission: see paragraph 64 of the judgment. He also concluded that the 1951 planning permission did not permit unrestricted aviation activities: see paragraph 82. He rejected the Appellant's submission that it had not implemented one or other of the 2008 planning permissions: see paragraph 76.[22]The grounds of appeal[23]There are four grounds of appeal against the judge's order. The first two grounds contend that he erred in concluding that one or other of the 2008 planning permissions had been implemented because, firstly, a prospective planning permission cannot be implemented on the date of its grant simply by the continuation on that date of a pre-existing use (ground one). Secondly, that the 2008 planning permissions contained "conditions precedent" with which the Appellant had not complied (ground two).[24]The Appellant's skeleton argument summarised grounds three and four as follows:
"3. Once an express planning permission for a use (or uses) of land has been interpreted (here the 1951 planning permission), the next issue is determine its scope; namely, the range of uses sufficiently similar in character to the use (or uses) granted permission to be capable of replacing it (or them) without involving a material change of use." "4. There was no material change of use from that of BAe Systems to that of the Appellant after 2000."
[25]Discussion[26]We indicated to Mr Steel, QC, who appeared on behalf of the Appellant with Mr Whale, that it would be sensible to adopt the Inspector's approach of considering the issues in chronological order. If, as submitted by the Appellant in its grounds one and two, neither of the 2008 planning permissions has been implemented, that leaves the 1951 planning permission as the only potentially relevant planning permission, the two temporary planning permissions granted in 2003 and 2005 having expired by the date of the application for the LDC on 4 April 2011. It is common ground that if there was a material change of use after 2000 for which planning permission was required and which was obtained in 2003 and 2005, the 1951 planning permission is spent and cannot be revived.[27]It might, therefore, be sensible to begin with the question raised by ground four of the appeal. Was there a material change of use after BAe ceased the production and flight testing of aircraft in 2000? However, it is more convenient to begin with the 1951 planning permission and with the Appellant's ground three.[28]Ground three[29]What use of the Aerodrome was permitted by the 1951 planning permission? The answer to that question, in my judgment, is simply a matter of interpreting the words that are used on the face of the planning permission. Mr Steel submitted that the Inspector had wrongly failed to ask himself the question "what is within the scope of flight testing?" He submitted that the Inspector should have asked "what is the range of uses sufficiently similar in character capable of replacing it without involving a material change of use?"[30]He cited in support of that submission the decision of the House of Lords in Westminster City Council v British Waterways Board [1985] 1 AC 676: see the passage in the speech of Lord Bridge at pages 683H to 684A in which he said:
"To determine the scope for planning purposes of an existing use of land established by de facto user for a sufficient period to put it beyond the reach of enforcement procedure (as opposed to a use commenced pursuant to an express grant of planning permission) it is necessary to ask two questions which are primarily questions of fact. First, what is the precise character of the established use? Secondly, what is the range of uses sufficiently similar in character to the established use to be capable of replacing the established use without involving a material change? Behind this second question lies a potential question of law in that there may be some uses of such character that a reasonable tribunal of fact directing itself correctly in law must necessarily conclude that they lie within that range or beyond it as the case may be."
[31]It will be seen that this passage is not concerned with the interpretation of planning permissions. It is concerned with whether or not there has been a material change of use and is relevant for the purposes of ground four, not ground three.[32]Returning to the 1951 planning permission, it permitted the Aerodrome including the airfield to be used for the erection (for which read the production), repair and flight testing of aircraft. As a matter of straightforward construction, it did not, on any conceivable basis, permit unrestricted aviation activities at the Aerodrome. It will be recalled that the unrestricted aviation activities for which an LDC was being sought by the Appellant included both the carriage of passengers and freight "without condition restriction or limitation as to... number of crew and passengers, [or] type and amount of freight".[33]In his skeleton argument, Mr Steel submitted at the outset of his case on ground three that:
"There is no material difference in land use terms between an unrestricted use of land for flight testing and an unrestricted use of land for the flying of aircraft. The scope of the 1951 planning permission encompasses both."
[34]In my judgment, that submission as to the "scope of the 1951 planning permission" conflates two questions; what use was permitted by the 1951 planning permission and would a change of use from an unrestricted use for flight testing to an unrestricted use for the flying of aircraft be a material change of use? As I have indicated, the answer to the first question is that the 1951 planning permission did not permit an unrestricted use for the flying of aircraft.[35]The Inspector was not required to consider the second question in the abstract. When deciding whether there had been a material change of use for the Aerodrome after 2000, he had to compare the actual use of the Aerodrome by BAe prior to its departure in 2000 with the actual use of the Aerodrome by the Appellant following its acquisition of the land in 2001. On the Inspector's findings of fact, BAe did not use the Aerodrome simply for "unrestricted flight testing". Its use of the Aerodrome was a composite primary use for the production and flight testing of aircraft.[36]In any event, the submission is flawed even if it is considered as a purely abstract proposition. It concentrates on the common element of the flying of aircraft and ignores the land use implications on the ground of different kinds of "aviation activities". While the question is one of fact and degree, to take but two straightforward examples, the land use implications of an unrestricted use of the airfield for the carriage of an unlimited number of passengers or an unlimited amount of freight, would be very different from the impact on the ground of an unrestricted use of the airfield for flight testing.[37]Analogies may not be helpful, but a use of land as a bus station or as a freight distribution depot for lorries is not the same thing in land use terms as a use of land for the production and testing of buses or lorries. The buses or lorries may be the same, but the manner in which and the purpose for which they are being used will have different land use implications.[38]For these reasons, there can be no doubt that, properly construed, the 1951 planning permission does not permit the airfield to be used for "unrestricted aviation activities".[39]Ground four[40]Mr Steel submitted that the Inspector had erred in three principal respects in concluding that there had been a material change of use after the Appellant had taken over the Aerodrome from BAe.[41]First, he had not compared the actual use of the Aerodrome by BAe prior to 2000 with the actual use of the Aerodrome by the Appellant after 2000; but had instead considered whether the post 2000 use fell within the scope of the 1951 planning permission: see paragraph 54 of the decision (para 14 above).[42]Second, because of the emphasis the Inspector had placed on the 1951 planning permission, he had wrongly focused on the question whether the post 2000 uses on the Aerodrome had any connection with aviation: see paragraphs 50 and 54 of the decision. Mr Steel submitted that the Inspector had thereby failed to recognise that a change from producing aircraft to producing any other article such as cars or lorries, for example, would not be a material change of use.[43]Thirdly, the Inspector had wrongly placed weight on the number of occupiers and users post 2000. On the basis of the Inspector's factual findings, BAe had been the sole user, but the 1951 planning permission did not limit the number of bodies that could have used the Aerodrome for the production, repair and flight testing of aircraft.[44]In my judgment, there is force in the first and second of these points. I will deal with the third in due course.[45]Whether there was a change of use of the Aerodrome after 2000 depended upon a comparison of BAe's actual use of the Aerodrome pre 2000 with the actual use of the Aerodrome post 2000. The Inspector's focus upon the scope of the 1951 permission was perhaps understandable given the Appellant's emphasis upon this issue: see the discussion of ground three of the appeal (above).[46]There is no doubt that a change from producing article A to producing article B will not of itself amount to a material change of use. However, for the reasons set out below, there can be no doubt that the Inspector was not merely entitled, but plainly correct, to conclude that a new chapter in the history of the Aerodrome had opened and that a material change of use had occurred after BAe left in 2000 and the Appellant took over the Aerodrome. On the material before the Inspector and in the light of his other findings, to which I will refer in due course, he could not rationally have come to any other conclusion.[47]I have already referred to the fact that the Inspector concluded that BAe had used the Aerodrome as a "large scale production and testing facility for new aircraft". That primary composite use would necessarily have included ancillary uses such as storage. The Appellant's application for planning permission in 2002 sought planning permission for a change of use of the land and buildings on the Aerodrome to a mix of primary uses; B1 (offices/light industrial), B2 (general industrial), B8 (warehouse/distribution) and 2.2 hectares of open storage together with ancillary uses.[48]Temporary planning permission was granted for those uses in 2003. It was extended to 2010 by the 2005 planning permission. The 2003 planning permission, therefore, permitted the introduction of a new mix of primary uses on to the Aerodrome, including, in particular, B8 (warehouse/distribution) and open storage, not as ancillary uses to a primary production (or industrial) use, but as primary uses in their own right.[49]Mr Steel submitted that no reliance could be placed on the 2003 and 2005 planning permissions because it was the Appellant's case before the Inspector that they had not been implemented; there being no need to implement them because, on the Appellant's case, there had been no material change of use. Moreover, he submitted that the 2002 and 2005 applications had sought planning permission for a proposed range of uses on the Aerodrome. It was the actual uses on the Aerodrome post 2000, not the permitted uses, which were relevant for the purpose of deciding whether there had been a material change of use.[50]As indicated above, I readily accept that the question whether there had been a material change of use depended on what were the actual uses on the ground post 2000. But the difficulty with Mr Steel's submission is that a Note dated 30 September 2009 submitted by the Appellant's then planning consultants in support of an application by the Appellant for a new settlement at the Aerodrome identified the main planning permissions on which the Appellant then relied. The Note referred to the 2005 planning permission and said:
"This permission has been implemented and is the permission under which Dunsfold Park Ltd currently operate the temporary use of most of the buildings on the site."
[51]Mr Steel submitted that the Note was wrong in this respect because the Appellant's then planning consultants had not been aware of the existence of the 1951 planning permission.[52]While the existence of the 1951 permission would, on the Appellant's case (see ground three above) have obviated the need to apply for planning permission for a change of use, a lack of awareness of the 1951 permission's existence does not explain why the Appellant's planning consultants positively asserted that the uses temporarily permitted by the permission were being currently implemented by the Appellant on the Aerodrome.[53]Putting to one side the question of whether it was necessary to apply for planning permission for the mix of uses listed in the 2003 planning permission, the planning consultant's Note confirms that they were in existence -- being currently operated -- on the ground. That this was the position on the ground after 2000 is reflected in the Inspector's conclusion that the Aerodrome was being used for a range of commercial and industrial activities.[54]Mr Steel submitted that the Inspector should have considered a schedule of current uses that was submitted by Mr Forrester. While it is true that the Inspector did say in paragraph 51 of the decision that only one of the current uses made any mention of aircraft or aviation, he also said that a great many of the current uses were expressed in general terms "such as storage".[55]It is at this point that the Inspector's conclusion about the number of occupiers of the Aerodrome post 2000 is relevant. The Inspector recognised in paragraph 49 of the decision that the 1951 planning permission was not restricted as to the number of occupiers, but he concluded in paragraph 38 of the decision that as a matter of fact, whilst other organisations and individuals may have had access to the Aerodrome in the BAe era, "There remained for the most part a single leaseholder... with exclusive possession and control. Moreover, Hawker/BAe's activities may later have been many and varied, but they were predominantly directed to towards the singular purpose of development and production of new aircraft."[56]That finding is to be contrasted with the position post 2000 where the Inspector found that there were "a great many and diverse occupiers of parts of the Aerodrome". See paragraph 54 of the decision.[57]The separate use by such occupiers of different parts of the Aerodrome for storage as a primary use in its own right is not to be equated with storage by BAe ancillary to its primary use of the Aerodrome for production (and flight testing). The introduction of storage as a major use in its own right is also referred to in paragraph 61 of the decision in which the Inspector said that the conditions imposed on the permission granted on appeal in 2008 which he had highlighted in paragraph 60 of the decision:
"Reflected a change in the primary use in the Aerodrome as a whole, particularly storage and distribution. Where before storage would have been a necessary and ancillary use, its elevation to part of a wider mixed use carried significant consequences."
[58]Mr Steel submitted that this observation of the Inspector could not be relied upon for the purpose of deciding whether there had been a material change of use because the Inspector in these paragraphs of the decision was simply discussing the implications of the mix of uses that was proposed in the 2008 planning permissions which had included a greater proportion of storage uses, but which had not been implemented: see the Appellant's grounds one and two of the appeal.[59]I do not accept that the Inspector in the passage to which I have referred was simply considering the prospective use of the Aerodrome for an increased amount of storage and distribution. The Inspector's reference to "where before storage would have been a necessary ancillary use" is plainly a reference back to the nature of the storage use on the Aerodrome during the BAe era when production and flight testing was the primary use.[60]The 2002 application for planning permission had sought permission for the use of the Aerodrome for (inter alia) B8 warehousing and distribution and storage as primary uses. As I have indicated, subject to the legal question whether planning permission was required in the light of the 1951 planning permission, the Appellant's own planning consultants' confirmation that the uses described in the 2003 planning permission had actually been implemented tallied with the Inspector's earlier conclusion that a great many of the uses by the different occupiers of the site were described in general terms such as "storage".[61]That the Inspector was describing the consequences of a change in the primary use of the Aerodrome that had taken place by the time of the inquiry in 2012 is also apparent from paragraph 60 of the decision. In that paragraph, the Inspector noted that the main parties had accepted in the 2008 appeal "that B8 uses have a greater likelihood of producing HGV movements" and said that in the 2008 appeal there had been considerable discussion of that aspect and the need for conditions governing it. He then said, "I too have heard evidence from a local resident of the disturbance caused by such traffic", i.e. by traffic generated by the existing B8 uses on the Aerodrome.[62]There was, therefore, ample evidence to support the Inspector's conclusion that storage and distribution had become one of the primary uses on the airfield, whereas before storage would have been ancillary to BAe's use of the Aerodrome for production and flight testing.[63]While the decision as to whether there had been a material change of use post 2000 was one of fact and degree for the Inspector, there can be no doubt that, whatever infelicities there may have been in some of his reasoning, his conclusion that there had been a material change of use after 2000 was correct. It follows that I would reject ground four of the appeal.[64]In summary, the judge's conclusion in paragraph 64 of the judgment that the Inspector had been entitled to conclude that there had been a material change of use for which planning permission was required was correct, as was his conclusion in paragraph 82 of the judgment that the 1951 planning permission did not permit unrestricted aviation activities.[65]Grounds one and two[66]It is, therefore, unnecessary to consider grounds one and two of the appeal because even if successful they could not lead to a conclusion that the judge had been wrong to uphold the Inspector's decision. Indeed, the Appellant may feel on reflection that it is as well, from its point of view, that we do not consider grounds one and two.[67]If, having dismissed grounds three and four, we had concluded, for example, that the 2008 planning permissions had not been implemented because of the Appellant's failure to comply with a conditions precedent, the consequence of that conclusion would have been that not only would there be no lawful use for unrestricted aviation activities on the Aerodrome, there would be no lawful use on the Aerodrome whatsoever, apart from any planning permissions for individual uses which have not featured in this appeal.[68]The 1951 planning permission did not permit the present range of uses and was, in any event, spent following the change of use after 2000. The temporary planning permissions for the new mix of uses expired in 2010. A failure to implement either of the 2008 planning permissions would, therefore, have left the uses on the Aerodrome without any planning permission whatsoever.[69]Moreover, it would now be too late to implement the 2008 planning permissions. The planning permission dated 11 March 2008 expressly states that by virtue of the effect of section 91 of the Act, it must be commenced within three years. Although the Inspector's decision granting planning permission in 2008 did not contain a similar express reference, the planning permission granted by the Inspector was not an outline planning permission.[70]Section 91 of the Act provides that every planning permission granted shall be granted or, as the case may be, deemed to have been granted, subject to a condition that the development to which it relates must be begun within three years. Since the temporary planning permission for the mix of uses on the Aerodrome expired on 30 April 2010, the uses on the site would not have been able to claim immunity from enforcement action under the ten year rule.[71]All of the uses, subject, as I have said, to any planning permissions for particular uses to which we have not been referred, would, therefore, have been susceptible to enforcement action. So it would not have been possible to obtain an LDC in respect of any of them. See section 91(2)(a) of the Act.[72]In these circumstances, the Appellant may think that it is fortunate that Foskett J upheld the Inspector's conclusion that it had implemented one or other of the 2008 planning permissions.[73]Other matters[74]For the sake of completeness, I should mention Mr Steel's submission that if the Inspector had considered that some elements of the use described in the application for the LDC were not justified, he could and should have granted the Appellant a reduced certificate stating that some more constrained form of aviation activity at the airfield was lawful.[75]I do not accept that submission. The proposition that "aviation activities" at the airfield were lawful without any conditions, restriction or limitation was the very essence of the Appellant's application, and at the heart of its case was the proposition that there was no material difference in land use terms between an unrestricted use of land for flight testing and an unrestricted use of land for the flying of aircraft.[76]If the Appellant had wished the Inspector to consider whether a more conditional, restricted or limited form of aviation activity on the airfield might be lawful, then it should have presented at least some kind of evidential and legal foundation for such a fallback position for the Inspector to consider. It did not do so. Throughout these proceedings, it has maintained the single erroneous proposition that an unrestricted aviation use of the airfield would be lawful.

Conclusion

[78]I would dismiss this appeal.

LORD JUSTICE TREACY: I agree.

LORD JUSTICE UNDERHILL: I also agree.