Elvington Park Ltd v Secretary of State for Communities & Anor [2011] EWHC 3041 (Admin)

Neutral Citation Number: 2011 EWHC 3041 (Admin)Case No CO/14702/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/11/2011
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
Elvington Park LimitedAppellantSecretary of State for Communities and Local GovernmentRespondentsCity of York CouncilRespondent
Richard Harwood (instructed in house) for AppellantJames Strachan (instructed by Treasury Solicitors) for 1 st RespondentWritten submissions only from the 2 nd RespondentHearing Hearing dates: 28 October, 2011
Judgment
[1]Elvington Airfield is a former RAF Airfield dating back from the Second World War. It was expanded in the 1950’s to create a very long runway. Until 1992 it continued to be used by the RAF for flying purposes during the week days. From the 1960’s the RAF permitted civilian use at the airfield at weekends and various motor cycle and motor vehicle activities took place .[2]By 1980 civilian use of the airfield for such activities engaged the attention of the local planning authority, because of concern as to the impact of noisy activities on local residents. The airfield was not subject to the planning laws but the Selby District Council reached an understanding with the RAF to the following effect:- “That all civilian recreational users of RAF Elvington whose activities involve the generation of noise which can be heard beyond the airfield boundaries be subject to the following conditions:- a) That there be no such weekday evening use. b) That there shall be no such use of the airfield on the last two complete weekends of each month. c) That use on a Saturday be restricted to 09:00hrs and 18:00hrs. d) That use on a Sunday be restricted to 10:00hrs and 18:00hrs. e) That providing the above conditions were complied with the individual users of the airfield be permitted to agree their own programme of usage…… f) That the clubs involved be reminded that if the conditions attached to this permission are broken the facilities afforded to them will be immediately withdrawn. If during the period circumstances alter so as to materially affect the operation of the policy, then at the any time during the said period the policy be re-assessed in the light of the circumstances appertaining at the time”. a) That there be no such weekday evening use. b) That there shall be no such use of the airfield on the last two complete weekends of each month. c) That use on a Saturday be restricted to 09:00hrs and 18:00hrs. d) That use on a Sunday be restricted to 10:00hrs and 18:00hrs. e) That providing the above conditions were complied with the individual users of the airfield be permitted to agree their own programme of usage…… f) That the clubs involved be reminded that if the conditions attached to this permission are broken the facilities afforded to them will be immediately withdrawn. If during the period circumstances alter so as to materially affect the operation of the policy, then at the any time during the said period the policy be re-assessed in the light of the circumstances appertaining at the time”.[3]Although the agreement did not prevent civilian day time use of the airfield during weekdays, the position was that the airfield was used for pilot training at that time. By March 1992 the RAF ceased flying from the airfield altogether and weekday civilian use of the airfield was then permitted. One of the old airfield buildings was used as the Yorkshire Air Museum where there were occasional flying displays and flying days. Model aircraft were also flown from the airfield from time to time. In April 1993 planning permission was granted by Selby District Council to an organisation called First Time Racing that specialised in what is described as advanced driver training. There were significant conditions attached to such planning permission to control the level and duration of noise heard by residents.[4]In November 1993 a letter from the Ministry of Defence to the planning authority revealed that, according to its records, the airfield was used on 16 days for motor cycle events and 63 days for model aircraft flying in 1991; 18 and 62 days respectively in 1992 and 16 and 40 days for similar activities in 1993. The letter stressed that the MOD enforced the terms of the 1980 agreement. It noted that in addition there had been occasional land speed record attempts from the airfield.[5]In 1994 the Selby District Council was again concerned about the impact of noise on occupiers of dwelling houses around the perimeter of the airfield. It resolved to reduce weekend use under the agreement previously entered into with the RAF. There is no evidence that this resolution led to a variation in the 1980 agreement.[6]In the year 2000 the airfield was sold to the appellant company. Thereafter the use of the airfield included motor cycle activities as had taken place previously and testing of Formula 1 racing cars amongst other things. Local residents perceived that the use had become more noisy and more intense. Eventually the current planning authority, the City of York Council (the second respondent) decided on the 28 October 2008 to issue an Enforcement Notice that is the subject of these proceedings.[7]The appellants appealed and an inquiry was held in October and November, 2009. The Inspector dismissed the appeal on all grounds. This is an appeal pursuant to permission granted by King J on the 25 March 2010 on the basis that the Inspector erred in law in a number of specified respects when reaching that decision.[8]The appeal is opposed by the respondent the first Secretary of State and the second respondent planning authority, save that it is agreed that in one respect the Inspector’s decision should be reconsidered by the Secretary of State, namely that the enforcement notice in question should make express provision for the saving of activities covered by the 1993 Planning Permission.[9]Central to the appellant’s contention before the Inspector and before this court is Section 57(4) of the Town and Country Planning Act 1990 that provides:
“Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions for this part of this Act) it could lawfully have been used if that development had not been carried out.”
Essentially the appellant contends that for a period 10 years before the issue of the enforcement notice the airfield had been used at weekdays in a noisy manner by reason of motor racing and motor bike racing and related motor vehicle and aviation activities and there had been no material change in the noise generated by use since it acquired the airfield in 2000.[10]Accordingly it advanced three principal grounds of appeal at the inquiry: i) there had been no intensification of the use amounting to development (Section 174 (2) (b) of the 1990 Act); ii) that if there had been, then such matters that were alleged in the notice did not constitute a breach of planning control (s174 (2) (c)); iii) if there was any breach of planning control planning permission ought to be granted (s.174 (2) (a).

The Enforcement Notice

[11]The second respondent issued the enforcement notice the subject of this appeal on 28 October 2008. The breach of planning control alleged in the notice is a permanent and material change of use of the land without planning permission by reason of intensification from a mixed use of motor vehicle activity and airfield use (including the flying of model aircraft) to a use comprising materially more noisy and more frequent motor vehicle and related activity (including public address systems) together with airfield use.[12]The requirements of the notice were: i) “Ensure no motor vehicle and related activity whatsoever (including the use of public address systems) shall take place, the sound energy from which is in excess of 67 dB LAeq (1hour), measured under free field conditions except for reflections from the ground, at the boundary of one or more of the nearest noise sensitive properties (all shown on plan B attached to the notice) or when measured elsewhere and calculated at the said boundary. ii) Ensure no motor vehicle and related activity (including the use of public address systems) shall take place, the sound energy which is in excess of 50dB LAeq (hour) on any weekday, or on any weekday when the total days are effected by such sound energy levels exceed two within a calendar month, measured under free field conditions except for reflections from the ground, at the boundary of one or more of the nearest noise sensitive properties (all shown on plan B attached to the notice) or when measured elsewhere and calculated at the same boundaries. iii) Ensure no motor vehicle and related activity whatsoever (including the use of public address systems) shall take place on the Land at least 2 weekends in any calendar month, which is audible at the boundary of one or more of the nearest noise sensitive properties (shown on plan B attached to the notice). ‘Audible’ shall be taken to mean resulting in an average noise energy level (LAEQ 1 hour) measured under free field conditions except for reflection from the ground, and attributable solely to the motor vehicle activity, which is higher than the level exceeded for 90% of the same period, minus 5 db [ie LAeq (1 hour) for activity not to exceed LA90 1 hour) minus 5 dB, which is in excess of the back-ground noise level (LA90)].”[13]The basis for imposing these technical requirements was set out in the evidence of Mr Stigwood a noise consultant appointed by the Council. His witness statement explains that the requirements of the enforcement notice related to the places on the airfield site where noise could be heard by adjoining properties, the days when noisy activities could be undertaken (weekdays or weekends) and the average per hour noise level created by those activities. It is important to note that the average noise level per hour is a measurement designed to reflect the intrusive nature of noise related activities upon adjoining residents. It is not an absolute level of noise limit. Thus a noisy activity such as a single high performance car endeavouring to break a land speed record and passing in a fraction of second would not be prohibited if followed by a relevant period of quiet. What it does prohibit (altogether in paragraph 1 and at specified times in paragraph 2) is a sustained period of noise over the course of an hour that exceeds the average limits.[14]Mr Stigwood’s lengthy proof of evidence further sets out why the enforcement notice levels were set as they were. He explains:
“5.1 As identified above the controls in the EN are set to permit the activity that was previously allowed under the Selby Agreement and any activity does not add materially to the demonstrable harm amenity but no other increase other than that which is de minimis. 5.2 Change is marked not just in the nature of days effected by the character and nature of the activity. Thus the decibel level set provide a means to control these aspects to some extent. They cannot provide complete control as two noises can omit the same decibel level but having entirely different effects. There are practical limitations to any control and under circumstances those are considered to achieve the right balance. I have not seen any evidence to indicate that they would prevent those activities that were intended to be permitted by the Selby Agreement. ”

Other evidence before the Inspector

[15]There was also before the Inspector the planning authority’s estimate of all the activities it concluded had been conducted on the airfield by civilians between 1993 and 2000. In addition to less noisy activities such as model aircraft flying, cycling, land yachting and vehicle display days, the following:- i) Auto 66 and Straight-Liners motorcycle events that occurred at limited locations on either end of the airfield on a certain number of days a year. ii) Weekday use by First Time Racing Ltd under the terms of the planning permission granted in April, 1993. iii) Occasional Police driver training days. iv) Occasional use of the airfield for land speed record attempts, on a few days a year. v) Miscellaneous public use of the airfield by such events as track days when the public drove their own vehicles on the airfield.[16]The council’s case was to the effect that the combination of features of the enforcement notice was to accommodate the permitted levels of activity prior to 2000 as reflected in both the provisions of the non-enforceable Selby Agreement as to when events could take place and their regularity and the terms of the 1993 week day planning permission. This assessment was assisted by the compilation of a data base created by the council logging all the recorded events in the period as far as it was able to gather information about them. There was also the evidence of neighbouring residents, particularly a Mr and Mrs Vickery who had lived in a farm house a quarter of a mile from the western end of the airfield since 1993 and had noted down their experience of variations in use.[17]The planning permission granted to First Time Racing was subject to conditions that vehicles used were standard road going Volkswagen Golf GTI’s and single seated Formula Fords fitted with a standard Ford Contina 1600 cc engines or other engines that may be agreed in writing by the local planning authority. These particular brands of vehicle are now obsolete, although there was a maximum 4000 rpm engine limit that may still have relevance for continued use in this activity. It was to ensure that the enforcement notice expressly permitted this level of activity that the Secretary of State was willing to concede the appeal in part and remit the notice for further consideration.[18]Other witnesses were also called to the inquiry, but it was a noteworthy feature of the claimant’s case that it did not produce its own diary recording all the events that it had undertaken since it took control of the airfield since 2000, and it had no direct evidence of its own as to the nature, scale and noise impact of activities that had taken place on the airfield since 1993 to 2000.[19]It was plain by the end of the evidence that whilst continued aircraft use on the site was a permitted activity having regard to the previous aircraft use made by the RAF, this took place on only a very few days of the year, such as flying displays by the Yorkshire Air Museum. Further even when the RAF were using the site they were using small trainer planes where the noise level was not considered to be so intrusive or undesirable nuisance by local residents as some motor vehicle activity was.[20]The claimant did not adduce any noise level expert evidence of its own at the inquiry. Its contention that motor racing activity was similar in noise and impact to aircraft activity had previously been rejected in a Crown Court Appeal against a noise abatement notice and the council invited the Inspector to reject the contention that the diminished aircraft use could be made good by increased motor racing use as unfounded. It is clear from the decision letter that he did so and on the evidence before him was entitled to do so.[21]The evidence that was called before the Inspector indicated that there had been substantial changes in the activities relating to motor vehicles taking place on the site since the claimant acquired it. Most noticeable was the introduction of the new activity of Formula 1 Car testing on a number of days in the year. The evidence was that this activity could be extremely and intrusively noisy, unpredictable in its frequency and duration on days when it took place, and by contrast even with land speed record attempts where there were short periods of intense noise as a vehicle passed the length of the runway, could result in prolonged noise exposure at certain locations where vehicles tested their engine capacity.[22]There was also evidence of increase in motor cycle racing activity, and the change of place where the activity took place and greater frequency of weekend and weekday activity than had been the norm under the previous regime judged by the combination of the Selby Agreement and the 1993 Planning Permission.[23]The local authority pointed out in its submissions that both the MOD and the previous planning authority had considered that noisy activities up until the sale of the airfield did not require further planning permission, because they were limited to the twenty-eight day exemption for planning control.

The Inspector’s Decision

[24]The Inspector was quite satisfied from the evidence he had heard that there had been an intensification of motor sports and other vehicle activity and other motor vehicle use that had taken place by the time the enforcement notice was issued in comparison with the manner in which the airfield had been used for noisy and motor sports previously prior to 2000.[25]Accordingly the first head of the appellant’s appeal failed although such a finding did not necessarily mean that intensification was so significant that it constituted a breach of planning control. It is plain that that was a finding of fact he was entitled to make, if only on the basis of the introduction of the very noisy Formula 1 engine testing days.[26]The Inspector then turned his attention to the second ground (s 174 (2) (c)) that he considered the most important of the grounds to whether intensification of motor sports and other motoring activities were immune from enforcement action. He noted at [9] as follows:- “If the appellants can show that the increased motor vehicle activity did not amount to a breach of planning control, and then the appeal on ground (c) succeeds and the enforcement notice will be quashed. If it transpires that the intensification was a material change of use in its own right then the appeal on this ground will fail, as a breach of planning control will have taken place for which planning permission had not been granted. As this is the nub of the argument raised by the appellants it will need to be explored in some detail as a mixed question of fact and law on a chronological basis”.[27]The decision letter then proceeds to do just that over the next seventeen paragraphs. He dealt first with aircraft activity and reached the conclusions summarised above. He then noted the civilian use of the airfield at the weekends under the terms of the Selby Agreement. He found that the agreement was strictly adhered to by the MOD even though it did not enjoy the status of a planning permission. He, therefore, concluded at [20] and [21] that the level of motor sport activity at weekends regulated by the Selby Agreement could have resulted in the grant of a Lawful Development Certificate under Section 10(1) of the Planning and Compensation Act, 1991 that came into force in July 1992.[28]He then reviewed the 1993 Planning Permission for Time Racing Ltd and observed at [23]: “This planning permission allowed motor vehicle operation onto the airfield throughout the week for the first time and I have no evidence before me that it has been superseded or revoked. I am firmly of the opinion that this sets the bench mark for lawfulness of motor vehicle activity at Elvington Airfield on weekdays”.[29]He did not consider that the subsequent attempt to restrict the number of weekends when noisy activity took place was relevant to cutting down the permitted level of activity permitted by the earlier agreement nor did he consider that the sale and the reference to planning permission was particularly relevant in assessing the use that had occurred prior to that date.[30]He concluded at [26]:
“For the reasons already fully explained, I consider that the lawful motor vehicle activities, at the time of the sale of the land to the appellants, to March, 2000, were those set out in the 1980 Selby Agreement at paragraph 7 and the 27 April, 1993 Planning Permission for driver training set out in paragraph 23. Once the appellants required the land, its use, seriously in breech of these lawful levels of motor vehicle activity, commenced almost immediately. Weekday testing of Formula 1 vehicles, which could not comply with the four thousand rpm limits or Construction and Use Regulations Silencing Restrictions, were introduced straight away. The keeping of 2 weekends each month free of noisy motor sports was blatantly disregarded. On that basis I am satisfied that an intensification of motor vehicle activity took place as soon as the appellants acquired the land, which amounted a material change of use. This required planning permission which was not sort or obtained. As a result of a breach of planning control has taken place and the appeal on ground c fails.”
[31]He also refused to grant planning permission and the appeal failed on that ground as well.

The appeal to the High Court

[32]Permission to appeal the Inspector’s decision was granted on the notice of appeal alleging six errors of law:- i) The Inspector failed to determine what the use of the site was on 28 October 1998 (that is to say ten years before the service of the enforcement notice). ii) The Inspector misconstrued the Selby Agreement by failing to appreciate that it permitted weekday day time use and did not limit the noise made by vehicles. iii) An observation made by the Inspector at [33] of the decision letter as to the desirability of this restricted motor vehicle use to the amended level of the Selby Agreement was inconsistent with his holding that the lawful use of such activity was set by the un-amended agreement. iv) The Inspector erred in law in failing to have regard to the terms of the 1993 Planning Permission on the terms of the enforcement notice which might prohibit that which was lawful under the planning permission. v) The Inspector erred in his approach to material change of user by a reference in the decision letter to the more fragile claim to lawfulness that motor vehicle use had despite the clear evidence of prior motor vehicle use. vi) The enforcement notice failed to state the matters which appeared to the Council to constitute a breach of planning control as persons served with the notice could not know at what point a change was said to have taken place from a use to a materially noisier and more frequent use.[33]As regards ground (iv) and as previously noted the Secretary of State concedes that the Inspector’s decision should be remitted to the Secretary of State for reconsideration of the terms of the enforcement notice to make plain that that which was permitted in 1993 could continue. The interested party is amenable to such relief, but the claimant while acknowledging the admission of defect in the decision maintains his appeal on the other five grounds and accordingly did not accept the Secretary of State’s proposals for disposal of the matter.[34]I have concluded that none of the other five grounds of appeal succeed. I agree with the first respondent’s submission in response to ground (ii) that there is no basis for concluding that the Inspector misunderstood the terms of the 1980 Selby Agreement. Rather the appellant falls into error in treating the terms of the agreement as evidence of actual use of the land by 1998. The agreement was for the maximum permitted civilian use rather than an explanation of what use was being made of the airfield in weekdays or at all. At the time of the Selby Agreement the RAF was in possession of the airfield and it wasn’t being used for civilian use during the week when training flights were taking place.[35]Equally the fact that the Selby Agreement did not set the maximum noise level permitted by reference to decibels per hour was not material. The planning authority had adduced unchallenged expert evidence seeking to turn its evidentially supported contentions as to the use of the land into the noise limits set out in the enforcement notice. The onus was on the appellant to demonstrate that noisier activities (both in terms of loudness and frequency of occurrence) were regularly taking place before it took over. That contention, if it was to be made good, rested upon evidence of actual use rather than the gentleman’s agreement setting out how and when civilian use was to be conducted in the first place.[36]I am satisfied that there is no substance in the appellant’s ground (iii). The Inspector was clear that it was not the amended Selby Agreement that set the level of lawful activities. His observations as to the use levels reflected in the amended agreement were in the context of whether planning permission should have been granted for activities beyond those encompassed in the enforcement notice. This was a case of under-enforcement and deemed planning permission had been granted for activities up to those levels.[37]Ground (v) is equally without substance. Trying to ascertain the actual level of motor vehicle use was indeed more difficult than ascertaining use by aeroplanes deployed in the interest of national defence. The appellant adduced no direct evidence of its own and so the planning authority’s best endeavour to reconstruct the use and the evidence of residents was what was before the Inspector. It is apparent that he directed his mind to the issue and explained his conclusions in an intelligible way. The law does not require him to do more see South Bucks BC v Porter No 2 [2004] UKHL33 Lord Brown at [36].[38]I now turn to ground (i) and the submission that the Inspector ought to have made factual findings about the actual level of motor vehicle activity by October, 1998 setting the base level of permitted use before considering whether the activity after 2000 was materially different in intensity and impact on residents. The appellant relies on the observations of Newman J in Thurrock BC v Secretary of State for the Environment and Transport and the Regions [2001] EWHC Admin 128 [2001] JPL 1388 a decision approved by the Court of Appeal [2001] EWCA Civ 226 [2002] JPL 1278 and submits that this sets out an approach that must be followed when s.57(4) is relied on.[39]However, I am satisfied by the Secretary of State’s response to the appellant’s contentions on this point. In Thurrock there was misdirection because the Inspector did not clearly ask himself whether there had been a breach of planning control by intensification of use in the 10 year period. By contrast in the present case the Inspector clearly identified that question and answered it positively as indicated. He was perfectly entitled to reach that conclusion on the essentially undisputed factual evidence before him. Once there has been a finding of a breach of planning control by material intensification of use after 2000 it was lawful to take enforcement action against that unlawful activity with the aim of requiring the appellant company to return to the use of the land that was lawful before that date.[40]In 1999 or 1998 any creeping increase in the levels of noisy activity contemplated in the Selby Agreement would not have acquired the status of legality as they could not have been undertaken for 10 years. Section 57(4) 1990 Act enables resumption of the last use provided it was a lawful use see R (Fairstate Limited) v First Secretary of State [2004] EWHC 1807 (Admin) per Sullivan J at [19] as upheld in the Court of Appeal [2005] EWCA Civ 283.[41]I conclude that taken as a whole in the light of the issues as developed at the inquiry and the evidence briefly summarised above the Inspector’s decision is perfectly intelligible. There is substance in the Secretary of State’s contention that essentially having failed to discharge the burden of proof that lay upon it of showing previous levels of lawful use to which they continued to adhere, the appellant has resorted to sophisticated technical analysis of the Inspector’s reasons as the basis for this appeal. The appeal on ground (i) also fails.[42]Finally, as to ground (vi), I again agree with the Secretary of State’s contention that this cannot survive as a free standing complaint, if all the other grounds have been found wanting. This is not the basis on which the appellant presented its case to the Inspector and matters not raised cannot be reasonably expected to be dealt with in the decision letter. Whilst it is true that there is no obvious immediate connection between the terms of the 1980’s Selby Agreement and the terms of the enforcement order, the planning authority’s expert witness demonstrates the connection as has been set out earlier in this judgement.[43]In all circumstances, this appeal is allowed to the extent agreed by the respondents, but dismissed with respect to the issues in dispute at the hearing.