ANDREW WILLIAMSON v MID SUFFOLK DISTRICT COUNCIL LCA/73/2002

UPPER TRIBUNAL

LANDS CHAMBER

LCA/73/2002

Case No LCA/73/2002

Between

ANDREW WILLIAMSONApplicant

MID SUFFOLK DISTRICT COUNCILRespondent

Before

The President

Mr A J Trott FRICS

Paul Shadarevian (instructed by Peecock Short Property Solutions, chartered surveyors of Needham Market, by direct professional access) for Claimant

Mark Lowe QC (instructed by Solicitor to Mid Suffolk District Council) for Compensating Authority

Simon Bird (instructed by Solicitor to Mid Suffolk District Council) for Compensating Authority

Venue Procession House, 110 New Bridge Street, London EC4V 6JL

Date 18 January 2006

Hearing 6 January 2006

Property: Land and Premises, Comprising Crowfield Airfield,, Home Farm,, Coddenham Green

Catchwords: COMPENSATION – planning permission – discontinuance order – preliminary issue – airfield – scope and effect of planning permissions granted under s73A of Town and Country Planning Act 1990 – whether conditions would continue to bind adjoining land the subject of an earlier, less restrictive planning permission – issue estoppel – abuse of powers – held conditions would not continue to bind adjoining land – held compensating authority estopped from so contending

[1]The claimant in this case is the owner of an airfield, known as Crowfield Airfield, formed out of agricultural land at Home Farm, Coddenham Green, near Ipswich. In 1989 he was granted planning permission, subject to conditions, to use a defined area for the purposes of private flying. He extended his operations onto adjoining land, and in 1991 he was granted four further planning permissions in respect of this further development. Two of these permissions related to extensions to the airfield, and they included conditions that were more onerous then those in the 1989 permission. In particular each permission contained a condition limiting the types and size of aircraft that could use the airfield, whereas the 1989 permission excluded only gliders and microlight aircraft.

[2]In 1991 the compensating authority, as local planning authority, made a discontinuance order, the effect of which was to subject the use of the land covered by the 1989 permission to the same condition on aircraft types and size as the one in the two 1991 permissions referred to above. The order was eventually confirmed by the Minister of State for the Environment in 1996. The claimant sought compensation under section 115 of the Town and Country Planning Act 1990 for the depreciation in value of his land in consequence of the order, and in 2002 he referred his claim to this Tribunal.

[3]It became a contention of the compensating authority in the reference that the condition relating to aircraft types and size in the 1991 permission applied as much to the use of the land covered by the 1989 permission as it did to the land used pursuant to the 1991 permissions (so that there was no depreciation in its value by reason of this provision of the order). The President directed that this contention should be the subject of a preliminary determination. This is the decision on the issue (and on a related issue to which we refer below). Facts

[4]There was no dispute as to the facts. The parties had prepared a statement of agreed facts, and there was an agreed bundle of documents. Other facts were agreed during the hearing.

[5]The claimant, Mr Andrew Williamson, is the freehold owner of Crowfield Airfield. The land had been used as an airfield under a series of temporary planning permissions throughout the 1980s. On 13 March 1989 a planning application (reference 327/89) was submitted for the “use of agricultural land for the purposes of private flying during daylight hours and additional use of barn for storage of aircraft”. Mid Suffolk District Council granted permanent planning permission on 30 June, 1989 (“the 1989 permission”) subject to the following conditions (“the 1989 conditions”): “1. The development must be begun not later than the expiration of five years beginning with the date of this permission. 3

[2]The hours of operation at the airfield shall be limited to the period between 08.00 hours and 20.00 hours on any day. The only exceptions to this restriction shall be that landing only take place after 20.00 hours and take-offs are permissible before 08.00 hours provided that they are for the purpose of direct flights to other airfields.

[3]The operators of the airfield shall from the date of this permission, keep records of all aircraft movements and shall, on request, make them available to the Local Planning Authority.

[4]This permission does not extend to the use of the airfield by gliders (either self- powered or towed), or microlight aircraft.

[5]No more than ten aircraft may be regularly stored in the barn indicated on the submitted plans.”

[6]Officers of the council visited Crowfield Airfield in July and October 1990 and found that the airfield activities extended to areas of land outside the boundaries of the 1989 permission. The claimant therefore submitted four retrospective planning applications under section 63 of the 1990 Act on 8 February 1991 (references 117/91, 119/91, 120/91 and 123/91). Planning permission was granted for all four applications on 11 April 1991. Only planning permissions 117/91 and 119/91 (“the 1991 permissions”) were considered in detail at the hearing.

[7]Planning permission 117/91 described the proposed development and location of the land (to the south and west of the 1989 land) as “continued use of land as part of existing airfield including provision of windsock, signal square, sitting out area and car park. Part O.S.0006, adjacent to Home Farm, Coddenham Green, Crowfield”. It was granted in accordance with the application, particulars and plans submitted subject to the following conditions (“the 1991 conditions”):- “1. Not more than 10 aircraft movements shall take place on any one day and for the purposes of this condition a movement represents a take-off or a landing and a ‘touch and go’ shall represent 2 movements.

[3]The operators of the airfield shall, from the date of permission, keep records of aircraft movements and shall, on request, make them available to the Local Planning Authority

[4]The airfield shall:- 4(a) only be used by propeller driven, single engine, multiple seat aircraft with an engine power not exceeding 148kw and a maximum take-off weight not exceeding 1200 kg

(b) not be used by gliders either towed or self powered (motor gliders)

(c) not be used by microlight aircraft which for the purposes of this condition are defined as an aircraft with an unladen weight not exceeding 150kg, a lifting surface area of not less than 10 square metres and a lifting surface loading not exceeding 10kg per square metre at empty weight and which is designed to carry not more than 2 persons.

(d) not be used by helicopters

(e) not be used for parachute landings

(f) not be used for the purposes of aerobatics and the operators of the airfield shall not permit aerobatics over the airfield.”

[8]Planning permission 119/91 described the proposed development and location of the land (to the north of the 1989 land) as “continued use of land as part of existing airfield. Part O.S.0006 adjacent to Home Farm, Coddenham Green, Crowfield.” It too was subject to the 1991 conditions.

[9]It is to be noted that the 1991 conditions were more restrictive than the 1989 conditions. In particular the 1989 permission had no condition limiting the number of aircraft movements, nor a condition limiting the type of aircraft able to use the airfield other than gliders and microlights. Nor did the 1989 permission prevent the use of the airfield by helicopters or for parachute landings or aerobatics.

[10]On the 11 April, 1991 the compensating authority made the Mid Suffolk District Council (Crowfield Airfield, Home Farm, Coddenham Green, Crowfield) Discontinuance Order 1991 under section 102 of the 1990 Act. The order related to the 1989 land and to the 1989 permission. The compensating authority stated in paragraph 3 of the order that “having regard to the Development Plan and to all other material considerations it appears to the Council that it is expedient in the interests of the proper planning of the area that the said use [for the purpose of private flying during daylight hours] be subject to new conditions to protect public amenity instead of the existing condition[s]”. The new conditions proposed by the compensating authority were the same as the 1991 conditions.

[11]The claimant objected to the order and a public inquiry was held to consider his objection in June/July 1992. The inspector issued his report in December 1992 and recommended that the order be confirmed subject to: 5(a) condition 1 being amended to allow for 20 aircraft movements on any one day, and to include a condition about the keeping of records of aircraft movements; and

(b) the deletion of conditions 3, 4(e) and 4(f).

[12]The Secretary of State stated in a letter dated 15 July 1993 that he was minded to agree to the amendment of condition 1 to allow for 20 aircraft movements in any one day but that he did not agree with the inspector’s recommendations to include a condition about the keeping of records of aircraft movements and to delete conditions 4(e) and 4(f). Representations were invited on these proposals and the contents of the inspector’s report. It was originally intended that the inquiry should be re-opened but subsequently it was agreed that the matter should be progressed by way of written representations upon four issues identified by the Secretary of State in a letter to the parties on 20 September 1994.

[13]The inspector reported to the Secretary of State upon the written representations received on 8 September 1995. The Minister of State issued his decision on 12 June 1996 (the Secretary of State having declared a conflict of interest). He decided to confirm the order subject to the following modification to the conditions as contained in the order as made:

“i. Condition 1 shall be amended so as to read: Not more than 20 aircraft movements shall take place on any one day. For the purposes of this condition a movement represents a take-off or landing and a “touch and go” shall represent 2 movements. ii. Conditions 2 and 3 shall be deleted. iii. Condition 4(f) shall be amended so as to omit the words “and the operators of the airfield shall not permit aerobatics over the airfield.”

[14]The effect of the Minister’s decision was to modify the 1989 permission by adding a condition limiting the number of aircraft movements to 20 a day and a further condition on aircraft types and size that was, subject to the amendment just mentioned, the same as in the 1991 conditions.

[15]The parties agreed that both the 1989 land and the 1991 areas were under the control of the claimant at all material times and that together they comprised the airfield. Issues

[16]The preliminary issues for our determination can be formulated as follows in the light of the submissions advanced at the hearing:

[1]Whether the 1991 conditions would continue to apply to the 1989 land if the development permitted by the 1991 permissions ceased or was abandoned; and 6

[2]In the event that the answer to issue 1 is in the affirmative whether the compensating authority are estopped from raising the issue of the limiting effect of the 1991 permissions through either issue estoppel or abuse of process. Submissions on the first issue

[17]For the claimants Mr Paul Shadarevian accepted that under section 72(1)(a) of the 1990 Act it was possible for conditions to be attached to a planning permission that controlled the use of other land under the control of the applicant provided that such a condition was express and precise in its effect and had a fair and reasonable relationship with the development thereby permitted. The 1991 conditions met these requirements in their effect upon the adjoining 1989 land. Mr Shadarevian submitted that all four of the 1991 conditions applied to the airfield as a whole, including the 1989 land. The compensating authority distinguished condition 1 of the 1991 permissions which did not refer to the airfield in terms and therefore was considered by them only to apply to the 1991 areas. Mr Shadarevian said that it was axiomatic that condition 1 must also relate to the airfield as a whole. The express use of the word “airfield” in conditions 2 to 4 resulted from grammatical necessity.

[18]Mr Shadarevian submitted that the 1991 conditions restricted the use of the 1989 land only insofar as the 1991 permissions and the 1989 permission were exercised together. The 1989 permission could still be exercised independently of the 1991 permissions and, if they were, the 1991 conditions would not apply to the 1989 land. The implementation of the 1991 permissions did not have the effect of extinguishing the 1989 permission or the ability of the claimant to carry on the use thereby permitted without recourse to the 1991 areas. The 1991 permissions relied upon the continued efficacy of the 1989 planning permission; they had to because the 1991 areas could not be used as an airfield on their own.

[19]In support of this submission Mr Shadarevian relied in particular on the speech of Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment

[1985] 1 AC 132

. In considering whether there was a principle, or an exception, allowing the extinguishment of a planning permission by abandonment Lord Scarman (at 143B) identified three classes of cases. The first class was concerned not with planning permission but with existing use and was not relevant to the present case. He went on (at 143F):- “The second class of case has been described as that of ‘the new planning unit’…. the cases are, without exception, cases where existing use rights were lost by reason of a new development sanctioned by a planning permission. There is no case, so far as I am aware, in which a previous planning permission has been lost by reason of subsequent development save in circumstances giving rise to the third class of case, which I shall discuss in a moment. In the class of case under discussion the existing use right disappears because the character of the planning unit has been altered by the physical fact of the new development...”

[20]The third class of case was concerned with the consequences where there were two mutually inconsistent permissions in respect of the same land and one of them was taken up and development was carried out. In such cases Lord Scarman referred (144D-145C) with 7 approval to the rule referred to in Pilkington v Secretary of State for the Environment

[1973] 1 WLR 1527

, which he said must be regarded as the leading case on the point. The Pilkington rule is that where there are mutually inconsistent planning permissions and one of them is exercised then the other(s) cannot stand in respect of the same land once the first development has been carried out if the effect of that development is to make the other permission(s) incapable of implementation.

[21]Mr Shadarevian submitted that the 1989 permission remained capable of implementation at the valuation date and that it was not mutually inconsistent with the 1991 permissions. He did not accept that the 1991 permissions had so altered the character of the 1989 land that its planning history was irrevocably altered. He relied on Lord Scarman’s emphatic conclusion in Pioneer (at 145G):- “There is no principle in the planning law that a valid permission capable of being implemented according to its terms can be abandoned.” In his submission nothing in the 1991 conditions reduced or removed the unfettered scope of the 1989 permission to be implemented independently.

[22]For the compensating authority Mr Mark Lowe QC said that it was common ground between the parties that the interpretation of the 1989 permission and the 1991 permissions should be on an objective basis and without regard to the intention of the parties, see per Sullivan J in Sevenoaks District Council v First Secretary of State & Pedham Place Golf Centre Limited

[2004] EWHC 771 (admin)

[unreported] at paragraph 38. The 1991 permissions had imposed conditions which bound the 1989 land and it was a matter of construction of the 1991 permissions whether the claimant could revert to the position that applied previously, namely the 1989 permission being exercised independently.

[23]Mr Lowe said that there was no disagreement about the principles under which section 72(1)(a) of the 1990 Act could be exercised. These were set out in the judgment of Lord Widgery CJ in Kingston-upon-Thames Royal London Borough Council v Secretary of State for the Environment and another

[1974] 1 All ER 193

at 196f:- “… a condition is invalid as being contrary to law unless it is reasonably related to the development in the planning permission which has been granted. It must not be used for an ulterior purpose, and must, in the well-known words of Lord Denning, ‘fairly and reasonably relate to the permitted development’.”

[24]Mr Lowe did not accept Mr Shadarevian’s contention that condition 1 of the 1991 permissions applied to the airfield as a whole. Unlike the following conditions, that condition was not expressed so as to apply to the whole of the airfield. It was the first time that this contention had been advanced by the claimant and it represented a radical departure from the approach previously adopted.

[25]Mr Lowe submitted that under section 63, later section 73A (3)(a), of the 1990 Act the 1991 permissions took effect from the date on which the development was carried out and that 8 the 1991 conditions constrained the use of any part of the airfield thereafter including the 1989 land. The claimant could not revert to the pre-existing 1989 situation because, following the 1991 permission, that situation no longer existed. That would, he said, still be the case even if the 1991 areas ceased to be used because the claimant still had the benefit of the 1991 permissions and the 1991 conditions would continue to bind the 1989 land. If the claimant wished to continue to use any part of the airfield then the 1991 conditions would continue to apply. Each accretion to the planning history of the airfield had an effect and the 1991 permissions irrevocably altered the use of the airfield. A new planning unit was created as a result of the 1991 permissions which included operational development that the claimant wished to retain and use, eg the windsock.

[26]In relation to the Pioneer Aggregates case Mr Lowe accepted that the 1989 permission and the 1991 permissions were not mutually inconsistent and that both planning permissions had been implemented. He placed reliance, however, on Lord Scarman’s observation at 145F:

“… Lastly, it will be observed that the Pilkington situation resembles the ‘new planning unit’ class of case in that a permitted development which has been carried out has so altered the character of the land that its planning history now begins with the new development.”

[27]Mr Lowe said that he was unable to cite any authority which covered the situation where there were two or more mutually consistent planning permissions whose conditions bound the same piece of land and where one of the uses permitted by those permissions was then discontinued. Instead he contended that the present case was analogous to the loss of existing use rights following the implementation of a planning permission. He referred to the speech of Viscount Dilhorne in Newbury District Council v Secretary of State for the Environment

[1981] AC 578

at 599 B:

“If, however, the grant of planning permission, whether it be permission to build or for a change of use, is of such a character that the implementation of the permission leads to the creation of a new planning unit, then I think that it is right to say that existing use rights attaching to the former planning unit are extinguished.”

By analogy, Mr Lowe submitted, the grant of the 1991 permissions created a new chapter in the planning history of the airfield and a new planning unit and that there was no right for the claimant to revert to the separate and independent exercise of the 1989 permission unfettered by the 1991 conditions. Submissions on the second issue

[28]Mr Shadarevian submitted that throughout the period from the making of the order until its confirmation the compensating authority and the Secretary of State had acted on the express assumption that the 1989 permission was unfettered in its scope and effect by the 1991 permissions. In support of this submission he cited several passages from the compensating authority’s written submissions to the Department of Environment dated January 1995 and drew further support from the wording of recitals 1 to 3 of the Order. He drew attention to the Secretary of State’s original decision letter dated 15 July 1993 which referred in paragraph 3 to 9 “… the owner’s rights to exercise the planning permission granted in 1989 …” Paragraph 6 of that letter, which dealt in detail with the conditions to be imposed under the order, was said by Mr Shadarevian to demonstrate that the Secretary of State was proceeding on the basis that the 1989 permission was unfettered by the 1991 permissions.

[29]The Minister of State’s decision letter dated 12 June 1996, he said, confirmed this view. In paragraph 7 of that letter the Minister referred to the inspector’s second report (8 September 1995) and stated:

“[the Inspector] restates the view expressed in his [earlier] Report that the Operators’ [claimant’s] right to exercise the planning permission [the 1989 permission] for the use of the airfield is of itself a matter of great weight embracing the benefits flowing from it.”

Paragraph 11 of the Minister’s letter stated that the 1989 permission “will continue to remain in force”.

[30]Mr Shadarevian submitted that these and other references showed that the Minister was not just looking at the question of amenity when considering the order but had expressly considered the scope and effect of the 1989 permission. The Minister’s decision was based upon a considered view that that permission was unfettered by the 1991 permissions. Consequently, he said, the compensating authority were issue estopped (res judicata) in appearing before this Tribunal to argue about the construction of the 1989 permission and the 1991 permissions. That matter was considered by the Minister of State who, by necessary implication, determined that the 1989 permission was unfettered. That determination formed the essential foundation of the inspector’s and the Minister’s consideration of the discontinuance order made under section 102 of the 1990 Act. The matter had been adjudicated upon by a competent authority and could not be litigated again. He relied on Thrasyvoulou v Secretary of State for the Environment

[1990] 2 AC 273

as showing that the doctrine of res judicata was not confined to adjudication in the area of private law but might apply in public law also. He submitted that the decision in that case as reported at 295C to 297F was analogous to the facts of the present case.

[31]Alternatively Mr Shadarevian contended that, as a matter of public policy, the compensating authority should be prevented from raising the issue of the construction of the 1989 permission and 1991 permissions because to do so would amount to an abuse of process as identified in the House of Lords’ decision in Johnson v Gore Wood & Co (a firm)

[2001] 1 All ER 481

at 498j to 499f, in that -(a) the compensating authority’s contention amounted to a collateral attack on the Minister of State’s decision;

(b) the claimant was unjustly harassed and more than once vexed in the same matter; and

(c) no good reason was advanced, and there was no justification, for raising the issue so late and for failing to raise it (or take it into account) (i) in the making of the order and (ii) in pursuing it through a public inquiry and then through written representations. 10

[32]The compensating authority made the order in 1991 and it was not confirmed until 1996. The assessment of compensation remains outstanding. That is a very long time to have elapsed for the compensating authority now to assert what they did not believe or assert for the whole of that period. Mr Shadarevian said that in the light of this the compensating authority’s conduct was an abuse of process that was neither excused nor justified by special circumstances or by any change in circumstances.

[33]Mr Lowe said that it was no part of the compensating authority’s case that condition 1 of the 1991 permissions applied to any land outside the 1991 areas. They were not arguing that the constraint on aircraft movements contained in that condition applied to the whole airfield but just to that part of it formed from the 1991 areas. He referred us to the compensating authority’s written representations to the Secretary of State in January 1995 in which there were several references (including tables) to aircraft movements that distinguished between those taking place on the 1989 land and those taking place on the 1991 areas.

[34]The parties had proceeded throughout the discontinuance order proceedings on the basis of a common assumption as to law. They had both assumed that the 1991 conditions did not bind the 1989 land. It was just assumed by everybody that they did not. In so doing the compensating authority had erred in law. But this common assumption was not addressed either at the public inquiry in 1992 or subsequently. The matter simply had not been considered. The discontinuance order was made to bring the use of the 1989 land in line with that of the 1991 areas.

[35]The claimant had not been vexed twice since the construction of the 1991 conditions had not previously been considered. This was the first time that the parties had argued the point. The Secretary of State was not being asked to resolve a dispute about the 1991 permissions and he was not deciding a point of law. Mr Lowe referred to the comments of Lord Millett in Johnson v Gore Wood & Co

[2001] 1 All ER 481

at 525h:- “It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon”.

[36]Mr Lowe submitted that the previous failure of the parties to consider the need for the order in the light of the true effect of the 1991 permissions should not mean that the claimant should receive compensation for an unnecessary restriction which duplicated existing controls. The claimant had been independently and professionally advised and had not suffered any detriment from relying upon the construction previously placed upon the 1991 conditions by the compensating authority. Under these circumstances no estoppel could arise nor could it be said that the compensating authority had acted unconscionably. Discussion

[37]Mr Shadarevian contended that all 4 of the conditions in permissions 117/91 and 119/91 applied to the 1989 land. Mr Lowe said that only conditions 2 and 4 did so. Each of these was 11 expressed to apply to the airfield but condition 1, limiting the number of aircraft movements was not so expressed. The reason for condition 3, which required that the operators of the airfield must keep records of all aircraft movements, was “To assist the Local Planning Authority in assessing the frequency of the use”, and “the use”, said Mr Lowe, was that permitted by the permission, that is to say the continued use of the land (ie the extension land that was the subject of the application) as part of an existing airfield. On this we agree with Mr Lowe. If a condition in a planning permission is to be made to apply to land that was not the subject of the application, one would expect this to be done expressly. The additional areas of land, as is apparent from the application plans (which were incorporated with the permissions), comprised or included areas to be used as runways. Permission 117/91 covered land alongside and beyond the 1989 land, thus enabling the runway area to be widened and extended, and permission 119/91 covered land alongside the 1989 land that enabled a runway to be formed on a different alignment. To constrain aircraft movements using these additional areas to 10 had an obvious purpose, and there were no words to suggest that the restriction was to apply to the 1989 land also.

[38]Condition 2, dealing with hours of operation, and condition 4, which limited the types of aircraft that might use the airfield, were each expressed to apply to “the airfield”, which would include the 1989 land. Condition 2 was in the same terms as condition 2 in the 1989 permission, and nothing arises on it. Condition 4 imposed 6 restrictions on types of aircraft, including, as restriction (a), limitations to smaller, single-engined aircraft. The restrictions were, as we understand, significant in terms of the usefulness of the airfield, and thus potentially significant in relation to its value.

[39]As confirmed by the Minister of State the discontinuance order imposed in relation to the 1989 land had conditions in the same terms as conditions 1 and 4 in the 1991 permissions, except that the number of movements was limited to 20 rather than 10 in condition 1 and the corresponding condition 4 contained a minor modification.

[40]The fundamental issue between the parties is whether, as the compensating authority contend, such conditions in the 1991 permissions as applied to the airfield would continue to bind the 1989 land in the event that the use of the 1991 areas ceased. If they would do so, the effect of condition 4 would be to limit the size and types of aircraft that could use the 1989 land, while if they do not, no such limitation would apply to it in the absence of the order. Thus the order, by imposing restrictions on aircraft size and types, would have rendered the 1989 land less useful and, in consequence, potentially less valuable.

[41]We can see no basis, either in the provisions of the 1990 Act or in any principles identified in the cases, for the compensating authority’s contention. The conditions in a planning permission attach to the development permitted by that permission. If that development no longer exists – if any building permitted and constructed pursuant to the permission has been demolished or any use permitted no longer subsists – the permission has no continued operative effect, and any conditions in it, whether relating to the land the subject of the permission or to other land, similarly have no effect. Action that did not accord with the terms of the permission would not constitute a breach of planning control within the meaning of section 171A of the 1990 Act. 12

[42]Section 72(1)(a) permits the imposition of a condition on land that is not included in the application for planning permission. But, as the section itself and Kingston-upon-Thames Royal London Borough Council v Secretary of State for the Environment

[1974] 1 All ER 193

make clear, the justification for the imposition of such a condition on other land is that it is requisite because of the carrying out on the subject land of the development permitted by the permission. It follows that, if the development so permitted no longer exists, the justification for the conditions that restrict the use of other land has disappeared. In relation to permissions 117/91 and 119/91, condition 4, relating to the airfield as a whole, was imposed – and could only have been imposed – because it was requisite for the use of the 1991 areas for the purposes permitted by those permissions. If they ceased to be used for those purposes the justification for it would have gone.

[43]Mr Lowe accepted that he could point to no authority that established his contention on the continued effect of the condition, but he suggested that assistance was to be derived from Newbury District Council v Secretary of State for the Environment

[1981] AC 578

in the passage from the speech of Viscount Dilhorne that we have set out above. Mr Lowe said that once the 1991 permissions were granted, regularising the development that had already taken place on the 1991 areas, a new chapter in the planning history had started and a new planning unit, the extended airfield, had come into existence in place of that consisting of the 1989 land alone. In our judgment, however, the concept of the planning unit is of no assistance in such a case as this, and Mr Lowe’s reliance on Newbury is misconceived. We are not concerned with existing use rights or their possible extinguishment. The use of the 1989 land was authorised by the 1989 permission, and the 1991 permissions were in respect of other land. There could in our judgment be no question of the 1989 permission being extinguished other than through the implementation of some other planning permission that relates to the same land and was incompatible with it (see Pioneer Aggregates Ltd v Secretary of State for the Environment

[1985] AC 132

at 143A-145C). There is no such other planning permission here.

[44]Mr Lowe, as we have said, contended that the 1991 permissions would continue in effect, and the conditions in them would continue to apply, even when the development that they permitted had ceased or disappeared. He accepted, however, that they would cease to have effect if development were carried out on the 1991 areas pursuant to some other planning permission or planning permissions and that development was incompatible with that of the 1991 permissions. If that point were reached, we understood him to accept, the 1989 land could again be used free of the 1991 conditions. Thus in contrast to the extinguishment of existing use rights with which Newbury was concerned, there would on his approach, be a planning permission (the 1989 permission) that continued in effect throughout and a use (on the 1989 land) that continued pursuant to it and this use would be subject to the 1991 conditions. The situation clearly has no analogy with that of the extinguishment of existing use rights.

[45]Mr Lowe submitted that some of the development permitted by the 1991 permissions was operational development. Of the two 1991 permissions that we are invited to consider, 119/91 was expressed purely in terms of the continued use of a particular area of land, while 117/91 was for such a continued use but “including the provision of windsock; signal square; sitting out area and car park”. It does not seem to us that the provision of the signal square, sitting out area and car park would have involved operational development. We do not know whether the 13 same would go for the windsock. But even if we assume that operational development was involved, this would make no difference to the continued application of permission 117/91. Such operational development could be removed just as the use that was permitted could be discontinued. If the user of the airfield did not need to rely on the 1991 permissions, he would not be subject to their conditions.

[46]The first issue must therefore be decided in the claimant’s favour, and the second issue, raised by the claimant in the alternative, accordingly does not require a decision. We should, however, have decided it in the claimant’s favour. What the planning authority in making the order and the Minister of State in confirming it had to be satisfied about under section 102(1) of the 1990 Act was that it was “expedient in the interests of the proper planning of the area” that the order imposing the conditions on the use of the 1989 land should be made. While the expediency of condition 1 limiting the number of aircraft movements could be said to have arisen from the fact that condition 1 of the 1991 permissions did not apply to the 1989 land, the same could not be said of condition 4. That clearly did apply to the 1989 land because it limited the use of “the airfield”. There was disagreement about what that condition should include if it was to be included in the order, and the inspector’s recommendations in respect of paragraphs (e) and (f) were the subject of further submissions and a substantial delay in the confirmation of the order. It was undoubtedly the case (and there is no dispute on this) that the parties proceeded on the assumption that the 1991 conditions would not continue to bind the 1989 land if the need to rely on the 1991 permission were to cease. The conclusion of the Minister of State that it was expedient to include condition 4 in the order must have been based on this assumption. There would otherwise have been no justification for its inclusion. The order was made on this basis, and, in relation to the entitlement to compensation that it created, that the 1991 conditions would not continue to bind the 1989 land if the need to rely on the 1991 permission were to cease was therefore res judicata. We think also that it would amount to an abuse of the process to allow the compensating authority to advance its contention at this stage. Conclusion

[47]In our judgment use of the 1989 land would only have been restricted by condition 4 of permissions 117/91 and 119/91 during such period as the claimant or a subsequent user of the airfield needed to rely on those permissions. If the use of the 1991 areas was discontinued, and any operational development on them was removed, no such reliance would be required, and the conditions to which they were subject would not apply. The first preliminary issue is decided in the claimant’s favour.

[48]Had we decided the first issue in the compensating authority’s favour, we should have determined, on the second issue, that they were estopped from advancing their contention as to the continued application of condition 4.

[49]A letter on costs accompanies this decision, which will become final when the question of costs has been determined. After that we shall issue directions for the further conduct of the reference. 14 Dated 18 January 2006 George Bartlett QC, President A J Trott FRICS 15