Elvington Park Ltd v 1. Secretary of State for Communities and Local Government 2. City of York Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 23 November 2011 |
| Neutral Citation | [2011] EWHC 3041 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 November 2011 |
| Docket Number | Case No: CO/14702/2009 |
[2011] EWHC 3041 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Blake
Case No: CO/14702/2009
Richard Harwood (instructed in house) for the Appellant
James Strachan (instructed by Treasury Solicitors) for the 1 st Respondent
Written submissions only from the 2 nd Respondent
Hearing dates: 28 October, 2011
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.
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that if the conditions attached to this permission are broken the facilities afforded to them will be immediately withdrawn.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".
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.
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.
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.
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.
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.
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.
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.
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
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.
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)]."
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...
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