In a case which involved detailed analysis of a planning history going back more than 70 years, the owners of an aerodrome built during the Second World War have failed to convince the High Court (the Court) that, in 2013, they are entitled to a certificate of lawful use embracing unrestricted aviation activities.
Dunsfold Aerodrome was constructed in 1942 as part of the war effort but has more recently become famous as the venue for the filming of the ‘Top Gear’ television show. Now known as Dunsfold Park, it is currently held on a 999-year lease by Dunsfold Park Limited (DPL) and is home to about 100 commercial occupiers.
DPL had sought a certificate of lawful use to enable unrestricted aviation activities on the site under section 191(1) of the Town and County Planning Act 1990. The application was refused by Waverley Borough Council and DPL’s appeal was subsequently rejected by a planning inspector following a public inquiry.
In dismissing DPL’s appeal against that decision, the Court rejected its plea that a planning consent issued in 1951 – allowing erection, repair and testing of aircraft – was sufficiently broad in its terms to have created an established use for aviation activities in general that had stood the test of time.
The Court ruled that whatever right the 1951 planning permission had conferred in relation to aviation activity had been lost by virtue of the implementation of at least one planning permission granted in 2008. DPL’s purchase of the site in 2002 had opened a new chapter in the planning history of the aerodrome and had heralded a material change of use outside the scope of the 1951 planning permission.
At least one of the 2008 planning permissions had been implemented so that the restriction on aviation activities contained therein was engaged. The inspector was also correct in concluding that the ‘flight testing’ use permitted by the 1951 consent was in any event a narrower concept than unrestricted aviation activity.