Town and country planning: conditions

Planning permission granted for use of site as airfield subject to condition requiring reinstatement of former agricultural use on cessation of airfield use council later removing condition from planning permission claimants seeking to quash decision whether council taking into account immaterial consideration whether its decision irrational whether claimants had legitimate expectation application allowed appeal allowedCR (on the application of Barker and others) v Waverley Borough Council and another: Court of Appeal: Pill LJ, Mantell LJ, McKinnon J: 5 April 2001Dunsfold Aerodrome in open countryside in Surrey was established as a wartime emergency airfield on 528 acres of former agricultural land.After the war, it continued to operate by temporary arrangement with the Ministry of Supply.

Between 1951 and 1998 a number of temporary planning permissions were granted permitting the continued use of the land as an aerodrome.

British Aerospace (BAe) purchased the site and was granted planning permission for the continuation of the permitted use of the aerodrome.

The permission was subject to the conditions that the use was to be for BAes benefit only (the personal condition), and that the land was to be returned to agriculture within two years of cessation of the permitted use (the reverter condition).In June 1999 BAe announced that it would cease operations at the aerodrome at the end of 2000.

It made an application to discharge the conditions attached to the planning permission.

In April 2000 the first respondent councils planning committee decided to remove the personal and reverter conditions.The claimants, local residents, sought to quash the decision as they wanted to see the land restored to its original use.

The judge allowed the application and quashed the decision to vary the reverter condition.

The respondents appealed.The claimants contended that the judge was correct to allow the application because: the council was wrong to view as a material consideration the question of whether the reverter condition was lawful and valid; the councils decision was irrational; and the claimants had a legitimate expectation that upon cessation of the use by BAe the land would revert to agricultural use.Held: The appeal was allowed.

1.

Although the committee had referred itself to the legal issue of whether the reverter condition was legal and valid, it could not be concluded that it had been a consideration which the committee had taken into account when coming to its conclusion that the condition should be revoked.

There had been sufficient material considerations before the committee and it could not be concluded that the council had taken any immaterial considerations into account.

The relevant considerations had included: the non-agricultural use of the site aided the local economy; the business was the single largest employer in the area; and the use was in accordance with the local development plan and the policy of renewal of the local economy.2.

The councils decision to allow the removal of the reverter condition was not so unreasonable that it was irrational.

In all the circumstances, it had been one that was within the range of reasonable options.3.

Any legitimate expectation that the reverter condition would be continued and that the land would return to agricultural use was not of legal primacy over the other relevant legislative considerations the committee had had to take into account.

Thus the judge had erred in allowing the application and quashing the committees decision.Christopher Lockhart-Mummery QC and Daniel Kolinsky (instructed by Leigh Day & Co) for the claimants; Nigel MacLeod QC and John Litton (instructed by Rees & Freres, as agent for the solicitor to Waverley Borough Council) for the first respondents; Christopher Katkowski QC and David Forsdick (instructed by Sharpe Pritchard) for the second respondent, British Aerospace.