town and country planning act 1990 (as amended) …...town and country planning act 1990 (as...

Town and Country Planning Act 1990

(as amended) Section 174 Proof of Evidence

of Stuart Paul Natkus

Bagby Airfield, Bagby, Near Thirsk

Prepared on Behalf of Martin Scott

Planning Inspectorate References APP/G2713/C/15/3087177 &

APP/G2713/C/14/3000758

April 2016

Proof of Evidence Bagby Airfield, Bagby, near Thirsk

Prepared on Behalf of Martin Scott

Status: Final

Issue/Rev: 01

Date: April 2016

Prepared by: SN

Checked by: JH

Authorised by: SN

Barton Willmore 3rd Floor

14 King Street

Leeds LS1 2HL

Tel: 0113 204 4777 Ref: 23199/A5/PoE/SN

Email: [email protected] Date: April 2016

Date of Inquiry: 24, 25 and 26 May 2016

Venue Evolution Business Centre, 6 County Business Park, Darlington Road,

Northallerton, DL6 2NQ

Inspector: XXXX

COPYRIGHT

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Contents Page

1.0 Experience, Scope and Qualifications 1

2.0 The Site and Surrounding Area 3

3.0 Relevant Planning History 5

4.0 The Alleged Development 7

5.0 Relevant Planning Policy 9

6.0 Appeal A - Widening of the Taxiway 13

7.0 Appeal B – The Jet Fuel Tanks 21

8.0 Conclusion 31

Appendices

SN01 Summary of the Planning History of the Site

SN02 Photograph by Tim Wood purporting to show widening of the taxiway

SN03 Appeal Reference 2114975

Experience, Scope and Qualifications

23199/A5/PoE/SN 1 April 2016

1.0 EXPERIENCE, SCOPE AND QUALIFICATIONS

1.1 I am Stuart Paul Natkus, Planning Director at Barton Willmore LLP, based in the Leeds office

covering Yorkshire, Humberside and the North East of England. I have a master’s degree in

Town and Country Planning from Manchester University, a Post Graduate Diploma in Law from

Leeds Metropolitan University and a Legal Practice Certificate from York College of Law, plus

I am a member of the Royal Town Planning Institute. I have 12 years’ relevant experience,

split between the public and private sectors.

1.2 I joined Barton Willmore in 2011 following 5 years in the public sector and three years in the

private sector. The Leeds office is one of the largest planning teams in the region and one of

the thirteen UK offices that collectively form the largest independent town planning and design

consultancy in the UK.

1.3 I specialise in progressing residential and mixed use development proposals through the

planning system, both plan making and applications. I have broad and diverse experience,

having worked on a range of residential and employment uses, together with infrastructure

and service facilities.

1.4 Current projects include a broad range of sites incorporating large green fields, urban

regeneration programmes, redundant airbases, former railway sidings, hospital campus and

education sites. Current projects include major urban extensions in Leeds, Newcastle and

Gateshead, together with urban regeneration projects, education facilities and retail projects

in the north of England

1.5 Working for Local Authority I had close dealings with the enforcement team and am well

versed in enforcement proceedings, whilst also representing private clients in a number of

enforcement appeals, successfully defending a series of unauthorised developments.

This Proof of Evidence

1.6 I have prepared this Proof of Evidence on behal f of Mr Martin Scott, the owner of Bagby

Airfield, and shall be hereafter referred to as ‘the Appellant’.

1.7 This Public Inquiry is to hear evidence in the matter of two appeals, (hereafter jointly referred

to as ‘the Appeal’) made under Section 174 of the Town and Country Planning Act 1990 against

the serving of two enforcement notices by Hambleton District Council (HDC) for alleged

unauthorised development at Bagby Airfield, Bagby (the Appeal Site). The Inquiry is therefore

conjoined to hear both appeals. For the purposes of this proof, the appeal relating to the

widening of the taxiways (14/3000758) will be referred to as Appeal A and the appeal relating

to the jet fuel tanks (15/3087177) will be referred to as Appeal B.

Experience, Scope and Qualifications

23199/A5/PoE/SN 2 April 2016

1.8 I am very familiar with the site and surroundings, having undertaken site inspections of the

Appeal Site and the surrounding area on several occasions. I am also familiar with the relevant

policies at a national, regional and local level which are pertinent to this Public Inquiry.

Scope of Evidence

1.9 I will be presenting evidence on whether the alleged development has taken place and if so

that planning permission should be granted for those works alleged to have taken place. The

other key matters to be considered regarding the proposal relate to:

The works carried out on the Site;

The level of movements facilitated by the alleged works; and

The type of aircraft capable of utilising the site in accordance with the alleged works.

1.10 Assisting in presenting the Appellant ’s case for the proposal and dealing with the above

matters are:

The works carried out – Mr Steve Hoyle – Airfield manager;

The level of historic movements facilitated by the alleged works – Mr Paul Pritchett –

Airfield accountant;

The current level of aircraft movements and the type of aircraft capable of utilising the

Site following the alleged works – Mr Peter Bonder – Aviation Expert; and

The levels of noise generated from the airfield – Mr Duncan Arkley.

Structure of this Proof

1.11 My Proof of Evidence consists of this document and attached appendices.

1.12 The structure of my Proof is as follows:

Section 2 - The Site and Surrounding Area;

Section 3 – Relevant Planning History;

Section 4 – The Alleged Development;

Section 5 – Appropriate Planning Policy;

Section 6 – Appeal A Alleged Widening of the Taxiway;

Section 7 – Appeal B Mobile Jet Fuel Facility; and

Section 8 - Conclusions

The Site and Surrounding Area

23199/A5/PoE/SN 3 April 2016

2.0 THE SITE AND SURROUNDING AREA

2.1 The Site is located to the south of the village of Bagby; a village located south -east of the

town of Thirsk which is positioned just off the A19. A full site description is included in the

Statement of Common Ground.

2.2 The Site comprises a grass runway running west to east with a number of hangars and

associated airfield infrastructure located to the north and south of the runway. Included

within this are a control tower, repair garage and club house together with the various

hangars.

2.3 The taxiway subject to Appeal 14/3000758 runs north to south linking the runway to the

fuelling facility located in front of the control tower, whilst the jet fuel facilities subject to

Appeal 15/3087177 are located at various locations within the Site given their mobility.


23199/A5/PoE/SN 4 April 2016

This Page is Intentionally Left Blank

Relevant Planning History

23199/A5/PoE/SN 5 April 2016

3.0 RELEVANT PLANNING HISTORY

3.1 The Site has an extensive history of planning applications, appeals and enforcement notices

as noted in the Statement of Common Ground, for ease of reference a summary of the planning

history is included in Appendix SN1.

3.2 In summary, the Site was granted planning permission in 1973 for the use of the Site for light

aircraft, with a further consent granted in 1976 to increase the number of movements

permissible on the Site, which in turn was further amended in 1980. The 1980 planning

permission limited the movements to 40 take-offs and 40 landings in any one week between

the hours of 0600 and 2300 and was the most recent consent formalising such use of the Site .

3.3 The level of use of the airfield has grown historically and the number of movements defined

in the 1980 planning permission breached. As a consequence, HDC have confirmed that the

level of movements at the Site are not restricted by either a planning permission or a condition

attached to a planning permission.

3.4 This matter was considered previously by the Planning Inspectorate at an appeal, reference

13/2192289, dated 22 January 2014. The decision confirms at paragraph 9 that:

“I agree with the Council that on the balance of probability the use of

the land as an airstrip has gained immunity from enforcement action through the passage of time and is therefore lawful. The planning

condition attached to the 1980 permission controlling the number and

time of take-offs and landings no longer applies. Therefore in respect of the airstrip there are no restrictions on the number of aircraft

movements, types of aircraft or flying activities, hours of use or levels of noise.”

3.5 It is therefore common ground as noted in the Statement of Common Ground that there are

currently no limitations on the level of movements at the airfield.


23199/A5/PoE/SN 6 April 2016


The Alleged Unauthorised Development

23199/A5/PoE/SN 7 April 2016

4.0 THE ALLEGED UNATHORISED DEVELOPMENT

4.1 With regard to the Appeal, two separate enforcement notices have been served regarding the

alleged breaches of planning control relat ing to the taxiway and fuel tanks respectively.

Taxiway Enforcement Notice (Appeal A)

4.2 A formal Enforcement Notice was served by HDC on 07 November 2014 alleging a breach of

planning control under s171(1)(a) of the Town and Country Planning Act 1990 (as amended

by the Planning and Compensation Act 1991). The Enforcement notice alleges the breach as:

“Without planning permission, widening of taxiways. The widened areas

shown hatched black, enclosed by the red line on the attached plan.”

The notice and its attachments are included as Core Document 14 (CD14).

4.3 The Enforcement Notice requires the following to be done:

(i) Remove the area of tarmac where the taxiway has been widened as depicted on the attached plan’

(ii) Remove from the land all building materials, tarmac and any associated

debris arising with the compliance with requirement (i) above, and restore the land to its condition before the breach took place by levelling

the ground and re-seeding it with grass.

Jet Fuel Tank Enforcement Notice (Appeal B)

4.4 A formal Enforcement Notice was served by HDC on 06 May 2015 alleging the breach as ,

“Without planning permission, operational development comprising the

following two separate fuel facilities:

(i) A fuel tank mounted on a red agricultural trailer;

(ii) A pipe connecting the fuel tank to the dispenser and sampling unit, also mounted on the red trailer;

(iii) A fuel dispenser and sampling unit including a pump, also mounted on

the red trailer.

Hereinafter defined as the ‘Red Fuel Facility’; and

(i) A fuel tank and dispensing pump mounted on a blue highways trailer.

Hereafter defined as the ‘Blue Fuel facility’.”

The notice and its attachments are included as Core Document 15 (CD15).

The Alleged Unauthorised Development

23199/A5/PoE/SN 8 April 2016

4.5 The Enforcement Notice requires the following to be done:

(1) “Permanently remove from the Site the operational development, and not re-erect it within the land edged blue on the attached plan. For the

avoidance of doubt the operational development comprises:

The Red Fuel Facility, namely:

(i) The fuel tank mounted on the red trailer;

(ii) The pipe connecting the fuel tank to a sampling unit, also mounted on the red trailer;

(iii) The fuel dispenser and sampling unit including a pump, also mounted

on the red trailer; and

The Blue Fuel facility, namely:

(i) The fuel tank and pump mounted on a blue trailer.

Relevant Planning Policy

23199/A5/PoE/SN 9 April 2016

5.0 RELEVANT PLANNING POLICY

5.1 The Policies which the Council identify as relevant to the alleged breach of planning control

are set out in full within the Statement of Common Ground. For the avoidance of doubt, these

policies are listed below and produced in full in Core Document CD02 and the National Planning

Policy Framework, Core Document CD01.

National Planning Policy Framework (NPPF):

Paragraphs 109 and 123 in respect of noise; and

Paragraphs 56, 58 (particularly the final bullet point) in respect of design.

Core Strategy (adopted April 2007), policies:

CP1 – Sustainable Development;

CP2 – Access to Services;

CP4 – Settlement Hierarchy;

CP15 - Rural regeneration; and

CP21 – Safe response to natural and other forces.

Development Policies DPD (adopted February 2008) policies:

DP1 – Protecting amenity;

DP25 - Rural employment; and

DP44 – Very noisy activities.

5.2 It is noted that the Council are currently in the process of producing a new Local Plan that

will replace the Core Strategy and development Pol icies DPD, however given the early stages

of this process none of those policies are relevant to the determination of the two appeals.

Whilst the drafting of a new Local Plan identifies that the existing development plan is out -of-

date it is also my contention that the Policies referred to in the notice are not relevant to the

application and as such the plan is silent in respect of the determination of the application.

5.3 As outlined later in this proof of evidence, Policies CP1, CP2, CP4, CP15 and CP21 are general

policies in the Core Strategy directing principles for the location of development. They do not

appear to be particularly relevant, or indeed relevant at all, to the works subject to the

Enforcement Notices. If those works require planning permission, which the Appellant does

not accept, then the extent to which there might be though to be any non-compliance with

these policies results from the fact that these policies have little if any relevance to those

works undertaken.

5.4 The policies contained in the development Policies DPD are more detailed policies for the

purposes of determining individual planning applications. However as also demonstrated

within this proof these are not considered to be breached, as the alleged developments


23199/A5/PoE/SN 10 April 2016

themselves do not cause additional noise, let alone noise which is unacceptable in terms of

residential amenity or otherwise.

5.4 Further to the above policies, I consider that the following policies in the National Planning

Policy Framework are relevant to the determination of Ground A of both appeals.

The National Planning Policy Framework (‘the Framework’)

The Presumption in Favour of Sustainable Development

5.3 The Framework was published and came into force on 27 March 2012. Its underlying mainstay

is the presumption in favour of sustainable development , confirming at Paragraph 7 that there

are three dimensions to sustainable development: economic, social and environmental.

Paragraph 8 further notes that “these roles should not be undertaken in isolation, because

they are mutually dependent” and that to achieve sustainable development, “economic, social

and environmental gains should be sought jointly and simultaneously through the planning

system”.

5.4 Further to this, paragraph 14 provides guidance on how this should be applied in relation to

decision-taking, confirming that this is taken to mean:

“approving development proposals that accord with the development

plan without delay; and

where the development plan is absent, silent or relevant policies are

out-of-date, granting permission unless:

- any adverse impact of doing so would significantly and

demonstrably outweigh the benefits, when assessed against the

policies in this Framework taken as a whole; or

- specific policies in this Framework indicate development should

be restricted.”

5.5 If then in order to determine if Local Plan policies are up to date regard must be had to

paragraphs 214-216 of the Framework.

5.6 Paragraph 214 states that “for 12 months from the day of publication, decision-takers may

continue to give full weight to relevant policies adopted since 2004, even if there is a limited

degree of conflict with this Framework”. Footnote 39 to this paragraph notes that this only

applies to policies adopted in development plan documents in accordance with the Planning

and Compulsory Purchase Act 2004.

5.7 Paragraph 215 continues to note that “in other cases… due weight should be given to relevant

policies in existing plans according to their degree of consistency with this Framework” .


23199/A5/PoE/SN 11 April 2016

5.8 The Framework states at paragraph 216 that decision-takers can give weight to relevant

policies within emerging plans. However, the amount of weight that can be given to the

policies is dependent upon how far the emerging plan has progressed through the preparation

stage. The more advanced the plan, the greater the amount of weight that can be added.

Promoting Sustainable Transport

5.9 Paragraph 33 in the Framework relates specifically to airfields:

“When planning for ports, airports and airfields that are not subject to a separate national policy statement, plans should take account of their

growth and role in serving business, leisure, training and emergency

service needs. Plans should take account of this Framework as well as the principles set out in the relevant national policy statements and the

Government Framework for UK Aviation.”

Economic Growth

5.10 Economic growth is a theme that runs throughout the Framework, specifically within sections

1 and 3. Within this section the Framework highlights the aim to build a strong, competitive

economy. Furthermore, the requirement for job creation and retention emphasised in the

Framework. Paragraph 9 refers to ‘making it easier for jobs to be created in cities, towns and

villages’. Additionally in paragraph 18 ‘The Government is committed to securing economic

growth in order to create jobs and prosperity, building on the country’s inherent strengths,

and to meeting the twin challenges of global competition and of a low carbon future. ’ Of even

more particular relevance to this case, paragraph 28 highlights:

“Planning policies should support economic growth in rural areas in order

to create jobs and prosperity by taking a positive approach to sustainable new development. To promote a strong rural economy, local and

neighbourhood plans should:

support the sustainable growth and expansion of all types of business

and enterprise in rural areas, both through conversion of existing

buildings and well-designed new buildings;

promote the development and diversification of agricultural and other

land-based rural businesses;

support sustainable rural tourism and leisure developments that

benefit businesses in rural areas, communities and visitors, and which

respect the character of the countryside. This should include supporting

the provision and expansion of tourist and visitor facilities in

appropriate locations where identified needs are not met by existing

facilities in rural service centres; and

promote the retention and development of local services and

community facilities in villages, such as local shops, meeting places,

sports venues, cultural buildings, public houses and place”


23199/A5/PoE/SN 12 April 2016


Appeal A – Widening of the Taxiway

23199/A5/PoE/SN 13 April 2016

6.0 APPEAL A – WIDENING OF THE TAXIWAY

6.1 The taxiway is a historic component of the site which runs east to west on the site, providing

a hard surface route from the runway to the fuelling facilities, located to the north of the site.

The taxiway is an L-shaped route, with an arm at its northern end leading to the fuelling

facilities. Due to maintenance requirements it was considered necessary to repair and resurface

the taxiway, with the work undertaken partly by Mr S Hoyle, the airfield manager, as described

in his proof of evidence.

6.2 Following the receipt of a formal Enforcement Notice, requiring the removal of the works, an

appeal was lodged by Mr Scott against the Enforcement notice on the grounds considered

below.

Ground A - That, in respect of any breach of planning control which may be

constituted by the matters stated in the notice, planning permission ought to be

granted or, as the case may be, the condition or limitation concerned ought to be

discharged;

6.3 The Council have identified a series of Policies, nationally and locally that they consider the

alleged development to be contrary to. The policies are detailed in full in CD01 and CD02 as

well as the Statement of Common Ground and it is acknowledged that there are no objections

to the visual impacts of the alleged works or any technical constraints with regards drainage,

contamination or impacts on ecology etc.

6.4 For the purposes of the Ground A appeal the application is therefore assessed against the

Policies identified in the Enforcement Notice the Councils Statement of Case and the Statement

of Common Ground as being relevant to the development.

Core Strategy

6.5 Policy CP1 is a policy of general application, rather than a policy which relates to a particular

form of development, which confirms that “The use and development of land will be assessed

against the community’s housing, economic and soc ial requirements, protection and

enhancement of the natural and built environment and minimisation of energy consumption

and the need to travel. Development that would significantly harm the natural or built

environment, or would generate adverse traffic impact, will not be permitted.” The policy

thereafter goes on to identify 12 points, whereby proposals will be supported if they promote

and encourage or protect and enhance the specific 12 requirements. Finally the policy confirms

a preference for the development of previously developed land over greenfield land.


23199/A5/PoE/SN 14 April 2016

6.6 The twelve points in Policy CP1 are, generic and provide a backdrop to decision making within

the district. Whilst policy CP1 is cited in the enforcement notice, no evidence is provided as to

which of the criteria (if any) the development conflicts with . The Council’s Statement of Case

similarly does not elaborate on this point.

6.7 The Council’s Statement of Case confirms that the sole reason for objecting to the proposals

relates to an alleged increase in noise from a perceived ability for larger craft and more frequent

movements to take place as a result of the development. Having considered the contents of

Policy CP1 it is not considered that the widening of the taxiway conflicts with any of the

requirements and as such is not in conflict with the Policy.

6.8 Policy CP2 seeks to reduce reliance on private cars confirming that “Development and the

provision of services should be located so as to minimise the need to travel. Convenient access

via footways, cycle paths and public transport should exist or be provided, thereby encouraging

the use of these modes of travel for local journeys and reducing the need to travel by private

car and improving the accessibility of services to those with poor availability of transport.”

6.9 Again, this is a generic policy seeking to locate new development close to services and public

transport and reducing the need to use private cars. At no point has the Council indicated that

a widening of the taxiway would increase private vehicle movements to a level that is harmful

and this is not cited as a reason for why planning permission should not be granted. It is

therefore unclear why Policy CP2 has been cited in the enforcement notice and statement of

Case.

6.10 Notwithstanding the above, the site does have access to existing networks to provide

opportunities to walk into Bagby for those using the airfield. The alleged taxiway increase

does not provide for any additional hangarage for planes within the airfield, therefore the level

of resident planes will remain the same. Should the Councils assertion that the works increase

the level of movements on the Site be upheld, this would be from planes stopping at the Site

on route elsewhere or people visiting the area. These people would not thereafter be travelling

by private car and would therefore not increase the level of movements.

6.11 Policy CP4 provides guidance on development outside defined development limits in the open

countryside. The Policy has two separate aspects, a requirement to provide an exceptional

case in terms of Policies CP1 and CP2 and compliance with one of six individual criteria.

6.12 In my opinion there is no conflict with policies CP1 and CP2 given their generic nature and the

nature of the application. Further to this the application relates to hardstanding on an existing

airfield as opposed to a new development located in the open countryside. Given the very


23199/A5/PoE/SN 15 April 2016

specific type of (alleged) development it is considered that the redevelopment of facilities on

an airfield is a form of development to which CP1 and CP2 have little or no relevance.

6.13 In terms of the six criteria, none of these are relevant to the widening of a taxiway and indeed

none of them relate to noise, which is the Council ’s solely identified ground for objection.

Despite the application being located in the open countryside this policy is not relevant to the

taxiway.

6.14 Should it be considered that the development cannot comply with the Policy, this is not because

the development is unsuitable or inappropriate in planning terms, but because the policy itself

has little relevance to the alleged development.

6.15 Should Policy CP4 be considered to be relevant to the application an exceptional case must be

put forward for non-compliance with Policies CP1 and CP2. In this respect, the nature of the

development, its contribution to an existing airfield and the requirements for the work to retain

aircraft safety are all considered to be exceptional. The deve lopment plan does not make any

provision for developments such as this and the continued service that they provide to the

district economically and recreationally provide the necessary exceptional circumstances.

6.16 Further to this, Policy CP4 also requires compliance with one of six criteria listed within the

Policy. The first criteria recognises development that is necessary to meet the recreational

needs of the district with an essential requirement to locate in the open countryside, whilst the

final criteria allows for development that would support the social and economic regeneration

of rural areas. The proposed development is needed within the airfield, which in turn is already

located within the open countryside. The airfield assists the local e conomy and provides a

recreational facility, therefore complying with the detailed requirements of Policy CP4.

6.17 Policy CP21 is again a generic policy seeking to protect communities from ‘natural and other

forces’. The Policy itself does not explicitly require compliance or advocate refusal as the

Development Policies DPD policies do. Indeed the wording of the policy simply states that

‘proposals must take particular account of the need to, (ii) mitigate development

from the consequences of pollution, noise or hazardous activities.’

6.18 Given the evidence of Mr Bonder it is clear that the works carried out to the taxi way do not

facilitate any circumstances that would increase the levels of noise from the airfield. As a

consequence it would therefore be inappropriate require any mitigation by condition, given that

any noise being ‘mitigated’ would not be a direct consequence of the development. As such

there is no conflict with Policy CP21.


23199/A5/PoE/SN 16 April 2016

6.19 The Core Strategy policies referenced comprise overarching, general policies aimed at directing

new development to appropriate locations and setting overarching criteria for determining

where this may be. The policies are of no real relevance to an area of hard standing on an

existing airfield. Further to this the Council’s sole reason for objection relates to noise, which

again is only cited in policy CP21, and which would not be a consequence of an widening of

the taxiway even if it had taken place. Policies CP1, CP2 and CP4 do not support the Council ’s

case and are not relevant to the determination of the ground (a) appeal.

‘Development Policies ’ DPD

6.20 Policy DP1 is again a policy of fairly general application for the purposes of this appeal, despite

being in the more detailed Development Policies DPD. The Policy is in theory relevant to the

Council’s concerns on noise, although the wording simply requires that “All development

proposals must adequately protect amenity, particularly with regards to privacy, security, noise

and disturbance, pollution (including light pollution), odours and daylight.”

6.21 Policy DP44 is also cited within the Council ’s Enforcement Notice and Statement of Case. Policy

DP44 does provide further specific tests noting that “Development likely to generate harmful

noise levels will be directed to appropriate locations away from known noise sensitive

locations.”

6.22 Notwithstanding the report of Mr Arkley regarding noise, it is clear from the evidence of Mr

Bonder that the alterations to the taxi way were to enhance the existing facilitat es and improve

the quality of the taxi way for existing users. Those improvement works were intended to

make a safer and better quality taxi way. The alterations (even if they are found to give rise

to a material increase in the size of the taxiway) do not facilitate any larger vehicles nor do

they result in increased usage of the airfield, as those use characteristics depend on the runway

and the location of the airfield. On this basis there is no tangible link to the improvement

works and aircraft movements. On this basis the alleged development cannot be considered

to be one which generates harmful noise levels, and Policy DP44 is not relevant.

6.23 The general policies are cited in the Enforcement Notice from the Core Strategy and

Development Policies DPD do not contain any policies that directly relate to airfields or

development therein. Furthermore at no stage have the Council considered that the principle

of development is unacceptable and that redevelopment and improvement to airfields in

principle is unacceptable.


23199/A5/PoE/SN 17 April 2016

6.24 The reason for issuing the Enforcement Notice is based on an unfounded and as far unproven

allegation that the taxiway increases the level of movements to and from the airfield and

therefore in turn increase the level of noise to unacceptable levels.

6.25 Evidence provided by Mr Bonder demonstrates that the main factors in aircraft utilising the

airfield relate to the runway and that should an increase have occurred in the taxiway this

would not increase the rate of movements or the size of vehicles utilising the airfield.

6.26 The alleged development if planning permission is required is considered to constitute

sustainable development, and in accordance with Paragraph 14 of the Framework should be

approved without delay. Furthermore there are no adverse impacts that would significantly

and demonstrably outweigh the benefits and no specific policies in the Framework indicating

the development should be restricted.

Ground B - That those matters have not occurred

6.27 The Council do not dispute that maintenance works and resurfacing have taken place on large

parts of the taxiway and do not require the removal of all of the works carried out . The Council

apparently accepts that maintenance work can take place without the need for express planning

permission.

6.28 The Council allege that without planning permission the widening of the taxiway has occurred

in four locations. These locations are shown on the plan that accompanies the Enforcement

Notice, which identifies a thin strip of widening on the western part of the main taxiway and

the southern extent of the leg running towards the fuelling facilities together with two new

areas of hardstanding at the northern extent of the taxiway.

6.29 The plan attached to the Enforcement Notice is not identified as an appropriate scale (1:1,332)

and includes no measurements identifying the level of works that are considered to h ave

occurred as alleged in the Enforcement Notice. Furthermore the text in the Enforcement Notice

itself does not identify the level of changes alleged in width to the taxiway.

6.30 It is noted that the Councils Statement of Case includes a series of supporting photographs,

including a photograph taken by Tim Wood (Appendix SN2), which purports to show the extent

of alterations to the taxiway. The photograph is taken looking northwards with parts of the

surface of the taxiway removed. The area of taxiway removed appears to be similar to those

parts referenced within the Enforcement Notice plan, implying that is the reason for identifying

those areas.


23199/A5/PoE/SN 18 April 2016

6.31 Mr Hoyle’s evidence addresses this matter at paragraph 13 confirming that the contractor

recommended preparatory work was carried out in advance of the resurfacing, including the

removal of the top layer of the surface in these locations. This evidence demonstrates that

these areas were part of the previous taxiway and the resurfacing was similar to that on the

remainder of the taxiway not deemed to require consent and not part of the Enforcement

Notice.

6.32 The written evidence, including imagery and measurements submitted with Mr Hoyle’s

evidence, together with his proof demonstrate that the taxiway width has not increase d along

its western edge. Furthermore any maintenance, which may have straightened an otherwise

uneven width would not constitute an extension or development as per section 55 of the Town

and Country Planning Act 1990 given the limited extent of the works.

Ground C - That those matters (if they occurred) do not constitute a breach of

planning control

6.33 Should it be considered that the works identified on the Enforcement Notice or part of these

works have been carried out, it is not considered that the level of work constitutes development

that would be subject to a need for planning permission. The works on the main taxiway are

clearly a replacement of previous hard surfacing in need of upgrade and repair.

6.34 A previous appeal on the Site, 2114975, included in Appendix SN3, considered the creation of

areas of hard standing in front of hangars, which amounted to approximately 0.7hectares in

size, significantly greater than this level of alleged work. In this case the Inspector noted that

the level of works were not operational development, however given the scale of the

hardstanding it constituted an engineering operation. In this instance it is clear that the

minimal level of works, even if they did increase the area of hardstanding to any noticeable

degree (which is not the case), are not sufficient to constitute an engineering operation.

6.35 The resurfacing works have not created any new areas of hardstanding and have simply

replaced previous hard standing that was falling into disrepair. The works carried out are

repair and maintenance of the existing taxiway and do not in my opinion constitute

development.

Ground F - That the steps required by the notice to be taken, or the activities

required by the notice to cease, exceed what is necessary to remedy any breach of

planning control which may be constituted by those matters or, as the case may be,

to remedy any injury to amenity which has been caused by any such breach


23199/A5/PoE/SN 19 April 2016

6.36 The Enforcement Notice identifies at section 4 that the reason for issuing the notice is to

“protect the amenities of local residents from the potential adverse noise impacts arising from

an increase in size of aircraft that may be accommodated by the airfield infrastructure; as well

as an increase in the number of aircraft movements causing an unacceptable impact to

residential amenity by reason of noise and disturbance to local residents due to increased

capacity of the infrastructure to accommodate more and larger aircraft.”

6.37 The Council’s Statement of Case confirms this position at paragraph 3.6.1 and further notes

that “the reason for issuing the notice is not in respect of the harm caused to the appearance

of the site or the surface water run-off or other interest.” The Council further confirm that

replacement of the tarmac with an alternative system, such as plastic tiles would not overcome

the harm identified in the Enforcement Notice, which is said to be noise, although it would

appear that as far as the taxiway itself is concerned the surface treatment, and visual impact,

are not issues of concern for the Council.

6.38 The evidence provided by Paul Pritchett and Peter Bonder demonstrate that the work carried

out at the Site does not have a material impact on either the type or size of vehicle utilising

the runway nor does it have a material impact upon the level of movements at the site. This

is supported by the recording of aircraft movements monitored over recent years and the lack

of any material increase – rather than a normal year to year fluctuation in aircraft movement

- following the resurfacing works.

6.39 Given the evidence demonstrates that the works as a whole do not facilitate any increase in

size or frequency of aircraft, which in turn means there is no connection between alleged

adverse impact on amenity and the works undertaken, it is considered that lesser steps could

be taken, including allowing the works to remain in situ.

6.40 In addition, should it be considered by the Inspector that the full extent of the works subject

to the Enforcement Notice have not been carried out, then only those works carried out and

considered unacceptable (if any), should require removal and/or replacement with an

alternative material, rather than all of the alleged works.

(g) That any period specified in the notice in accordance with section 173(9) falls

short of what should reasonably be allowed.

6.41 The airfield is currently operational and any works to the taxiway would have a detrimental

impact on short term operations. The Enforcement Notice provides a period of one month to

carry out the works, which would be enforceable upon the receipt of a decision. This would


23199/A5/PoE/SN 20 April 2016

have no regard to the operation of the airfield and the imp lications on movements in and out

of the airfield at that time.

6.42 Alternative arrangements may need to be made for some of the users of the airfield and a

detailed timetable for the works to take place. On this basis it is considered that a period of

six months would be more appropriate so as not to be detrimental to the operations of the

business.

Appeal B – The Jet Fuel Tanks

23199/A5/PoE/SN 21 April 2016

7.0 APPEAL B – THE JET FUEL TANKS

7.1 Following the removal of a previous fixed jet fuel tank located on the Site to re -fuel helicopters,

the two fuel facilit ies, referred to as the Red and Blue Fuel Facilities respectively, were

constructed and located on the Site. The Blue Fuel Facility is loaned to the airfield and was

constructed off site and delivered to the airfield by Cyma petroleum, who retain ownership of

the Facility. This facility is capable of being moved by either a tractor or an articulated vehicle.

The Red Fuel facility was constructed by members of the airfield off site and delivered to the

Site once developed. The Red Fuel facility is moved around the site and off site by a tractor.

7.2 Following the serving of a formal Enforcement Notice, requiring the removal of the fuel tanks,

an appeal was lodged on behalf of Mr Scott against the Enforcement notice on the following

grounds.

Ground A - That, in respect of any breach of planning control which may be

constituted by the matters stated in the notice, planning permission ought to be

granted or, as the case may be, the condition or limitation concerned ought to be

discharged

7.3 The Council have identified a series of Policies, nationally and locally that they consider the

alleged development to be contrary to. As with the alleged increases to the taxiway, the

policies are detailed in full in CD01 and CD02 together with the Statement of Common Ground.

7.4 Whilst it is agreed as Common Ground that a number of policies and technical matters are

acceptable, HDC do raise objections to the design of the fuel tanks and also in relation to

alleged impact on residential amenity from noise associated with use of the fuel tanks.

7.5 As with Appeal A it is Common Ground that all other Development Plan policies (if relevant)

are complied with and therefore the application is assessed solely against the Policies identified

in the Enforcement Notice and confirmed in the Council’s Statement of Case as being relevant

to the development and in the opinion of HDC in conflict with the proposed development .

Core Strategy Policies

7.6 The Council reference Policies CP1 and CP2 in the Appeal as with Appeal A. The evidence

provided in relation to Appeal A and the relevance of these general policies once again is an

issue. Should it be considered that planning permission is required for the alleged

development, the general nature of Policies CP1 and CP2 means they are of little if any

relevance to the determination of the Ground A appeal.


23199/A5/PoE/SN 22 April 2016

7.7 As with the evidence provided in paragraph 6.14 of this proof, despite the countryside location,

the fuel tanks are located within an operational airfield. Their requirement in order for the

airfield to be operational and viable therefore constitute exceptional circumstances as required

by the policy, should such justification be needed. Moreover, the same facilities could be

provided by fully road-going tankers which would be similar in size and appearance and which

would be moved around the airfield in a very similar way, when needed. In terms of the

individual criteria, it is considered that whilst none of these are strictly complied with, this does

not show a deficiency in the application but simply the fact that this policy has little relevance

to this (alleged) development, and the policy clearly does not purport to be used for detailed

assessments of individual components of large scale sites.

7.8 The Council’s Enforcement Notice and Statement of Case both cite contravention with Policy

CP15. It is noted that the general theme of this policy is not a restrictive policy but a positively

worded policy seeking to support the social and economic needs of rural communities by

encouraging certain types of development. Within this, the Policy lists as the type of

development to be supported, the “retention or expansion of appropriate businesses outside of

the Service Centres and Service Village” Bagby airfield clearly falls into this category of an

existing business outside the defined areas, therefore encouragement should be given to its

retention and expansion.

7.9 The policy notes that in all cases development “should not conflict with the environmental

protection and nature conservation policies of the LDF but should seek to enhance the

environment; and should provide any necessary mitigating or compensatory measures t o

address harmful implications.”

7.10 The Council cite concerns over noise and design as the two reasons for opposing the granting

of planning permission. The evidence provided by the Appellant’s other witnesses shows that

the Council’s views on increased movements and increased size of vehicle are unfounded , and

as such no adverse noise impacts occur as a result of the alleged devel opment.

Notwithstanding this, the noise Report provided by Mr Arkley does identify mitigating measures

that could take place in order to reduce existing noise levels, which could be incorporated into

a decision. Furthermore, screening and or amendments to the general appearance could be

conditioned to mitigate the appearance of the tanks if they are really considered to be out of

keeping with the functional nature of the airfield.


23199/A5/PoE/SN 23 April 2016

Development Policies DPD Policies

7.11 As with Appeal A, the references in Policy DP1 are relatively general in nature, for the purposes

of this appeal, despite being in the more detailed Development Policies DPD. The Policy is

relevant to the Councils concerns on noise, although the working simply requires that “All

development proposals must adequately protect amenity, particularly with regards to privacy,

security, noise and disturbance, pollution (including light pollution), odours and daylight.”

7.12 Policy DP44 is similarly cited within the Councils Enforcement Notice and Statement of Case in

relation to noise and the fuel tanks. Policy DP44 does provide further specific tests noting that

“Development likely to generate harmful noise levels will be directed to appropriate locations

away from known noise sensitive locations.”

7.13 Notwithstanding the Report given by Mr Arkley, it is clear from the evidence of Mr Bonder that

the fuel facilities do not increase the frequency or size of aircraft. The fuel facilities have

always existed on site, providing Jet Fuel, therefore amending the nature of the delivery

mechanism, i.e. a fixed tank in a bund to a portable tank, would not alter noise levels. No

evidence is provided that the facilities themselves create adverse noise levels when operated ,

or give rise to a greater number of aircraft movements than would otherwise be the case, and

on this basis the development cannot be considered to be one which generates harmful noise

levels. Policy DP44 is not breached.

7.14 Policy DP25 has historically been referenced and referred to by the Counci l on a number of

applications involving the Site. Having considered the wording of Policy DP25 it relates to

“Employment development in locations outside Development Limits. ” Whilst the airfield itself

may be considered an employment development outside of Development Limits, the appeal in

question relates specifically to the fuel tanks, if they are considered to be ‘development ’

requiring planning permission.

7.15 When taken in isolation, the fuel tanks are an ancillary part of an operational airfield and

provide fuelling facilities to the users. Whilst the fuel is subject to a fee, it is located on site

as a key part of the operational requirements of the airfield, ensuring that people can utilise

the airfield in a comprehensive manner. It follows that the fuel tanks, when considered in

isolation as per this appeal, are not employment development and therefore do not fall within

the parameters of Policy DP25.

7.16 Notwithstanding this, when considered against the five criteria, the application is considered

to be in accordance with Policy DP25 as follows;


23199/A5/PoE/SN 24 April 2016

(1) The fuel tanks clearly are small in scale, physically and in relation to the wider

use of the Site.

(2) They form an appropriate extension of an existing use, the airfield, which

itself is subject to various planning permission and certificates of lawful use

and in turn complies with other LDF policies.

(3) The development is clearly not capable of being located within a defined

development limit.

(4) A business case justification is provided in Mr Bonder ’s evidence,

demonstrating the use of the fuel tanks in accordance with the wider site and

the support it lends to that business and also to the wider rural community.

(5) Given that no airfields are located within the defined service centres, the

provision of fuel does not detract from them.

National Planning Policy Framework (the Framework)

7.17 The Framework provides a presumption in favour of sustainable development and identifies at

paragraph 14 that for decision taking this means:

“approving development proposals that accord with the development

plan without delay; and Where the development plan is absent, silent or out-of-date, granting

planning permission unless:

Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against

the policies in this Framework taken as a whole; or

Specific policies in this Framework indicate development should be restricted.”

7.18 Guidance on the weight to be given to a development plan is included in paragraphs 214 and

215, whereby a 12 month period was given to continue to apply policies adopted since 2004

that may conflict with the Framework (para 214). Following that 12 months and relevant now,

due weight should be given in accordance with a policy’s consistency with the Framework (para

215).

7.19 It should be noted that the Council are currently in the processing of updating their

development plan as a result of its age and non-compliance with the Framework. Furthermore,

as demonstrated in this proof there are no specific policies relating to airfie lds, their expansion

or redevelopment. As a consequence in relation to this application it is also considered that

the development plan is silent on the matter, therefore in accordance with paragraph 14 the

development should be approved unless the adverse impacts ‘significantly and demonstrably’


23199/A5/PoE/SN 25 April 2016

outweigh the benefits or specific policies in the Framework indicate development should be

restricted.

7.20 The Framework includes a number of supporting paragraphs to economic development and

rural business. Of particular note are paragraphs 28, which supports the ‘sustainable growth

and expansion of all types of business’ and Paragraph 33, which has particular regard to

airfields.

7.21 Paragraph 33 confirms that, ‘plans should take account of their growth and role in se rving

business, leisure, training and emergency service needs.’ It is noted that the Councils plan

does not make provision for this, however it is clear from the Framework that the growth of

airfields is important and should be positively planned for.

7.22 The Council cite four paragraphs in the Framework which, it is alleged, the development is

considered contrary to: paragraphs 56 and 58 on design and paragraphs 109 and 123 on noise.

Design

7.23 The Enforcement Notice identifies concerns over the visual appearance of the fuel tanks, citing

paragraphs 56 and 58, particularly the final bullet point of paragraph 58. Paragraph 56 is a

generic design policy, which attaches ‘great importance to the design of the built environment’.

Given the proposed development is located in the open countryside and relates to an existing

airfield it is not considered that this paragraph is relevant to the proposals at hand.

7.24 Further to this, the final bullet point of paragraph 58 as noted in the Enforcement Notice states

that development should be visually attractive as a result of good architecture and appropriate

landscaping. Again, given the type of development proposed and its functional requirement in

an operating airfield it is not considered that this paragraph and reliance on a requirement for

‘good architecture ’ is relevant to the development.

7.25 Notwithstanding the specific wording of these particular paragraphs, it is clear that the visual

appearance of all new development should be considered. In this instance the Fuel facilities

are functional in appearance, low level and appropriate in the context of the surrounding use.

The airfield has a functional appearance with a number of hangars, control tower and areas of

outdoor storage. The appearance of the fuel tanks within this location and with the backdrop

of the existing buildings is not considered to be detrimental to the surrounding area, particularly

given the limited public vantage points into large parts of the Site.


23199/A5/PoE/SN 26 April 2016

Noise

7.26 Paragraphs 109 and 123 both provide relatively general wording on the need to restrict noise

pollution and mitigate any impacts. As per my evidence on policies DFP1 and DP44 above, it

is not considered that the alleged development increases noise

Conclusion on Ground A Appeal

7.27 Whilst a number of general policies are cited in the Enforcement Notice, the Core Strategy and

Development Policies DPD do not contain any policies that directly relate to airfields or

development therein. Furthermore at no stage have the Council considered that the principle

of development is unacceptable and that redevelopment and improvement to airfields in

principle is unacceptable.

7.28 The reason for issuing the Enforcement Notice is based on an unfounded and as far unproven

allegation that the fuel tanks increase the level of movements to and from the airfield and

therefore in turn increase the level of noise to unacceptable levels. Further to this it is also

considered that the design of the facilities is unacceptable.

7.29 Evidence provided by Mr Bonder demonstrates that the size and number of the fuel tanks does

not impact on the level of aircraft movements, as these movements result from simply having

fuel on site. Mr Bonder and Mr Hoyle both identify in their evidence a fall -back position of a

road-going tanker being located within the Site, which would provide the exact same service,

therefore fuel will continue to be provided, as it has been throughout the lifetime of the airfield,

in the event of an unsuccessful appeal. In turn this identifies that the level of movements

would remain the same, and certainly are not caused to increase or decrease, by the presence

of the tanks which are the subject of enforcement action.

7.30 In terms of design, the fuel facilities are functional in nature, and reliance on policies referring

to ‘good architecture’ is of little relevance. Whilst it is noted that development should not have

adverse visual impacts, the nature of the development and its appearance is not considered to

detract from the area, given the limited size and visual impacts of the development and the

context of the existing airfield.

7.31 The application is therefore considered to constitute sustainable development , and in

accordance with Paragraph 14 of the Framework should be approved without delay.

Ground C - That those matters (if they occurred) do not constitute a breach of

planning control


23199/A5/PoE/SN 27 April 2016

7.32 The matters are identified in section 2 of the Enforcement Notice and listed earlier in this proof.

Put simply the alleged development as drafted equate to the construction of the two fuel

facilities as opposed to the siting of the fuel facilities on the Site.

7.33 The breach in relation to the Red Fuel facility cites three different aspects. Firstly a fuel tank

mounted on an agricultural trailer, secondly a pipe connecting the fuel tank to the dispenser

and thirdly the dispenser being located on the trailer. In terms of the blue trailer the breach

is alleged as the mounting of a fuel tank and dispenser on a trailer.

7.34 It is clear that none of these actions either individually or cumulatively constitute development

for which planning permission would be required.

7.35 Paragraph 4.5 of the Enforcement Notice further states that the Blue Fuel facility was

manufactured off-site, whilst the Red Fuel Facility was constructed on the Site. As per Mr

Hoyle’s evidence both facilities were constructed off site, with the blue facility being

constructed outside the district of Hambleton. Given the Council believe the breach t o have

taken place during the construction process, it would be outside of their remit to enforce the

matter.

7.36 Given the requirement to remove the facilities from the Site as opposed to dismantle the

operational development, it appears that the Counci l believe that the siting of the facilities is

in breach of planning control, although this is not listed as the breach. Further to this the

justification in the Enforcement Notice and the Statement of Case relate to the siting of the

facilities as opposed to the alleged breach. Should the appeal be considered on this basis,

despite the wording of the Enforcement Notice, the following paragraphs address this matter,

whereby it is considered the siting of the facilities does not constitute a breach of planning

control.

7.37 It is Common Ground that planning permission is required for ‘development’, as per s57(1) of

the Town and Country Planning Act 1990. Furthermore, development is thereafter defined in

s55(1) as the carrying out of building, engineering, mining or other operations in, on, over or

under land, or the making of any material change in the use of any building or other land.’

7.38 The Enforcement Notice, notes three grounds for determining whether or not development

comprises a building, referring to its size, permanence and physical attachment. Taking these

individually and cumulatively it is clear that the proposed fuel tanks do not comprise a building.

7.39 The test of size refers to a building being something that would normally be constructed on

site as opposed to being brought already made to the Site. It is claimed by the Council that


23199/A5/PoE/SN 28 April 2016

the Red Fuel Facility was constructed on Site from separate component parts, whilst the Blue

Fuel Facility was developed off site in a similar manner.

7.40 Mr Hoyle’s evidence demonstrates that both fuel facilities were constructed off site and

delivered to the Site once completed. The size of the facilities do not require them to be built

on Site, as proven by the Blue Fuel facility and it is my view that the size and method of

construction would not normally require on site construction.

7.41 The test of permanence normally requires a building to denote the making of a physical

change to the site of some permanence. Whilst the Facilit ies are permanently available on Site

they are located in a variety of places across a large Site, akin to a mobile fuelling vehicle as

opposed to a fixed structure remaining in the same place. The Fuel Facilities do not require

any fixed infrastructure and can operate at any location on the Site as they currently do.

7.42 The evidence of Steve Hoyle identifies that the Fuel facilities are moved around the site and

located in a number of locations. Similarly this position is identified in the Enforcement Notice

and the accompanying plan showing the variety of locations noted by HDC included as Core

Document CD15.

7.43 Given the ability to move the Fuel Facility, the plan showing its differing locations and the

evidence of Steve Hoyle regarding the movement of the facilit ies, it is clear that there is no

permanence to the Facilities and they operate much in the same way that a fuel tanker would

if located on the Site.

7.44 The final test requires an element of physical attachment to the ground. The Fuel Facilities

operate completely independently with no requirement to be attached to the surface for

stability or power. The lack of a requirement for physical attachment is proven by the ability

to move the Facility around the Site to the various locations.

7.45 The Fuel Facilities were developed off site and operate in a similar way to a vehicle being

moved around the Site with no physical attachment. The Fuel facilit ies do not meet any of the

tests to determine a building and individually and cumulatively should not be c onsidered as

such. As a consequence it is not considered that the Fuel facilities constitute a building and in

turn do not constitute development meaning that planning permission is not required for their

retention. On this basis the alleged development has not occurred.

Ground F - That the steps required by the notice to be taken, or the activities

required by the notice to cease, exceed what is necessary to remedy any breach of


23199/A5/PoE/SN 29 April 2016

planning control which may be constituted by those matters or, as the case may be,

to remedy any injury to amenity which has been caused by any such breach;

7.46 The breach of planning control relates to the component parts being put together on a trailer,

however the remedy is for complete removal of the trailer and the parts in situ from the Site

and prohibition of the alleged development being located on other areas of land in the

ownership of the applicant.

7.47 Should the alleged breach as drafted in the Enforcement Notice be upheld the most appropriate

remedy would be to simply dismantle the three components and remove them from the trailer.

To retain the trailer as built and remove it from Site does not actually resolve the identified

breach, similarly the removal of the component parts from the Site is considered to be excessive

to remedy the breach.

7.48 Should the siting of the trailer be considered to constitute a breach of control and the Inspector

consider that the design is inappropriate, amendments could be made to the Enforcement

Notice in order to locates the facilities in set positions that have less of an impact than being

moved around the Site, the trailers could be painted a neutral colour and/or landscaping could

be provided to screen the development.

Ground G - That any period specified in the notice in accordance with section 173(9)

falls short of what should reasonably be allowed.

7.49 The airfield is currently operational and helicopters currently rely on the fuel, particularly the

Blue Fuel Facility, which serves an occupying tenant of the airfield. The Enforcement Notice

provides a period of one month to carry out the works, which would be enforceable upon the

receipt of a decision. This would have no regard to the operation of the airfield and the

implications on movements in and out of the airfield at that time and also the tenancy of

occupants of the airfield who rely upon the Blue Fuelling Facility .

7.50 Alternative arrangements may need to be made for some of the users and a detailed timetable

for the works to take place. On this basis it is considered that a period of six months would

be more appropriate.

7.51 It is noted that six months is the period of time afforded by a previous Inspector when

considering the former fuel facilities on the Site.


23199/A5/PoE/SN 30 April 2016


Conclusion

23199/A5/PoE/SN 31 April 2016

8.0 CONCLUSION

8.1 The Site is currently an operational airfield with a long and substantial planning history.

Notwithstanding this history the Site has an accepted lawful use as an airfield with no restrictions

on movements or type of craft using the Site.

8.2 The Appeal relates to two separate Enforcement Notices served by HBC on the landowner. These

notices relate to alleged widening of a taxiway and also the alleged operational development of

constructing two mobile fuel tanks. These are referred throughout the evidence as Appeal A

and Appeal B respectively.

8.3 Appeal A relates to alleged widening of the taxiway. The evidence of Mr Hoyle identifies the

works that took place at the time and that these did not include any widening works.

Furthermore it is considered that if it is judged that any widening did take place, this constituted

maintenance and was insufficient in size to constitute an engineering operation , and/or was

insignificant and effectively ‘de minimis’.

8.4 Should it be considered that the works do constitute development it is my evidence that the

works do not conflict with adopted policy (where relevant), do not conflict with national policy

and that there is no identifiable harm to justify a refusal of planning permission. The C ouncil’s

sole concern over the works relates to the level of air traffic and associated nois e that could

arise, however Mr Bonder’s evidence identifies that the works to the taxiway would have no

impact on the level or type or movements.

8.5 Finally in respect of ground A it is considered that should the notice be upheld, the steps are

excessive as they would not meet the reasons for issuing the notice, namely noise and more

time should be provided to carry out the steps as identified, given the operation of the airfield.

8.6 In respect of Appeal B, my evidence identifies that the breach as alleged in the notice, i.e the

construction of portable fuel tanks does not constitute development. Should the siting of the

fuel tanks be considered as part of the breach, this evidence also demonstrates that the siting

of the fuel tanks would not comprise development and as such no breach has occurred.

8.7 Should the breach have occurred this evidence again demonstrates that the policies identified in

the Enforcement Notice relating to noise and design are not relevant and/or the development is

not in conflict with them. Furthermore it is demonstrated that policies in the Framework support

the development and as sustainable development it should be approved without d elay.


23199/A5/PoE/SN 32 April 2016

8.8 Finally should it be considered that the development is inappropriate, lesser steps could be

taken, dependent upon the reason why the development is unacceptable. Similarly as with

Appeal A, insufficient time is proposed for the actions required to be complied with given the

operational nature of the airfield.

APPENDIX SN01

Summary of the Planning History of the Site

The Site's planning history is set out in the table below:

Table 3.1: Bagby Airfield Planning History

PLANNING APPLICATIONS

Date

Planning Reference

Number Description Decision

27.09.1973 244047

Construction of a light aircraft hangar in OS field 124 and the use of the grass runway for light aircraft. (OS field 124 was a strip of land north west of and parallel to the adjoining fields 125 and 123)

Granted

29.07.1976 2/76/009/0015

Increased use of an existing grass airstrip for private flying at OS Fields 125, 123 and 86 Bagby.

No more than six take-offs and landings shall take place in any one week and these shall be restricted to between the hours of 0600 and 2300

Granted

29.05.1980 2/9/15A/PA

80/0746/EUC

Increase in use of an existing grass airstrip for private flying at OS 125, 123 and 86 Bagby. No more than 40 take-offs and 40 landings in any one week between the hours of 0600 and 2300

Granted

20.06.1986 2/86/009/0015B Variation to allow 200 flights per month Refused

01.09.1986 2/86/009/0015C

86/1352/FUL Construction of a clubhouse and 5 hangar buildings

Refused

01.09.1986 2/86/009/0015D

86/0417/FUL Variation to allow 60 take-offs and 60 landings in any 7 day period

Refused

04.11.1986 2/96/009/0015F

86/0418/FUL Siting of a portakabin for use as an office/aircraft control facility/ toilet/ restroom

Granted

06.11.1986 2/86/009/0015E Retention of existing hangar buildings Granted

26.06.1987 2/87/009/0015G Construction of an aircraft hangar Refused

06.05.1988 2/88/009/0015H Construction of an aircraft hangar Granted

01.06.1989 2/89/009/0015J Installation of an underground fuel storage tank and a fuel pump

Granted

27.07.1990 2/90/009/0015K Construction of a building for the storage of light aircraft

Granted

22.08.2005 2/05/009/0015N Change of use of agricultural building to agricultural and aircraft hangar

Granted

17.05.2006 06/00482/FUL Construction of an aircraft hangar Granted

16.10.2008 08/01109/FUL

Construction of replacement clubhouse with leisure facilities and accommodation, construction of 7 hangars with associated works, extension to existing hangar, siting of 4 wind turbines, new vehicular access and landscaping works

Withdrawn

28.04.2009 09/00231/FUL

Revised application for the construction of replacement clubhouse with leisure facilities and accommodation, construction of a workshop, 6 hangars with associated works, extension to existing hangar, siting of 4 No 3 metre diameter hangar roof mounted wind turbines, new vehicular access and landscaping works

Refused

09.02.2010 09/03959/FUL Retrospective application for provision of geo-textile matting and concrete apron

Refused

10.02.2010 09/04039/FUL Replacement helicopter landing pad and jet fuel stop facility

Refused

03.09.2010 10/01272/FUL

Revised planning application on Bagby Airfield comprising an airfield clubhouse with three bedrooms new/extended hangars with concrete aprons, new workshop/maintenance hangar artificial matting area on main runway relocated fuel line, access and car parking

Refused

PLANNING APPEALS

Date

Planning Reference


06.11.1986 APP/R22710/A/87/0

64030/P4 Condition Removal - Personal condition removed on appeal.

Granted

14.10.2010 09/00021/REFUSE

Revised application for the construction of replacement clubhouse with leisure facilities and accommodation, construction of a workshop, 6 hangars with associated works, extension to existing hangar, siting of 4 No 3 metre diameter hangar roof mounted wind turbines, new vehicular access and landscaping works

Appeal

Withdrawn

28.06.2011 10/00011/REM Retrospective application for provision of geo-textile matting and concrete apron

Appeal Allowed

28.06.2011 APP/G2713/A/10/21

36646

Revised planning application on Bagby Airfield comprising an airfield clubhouse with three bedrooms new/extended hangars with concrete aprons, new workshop/maintenance hangar artificial matting area on main runway relocated fuel line, access and car parking

Appeal Dismissed

ENFORCEMENT CASES

Date

Planning Reference


15.09.2011 09/2114975 Construction of Hangar E and aprons to hangars and geo-textile matting to the east west runway

Appeal allowed

28.11.2011 11/2165522 Use of the North/South Runway Appeal

Dismissed

03.01.2012 11/2167167 Use for the Siting of Caravan Appeal

Dismissed

03.01.2012 11/2167171 Septic Tank Appeal

Dismissed

03.01.2012 11/2167216 Flight Crew Room, Toilet Block and Wet Room Appeal

withdrawn

03.01.2012 11/2167218 Change of Use to Air Ambulance Base Appeal

withdrawn

03.01.2012 11/2167222 Use for Helicopter Air Taxi (Hangar E) Appeal Allowed

03.01.2012 11/2167436 Change of Use to Repair, Service and Renovation of Aircraft (Hangar B)

Appeal Dismissed

03.01.2012 11/2167438 Change of Use to Repair, Service and Renovation of Aircraft (Hangar P)

Appeal Dismissed

03.01.2012 11/2167441 Construction of Lean-To (Hangar P) Appeal

Dismissed

03.01.2012 11/2167443 Change of Use to Storage of Materials Notice varied

03.01.2012 11/2167446 Use for Hire of Aircraft (Hangar D) Appeal

Allowed

03.02.2012 11/2167163 Change of Use to Storage (Hangar A) Appeal

Dismissed

03.02.2012 11/2167219 Use for Hire of Aircraft (Hangar N) Notice

withdrawn

14.02.2012 11/2167211 Packaged Treatment Works Appeal

withdrawn

24.02.2012 11/02489/FUL Construction of a hanger to accommodate an air ambulance with associated operations, crew room and toilet facilities (Hanger K)

Refused

20.12.2012 APP/G2713/C/13/21

92289 Use of the east west runway (intensification of use)

Appeal Allowed

20.12.2012 13/2192293/ Enf The fuel facility (Jet A1 static bowser) Appeal

Dismissed

21.01.2015 15/00004/ENF_A Widening of Taxiways Appeal in Progress

24.07.2015 15/00034/ENF_A Appeal against mobile fuel facility (Jet A1 mobile bowsers)

Appeal in Progress

The site has an extensive planning history. The most pertinent planning history records relating to

the Enforcement Appeal are two enforcement notices which were served in 2012; one relating to the

material change of use regarding flight movements and the second relating to the operational

development of a fuel facility. Both notices were appealed and dealt with jointly a t an Inquiry.

The fuel facility appeal (APP/G2713/C/13/2192293) was dismissed and the enforcement notice upheld

with corrections.

The alleged breach of planning control in relation to the runway and material change of use stated:

“Without planning permission the material change of use of the site from an airfield with annual air

traffic movements of 3,678 to an airfield and heliport with annual air traffic movements of 7,044 (1

June 2011 to 31 May 2012). The use of the site as an airfield has intensified to such a degree to

amount to a material change in the character of the use.” The description of the notice was however

amended by the Council during the appeal (ref: APP/G2713/C/13/2192289) following the agreement

on the method for assessing historic air movements.

Following an adjournment of three months for the Appellant and third parties to submit new

documents relating to the revised description, the Inquiry commenced in October 2013 during which

the Council altered the notice description again following adjustments to: “Without planning

permission, the material change of use of the site from an airfield with annual aircraft movements of

4,371 (including 330 jet helicopter movements) to an airfield and heliport with annual aircraft

movements of 7,288 (including 567 jet helicopter movements). The use of the site as an airfield has

intensified to such a degree to amount to a material change in the character of the use” .

In the appeal decision the Inspector firstly concluded that the all egation should be corrected to

include more appropriate flight movement figures as follows:

“the material change of use of the site from an airfield with annual aircraft movements

of 6,635 (including 330 jet helicopter movements) to an airfield and heliport with

annual aircraft movements of 7,288 (including 567 jet helicopter movements)”.

The enforcement appeal was allowed with the correction of the enforcement notice. The Inspector

concluded that the allegation in the notice was incorrect and that the appeal should succeed on

ground (c) and the enforcement notice (as amended) should be quashed.

In the Inspector's decision, they concluded that “on the balance of probability and all the evidence

available, the matters stated in the notice do not constitute a breach of planning control.” This appeal

also set out overall conclusions on the use of the Site, the number of air movements, monitoring of

flight movements and comments upon the matter of noise and disturbance as summarised by

Inspector's comments below:

Character of Use and Flight Movements:

“ When all these considerations are taken into account my conclusion is that on the

balance of probability any material change of use is not solely due to intensification of

use of the airfield (the Land) through the take-offs and landings and the increase in the

use of jet helicopters. A material change in character is related more to the change in

the balance of the uses and activities on the surrounding land at the Airfield and the

development of new buildings and infrastructure.”

“My preliminary findings are that the data on the total numbers of aircraft movements

do not support an intensification of use post 2006. The numbers of jet helicopters show

a gradual and significant increase over the ten year period. The position is not

conclusive based on the quantitative data alone. However, the quantitative information

is one of the components to consider when assessing whether there has been a material

change of use through intensification. In turn there has been an effect on the number

and composition of the AMs. However, a point has not been reached where, as a matter

of fact and degree, it has given rise to such materially different planning circumstances

as to result in a material change in the character of use of the Land.”

Monitoring of Flight Movements:

“A fundamental difficulty throughout was the lack of comprehensive and reliable data

on aircraft movements over the period from 1998 and more particularly 2002 to 2012.

Even the recorded log of movements from June 2011 was criticised for a number of

omissions and being difficult to decipher. Information on historic air movements has

shown wide variation and different methodologies and data sets have been adopted.”

“The quantitative assessments using the fuel uplift method were presented as the most

robust in the context of the appeal.”

Noise and Disturbance

“noise and disturbance appears to have been caused by the level of aircraft activity

overall. It was not confined to the take-offs and landings but the use of the airspace

through repetitive circuits and stunt flying and from other occurrences such as hot

refuelling. The continuous noise of overhead flying would be very different to single

take-off landing events with long quiet gaps, more typical of a rural airfield.”

Since this decision relating to the use of the east-west runway in 2014 it was decided that

intensification of use had not occurred on this runway or at all, the Site remains unregulated. As part

of this appeal the Appellant and the Council agreed on historic flight movements and a Joint Statement

was produced. The statement agreed a methodology for estimating historic movements at the Airfield

based on statistical methodology using fuel uplift and airfield l ogs. These show that flight movements

from 2003 to 2015 fluctuate quite significantly, between approximately 12,500 and 7,000 movements

per year.

APPENDIX SN02

Photograph by Tim Wood purporting to show widening of the taxiway

APPENDIX SN03

Appeal Reference 2114975

http://www.planning-inspectorate.gov.uk

Appeal Decisions Inquiry held on 15-18 March and 13 May April 2011

Accompanied site visit made on 22 March 2011 and unaccompanied site visits

made on 26 March and 10 April 2011

by John Braithwaite BSc(Arch) BArch(Hons) RIBA MRTPI

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 28 June 2011

Planning Appeal A Ref: APP/G2713/A/10/2136646

The Airfield, Bagby, Thirsk YO7 2PH

• The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.

• The appeal is made by Mr Martin Scott against the decision of Hambleton District Council.

• The application Ref 10/01272/FUL, dated 17 May 2010, was refused by notice dated 3 September 2010.

• The development proposed is airfield clubhouse with three bedrooms, new/extended hangers with concrete aprons, new workshop/maintenance hanger, artificial matting on

main runway, relocated fuel line, access and car parking.

Planning Appeal B Ref: APP/G2713/A/10/2123181


• The appeal is made under section 78 of the Town and Country Planning Act 1990

against a refusal to grant planning permission. • The appeal is made by Mr Martin Scott against the decision of Hambleton District

Council. • The application Ref 09/04039/FUL, dated 4 December 2009, was refused by notice

dated 10 February 2010 • The development proposed is replacement helicopter landing pad and jet fuel stop

facility.

Planning Appeal C Ref: APP/G2713/A/10/2123183


• The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.

• The appeal is made by Mr Martin Scott against the decision of Hambleton District

Council. • The application Ref 09/03959/FUL, dated 24 November 2009, was refused by notice

dated 9 February 2010. • The development proposed is provision of geo-textile matting to east-west runway and

concrete apron to hanger A.

Enforcement Appeal D Ref: APP/G2713/C/09/2114975


• The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991.

• The appeal is made by Mr Martin Scott against an enforcement notice issued by

Appeal Decisions APP/G2713/A/10/2136646, A/10/2123181, A/10/2123183 and C/09/2114975

http://www.planning-inspectorate.gov.uk 2

Hambleton District Council. • The Council's reference is 09/00122/ENGOP.

• The notice was issued on 28 September 2009. • The breach of planning control as alleged in the notice is (1) unauthorised operational

development comprising the construction of the aircraft hanger E; (2) unauthorised operational development comprising the concreting of the apron to aircraft hanger E;

(3) unauthorised operational development comprising the concreting of the apron to

aircraft hanger A; (4) unauthorised operational development comprising the concreting of part of the main east west runway; (5) unauthorised engineering works/operational

development comprising the installation of plastic geo-textile matting on the main east west runway.

• The requirements of the notice are (1) remove the unauthorised aircraft hanger E; (2) remove the unauthorised concrete aprons; (3) remove the unauthorised concrete from

the main east west runway; (4) remove the unauthorised geo-textile matting from the main east west runway.

• The period for compliance with the requirements is three months.

• The appeal is proceeding on the grounds set out in section 174(2)(a), (c), (f) and (g) of the Town and Country Planning Act 1990 as amended. Since the required fees for

breaches of planning control (3) and (5) have not been paid the ground (a) appeal in relation to these breaches does not fall to be considered.

Decisions

Planning Appeal A Ref: APP/G2713/A/10/2136646

1. The appeal is dismissed.

Planning Appeal B Ref: APP/G2713/A/10/2123181

2. The appeal is dismissed.

Planning Appeal C Ref: APP/G2713/A/10/2123183

3. The appeal is allowed and planning permission is granted for the provision of

geo-textile matting to east-west runway and concrete apron to hanger A at The

Airfield, Bagby, Thirsk in accordance with the terms of the application, Ref

09/03959/FUL dated 24 November 2009, subject to the following condition:

1. No additional matting shall be installed on the east-west runway and

the concrete apron to hanger A shall not be extended without the prior

written approval of the local planning authority.

Enforcement Appeal D Ref: APP/G2713/C/09/2114975

4. The appeal is allowed, the enforcement notice is quashed, and planning

permission is granted on the application deemed to have been made under section

177(5) of the 1990 Act as amended for the development already carried out,

namely the construction of aircraft hanger E, the concreting of the apron to aircraft

hanger E and the concreting of part of the main east-west runway on land at The

Airfield, Bagby, Thirsk as referred to in the notice subject to the following

conditions:

1. No additional concrete shall be installed on the east-west runway and

the concrete apron to hanger E shall not be extended without the prior


2. No lighting or additional lighting shall be installed on hanger E without

the prior written approval of the local planning authority.



Reasons

Bagby Airfield

5. Bagby Airfield is about 17.6 hectares in area and lies to the south of the

village of Bagby and to the north-west of the village of Thirkleby, which comprises

Great Thirkleby and Little Thirkleby. Access into the airfield is off Bagby Lane and

passes between two residential properties at the west end of Bagby. The access

track leads to a parking area close to a group of buildings that include a clubhouse

for the aero club, an air traffic control tower and refuelling point, and hangerage

for the storage, repair and maintenance of planes. Beyond this first group of

buildings is the main runway (runway 06/24) which slopes down very gradually

from the north-east to the south-west and which is crossed, to the west of the

group of buildings, by the generally flat secondary runway (runway 15/33).

6. On the opposite side of the main runway to the first group of buildings is a

second group of buildings that comprise five hangers of varying sizes – hangers A,

B, C, D and E. Also in this location is, amongst other things, a helipad and

associated fuel tank, and a portakabin that is a base for the Yorkshire Air

Ambulance (YAA). In front of hangers A, B, D and E are concrete aprons and the

helipad is an area of geotextile matting. The main runway between the two groups

of buildings has been concreted and either side of this concrete area the grass

runway has been overlaid with geotextile matting. The two areas of runway

matting total about 7000 square metres. The airfield extends up to Bagby Lane to

the south-west of the village and is surrounded by farmland.

7. Bagby Airfield is an aerodrome, as defined in Article 1 of the Town and

Country (General Permitted Development) Order 1995 (the GPDO), because it

meets two of the tests in the GPDO. Bagby Airfield will be referred to as an

airfield, rather than an aerodrome, for the purposes of this decision. Bagby is a

small airfield for General Aviation and caters mostly for recreational flying, for

residents of and visitors to the area, and for continuity and aerobatic training.

Business flights for pipeline and cable inspections are also flown from the airfield

which is a sub-base for YAA.

Planning History

8. Bagby Airfield has a long and complex planning history that includes the

submission of many planning applications some of which were refused and some of

which were granted. The first planning permission was granted in 1973 to Mr J

Whiting for the construction of a light aircraft hanger and the use of the grass

runway for light aircraft, and in 1976 a similar permission was granted for use of

the runway solely by Mr Whiting and Mr Lassey. In 1980 permission was granted

for an increase in the use of the existing grass airstrip for private flying but was

restricted to be for the benefit of Mr Lassey only and on termination of his

occupancy of the land the permission would cease to have effect. Another

condition of the permission restricted movements to 40 take-offs and 40 landings

per week. In 1986 permission was granted for the retention of five hangers but

this was subject to the condition that, again, they were for use only by Mr Lassey

and that on termination of his occupancy of the land the buildings would be

removed and the use would cease.

9. Also in 1986 permission was granted for the siting of a portakabin for use as

an office/aircraft control facility/toilet/restroom but again this was conditioned to

be for the benefit of Mr Lassey only. An appeal against the personal occupancy



condition attached to the first of the 1986 permissions was allowed in the following

year. Subsequently planning permission was granted for a further hanger, for an

underground fuel storage tank and fuel pump, and for the construction of a

building for the storage of light aircraft. In 1995 planning permission was granted

for an agricultural pig building, in 1998 permission was granted for an extension to

this building, and in 2005 permission was granted for the change of use of the

agricultural pig building to an aircraft hanger. In 2009 an application for the

construction of a replacement clubhouse with leisure facilities and hotel

accommodation and, amongst other things, the construction of a workshop and six

hangers, was refused by the Council.

The current planning situation

10. There is general agreement that at this time there are, at Bagby Airfield,

buildings not requiring planning permission (the YAA portakabin), buildings with

planning permission, buildings and operational development without planning

permission but immune from enforcement action, buildings and operational

development without planning permission that are the subject of enforcement

action (the subjects of Appeal D), and a building without planning permission but

not subject to enforcement action (hanger A). There is also general agreement

between the main parties that there has been a continuous use of the site as an

airfield for more than ten years and that, therefore, the airfield use is immune from

enforcement action. The main parties do not agree, however, on the level of air

traffic movement that is lawful. The Rule 6 Party at the Inquiry, Action 4 Refusal

(A4R), maintain that a condition imposed on the 1980 personal permission is still in

effect and that use of the airfield is thus restricted to 80 ATMs per week.

The Development Plan

11. The Development Plan includes the Core Strategy (CS) and Development

Policies (DP) Development Plan Documents of the Council’s Local Development

Framework (LDF).

12. CS policy CP1 states that development that would significantly harm the

environment will not be permitted, and that proposals will be supported if they

protect, amongst other things, the health, economic and social well-being and

amenity of the population, the vitality of the area, and the character and quality of

local landscapes and the wider countryside. CS policy CP2 seeks to minimise the

need to travel and CS policy CP4 states that development in the countryside will

only be supported when an exceptional case can be made for the proposal in terms

of policies CP1 and CP2 and where it is for one of six specified purposes.

13. DP policy DP1 states that all development proposals must adequately protect

amenity, particularly with regard to, amongst other things, noise and disturbance.

DP policy DP30 states that the openness, intrinsic character and quality of the

District’s landscape will be respected and that the design of buildings will need to

take full account of the nature and distinctive qualities of the local landscape. DP

policy DP25 provides that employment development in the countryside will be

supported if, amongst other things, it is small in scale and is supported by an

appropriate business case which demonstrates that support will be provided to the

local economy.



The ground (c) appeal in Enforcement Appeal D

14. The ground (c) appeal relates only the fifth alleged breach of planning

control; unauthorised engineering works/operational development comprising the

installation of plastic geo-textile matting on the main east west runway.

15. The Appellant maintains that the laying of the matting does not constitute an

engineering operation. The Appellant has mentioned that this type of matting has

been laid at many other airfields around the country and that in no case has this

required the grant of planning permission. No information has been provided of

these other matting installations and the ground (c) appeal must therefore be

determined on the facts of this case. Furthermore, the matter mentioned by the

Appellant may simply indicate that no local planning authority has ever sought to

take enforcement action against possibly unauthorised development.

16. The matting covers a considerable area, about seven tenths of a hectare,

and will have required many lorry movements to bring it to the airfield. It is simple

to lay over the grass, in relatively small interlocking sections, and will not have

been laid all at once. Nevertheless, the operation to lay the matting did require

the hire of casual labour and required the hire of mechanical equipment to compact

the matting into the grassed surface. The hire of labour and equipment and the

significant scale of the work carried out indicate that the installation of geotextile

matting on the main runway at Bagby Airfield constituted an engineering operation.

Such an operation, under section 55 of the Town and Country Planning Act 1990

(the Act), is development, for which planning permission has not been granted.

The ground (c) appeal thus fails.

Planning Appeal C

17. The main issue is whether the provision of geo-textile matting to the east-

west runway and a concrete apron to hanger A have resulted in an increase in the

number of aircraft traffic movements (ATMs) at the airfield and therefore greater

disturbance for residents of dwellings in nearby villages and the surrounding area.

18. The provision of a concrete apron in front of a hanger is understandable and

has several practical advantages. For instance, it provides firm and clean ground

for the pilot and passengers to climb in and out of an aircraft and makes it easier

to manoeuvre airplanes into or out of the hanger. The concrete apron in front of

hanger A has practical purposes and has not resulted in an increase in the number

of light aircraft stationed at the airfield. The concrete apron has not therefore

resulted in any increase in the number of ATMs at the airfield or in any increase in

noise and disturbance at dwellings in nearby villages and the surrounding area.

The concrete apron does not conflict with LDF policies CP1, CP2, CP4 and DP1.

19. The geotextile matting on the main runway has stabilised the grass surface

and uncontested evidence indicates that it has improved safety by enhancing the

take off and braking performance of airplanes. In wet weather conditions the

shorter take offs and landings, and thus taxiing times, will minimise noise. During

summer months the matting is unlikely to result in any greater number of air traffic

movements but in winter months when periods of wet weather might render a

grass strip unusable, airplanes will still be able to take off and land. The matting is

likely to have resulted in an increase in ATMs during winter months though the

increase is not likely to be significant. Furthermore, ATMs are consistently fewer in

winter than in summer and it is during winter months that air traffic noise from the

airfield will be less disturbing because residents of the surrounding area are likely



to be indoors with windows shut against inclement weather. The reinforcement of

the main runway with geotextile matting is likely to have resulted in an increase in

the number of ATMs at the airfield during winter months but this is unlikely to have

resulted in a significant increase in noise and disturbance at dwellings in nearby

villages and the surrounding area. The installation of matting on the main runway

does not conflict with LDF policies CP1, CP2, CP4 and DP1.

Conditions

20. For the avoidance of doubt a condition has been imposed that prevents the

installation of any further matting and the extension of the concrete apron without

the prior approval of the local planning authority. This condition is necessary to

ensure that these developments as permitted are not extended without the prior


The ground (a) appeal in Enforcement Appeal D

21. The ground (a) appeal relates only to the first, second and fourth breaches

of planning control; the construction of aircraft hanger E, the concreting of the

apron to aircraft hanger E, and the concreting of part of the main east west

runway. The main issue is whether the unauthorised developments have resulted

in an increase in the number of aircraft traffic movements (ATMs) at the airfield

and therefore greater disturbance for residents of dwellings in nearby villages and

the surrounding area.

22. Little has been written specifically about the enforcement appeal and little

was said on this appeal at the Inquiry. Instead, the cases made on the main

planning appeal have been said to apply to the enforcement appeal. Specific

regard will therefore be made, in particular, to the Council’s reasons for issuing the

enforcement notice as stated on the notice itself.

23. Aircraft hanger E is about 300 square metres and can accommodate about

three light aircraft. Demand for hangerage at airfields is increasing as a result of

insurance requirements and the greater sophistication of modern aircraft.

Nevertheless, only some of the 39 aircraft stationed at the airfield are parked in

hangers and it is unlikely that the construction of the hanger has resulted in an

increase in the number of light aircraft stationed at the airfield. Hanger E has not,

in itself, resulted in an increase in the number of light aircraft stationed at the

airfield. The construction of the hanger has not therefore resulted in any increase

in the number of ATMs at the airfield or in any increase in noise and disturbance at

dwellings in nearby villages and the surrounding area. The hanger does not

conflict with LDF policies CP1, CP2, CP4 and DP1 or, given that it has no effect on

rural employment, with LDF policy DP25.

24. In front of hanger E is a concrete apron of about 150 square metres. The

provision of a concrete apron in front of a hanger is understandable and has

several practical advantages. For instance, it provides firm and clean ground for

the pilot and passengers to climb in and out of an aircraft and makes it easier to

manoeuvre airplanes into or out of the hanger. The concrete apron in front of

hanger E has practical purposes and has not resulted in an increase in the number

of light aircraft stationed at the airfield. The concrete apron has not therefore

resulted in any increase in the number of ATMs at the airfield or in any increase in

noise and disturbance at dwellings in nearby villages and the surrounding area.

The concrete apron does not conflict with LDF policies CP1, CP2, CP4 and DP1.



25. The concreted part of the main runway is at a point where traffic between

the two groups of buildings at the airfield crosses the runway. This traffic will

include heavy tankers bringing Jet A1 fuel to the refuelling tank alongside the

existing helipad. The concreted crossing point of the main runway is also the main

point where taxiing aircraft turn on the runway either before or after landing and is

at the normal braking point for landing aircraft. The concrete therefore provides a

flat surface at a point where traffic, and turning and braking aircraft, would create

an uneven unsafe surface even if the otherwise grassed runway were to be overlaid

with geotextile matting. The concreted part of the main runway has been

introduced, understandably, for safety reasons and has not resulted in an increase

in the number of light aircraft stationed at the airfield. The concreted part of the

main runway does not conflict with LDF policies CP1, CP2, CP4 and DP1 or, given

that it has no effect on rural employment, with LDF policy DP25.

26. The unauthorised developments that are the subjects of the ground (a)

appeal have not resulted in any greater disturbance for residents of dwellings in

nearby villages and the surrounding area. The ground (a) appeal thus succeeds.

Conditions

27. To meet the six tests set out in Circular 11/95, ‘The Use of Conditions in

Planning Permissions’, conditions must be necessary, relevant to planning and to

the development to be permitted, enforceable, precise, and reasonable in all other

respects. Many conditions have been put forward for consideration for the main

planning appeal. The Council has suggested that some of these should be imposed

on the planning permission granted if the ground (a) appeal was to be allowed.

However, most of these are either not necessary or are not relevant to the

developments for which planning permission has been granted.

28. For instance, conditions preventing the hot refuelling of helicopters and the

use of the airfield by jet aircraft are clearly not relevant to the permitted

developments. Conditions that seek to restrict the number of air traffic

movements and the hours of use of the airfield are also not relevant for the

developments hereby permitted do not significantly affect the number of aircraft

movements or the hours of use of the airfield. A condition that seeks to prevent

the extension of the concrete apron and the concrete on the runway without the

prior approval of the local planning authority is necessary and relevant. This

condition is necessary to ensure that these developments as permitted are not

extended without the prior written approval of the local planning authority. One

condition suggested by the Council relates to additional external lighting and this

meets the six tests but only in relation to hanger E and to prevent light pollution in

the countryside.

The ground (f) and (g) appeals in Enforcement Appeal D

29. The ground (a) appeal in Enforcement Appeal D has been successful in

relation to the first, second and fourth breaches of planning control. Planning

permission has also been granted for the third and fifth breaches of planning

control in Planning Appeal C. The ground (f) and (g) appeals in Enforcement

Appeal D do not therefore need to be considered.



Planning Appeal A

30. The main issues are; first, whether the proposed development would result

in an increase in the number of ATMs and thus aircraft noise, and whether this

would result in greater disturbance for residents of dwellings in nearby villages and

the surrounding area; second, whether the proposed development would have a

harmful effect on the rural landscape; and third, whether the proposed

development would comply with local planning policy that seeks to support the

rural economy.

The first issue – noise and disturbance

31. Mr Lassey terminated his occupancy of Bagby Airfield in 1997 and sold his

aircraft at that time. Thereafter he had no involvement with the airfield and the

planning permission granted to him in 1980 ceased to have effect. If the

permission ceased to have effect then the conditions imposed on it also ceased to

have effect. The claim by A4R that the use of the airfield is still limited to 80 ATMs

per week is therefore incorrect. The Council could have used this figure as a basis

for monitoring activity at the airfield but did not do so. After 1997 the continued

use of the airfield was unauthorised but, given that it has continued uninterrupted

for a period in excess of ten years, has become lawful. In this regard ground

activities have been continuous and air traffic movements have fluctuated

seasonally and, during any week, are focussed at weekends. These fluctuations in

aircraft activity do not affect the conclusion that the use of the airfield is now

lawful. What has not been established, however, is the level or extent of use, the

number of ATMs, that is lawful. This decision cannot be conclusive on the lawful

level of use but it would be the fallback position if planning permission was to be

withheld. To establish whether the proposed development would result in greater

noise and disturbance it is first necessary to establish whether it would result in a

greater number of ATMs.

32. In early 2008 and following a request for information from the Council the

Appellant estimated, from a study of the non-compulsory visitors log and from

enquiries made of the previous owner, the operator of a maintenance unit and

various pilots using the airfield, that the number of ATMs had been reasonably

consistent for the previous ten years, that the average number of ATMs over that

period was estimated at 204 per week, and that the peak number of ATMs was

about 350 per week. Following a further request the Appellant commissioned a

report from Mr Pritchett and this resulted in the Bagby Airfield Movements Report

of 16 June 2008. Without any recorded data Mr Pritchett based his report on

sampling of pilot log books and other data and on the use of reasonable

extrapolation techniques. The report concluded that the average number of ATMs

was 191 per week and that the peak number of ATMs was 404 per week.

33. Later in 2008 it was decided to carry out a survey of ATMs at the airfield and

the survey was undertaken between 7 August and 7 September 2008. Appendix 1

to the report on the survey, a ‘Movements Data Daily Summary’, indicates that

there was a total of 644 ATMs during the survey period and this is repeated in a

‘Summary Movements Data’ section of the report. But in a ‘Survey Results’ section

it is stated that “The movements log data collected was checked with the video

footage collected and adjusted where necessary to provide as accurate a position

as possible”. So doubt must be cast on the bold statement that “The total number



of movements during the survey was 644 on 31 days”. Nevertheless, the report on

the survey by Mr Pritchett states that the survey showed an average weekly

equivalent of 141 ATMs per week and an equivalent peak week of 173 ATMs.

34. The survey was only for a one month period but has been used together with

data from other sources, maintenance unit job books, the visitors’ book, aircraft

technical logs for 16 of the resident aircraft at the airfield and 15 sets of pilot log

books, to assess ATMs for the ten year period 1999-2009. The data indicates a

weekly average of about 73 ATMs and a peak weekly figure of about 125 ATMs

over the ten year period. Uplifts have been applied resulting from unrecorded

resident and visitor movements and the calculated weekly average is raised to

about 95 ATMs per week and the peak weekly figure to about 163 ATMs.

Alternative uplifts have been applied to the figures arrived from data based on fuel

supply and use. These uplifts are based on the assumption that all fuel, whether

Avgas or Jet A1, is used to refuel aircraft. Uncontested evidence from local

residents indicates that some fuel is taken from the airfield to refuel helicopters at

remote locations. Doubt must therefore be cast on these fuel uplifted figures.

35. Raw data figures therefore indicate a ratio of 73/125 ATMs for average/peak

weekly figures over the ten year period and a ratio of 95/163 ATMs for uplifted

average/peak weekly figures. Evidence clearly indicates that the condition

attached to the personal permission of 1980, restricting the number of ATMs to no

more than 80 per week, has been consistently exceeded during the ten year

period. The Council accepts this, by implication, by concluding that the average

annual number of ATMs is about 5800. This figure, as noted in closing for the

Appellant, is midway between the uplifted figures put forward by Mr Pritchett, 4940

and 6500. But the latter figure is based on fuel uplifted figures and cannot be

relied on. The Council had engaged York Aviation to assist them in assessing

activity at Bagby Airfield and it is their conclusions that are the basis for the

Council’s conclusion on the average annual number of ATMs.

36. Because the number of ATM’s per week is seasonal it is necessary to reach a

conclusion on peak use as well as average use, in order to properly condition use of

the airfield if planning permission was to be granted, because to rely on the latter

would preclude continuation of historical seasonal variations. In the final analysis

the Appellant has applied a ratio, of average movements to peak movements, to

the Council’s accepted average annual number of ATMs to arrive at a peak monthly

number of ATMs. This ratio is taken from the aforementioned 73/125 and 95/163

average/peak weekly figures and the ratio is 0.585. But these ratios are derived

from, amongst other things, the results of the airfield survey in 2008.

Furthermore, the uplifts for resident and visitor movements were applied on a

percentage basis and the only recorded numbers of ATM’s were those taken from

the airfield survey.

37. It must be stated that assessments of the historical number of ATMs at

Bagby Airfield are based on very little empirical evidence and the evidence that

was studied was incomplete, such as pilot and maintenance logs. This might be

usual for this type of assessment but I have little confidence in either of the main

party’s positions on this matter. I would have more confidence if, for instance, a

full year monitoring exercise was carried out under controlled and agreed

conditions. Local residents did carry out a survey over a year but this was based

on visual evidence and is not conclusive. The subject of the lawful extent of the

airfield use must have been an issue in the two previous applications for

redevelopment of the airfield and Mr Pritchett was instructed to carry out “...an



extensive assessment of movements based on empirical data” in January 2010,

about four months before the date of the application that is the subject of this

appeal. No further survey to that carried out in August 2008 was undertaken.

38. Many assumptions and extrapolations have been employed by Mr Pritchett.

The Council’s position is mainly based on a critique of his evidence and gives me no

more confidence. However, of all the evidence I find Mr Pritchett’s figures based

on an uplift of the survey to be the most realistic, 95 ATMs per week on average

with a peak weak being 163 ATMs, even though he had technical logs of only 16 of

the 39 resident aircraft at the airfield, only 15 pilot log books and a non-

compulsory visitors’ book. It is my view therefore that the fallback position is

about 4940 ATMs per year. Using Mr Pritchett’s ratio of 0.585 gives a peak month

of 703 ATMs but this may or may not be realistic. In terms of a peak day number

of ATMs Mr Owen, in closing for the Appellant, commented that 86 ATMs a day

have been observed on two occasions. This was extrapolated from observing take-

offs at the airfield and is flimsy evidence on which to base a conditioned limit. He

also suggested that it is sensible to consider peak daily ATMs to be a third of the

peak weekly ATMs. A peak day could therefore be considered to be 55 ATMs. It is

worth noting that this was exceeded only once during the month long survey in

2008 but on that day there were, extraordinarily, 31 ATMs by microlights which

swelled the daily figure to 79 ATMs; the average per day was about 21 ATMs.

39. I would not expect these conclusions to be given any credence if the lawful

use of the airfield was to be the subject of an application, and possibly an appeal

against refusal of that application, for a certificate of lawful use. Nor would I

expect the conclusions to be referred to in any possible future negotiations on

development at Bagby Airfield. They are simply conclusions I must make, on the

evidence before me, to assess proposed conditions in this case.

40. Planning Policy Guidance 24 ‘Planning and Noise’ (PPG24) sets out

government policy on, amongst other things, noise from aircraft. Annex 3 sets out

detailed guidance on the assessment of noise from different sources, one of these

being noise from aircraft. For major aerodromes the standard method is to

express noise exposure in terms of Leq but for small aerodromes “...local planning

authorities should not rely solely on Leq where this is based on less than about 30

movements a day. Local planning authorities should also be aware that in some

circumstances the public perceive general aircraft noise levels as more disturbing

than similar levels around major airports”. The Appellant and the Council have

suggested that ATMs should be limited to, respectively, 1000 and 750 per month,

or 33.3 and 25 ATMs per day. 33.3 is about 30 and given that local residents do

clearly perceive aircraft noise to be discrete events no reliance can be placed on an

assessment based on Leq measurements. Furthermore, whilst standards on noise

have been referred to that provide methods for an objective assessment of noise,

the noise of airplanes and of helicopters has a specific character and is not

comparable to any other type of noise. I have thus relied on my own perception

and reactions to the noise rather than to the technical evidence.

41. Away from traffic noise on the A19, particularly within the nearby villages

and to the north-east of the airfield, the area surrounding the airfield is generally

quiet. There are military airfields in the area, planes towing gliders fly over high

ground to the east, and the A19 and nearby main east cost railway line are used by

pilots as navigation aids, so the quietness of the area is not undisturbed by aircraft

noise. However, aircraft noise from these sources is very intermittent and at some

distance away so is not particularly disturbing. The airfield is nearby and an



aircraft, once it begins its take-off and whilst it is climbing to its cruising altitude,

can be clearly heard. The noise is not loud but it is strident and intrusive. If the

plane is circuiting the airfield the noise, albeit at a lower level, continues and rises

and falls as power is applied through turns. The noise remains intrusive until the

plane is brought into land when it glides towards the runway.

42. Helicopters landing are as noisy as when they are taking off. The noise of a

helicopter is clearly heard in the surrounding area from the moment its engine is

started until it leaves the vicinity of the airfield and the same noise in reverse is

heard when it lands. A condition suggested by the Appellant would limit the

number of helicopter ATMs to no more than 10 per day. But 10 of these discrete

events, probably in addition to helicopter ATMs of the YAA, adds significantly to

noise experienced by local residents from light aircraft. Airplanes performing

aerobatics over the airfield are especially noisy and disturbing for local residents.

43. Most flying activity at the airfield is for leisure purposes and is focussed at

times, at weekends and during summer months, when residents of the area are

also seeking to maximise their leisure time. For a lot of residents this will involve

working and relaxing in their gardens. This exposes them to noise from the nearby

airfield. In these circumstances the noise of aircraft and helicopters, taking off,

landing and circuiting the airfield and at current levels, must be disturbing for local

residents. The noise events, furthermore, are not restricted to a particular period

on any day but can occur at any time during normal daytime hours. Local

residents are not therefore able to organise their time to avoid disturbance by

aircraft noise. Noise from aircraft and helicopters will occur at any time and

particularly at normal leisure times, will vary and fluctuate in level, will occur

directly over Bagby and Thirkleby, and will, given all these factors, cause

significant disturbance for residents of these two villages and outlying dwellings.

44. The proposed development includes the construction of a new clubhouse that

would include three bedrooms for use by visiting pilots and their passengers. This

element of the proposed development would not have been proposed if there was

not a likely demand for this type of accommodation. Bagby Airfield is within an

attractive part of North Yorkshire and is likely to be a desirable destination for

tourist flyers. Additional hangerage would also provide the opportunity for an

increase in the number of resident airplanes and an increase in accommodation for

airplane servicing would be likely to result in an increase in ATMs associated with

this business activity. If the proposed development was to be permitted and

implemented there is no doubt that Bagby Airfield would be significantly improved

and would be a more attractive tourist destination and home base for leisure flyers.

45. Mr Pritchett has suggested that the proposed development would result in an

increase of about 15 ATMs per week. The increase in hangerage proposed would,

at current usage levels, provide space for an additional ten light aircraft. On the

evidence of Mr Pritchett only six are currently kept outside and these would thus be

kept inside with space left over for covered parking of aircraft awaiting

maintenance. This suggests that it is proposed that no resident aircraft at the

airfield would be kept outside. If six aircraft are currently kept outside at present it

is quite possible that this would continue even if the proposed development was to

be permitted and implemented. There would be the opportunity for an increase in

the number of aircraft resident at the airfield and for a significant increase in ATM’s

by resident and visitor aircraft. If not limited there would be scope for a significant

increase in ATMs at the airfield, in excess of the suggested 15 ATMs per week.



46. Balanced against this potential for an increase in ATMs would be the

provisions of a signed and dated Section 106 Unilateral Undertaking (the

Undertaking) submitted by the Appellant, and the restrictions imposed by other

suggested conditions. Local residents have expressed specific concern about the

noise of hot refuelling of helicopters at the airfield and the flying of aerobatic

aircraft over the airfield and nearby villages and dwellings. Agreed conditions

would prevent the hot refuelling of helicopters and the performance of aerobatics

within a two nautical mile radius of the airfield. The second condition would

disperse aerobatic flying over a wider area and would not displace the noise and

disturbance caused to one other specific area. Other agreed conditions would limit

helicopter movements and the use of the airfield as a permanent base for any

more than three helicopters.

47. The Undertaking would make three main provisions in the event that

planning permission is granted. These would be the creation of a Bagby

Aerodrome Joint Consultative Committee (BAJCC), a Bagby Aerodrome Flight Policy

(BAFP), and a Bagby Aerodrome Complaints Policy (BACP). The first two of these

provisions would require schemes to be submitted to and agreed in writing by the

Council within a specified time frame. Representatives for the BAJCC would be

drawn from all interested parties and the Council could ensure that no one interest

is over represented on the committee. The remit of the BAJCC, and many other

matters, would be for the Council to agree with the Appellant. The BAFP would be

policies to minimise aircraft noise in the vicinity of the airfield and if a pilot

transgresses these policies disciplinary measures are set out in the Undertaking.

The main policy would be the establishment of no-fly zones in the vicinity of the

airfield and of primary and secondary arrival and departure routes.

48. The Undertaking, which meets tests set out in Circular 05/2005, does include

provision for any disputes or differences between the parties to be resolved by an

independent solicitor, expert mediator or arbitrator. Nevertheless, before such an

event a great deal would need to be studied and approved by the Council who

would have to be, in this situation, pro-active rather than reactive. It is safe to

state that the Council, who will have known within a few years that Mr Lassey had

relinquished his interest in the airfield in 1997, were slow to take action against the

subsequent unauthorised use of the airfield. Consideration must therefore be

given to local residents’ concerns, expressed at the Inquiry, that the Council would

not be able, for whatever reason, to properly represent their interests in

negotiations with the Appellant on the BAJCC and BFPC. However, A4R, Bagby and

Balk Parish Council and Bagby and Balk Village Society are named as interested

organisations in the Undertaking and any of these organisations could instigate

expert determination in the event that the Council failed to properly and fairly

represent their interests in negotiations with the Appellant.

49. If the appeal is dismissed and planning permission is withheld current

activity at the airfield is likely to continue without any controls. If the appeal is

allowed and planning permission is granted then its conditions and the Undertaking

would become effective. For the first time since Mr Lassey relinquished his interest

in the airfield, airplane and helicopter activity would be under some control. The

level of activity would be dependant upon the limit of ATMs contained in conditions.

Other conditions, discussed and agreed in principle at the Inquiry, would ensure

the provision of equipment to monitor ATMs, would require a log to be kept of

ATMs, would restrict hours of operation of the airfield, would restrict airplanes to

those that could be flown by pilots with a Private Pilots Licence, would restrict

helicopter training and hovering, would restrict the number of fly in days to three



in any one year, and would introduce no-fly zones and prescribed arrival and

departure routes. This last condition was accepted by the Appellant at the Inquiry

even though its provisions are in the Undertaking.

50. At the Inquiry local residents expressed some scepticism on the subject of

the BAJCC, particularly on how this would be set up and how effective it would be.

This factor notwithstanding the Appellant, the owner of the airfield, could initiate all

of the three main provisions of the Undertaking irrespective of the outcome of this

appeal. He has owned the airfield for several years and must have been aware of

local residents’ concerns regarding activity at the airfield. Putting the provisions in

place before submitting any of the three applications for the redevelopment of the

airfield, the third of which is the subject of this appeal, might have alleviated some

local concern and might have shown a commitment to being a good neighbour to

local residents who are disturbed by aircraft noise. Given the fact that initiation of

a BAJCC, a BAFC and a BACP are not dependent on the outcome of the appeal little

weight is given to the provisions of the Undertaking. The weight that is given to it

is in relation to disciplinary measures that would be brought into effect if a pilot

ignores no-fly zones and predetermined routes on take-off and landing.

51. The aforementioned conditions would be a direct consequence of planning

permission being granted. The introduction of no-fly zones to the north-west of

the airfield over Bagby and to the south-east over Thirkleby would be likely to, with

the disciplinary measures of the Undertaking, prevent overflying of the two

villages. But the noise of an airplane flying a circuit would still be audible at most

dwellings, albeit at a lower level. Furthermore, the noise of the airplane taking off,

when it is at its noisiest, would remain the same. The significance of these

conditions, however, is diminished by the fact that, like the provisions of the

Undertaking, they could be self-imposed and managed. They would, also, do

nothing for disturbance at some dwellings that are outside the proposed no-fly

zones. The Beeches for instance, on Moor End Lane to the south-west of the

airfield, lies directly beneath the proposed primary arrival and departure route.

52. The restriction on hot refuelling of helicopters and on aerobatic flying over

the airfield, two particularly noisy activities, would clearly reduce disturbance at

nearby dwellings. However, like the no-fly zone condition, the conditions could be

self-imposed without the grant of a planning permission. Nevertheless, there

would be a guarantee that they would be imposed if this appeal was to be allowed

and they therefore carry some weight. Of greatest significance, however, are the

conditions that would limit the number of ATMs. If the limits were set at, or

slightly above, the fallback level then, with other conditions in place, residents

would not experience any greater disturbance from aircraft noise. If, however, the

limits were set at a higher level and the potential for an increase in ATMs was

realised then local residents could expect to suffer greater disturbance.

53. On the final day of the Inquiry the advocates for the Council, the Appellant

and A4R stated their final positions on the limits that should be imposed on the

number of ATMs at Bagby Airfield. Setting aside secondary limits for fly in days

and for distribution between fixed wing aircraft and helicopters these are, for the

Appellant, 1000 per month and 100 per day, for the Council, 477 per month, 110

per week and 16 per day, and for A4R, 84 per week and 12 per day which equates

to about 360 per month.

54. The Appellant has not, either before or during the Inquiry, altered his

suggested limits and they can, therefore, be considered to be fundamental to the



development for which he is seeking planning permission. Conditions should not

be imposed, given the judgement in the case of Wheatcroft v SSE [1982] that

would result in a substantial alteration to the development for which planning

permission is sought. The conclusion reached in this decision on the fallback

position, if used to set limits on monthly and daily ATM’s, would constitute a

substantial alteration to the development for which planning permission is sought.

Such a major alteration cannot be considered even though all parties have had

opportunities to comment on it.

55. The Council’s limit per month extrapolated to a yearly limit would exceed the

aforementioned likely fallback position of 4940 ATMs per year but makes no

provision for seasonal or weekly variations. In this regard, given seasonal and

weekday to weekend variations, the daily limit must be more than a seventh of a

weekly limit and more than a thirtieth of a monthly limit, and a weekly limit must

be more than about a quarter of a monthly limit. The limits suggested by A4R also

fail to make provision for seasonal and weekday to weekend variations. Neither

set of limits is realistic and neither set of limits would reflect the historical pattern

of ATMs at Bagby Airfield.

56. Mr Owen, in closing for the Appellant and with regard to his suggested limits,

stated that “...anything less is likely to involve the removal of existing historical

lawful activities”. But 1000 ATMs per month is more than 703 ATMs per peak

month, the likely fallback position, and would constitute an increase of 40%. 100

ATMs per day is more than 55 ATMs per day, if this was to be considered to be a

reasonable estimate of historical peak day activity, and would constitute an

increase of 82%. Such increases might not be considered by the Appellant to be

significant but if translated into reality would have a significant effect on aircraft

activity on, around and above the airfield.

57. The potential increase in aircraft activity that could result if the ATM limits

required by the Appellant were to be imposed would not, with regard to the

consequent increase in noise and disturbance for local residents, be offset by the

restrictions on, amongst other things, hot refuelling of helicopters and aerobatic

flying over the airfield. The proposed development, with imposed conditions as

required by the Appellant, would result in a significant increase in aircraft noise and

would thus have a significant, if not serious, effect on disturbance for residents of

dwellings in nearby villages and the surrounding area. The proposal thus conflicts

with LDF policies CP1, CP2, CP4 and DP1.

The second issue – the rural landscape

58. The proposed redevelopment at Bagby Airfield would include the demolition

of the somewhat ramshackle buildings on the north-west side of the runway and

their replacement by a mainly single storey clubhouse and a maintenance

workshop/hanger of about 800 square metres. On the opposite side of the runway

three hangers would be retained and other buildings would be demolished, one of

the hangers would be extended and six new hangers would be constructed; five of

these would be 300 square metres and one would be 520 square metres. Between

the clubhouse and nearby hanger would be a 29 space car park and leading to this

would be a new access road (the old access would be closed) from a new junction

off Bagby Lane at the south-west end of the village. The access road would pass

through a grassland meadow interspersed and bounded by areas of deciduous

woodland and including a pond and a marsh with associated habitats.



59. The landscaping either side of the access road off Bagby Lane would be

visually attractive, would support biodiversity, would enclose the village at its

southern end, and would have a positive effect on the character and appearance of

the rural landscape. The clubhouse has been sensitively designed with appropriate

reference to historic airport building design and would have significant

sustainability credentials. The replacement maintenance workshop/hanger building

on this side of the runway, which would be about the same size and scale as the

former agricultural building it would replace, would be appropriate in design and

materials. The first part of the new access road would be close to one end of a

public play/amenity area at the south-west end of the village. Once implemented

and established the landscaping works either side of the access road would

enhance views from this community amenity area.

60. The airfield can be seen from the A19 to the west but from a car the airfield

would be glimpsed at best and would not significantly undermine an appreciation of

the landscape. The principal view of the airfield is from the opposite side of the

A19 and from a continuation of Bagby Lane up to its junction with Moor End Lane.

From this reasonably level vantage point the runways and the buildings of the

airfield, which is on ground that rises gradually up to its north-east boundary, are

apparent. But the airfield is a lawful use and the runways will, in all probability,

remain irrespective of the outcome of this appeal. The replacement buildings to

the left of the main runway, from the main vantage point, would be no more

obtrusive in the landscape than those they would replace. They would, in fact,

given their appropriate design, improve the appearance of the airfield.

61. The main concern expressed, with regard to this issue, is with the form and

layout of the proposed group of buildings on the south-east side of the main

runway. The main runway is a distinctive linear feature in the landscape

particularly in views from the main vantage point. The nine hangers, both existing

and proposed, would align with a hedgerow that defines the south-east boundary

of the airfield, would be almost exactly in line with the runway and would reflect

the linear form of the airfield. A group of farm buildings, such as that at nearby

Griffin Farm, are closely grouped around a farmyard for practical purposes.

Similarly, a group of hangers at an airfield are likely to align with the main runway

for practical access purposes. The layout of the hangers would reflect that of the

main runway, would be the same as that of the existing hangers, and would not

thus adversely affect the character of the rural landscape.

62. The Council has highlighted the light grey cladding materials of the hangers

as a reason for their obtrusiveness in the landscape. The Appellant has committed

to re-cladding the retained hangers in the same materials as the hangers approved

if the planning appeal was to be allowed and planning permission granted. The

group of nine hangers would thus have a cohesive appearance and, furthermore,

the prior approval by the local planning authority of materials to be used on the

external surfaces of all proposed buildings are the subject of an agreed condition.

The proposed redevelopment of Bagby Airfield has been carefully and sensitively

designed, both in landscape and building terms, and would not have an adverse

effect on the visual amenity of the rural landscape. The proposed development

does not thus conflict with DP policy DP30 or, in this regard, with CS policy CP1.

The third issue – the rural economy

63. The significant factor in this issue is that Bagby Airfield is an existing lawful

use. Furthermore, it is located outside any settlement and in the countryside for



obvious reasons. The airfield is already run as a business, though no financial

information has been submitted as to the viability of the business, and

accommodation is leased to two aircraft repair, service and maintenance (RSM)

businesses, Graham Fox Engineering and Swift Technology Group.

64. The proposed redevelopment of the airfield would result in a net increase in

hangerage of 837 square metres and a net increase in RSM space of 212 square

metres. The three bedrooms in the proposed clubhouse building would be solely

for the use of pilots and passengers arriving and departing by airplane. A condition

to this effect has been agreed by the main parties. Otherwise the clubhouse would

be a replacement for current dilapidated accommodation.

65. The Appellant has commented that the proposed development would result

in the creation of three full-time jobs and that it must therefore be considered to

be small in scale. He has also commented that since DP policy DP25 relates to

rural employment and that the creation of jobs is the correct characteristic of the

development against which to assess its scale, as opposed to the amount of built

development created. The requirement in criterion iv. of the policy, that proposed

employment development in the countryside is supported by an appropriate

business case, is not dependent on the scale of the development. It is required for

all employment development irrespective of its scale. No business case has been

prepared or submitted in this case either at application or appeal stage. The

proposed development may help to sustain the rural community but there is no

information on which to assess this matter.

66. The theme of sustaining the rural economy is also to be found in CP policy

CP4. The proposal may well support tourism and is located in the countryside for

obvious reasons but criterion i. also requires that it “...will help to support a

sustainable rural economy”. Again, there is no business case to assess whether

the proposal would support a sustainable rural economy. The proposal is for the

comprehensive redevelopment of the airfield and it is unlikely that the Appellant is

pursuing the scheme without having assessed whether he would be making a

sound business investment. Such an assessment could be the basis for a business

case so it is surprising that a business case has not been prepared or submitted,

particularly as it is a policy requirement for all scales of development. There is no

reason to suppose, on the evidence available, that the requirements of CP policies

CP1 and CP2 would impede compliance with the requirements of policy CP4.

67. Mr Meek, for the Appellant, has stated that “There is a clear business case in

support of the appeal proposals...”. But no business case has been submitted to

support the proposed redevelopment of Bagby Airfield and to satisfy the

requirement of DP policy DP25. It has not been demonstrated that the proposed

redevelopment will help to support a sustainable rural economy. The proposal thus

conflicts with CS policy CP1 and DP policy DP25.

Other matters

68. At the Inquiry a local resident expressed concern that the proposed

redevelopment of the airfield would harm the ecology of the area and, in particular,

the habitat of some species of birds. Birds that live in the area do so alongside the

lawful use of the airfield and the aircraft activity that takes place. It is unlikely that

additional activity, even up to the limits suggested by the Appellant, would have a

significant impact on the local bird population.



69. Reference has been made to other appeal decisions relating to airfields and

General Aviation and to the implementation of Joint Consultative Committees at

other airfields. The benefits of a BAJCC have already been mentioned but are not

crucial to the overall decision in this case. Furthermore, it is a well established

principle that a development proposal must be determined on its individual merits.

This important principle has been followed in this case.

70. An Environmental Impact Assessment (EIA) was not submitted at

application stage and it was concluded, at The Planning Inspectorate some time

before the Inquiry, that none was required to be submitted by the Appellant at

appeal stage. It is A4R’s case that an EIA is required for the proposed

redevelopment of Bagby Airfield, under current UK and European law, and that

planning permission could not, therefore, be granted irrespective of the conclusions

on the main issues. Planning permission has been withheld and no further

comment is necessary in this Decision on this matter.

Conclusion

71. The proposed redevelopment of Bagby Airfield would not have a harmful

effect on the rural landscape and, in this regard, does not conflict with DP policy

DP30. The proposed redevelopment, with imposed conditions as required by the

Appellant, could result in a significant increase in aircraft ATMs and noise and could

thus have a significant, if not serious, effect on disturbance for residents of


with LDF policies CP1 and DP1. Furthermore, the proposed redevelopment would

not comply with LDP policies CP1 and DP25 that seek to support the rural

economy. The appeal thus fails and planning permission has been withheld.

Planning Appeal B

72. The existing access to the airfield will continue to be the only access because

planning permission for the proposed redevelopment of Bagby Airfield, including

the provision of a new access, has been withheld.

73. The main issues are whether the proposed replacement helicopter landing

pad and jet fuel stop facility; first, would result in an increase in helicopter ATMs

and therefore an increase in noise and disturbance for residents of dwellings in

nearby villages and the surrounding area; and second, would result in an increase

in heavy commercial vehicle (HCV) use of the existing access to the detriment of

highway safety in Bagby.

The first issue – noise and disturbance

74. The condition suggested by the Appellant that would restrict helicopter ATMs

to no more ten per day, in addition to those by YAA, would be applicable to this

appeal. Though this number of helicopter ATMs was exceeded on two days during

the month long survey in 2008 the average number of such movements averaged

less than four. The landing pad and jet fuel stop would be relocated to a location

separate from other aircraft activity and could become a filling station facility for

passing helicopters. It is quite possible that the facility would result in a greater

number of helicopter ATMs than at present. Helicopter ATMs are especially noisy

and an increase in these events would result in greater disturbance for residents of


with LDF policies CP1 and DP1.



The second issue – highway safety

75. HCVs already use the existing access, to deliver Avgas and Jet A1 fuel.

However, if the relocated landing pad and jet fuel stop would result in a greater

number of helicopter ATMs than at present then there would probably be an

increase in HCVs for the delivery of Jet A1 fuel. The existing access passes

between two residential properties and visibility to the right for drivers of HCVs

exiting the access is restricted by the proximity of landscape features close to the

edge of the roadway.

76. The potential increase in HCVs has not been quantified and it is unclear

whether this would have any adverse consequences for highway safety. It is

always best to take a cautious approach when assessing this issue and without any

evidence to the contrary it is reasonable to reach a conclusion that the proposed

replacement helicopter landing pad and jet fuel stop facility would result in an

increase in heavy commercial vehicle use of the existing access to the detriment of

highway safety in Bagby. The proposal thus conflicts with CS policy CP1.

Conclusion

77. The proposed replacement helicopter landing pad and jet fuel stop facility

would result in an increase in helicopter ATMs and therefore an increase in noise

and disturbance for residents of dwellings in nearby villages and the surrounding

area and would result in an increase in heavy commercial vehicle use of the

existing access to the detriment of highway safety in Bagby. The appeal thus fails

and planning permission has been withheld.

John BraithwaiteJohn BraithwaiteJohn BraithwaiteJohn Braithwaite

Inspector



APPEARANCES

FOR THE APPELLANT:

Mr E Owen Of Counsel instructed by Mr R Sagar,

Partner of Walker Morris Solicitors

He called

Mr R Meek BSc(Econ) MRTPI

Planning Consultant

Mr P Kember DipTP MRAeS

MRTPI(Rtd)

Aviation Planning Consultant

Mr D Sharp CEng FIMechE FIOA

Noise Consultant

Mr P Rech BA BPhilLD CMLI Landscape Consultant

Mr P Pritchett BSc ACA Aviation Consultant

FOR THE LOCAL PLANNING AUTHORITY:

Mr G Cannock

Barrister instructed by Mr G Nelson,

Solicitor for Hambleton District Council

He called

Mr T Wood BSc(Hons) MRTPI

Development Manager at HDC

Ms J Swithenbank BSc(Hons) CIEH

DipA&NC

Environmental Health Officer at HDC

FOR ACTION4 REFUSAL:

Mr D Cooper Solicitor

He called

Mr A Saunders BSc(Hons) CSci

CPhys MInstP FIOA

Noise Consultant

INTERESTED PERSONS:

Mr M Garnett CPRE

Mrs Pearson Local resident

Mr Humphries Local resident and representing Bagby and Balk PC

Mrs D Price Local resident

Mrs Bondar Local resident

Mr Wrightson Local resident

Mr S Jewell Local resident

Mr R Linton Local resident



Mr Proud Local resident

Mr A Tulloch Local resident

Mr R Chapman Local resident

Mrs C Chapman Local resident

Mr Benson Local resident

Mrs K Brown Local resident and Secretary of Bagby Village Society

Dr L Thom Local resident

Mr P Bondar Local resident

Mr C Auger Local resident

Ms C Lumb Local resident

Mr D Van Neck Local resident

Mr McDill Local resident

Mr Varey Local resident

Mrs C Musgrove Local resident and Vice Chairperson of Bagby and Balk PC

Mr Middleton Local resident

Mrs A Hornsby Local resident

Mrs M Ballantyne Local resident

Mrs S Van Neck Local resident

Mrs M Flanagan Local resident

Mrs I Wood Local resident

Ms C Lumb Local resident

Mrs R Shield Local resident

Mr P French Local resident

Mr T Keel Local resident

Dr R Wood Local resident

Mr M Rodger Local resident

Mr T Brown Local resident

Mrs J Varey Local resident and Parish Clerk

Mr A Fyfe Local resident

Mrs T Linton Local resident

DOCUMENTS

1 List of appearances for the Appellant.

2 Opening remarks on behalf of the Appellant.

3 Anase: Lessons from ‘Unreliable Findings’.

4 Appeal Decisions APP/J0405/A/07/2052929 et al.

5 Draft Statement of Common Ground.

6 Council’s letters of notification and list of those notified.

7 Draft Section 106 Planning Obligation.

8 Opening Statement on behalf of Action 4Refusal.

9 Bagby Airfield – Advice Note for David Cooper.

10 Aviation conditions travelling draft.

11 Existing and proposed flight protocol.

12 York Aviation response to Mr P Kember and Mr P Pritchett.

13 Chief economist statement on Anase.

14 E-mail from David Charles to Alan Saunders dated 15 March 2011.

15 Helicopter noise database.

16 Statement by Mr P Benson on behalf of Mr And Mrs Harker.

17 Statement by Mr R Linton.

18 Statement by Mr A Fyfe.

19 Character Area 24 Document and Landscape Assessment.



20 Draft Flight Protocol.

21 Yorkshire Air Ambulance flights from Bagby Airfield April 2010–March 2011.

22 LPA’s chart of ATM at Bagby airfield from various sources.

23 Action4Refusal proposed conditions.

24 Mr Pritchett’s supplementary submission to Mr Kember’s Appendix 11.

25 Bagby and Balk Parish Council representation at application stage.

26 Application Drawings for the three planning applications.

27 Noise contour plan.

28 Letter from the Appellant to Mr J A Tulloch dated 4 June 2008.

29 Flight figures at Bagby Airfield produced by various witnesses.

30 Article from the Stockton and Darlington Times.

31 Mr Pritchett’s Average Annual Movements Guide Calculation.

32 Bagby Airfield Runway Reinforcement Process.

33 Aviation Conditions Travelling Draft.

34 CAA Safeguarding of Aerodromes Advice Note 3.

35 Mrs Linton’s written statement.

36 Mr Linton’s written statement.

37 Mrs Ballantine’s written statement.

38 Mrs Varey’s written statement on behalf of Bagby and Balk Parish Council.

39 Mr Tomaszewski’s written statement.

40 Mr Brown’s written statements.

41 Mr Auger’s written statement.

42 Beeches No Fly Zone put forward by Mr Auger.

43 Mr Chapman’s written statement.

44 Mr Rodger’s written statement.

45 Dr Wood’s written statement.

46 Mr Keel’s written statement.

47 Photographs of hardcore roadway submitted by Mrs Price.

48 Internet Airfield Details for Bagby Airfield.

49 Mr French’s written statement.

50 Mrs Price’s written statement.

51 Statement by Mr Fox (not presented to the Inquiry).

52 Documents referred to by Mr Fife.

53 Bird Survey Report for Bagby Airfield dated March 2011.

54 Conditions Travelling Draft.

55 Extract from Circular 11/95.

56 Plan 1 for draft condition 18.

57 Section 106 Planning Obligation.

58 SAVE v SoS for CLG and Lancaster City Council.

59 Closing Submissions on behalf of Action4Refusal.

60 Closing Submissions of the LPA.

61 Closing Submissions for the Appellant.