Water sports Q & A DCP Section 18.3

This section is concerned with recreation uses relying upon lakes, reservoirs, canals, navigable rivers or coastal environments. Seaside marinas and angling uses are covered in this section although fresh and seawater fish farms are to be found at (22.2). Discussion on houseboats is at (24.8).

Q & A    18.3/10

My authority is dealing with a planning application for the construction of a large fishing lake within the consultation distance of a regional airport. Both the CAA and the airport are raising objections to the application on the grounds of risk to aircraft from bird strike. While we have no difficulty in considering this as a material consideration, we can find no reference in case law or guidance to this issue. Can you point to any helpful information?

There are several appeal cases to demonstrate that it is a material consideration in relation to proposed development that it would be likely to attract birds which could create an air safety hazard. The normal scenario is domestic waste landfill developments and in such cases it needs to be shown that there is a reasonable likelihood that the proposed development would indeed attract birds and if so whether they would pose a hazard given any mitigation measures that may be taken. An interesting appeal example from 1994 concerned waste infilling of a site near Cardiff airport and a RAF airfield. A major consideration at the inquiry was aviation safety and the increased risk of bird strike incidents. The inspector noted that this was an appropriate and material consideration that needed to be addressed as part of any assessment of a planning application. He noted that waste sites were a major attraction for "opportunistic feeders" such as gulls, starlings and corvids. Despite the fact that no quantitative risk analysis had been undertaken the inspector was satisfied from the evidence and representations that the proposed development would constitute a very significant hazard to aircraft operations, the results of which could be catastrophic, and he was not satisfied that control methods such as netting would be effective. This decision was the subject of a High Court challenge in Blue Circle Industries plc v Secretary of State for Wales [1996] but the inspector’s decision was upheld.

I am trying to establish whether planning permission is required for the reclamation of an area of sea. I would also like to know if planning control extends to the siting of a new floating pontoon in a marina.

Development below low water mark does not normally fall within planning control unless, as in the case of many estuaries, harbours and tidal rivers, local authority boundaries actually embrace such waters. However, various other Government controls exist in offshore areas as set out in PPG20 Coastal Planning at para.1.9. If the generality of planning control does apply to a particular area of water, there may well be operational development if a floating structure is permanently fixed to the river or sea bed as is almost certain to be the case in your pontoon example. It is also possible that a material change of use may be considered to have occurred from a navigable waterway to whatever use any floating structure is put to. The leading case in such matters is Thames Heliport plc v London Borough of Tower Hamlets [1996] where it was held that "land" may be land covered by water.

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