Q & A 18.2/10
An urban local authority has allowed a model aircraft club to fly from and above a sports field between 0900 hours and sunset. Complaints have been received about noise which is disturbing the ability of the public to enjoy a large area of marshland SSSI. Does a model aircraft count as a motorised vehicle and should planning permission have been obtained?
A sports-field falls within the Assembly and Leisure Use Class D2, but this does not include uses involving motorised vehicles. I can find no definitive ruling on the subject, but it seems to be accepted practice that conventional aircraft are not "vehicles" for the purposes of Class D2, and therefore model aircraft are even less likely to be so classified. It appears that this use does not need planning permission.
I live next to an old established golf course. Some of the existing tees have been substantially enlarged and heightened by the use of imported earth and turf. One of these tees is within 3 metres of my garden enabling players to look over my fence. I believe that the deposit of material in this way requires planning permission, but this is disputed by an officer of the council.
This development, involving the use of earth, could not be considered as the deposit of "refuse or waste" making it a material change of use by reason of section 55(3)(b) of the Town and Country Planning Act 1990. However, there are no permitted development rights relating to golf courses and the substantial heightening of land by mounding or embankmenting could be an engineering operation requiring planning permission, using the judgement in the 1980 Ewen Developments Ltd court case. The question is, therefore, whether the work to these tees is sufficient enough to constitute an engineering operation. Unfortunately there is no straightforward answer as this depends on the facts of each case.
A skateboard and BMX facility was granted permission on the edge of a local park. Because of local concerns a management plan formed part of the application documents and a condition was imposed that the development should be operated in the manner detailed in that plan, to ensure that the amenities of nearby properties were safeguarded. The management plan stated that the site was 40 metres from the nearest property, and separated therefrom by a road and a densely planted embankment. The development has taken place but the densely planted embankment has been cut back, in most places to ground level. Is the validity of the permission affected by these changed circumstances?
If the management plan was devoted to operational matters, and did not specifically refer to the retention of the embankment planting, I doubt whether its later removal has breached planning control. However, I can appreciate that reference to the planted embankment in the plan may well have prompted the assumption that it was to be a permanent feature which would mitigate amenity harm from the development.
Our local authority considered that the formation of a fenced play area, containing basketball hoops at either end, constituted permitted development under schedule 2, part 12 of the General Permitted Development Order 1995 (GPDO) . The development was on an existing play area owned and maintained by the council and no part of the ‘works’ or ‘equipment’ exceeded 4m in height.
There is debate as to whether part 12 covers such development and also concern that an Ombudsman has considered that the play area has a "capacity" that exceeds the 200 cubic metre limit set out in part 12.
Part 12 grants planning permission to a local authority to erect or construct any small ancillary building, works or equipment on land belonging to them for the purpose of any function exercised by them on that land. This right is subject to the caveat that such ancillary buildings, works or equipment do not exceed 4 metres in height or 200 cu metres in capacity.
The term "function" includes powers and duties whereby a local authority may hold land for public open space purposes including its recreational use. While the Planning Act states that "building" includes any structures or erections (or parts thereof) the GPDO within Article 1 states for its purposes that "building" does not include any gate, fence, wall or other means of enclosure. Article 1 also states that "cubic content" means the cubic content of a structure or building measured externally.
It would appear that the creation of the surfacing and provision of the basketball hoops would fall within part 12 provided the latter do not exceed 4m in height. The fencing, if it does not fall under the heading of "equipment", would appear to be subject to the permitted development maxima given by part 2 of the GPDO. I would not subscribe to the view that a fenced open-air play area can have cubic capacity as this must refer to the physical limits of a building or structure. The quoted ombudsman’s finding does not rest comfortably with this. Does any reader have a view on this matter?
A two acre piece of land part of the planning unit associated with a commercial building has been fenced off and used for general aviation. Some aspects of this use are ancillary but pleasure flights and others unrelated to the business are not. The local authority deny that the non-ancillary aspect of this use has been continuous averring that periods of 4 weeks may have passed with no taking off or landing. This is disputed by the applicant who argues that the area of land has been maintained, marked, fenced, advertised and available for such a use for more than ten years. The authority also allege that even if the use is shown to be continuous that there may have been a material change of use by intensification due to increased aircraft movements. What is your view of this dispute?
Conflicts of this type may involve the balancing of issues of some complexity, which cannot be resolved from brief information. However, it seems to me that there was likely to have been a point where a material change of use of this land occurred to a mixed use for ancillary and commercial flying. This should be documented by the aviation authorities. If from then more than ten years have elapsed for the purposes of the immunity rule and throughout this period the overall character of the use has remained the same and reasonably continuous there may be a good chance of success for the applicant. I do not think that measurements of aircraft movements over this period are a conclusive guide to establishing whether the use has been continuous or conversely whether a further material change of use by intensification has occurred in the interim.
My authority wishes to carry out an up-to-date audit of open space provision within the borough, in line with the companion guide to PPG17 2002, as part of its UDP review. Are you aware of any recently prepared and adopted assessments carried out by other planning authorities based on this guidance?
Revised PPG17 advises planning authorities to undertake audits of local open space, sport and recreation provision and assessments of need, and the companion guide explains one way in which this can be done. The only example of a completed audit I know of was carried out by consultants on behalf of Spelthorne Borough Council and approved earlier this year. If any reader can let me know of others, I will pass the information on.
I have had conflicting advice from a planning authority on whether permission is needed to build a skateboard park on a village recreation ground within a greenbelt. Please can you help?
The site’s location within a green belt is irrelevant to whether permission is required. Skateboard parks generally involve the provision of ramps and associated engineering operations. Part 12 of the General Permitted Development Order grants permission to local authorities for small ancillary buildings, works or equipment on land belonging to or maintained by them for the purpose of any function exercised by them, subject to a limit of 4m in height or 200 cu.m in volume. While this right includes local authority, parish and community council open spaces and playing fields, in an appeal from Powys in 2003 (DCS No: 29875317), an inspector held that this does not extend to developers or clubs using such spaces. If the development tolerances under Part 12 are exceeded, permission will be required for the skateboard park.
A client wishes to operate a limited number of 2-seat hovercraft within the curtilage of an airfield with the benefit of planning permission. It is currently used for light aircraft and microlights. Do you consider that the use of an air cushion vehicle is a separate use requiring planning permission, or could it be merely regarded as an alternative type of aircraft? JS.
Assuming there are no relevant conditional restrictions, all depends on whether the introduction of the hovercraft would bring about a material change of use relating to the current operation as lawfully carried on in accord with the planning permission. Obviously this is matter of fact and degree which it is difficult to comment on without possession of much more detailed information. However, I feel that there may be circumstances in which a case could be argued that the hovercraft use is an ancillary activity. In addition, many argue that leisure flying falls within Use Class D2, and thus the argument that there may be been a material change of use through intensification is difficult to pursue. GH.
The owner of an established airstrip used for microlights and light aircraft/helicopters finds that development is proposed on neighbouring land which could seriously affect the flightpath and thereby render the strip unusable. Does the owner have any rights to the use of the airspace? RT
I cannot help on the question of any legal right the airstrip owner may have to prevent obstruction to flightpaths lying over neighbouring land. However, the planning system may operate to protect existing airfields from the effects of new development on nearby land which would prejudice their operational safety. Nearly all civil and military aerodromes are subject to a formal safeguarding procedure which is included in development plans. In the case of smaller operations which are not officially safeguarded, the advice in government Circular 01/2003 is that operators should take steps to protect their locations from the effects of possible adverse development by establishing an agreed consultation procedure between themselves and the local planning authority. This could involve lodging a non-official safeguarding map with the local planning authority or authorities. Local planning authorities are asked to respond sympathetically to requests for non-official safeguarding.GH.