Mid Beds Model Aircraft Club v Secretary of State for Communities and Local Government

Planning appeal – Change of use of field from agriculture to flying model aircraft – Claimant proposing conditions to secure compliance with code of practice on noise from model aircraft – Inspector refusing permission on ground of unacceptable noise effecting nearby residents – Whether obligation to grant permission where proposals code-compliant – Whether obligation to consider granting permission subject to conditions put forward by local planning authority “without prejudice” – Claim dismissedSince 2003, the claimant club had flown model aircraft on various sites in Wilstead, Bedfordshire. In 2007, the claimants moved a nearby arable field and made an application to the second defendants for planning permission for a temporary change of use from agriculture to recreation for the sport of model aircraft flying. The second defendant refused permission on grounds relating to the effect of noise on nearby residents. The claimants appealed to the first defendant by way of written representations.The inspector dismissed the appeal and upheld the refusal of permission. In reaching his decision, he noted that the claimants’ proposals accorded with the code of practice on noise from model aircraft published by the Department of the Environment in 1982. However, he took into consideration that the code did not form part of the development plan, was 26 years old and did not, in any event, provide hard and fast rules. He further noted that the code did not take into account the tonal quality of noise, which had been a factor in the second defendants’ decision to refuse permission, and that the latter’s decision was based upon experience of the use and operation of model aircraft and the findings of two independent specialist consultants.The claimants brought proceedings, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision. They contended that: (i) the inspector should have granted permission once he had recognised that the proposals accorded with the code of practice and had given inadequate reasons for rejecting its criteria; and (ii) he had failed to take into account a material consideration, namely the possibility of attaching conditions to the planning permission to mitigate the noise impact, based on draft conditions that the second defendants had put forward without prejudice to their main case that permission should be refused.Held: The claim was dismissed. (1) The code of practice provided guidance only and recognised that compliance was not, in itself, sufficient to justify a grant of planning permission and that local circumstances could be taken into account. Given the second defendants’ reason for refusing planning permission, the inspector had been required to go on and consider the effect on the living conditions of nearby residences to the proposed flying field. The inspector had been entitled and, indeed, obliged to have regard to the evidence on noise as a whole, including that given by local residents. The reasons for his decision, although brief, set out clearly his conclusion on the main controversial issue and concluded that the effect on residents was unacceptable notwithstanding compliance with the code. Any lack of detailed reasoning or comparison between the different aspects of the evidence did not render his decision deficient since the duty to give reasons did not extend that far: South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33; [2004] 4 All ER 775 applied.(2) In promoting an application for development in accordance with the code of practice, the claimants were proposing such conditions as would make the development code-compliant. No other reference was made to conditions in the claimants’ written representations and there was no evidence from the claimants that they would accept any more restrictive set of conditions. Nor was there anything to indicate that the second defendants would consider the use acceptable if it were more restricted. The issue of conditions had not been a controversial one in the appeal. An inspector was not obliged, on every occasion when he found a use or development to be unacceptable, to go on to consider the without-prejudice set of conditions even though the claimant had expressed no view on those conditions. In a written representations appeal, it was particularly important that the parties were clear about both their primary case and, second, what they would accept if that case did not succeed in its entirety. There had been no evidence in the instant case that would have allowed the inspector to proceed on the basis that the without-prejudice conditions were agreed conditions. Moreover, the differences between the parties on the history of the use meant that there was no obvious solution to the noise problem and no obvious set of conditions that the inspector could be satisfied would deal with that problem. In those circumstances, there was no duty on the inspector to take the issue of conditions further. David Altaras (instructed by Reg Bench) appeared for the claimants; Richard Honey (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.Sally Dobson, barrister