Appeal 6003123

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for the erection of two agricultural barns at [site address] in accordance with the application 25/04338/AGRN and the details submitted with it including plan numbers P18-2670-DE-001-A-01, B-02, B-03, C-04 and B-05.

An application for costs was made by [name] of Somer Valley Farms against Bath and North East Somerset Council. This application is the subject of a separate

Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO) permits the erection of a building on agricultural land comprising a unit of 5 hectares or more. However, paragraph A1(f) of Part 6 of the GPDO states that development is not permitted if the height of any building within three kilometres of the perimeter of an aerodrome would exceed three metres.

The proposal seeks to erect two barns, the height of which would exceed three metres. Within three kilometres of the appeal site is [name] airstrip (the airstrip). Whether the airstrip constitutes an ‘aerodrome’ for the purposes of the GPDO, and hence whether the proposal would be permitted development, is a matter of dispute between the Council and the appellant.

The main issue is whether the proposal complies with the description of permitted development under Schedule 2, Part 6, Class A of the GPDO, with regard to its proximity to an aerodrome.

The GPDO defines ‘aerodrome’ for its purposes as meaning an aerodrome as set out in Paragraph 1 of Schedule 1 of the Air Navigation Order 2016 (the ANO). The airstrip is also used for agriculture, and prior permission from the operator is required before its use for aviation. Nevertheless, it is used by enthusiasts to fly locally for leisure and for longer trips. It is also shown on the Airfield of Britain and UK General Aviation databases as a current and active airfield. It is therefore commonly used for the landing or departure of aircraft. As such, it consists of an aerodrome as defined by the ANO.

However, the GPDO also requires the airstrip to be used (amongst other things) for the public transport of passengers or cargo, or in aerial work, for its definition of an aerodrome to be met. The terms ‘public transport’ and ‘aerial work’ are defined by the GPDO as having the meanings found within the ANO.

ANO Article 6 (2)(b)(i) defines a public transport flight as one for the carriage of passengers or cargo where valuable consideration is given or promised for that flight. A recent appeal1 (the [address] Farm appeal) relating to the same airstrip found that passengers could be carried in aeroplanes with two or more seats. On this basis, the other Inspector concluded that the airstrip was involved in public transport as defined by the ANO, and so was not permitted development.

That said, this decision focused on whether there were passengers and did not question whether the airstrip is used for flights that are paid for (‘valuable consideration’). The ANO makes clear2 that paid-for flights can only take place if the aerodrome is certified or licenced. There is no dispute that the airstrip is not certified or licenced. Moreover, there is nothing to suggest that passengers to or from the airstrip pay for their flights. Indeed, the undisputed evidence before me is that such payment would be illegal.

Under ANO Article (2)(b)(ii), a public transport flight can also include one operated by the holder of a national air operator's certificate or a Part-CAT air operator certificate. An appeal decision at Wimbledon3 found that a hospital helipad met the GPDO definition of an aerodrome, even though its passengers (i.e. patients) did not pay for their flights.

However, the decision confirms that the air ambulance operator was the holder of a national air operator certificate. As such, they would meet the ANO Article 6 (2)(b)(ii) definition of a public transport flight, which includes passengers carried gratuitously. Consequently, as with the [address] Farm decision, the Wimbledon appeal did not engage with what constitutes ‘valuable consideration’.

There is nothing to suggest that aircraft using the airstrip are operated by holders of the certificates referred to by ANO Article (2)(b)(ii). Accordingly, little useful comparison can be drawn from the Wimbledon appeal. I therefore conclude that the airstrip at [name] is not used for public transport flights, and so is not an aerodrome as defined by the GPDO for this reason.

The Council also maintains that the airstrip is capable of being used for ariel work. Ariel work is another route by which the airstrip could be defined as an aerodrome 1 APP/F0114/W/25/3359332 2 Articles 207 and 208 3 APP/T5720/W/24/3345759 under the GPDO. Such work, as defined by the Civil Aviation Authority, includes the commercial use of aircraft for specialised services such as agricultural operations, aerial photography or surveying, or the towing of banners.

Nevertheless, to apply here, the GPDO definition requires that the airstrip is actually used by aircraft engaged in aerial work, not that it is merely capable of such a use. No evidence is before me to suggest that the airstrip has been used for the purposes of ariel work, or is a commercial enterprise. This does not therefore provide a reason for the airstrip to constitute an aerodrome as defined by the GPDO. Nor is there any evidence to suggest that the airstrip meets this definition for any other reason, for example as a Government aerodrome, or that the proposal does not comply with the other GPDO criteria.

The GPDO height restrictions may well seek to safeguard aviation safety, to prevent tall buildings interfering with the manoeuvring or operations of aircraft. The Council has provided evidence of a hard landing at the airstrip, although it is not clear that this was affected by the proximity of buildings taller than three metres. In any case, the drafters of the legislation have chosen to frame the definitions as they have, and I must assess the proposal against the legislation as worded.

For the reasons given above, I conclude that the proposal complies with the description of permitted development under Schedule 2, Part 6, Class A of the GPDO, with regard to its proximity to an aerodrome. The appeal is therefore allowed and prior approval is granted.