One Source Dec 19 Deputy Director

Tower Hamlets Dec 19 Updated 600 3

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Gliding club win legal challenge over prior approval for barn conversion

A long-established gliding club has won a Planning Court challenge over Harborough District Council’s decision to grant prior approval for a barn conversion on a site next to its airfield.

The claimant, Coventry Gliding Club, was formed in 1952 and has more than 400 members. It has staged major competitions including the UK National Championship and in 2021 it is due to host the Women's World Gliding Championship.

Since 1965 the club has been based at Husbands Bosworth in Leicestershire. That site is part of a former World War 2 airfield.

The case of Coventry Gliding Club Ltd, R (On the Application Of) v Harborough District Council & Anor [2019] EWHC 3059 concerned the local authority’s decision on 28 February 2019 to grant prior approval for “Barn B”, also known as the Red Brick Barn, on Airfield Farm, which is next to the airfield's site.

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The change of use was permitted development under Class Q of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO"). It fell within either Class Q(a) or (b).

The decision was taken by one of the council's senior planning officers, in exercise of delegated powers, on the basis of information contained in and attached to an officer's report.

Mr Justice Swift said the matter primarily put in issue by the gliding club’s claim was the council's conclusion that the "location or siting" of the Red Brick Barn, did not (in the language of paragraph Q.2(1)(e)) make it "otherwise impracticable or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwelling house) of the Schedule to the Use Classes Order".

The Red Brick Barn is one of a number of agricultural buildings on the south side of Airfield Farm, close to the northern boundary of the gliding club's airfield. The airfield stands between the Red Brick Barn and Sibbertoft Road. The barn has access to the road via a track that runs across the airfield.

It was accepted that a right of way over this track attached to the Red Brick Barn. But the track runs across the runway, close to the winches at the eastern end of the runway, the judge said.

Mr Justice Swift said that as a result the primary part of the gliding club's case was that when granting prior approval, the council failed to have regard to the safety risks that could arise from the fact that anyone living in the Red Brick Barn or visiting it would have to cross the runway.

These risks arose from both the launching of the gliders and also when the gliders made their landings.

As part of its case, the gliding club referred to two previous decisions by the council to refuse applications for planning permission to convert the Red Brick Barn to residential use. Both applications pre-dated the GPDO.

The first, in June 2002, was refused on the ground that noise caused by the club’s activities would be detrimental to the amenity of any future occupants of the property. The second application was made on 10 September 2002 but was refused (on 30 April 2003) both on grounds of noise, and to the risks to safety arising from using the track to go to and from the property.

The particular grounds of challenge to the council's prior approval decision in February 2019 were that:

  1. the council failed to give notice of the application for prior approval as required by paragraph W(8) of Part 3 of Schedule 2 to the GPDO;
  2. the council (a) failed to have regard to material considerations, namely safety of access, and the impact on the property of noise from the gliding club's activities; and (b) had regard to an immaterial consideration, namely the use to which land on Airfield Farm could lawfully be put by reason of Class B of Part 4 of Schedule 2 to the GPDO; and
  3. the council failed to give sufficient reasons for its decision and /or reached a conclusion that was irrational.

The district council opposed each of the grounds, and further contended that the application for judicial review was commenced late, and that time to commence the proceedings ought not to be extended.

Allowing the claim, Mr Justice Swift found that:

  1. The notice displayed by the council was not close enough to meet the requirement of paragraph W(8)(a).
  2. He was satisfied that each of the matters identified by the gliding club was a relevant consideration. A benevolent reading of the officer's report “cannot change the fact that there is no mention at all either of the possible impact of noise from the Gliding Club, or of the safety risks that could arise because the access to the Red Brick Barn is across the runway used by the Club”. He accepted the gliding club’s submission that the council failed to have regard to relevant considerations.
  3. Since the gliding club had succeeded on Ground 2, he did not need to address the reasons and rationality challenges.
  4. In the circumstances of the case he had decided to extend time for filing the Claim Form with the consequence that the gliding club claim was not time – barred. “It is material that I have already concluded the council failed to comply with the requirement to give notice at paragraph W(8)(a)”. He was satisfied that in that period from when the gliding club has became aware of the application, it had pursued matters “speedily and efficiently”.

Mr Justice Swift said that the remedy that would be ordered would need to be considered at a further hearing and be the subject of a further judgment.

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