Council fails in statutory review challenge over grant of planning permission by inspector on land at airfield

The council brought the case against the Secretary of State for Housing, Communities and Local Government and site owner Old Sarum Airfield, arguing that although the fire occurred after the inspector’s decision was published, it still invalidated his conclusions.

Mrs Justice Lang heard Wiltshire applied for review of the inspector’s decision on an appeal by the airfield against its refusal of outline planning permission for a redevelopment that included 315 homes and various commercial and aviation uses.

Wiltshire’s first ground of challenge was that the inspector's decision was unsound being based on a materially incorrect fact, following the extensive fire damage to the listed Hangar 3 shortly after his decision was issued.

Its second ground was that the inspector's decision was vitiated by external injustice as a result of the fire and damage.

The court was told that Old Sarum Airfield has been identified by Historic England as one of the best-preserved flying fields of the First World War and is of significant heritage importance.

Hangar 3 though had deteriorated considerably becoming deemed by Historic England as at immediate risk of further rapid deterioration.

Old Sarum Airfield applied in November 2023 for permission for redevelopment and an inspector concluded heritage harms could be overcome by a restoration of Hangar 3, which was deemed “a major heritage benefit” by Historic England.

Wiltshire granted listed building consent but subsequently refused planning permission on a number of grounds, one of which was that the scheme’s height and scale would erode the open character of the site.

The council also argued that the airfield owner should not be permitted to take advantage of the need to restore Hangar 3 as a benefit of the scheme, as it had failed to maintain it.

Planning inspector Nick Fagan found on appeal the heritage benefits including the restoration/rebuild of Hanger 3 outweighed other harms, and imposed a condition to secure the work to Hangar 3.

But Hangar 3 caught fire before this could happen in a blaze initially thought to be deliberate but later assessed by the fire brigade and police as having an undetermined cause.

Lang J said it was therefore “not possible to proceed on the basis that the fire was or may have been set deliberately”.

Wiltshire argued the fire meant new evidence had emerged that the court could take it into account when exercising its powers of review.

The council said the inspector's decision was predicated on the condition of Hangar 3 as it then was and so had become materially incorrect because of the fire damage only eight days after he made his decision, and within the six week period to bring a statutory challenge.

Lang J said: “I accept the submissions of [the defendants] that this ground has no merit.

“The inspector's decision does not disclose any error of law or mistake of fact. It was taken on a correct application of the law to the facts as they existed at the time, as [Wiltshire] concedes. A subsequent event, such as the fire, cannot retrospectively render a lawful decision unlawful.”

She said it was irrelevant that the fire occurred within the six week period, which had been “merely a matter of chance”.

Wiltshire’s second ground argued that damage to Hangar 3 had stripped the inspector's decision of its logic and rendered the decision meaningless as the site could then be developed without providing any of the promised heritage benefits.

Lang J said Wiltshire’s fear that Old Sarum Airfield now planned to leave Hangar 3 unrestored “is unsupported by any evidence. On the contrary, [the owner] has confirmed that it does intend to repair and restore Hangar 3.”

She said clear evidence had been shown that the listed building consent and planning permission could be implemented and “the claimant has not identified flaws in the evidence, nor filed any evidence to contradict it”.

Lang J concluded: “In my view, there is no external injustice or unfairness which vitiates the Inspector's decision. The inspector's decision is valid and is unaffected by the fire and its consequences.”

Mark Smulian