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Planning matters

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Solar-Powered Airports - as simple as 1,2,3 and 4?
When the topic of permitted development rights (PDRs) come up, for most it’s probably householder PDRs that first come to mind.
But PDRs are also enjoyed by wide range of other sectors – including airports.  
The PDRs are a general planning permission granted by Government, not by the local planning authority - allowing for certain types of work to be carried out without the need for planning permission. These rights exist under the General Permitted Development Order (GPDO).
For airports, the PDRs allow for certain operational development to be undertaken without planning permission. These PDRs are in place to allow the airport the ability to respond to the requirements of regulators and passengers, attract business investment and in the case of the Crown, provide development needed for national security.
In practice it is not always clear if PDRs can be used or who they apply to. This complexity was recently tested, by Planning Appeal [1], at Liverpool John Lennon Airport.
The airport had submitted an application to Halton Council for a lawful development certificate (LDC) [2] for a solar farm. The solar farm once up and running would be capable of generating 3MW of renewable energy, all of which would be used by the airport. The application also sought the construction of a substation, an internal access road and a site entrance. Halton Council, however, refused the application. The airport went on to appeal that decision. The Planning Inspectorate’s decision, released last week, agreed with the airport, allowing the appeal. The solar farm and its associated development is in fact Permitted Development.
To benefit from the PDRs, an airport must have an interest in the land and be able to satisfy four criteria – namely that any development:

  1. Takes place at a “relevant airport”;
  2. Is carried out by a “relevant airport operator” or its agent;
  3. Is required in connection with the provision of services and facilities at a relevant airport, carried out by a relevant airport operator; and
  4. Takes place on “airport operational land”.

 

So why – when use of the airport’s PDRs had already been established under other LDCs sought by the airport – did the Council refuse this application?
The previous use of the PDRs, and stated Reason for Refusal, suggests that there was no disagreement with respect to the above 1st and 2nd test.
It also (rightfully) wasn’t a question of whether a solar farm is airport operational development – the above 3rd test. Aviation, given its forecast growth, is projected to become one of the world’s largest emitting sectors by 2050; the sector must shift to net zero. Earlier in the year, Government consulted on its ambition for all airport operations in England be net zero emissions by 2040. Liverpool John Lennon Airport has already committed to meeting ‘Scope 1’ [3] and ‘Scope 2’ [4] net zero by this date. A solar farm at the airport, powering its operations, will be an important part of this transition. This type of development should be treated as operational development, essential for day to day activity – and doing otherwise could unnecessarily hinder the airport’s ability to meet its 2040 target.  
Instead, it came down to the above 4th test. The Council stated that the airport had failed to prove that the site in question was part of the airport’s operational land and therefore was not suitable for an LDC.
Airport operational land generally means the area within which airport operations take place, for example, the area covered by the Aerodrome Licence. In practice, establishing what constitutes operational land is far more complex because such land has a specific meaning within the planning system – with reference to Sections 263 and 264 of the Town and Country Planning Act 1990, as well as the Airports Act 1986.
Key considerations may include:

  • if the land is being used for, or is being held for the purpose of, airport operations – and that this use is being carried out by a statutory undertaker i.e., a relevant airport operator (see 2nd test above).
  • when the land was acquired, who the land was acquired from and the mechanism used to transfer ownership of the land.  
  • whether the land in question benefits from a planning permission for airport operations.  
The Planning Inspectorate disagreed with the Council – stating two factors leading to its conclusion that the land was in fact airport operational land:

  • The land is not accessible by the public, and can only be accessed past airport security within a controlled aviation area; and
  • The land already benefits from a planning permission for airport operations – being a permission for an extension of the airport’s Runway Extension Safety Area (RESA) and the erection of a security fence to enclose the land.
Whilst this is a positive outcome for the airport, it has been a protracted exercise. The airport’s LDC application was submitted in December 2021, with a 3-month target decision date of March 2022 – yet it has taken a further 18 months, with the added cost of an appeal, to reach this point. This is the opposite of what the PDRs should confer – speed and certainty for those airports who need to confront a strict and changing airport regulatory environment, to provide operational development to support passengers and operators and attract inward investment.
These rights are not, however, automatic and care does need to be exercised in understanding if they apply and in their execution. Our experience is that it’s key for an airport operator and a local planning authority is to understand the requirements and ensure such rights are consistently administered.
Lichfields is well-versed on the Airport PDRs mechanism – across all four UK countries - and regularly advises airports, local planning authorities and those with 3rd party interest on its use. Please get in touch if you need any help on this topic.

Image Credit: Zachary DeBottis, Pexels

 

[1] APP/D0650/X/22/3313760

[2] 22/00019/PLD

[3] Scope 1 emissions - emissions owned and controlled by the airport operator, such as energy generation and airport vehicles.

[4] Scope 2 emission - emissions from the off-site generation of energy purchased by the airport operator.

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Residential knock down/re-build and upward extensions…and the need to take account of aerodromes?
During the month of August, a number of new permitted development rights (PDRs) will come into force, allowing the knock-down and rebuild as well as upward extension of certain existing buildings to create new dwellings. These new regulations are applicable within England. My colleagues Jennie Baker and Hannah Whitney have provided an overview of these changes. You can view their blogs here and here.
The purpose of these new PDRs?  To potentially unlock and fast-track sites for growth. Some have gone as far as to say it will sweep away planning restriction and cut red tape.
Like with most PDRs, there are limits to the rights – set out within the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015) – prescribing when development is not permitted under the PDR.
The limitations specific to these new PDRs seem straight forward at first and what you might expect…listed buildings, SSSIs, scheduled monument are all a no-go, for example. At the bottom of the list? Land within 3 kilometres of the perimeter of an aerodrome.
On the surface, including land within close proximity to an aerodrome, as a limit, is perhaps not surprising. It makes sense. It’s all about aerodrome safeguarding and the need to protect both the airspace over and around an aerodrome from the effect of possible adverse development that may affect safe operation – and this is done by controlling the use of land.
However, dig a little deeper and questions arise of what this could all mean in practice.

  • Why 3km – doesn’t that seem a bit excessive?

  • So, what’s the extent of an aerodrome’s perimeter? Where does the 3km start?

  • What exactly is an aerodrome? Is that different to an airport?

  • How many aerodromes are there within England?

Why a 3km ‘no-go’ zone?

A 3km ‘no-go’ zone might at first seem excessive. But in aerodrome safeguarding terms, it’s only one of the first layers of the onion. Aerodrome safeguarding seeks to safeguard land that can extend up to 15km out from the aerodrome (or up to 30km if the proposed development is a wind turbine). For those unlicensed aerodromes, this area may be reduced down to about 8km. There is also a 13km radius, surrounding aerodromes, to take account of potential for bird strike hazard. The 3km zone captures land that the aerodrome would be most sensitive to a change in environment – to name a few, for example: new development penetrating its protected airspace; use of certain materials that may distract a pilot or air traffic control (think large areas of glass façade creating glint and glare); or construction methods (demolition) that could create dust and affect aircraft engines.
Also, of note, in some cases, if the PDRs do apply (that is, if the land in question is outside the 3km zone and is not subject to meeting any other limitations) a process of prior approval will still be required from the local planning authority (LPA). If the land falls within an established aerodrome safeguarding area (that’s the 15km zone mentioned above), the LPA will need to consult with the aerodrome operator and prior approval cannot be granted for development where the aerodrome operator has responded to consultation on the application indicating that that the development should not proceed.

Defining an aerodrome’s perimeter

The perimeter of an aerodrome can mean a number of things – it could be its operational/licence boundary, its ownership boundary, or its planning boundary – and it’s not uncommon for these three different boundaries to have different ‘redlines’ and be quite different in overall shape and extent. The GDPO 2015 (and its 2020 amends) does not provide clarity on which perimeter should be applied. To add to this confusion, the up-to 15km aerodrome safeguarding zone as mentioned above is measured in a different way again and commences (broadly speaking) from the perimeter of the runway strip. Confused yet? Identifying what is the applicable perimeter will need to be reviewed on an aerodrome case by case basis, which may require discussion with the relevant LPA and the aerodrome itself.  This introduces a level of uncertainty and is something that should be agreed as a first step.

What exactly is an ‘aerodrome’?

An ‘aerodrome’ is a general term and captures a multitude of aviation infrastructure, including airports, airfields, airstrips, and heliports.
The GDPO 2015 first points to the definition within the Air Navigation Order 2016 (the ANO). This definition is broad. It can mean any land or water (or even rooftop!) used for the landing and departure of aircraft, and this can include aircraft capable of descending or climbing vertically. Under this definition, an aerodrome stops being an aerodrome if it has been abandoned and flight has not resumed.
The GDPO 2015 (under section 2, Interpretation), however, adds to this definition with its own further interpretation – it considers an ‘aerodrome’ to be an ANO defined aerodrome which is:
 
(a) licensed under the ANO,

(b) a Government aerodrome,

(c) one at which the manufacture, repair or maintenance of aircraft is carried out by a person carrying on business as a manufacturer or repairer of aircraft,

(d) one used by aircraft engaged in the public transport of passengers or cargo or in aerial work, or

(e) one identified to the Civil Aviation Authority before 1st March 1986 for inclusion in the UK Aerodrome Index (that’s old-school aerodrome safeguarding, which use to dabble in the 3km metric before things shifted to the 8, 13, 15, or 30km zones that are used today).
This definition does not exactly narrow things down. Potentially, this definition could capture around 400 sites within England alone, from the mega-hub airports right down to small unlicensed grass strips! That’s a lot of 3km ‘no-go’ zones…
Figure 1 presents a potential extent of aerodrome sites across England. Some may be obvious (there are 82 licenced aerodromes in England) and others less so. Confirming whether an aerodrome falls within this GDPO 2015 definition of ‘aerodrome’ will require a review on a case by case basis

What does this mean for the new PDRs…?

To test this, we’ve looked at what a 3km no-go-zone could look like for land surrounding some of London’s aerodromes: Heathrow, Gatwick, London City and Battersea Heliport. Each image (Figure 2-5) presents a representative 3km zone.


Ultimately, this highlights large areas of land where the new PDRs cannot be applied – reducing the opportunity to unlock and fast-track sites for growth.
Get in touch if you’d like to understand more about the implications of this aerodrome limit on the new PDR instruments – we can help with confirming whether an aerodrome is in fact an ‘aerodrome’ as well as advice on the potential extent of the 3km no-go zone.
 

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