Council Report Pans Night Flights Proposal
It's grim reading for Manston, but it could be good news for East Kent - depending on Thanet District Council’s priorities. Yes folks, the Parsons Brinckerhoff report has finally arrived, and you can read, print and download your copy HERE.
This summary is in handy bite-sized chunks - just click on the "next installment" at the end of each post to work your way through...
Shortly after Manston submitted their most recent night flying proposal last autumn, TDC commissioned independent experts Parsons Brinckerhoff (PB) to look at all the paperwork. Manston’s application was supported by a noise impact report from Bickerdike Allen Partners (BAP), and an economic assessment from York Aviation.
TDC’s brief to PB was:
[p2] To assess the suitability of the methodology used in the application; To test the assumptions made; To review the Planning situation
I have no idea why they asked for the third point - this is clearly a matter for planning lawyers. PB spend about a third of their report rehashing the history of planning problems and then throw up their hands in resignation and say “ask a expert”:
[p22] It is recommended that Legal Council [sic] Opinion is sought on the question of intensification of use.
Some key findings from the PB report:
- Manston wants night flights for freight.
- If this was a planning application, it would be rejected.
- Having night flights will not generate passenger growth.
- The noise analysis supporting Manston's application is flawed.
- The economic analysis supporting Manston's application is flawed.
- The S106 agreement and the planning status of the airport is a shambles.
Incidentally, if you found this useful, do feel free to pass it on to friends, neighbours and colleagues - just use the "EMAIL THIS" link below.
Next installment: It’s all about freight
BAP, Noise, Parsons Brinckerhoff, Planning, York Aviation Manston, Night flights, TDC
Reader Comments (43)
Says it all really !
Is there any where on these submissions we can add ' We told you so!'
So does that mean that the 106 agreement applies only to the terminal not on the whole airport, and if so should the section 52 agreement still stand, as the 106 agreement is obviously a flawed document.
As I said at the time "not worth the paper it is printed on"
We may get a decision sooner!
Anybody who is adversely affected should be ensuring they complain, detailing the impact it is having on them and they should retain copies of the complaints and any replies received. Copies of the complaints should be sent to Infratil, TDC and your local MP.
It is important that nobody in a position of authority is able to turn round in a year or two and claim that they were unaware that the airport was having an adverse impact. TDC is rapidly running out of room to continue claiming that the airport is beyond their control.
From the moment that Wiggins acquired Manston (note I said aquired not Bought) the local community tried very hard to engage with them, to no avail. The only thing that both Wiggins and Infratil wanted from the beginning was night flights to enable them to sell slots at night to freight movers.
At no time has there been the remote possibility of huge numbers of passengers, when you look back over the years every company that has set up at Manston has either gone broke or withdrawn.
You are quite right Infratil appear tp be able to do just as they like, the question is WHY HAVN'T THEY could it possibly be that LEGAL OPINION say's otherwise.
As I pointed out earlier as far as I can see the section 52 agreement still stands and the 106 agreement is null and void.
Perhaps you might enlighten us as to your legal opinion.
At the judicial review, which Wiggins entered into as a co-respondant the judges summing up included an undertaking by TDC (which included Wiggins as the operators) that should permission be sought for night flights this in itself would constitute an intensification of useage as set out in the certificates of lawfulness.
Ergo : before Wiggins took over there were no night flights allowed so without planning permission being sought for Manston to become an airport (instead of just an airfield with a passenger terminal) night flight cannot be sought.
Talking of bullyboy approaches, I myself had on more than one occasion been subject to this by both the operators and TDC, so maybe a bit of tit for tat applies.
Now thats funny my silk and his junior, who has a great deal of experience in planning matters informs me that Infratil and TDC have no chance at all of getting night flights through because of the precedents already set. (I quite agree the 106 isn't worth the paper it is written on, thank the then Labour council for that.)
Though maybe your brother in law knows better!
Though you didn't answer why if they can do as they like why oh why haven't they?
This may be the case if you look only at the Section 106 Agreement. However, there is a much bigger picture here and there are a number of legal angles which have to be addressed. For a start, there is the issue of intensification of use. Manston doesn't have planning permission and any increased or altered usage could constitute intensification requiring planning permission. In addition, there is the whole area of environmental law and the astonishing fact that they have never done an environmental impact assessment for the airport.
I would suggest that any lawyer worth his fee would need to look into all aspects before reaching a view that damaging night-flights are not preventable. Of course, there aren't huge numbers of lawyers versed in these aspects of the law and it could well be that someone who specialises in contract law wouldn't be the best person to ask.
Stargazer
I am wondering why TDC admits that the threshold for an EIA at Manston has been exceeded a number of times yet the EIA has been ignored to safeguard what has now become, a tainted development? Oh Dear is clearly a development at any cost exponent? Perhaps Oh Dear could enlighten the public why Infratil ignored a request to go to arbitration on these issues? Could Oh Dear again enlighten us why the significant delay to put in the interceptor?
Example given was a dog owner kept 20+ dogs in her home, it was found that a material change of use had taken place, it was then part home and part kennels. It is difficult to see how more planes makes a material change to an airport
3.6 As advised earlier, there has been no grant of planning permission at Inverness
Airport as the facility pre-dated the planning system and therefore, unlike the
position that pertained at Aberdeen for many years, there is no condition
restricting the operating hours.
3.7 Two questions then arise. Would 24-hour opening constitute development? If
the answer is in the affirmative then does it constitute an intensification of use
equating to a material change of use?
3.8 The independent legal advice obtained by the Council is to the effect that even if
the intensification of use constitutes development it would benefit from the general
planning permission under Class 44 (1) of the GPDO. The only caveat is that
HIAL consults the Planning Authority before undertaking the change of use, that is
to say no formal application for planning permission would be required.
3.9 The legal advice also suggests that noise contour maps appear to be based at
2030 and not at today's date. In that they do not reflect the current position, base
line figures covering the whole 24-hour period should be obtained for the
residential properties close to the airport to clarify the current exposure to noise.
New housing development should thereafter be subject to the advice contained in
PAN56: Planning & Noise.
4. Current Position
4.1 A formal consultation letter has now been received from HIAL.
4.2 Although there is no requirement to consult with the Community Council, a copy
of the letter received from HIAL and the legal opinion received has been sent to
all the Community Councils in the Inner Moray Firth area informing them of what
is proposed.
5. Conclusion
5.1 That the Committee note that the legal advice obtained has established that in
order for HIAL to operate 24 hour opening at Inverness Airport, a planning
application is not necessary as this would be permitted development under Class
44 of the GPDO.
You can call it as much "intensification as you like but unless you can prove change of use, "intensification" is not grounds for a planning application.
You could take the Oh Dear point of view that in essence simply lies back and accepts a deterioration in our standard of living as a natural course of lumbering advancement that we should accept without demur.
Or you can take the view that as residents and citizens we have a right to establish boundaries of common sense and work together to improve conditions for ourselves and everyone else.
By now it should be apparent to all including the fingers in ears Oh Dears, that the business plan presented by Manston is a huge pack of lies and misinformation. There will not be the thousands of jobs they promised, the Airline industry does not see Manston as the golden ideal that they paint it to be and that the future for Manston is one of only freight and cargo.
So it becomes an issue of whether or not some people are prepared to fight and do what they can to preserve an acceptable existence for their community or take Oh Dears point of view of inevitability and lower our expectations on life and living.
Is it worth the fight? Should we just not roll over and accept the inevitable? Or are we more than this?
My personal point of view is that if you want anything in life then you need to strive for it. When we go into a coffee shop or retail store do we stand there and simply accept the rudeness of staff, or do we make comment and then move our custom?
Oh Dear would have us all accepting a poorer way of life and not fight for those issues that are important to us.
I believe it is when we don't fight, then we have no option but to accept what we are given. I actually feel sad for those people who refuse to question, fail to care and are not prepared to stand for what is important for themselves and others. Which makes it all the more pertinent that Oh Dear should choose such a nomenclature, one of exasperation and defeat.
"Further, in my opinion, the entering into the S106 Agreement does not fetter or prevent the Council taking the view that night flights may amount to intensification to such a degree as to amount to a material change of use and taking action thereon.”
In the Court of Appeal judgement a few years before that the judge said:
"Mr Humphreys for the Local Planning Authority [i.e.TDC], understandably seeks to have it recorded that an intensification of use whether, by way, for example, of night flying or use of different kinds of aircraft would inevitably and necessarily give rise to enforcement action by the council. That, in my judgment, must be right.”
Neither of these guys are my brother-in-law. On the other hand, they make a living doing this stuff and have given advice on TDC, Manston, and night flights, having read all the documents and been given all the facts.
I'm not a betting woman... but I am used to weighing up expert advice. I've read enough about this (to my intense irritation - what a bl**dy mess!) to put my money where my mouth is and say "yep, night flights are intensification, a material change of use and would require planning permission". That's why I've contributed to the No Night Flight legal fund.
Keep going, guys, I think your lawyers are right.
I believe in addressing the weak points in order to maximise the strong points and I have won many planning appeals against local authorities on that basis.
And as far as I can see a full environmental impact assesment would rule out Manston becoming an airport at all. Not at all like the rubbish "impact statement" that Wiggins had done. Sorry that you will lose your job OH DEAR, What part of the airfield did you used to sweep up?
Let's face it Manston can hardly be called a local business, anyway you look at it, and if they can't run it during the daytime there is not a remote chance they can run it at all. The thing here to remember is that Infratil aquired Manston knowing full well that there were restrictions on the flying times and how many businesses had gone broke trying to make it work.
You had me worried for a minute! Glad you have a cunning plan and I wish you every success. Young Scobie on his blog points out (in the usual infantile party political way) that the S106 was supposed to be renegotiated every year. His point, of course, was that the Tories hadn't done so.
Putting this petulance aside, would there have been an obligation on both Infratil and TDC to push for renegotiation. Is the S106 a form of contract? If the answer to both these questions is "yes" then surely there has been a material breach of the contract by both parties, who have therefore effectively repudiated it.
On a similar note, were not Infratil supposed to arrange for mobile noise monitoring stations as part of the S106? Again, I don't think that has happened.
As I understand it the S52 only applied to the small bit of the RAF station that was used by civilian operators. If the S106 is repudiated and the S52 only applies to the small bit of airfield where do you think that leaves us?
I am not up on the rules about renegotiation of 106 agreements but it would be a good area of research.
My understanding is that both noise and pollution monitoring have not been carried out adequately and I have been told that the old Sec52 agreement refers only to the terminal building, preventing its use during certain night time hours, cargo operations can probably get around that.
I will be posting on my blog over the weekend, a standard response in planning terms which anyone can send into TDC, I will put a link here when post is ready.
"You can call it as much "intensification as you like but unless you can prove change of use, "intensification" is not grounds for a planning application."
You don't seem to understand planning law. Intensification does require planning permission. If you grant someone planning permission for an airport handling 5000 flights per year, they require planning permission to go beyond this. This isn't my opinion, it's a fact which you can check out for yourself by looking at the planning permision which have been issued for the London airports.
It's just a matter of whether you can persuade the court that what is intended does amount to an intensification. The perceived difficulty here is that some people (who haven't bothered to look at the details) think that there are no defined limits for Manston. This isn't true. Allow me to elaborate.
In the first instance, the Council has to write to Infratil and tell them that their proposals do constitute intensification and will require planning permission. What is of concern here is that the Council does not appear to be prepared to do this and, in failing to do it, they will be compromising themselves in terms of taking enforcement action at a later stage.
Case law shows that it is can be to define intensification when you are just talking about numbers. However, such diifficulties usually arise because the planning consent which was granted was insifficiently detailed. In the case of Manston it is much easier. We know exactly what is and is not permitted. The airport as a whole doesn't have planning permision in the first place. The legality of its existence rests on Certificates of Lawfulness, which simply recognise that it was an airport when it was transferred to solely civilian use. In court, the case was made that these Certificates had to stipulate what was and was not permitted at the airport. The judge disagreed and said that the Certificates didn't confer any right to expand or develop the airport. This would all have to be done through the planning system.
When the terminal building was constructed, the planning permission was for a maximum of 500,000 passegers per year. Any increase above this will require planning permission. A legal agreement was attached to that planning consent, prohibiting night-flights. From this it is easy to prove to the court that there were no scheduled, civilian night flights taking place when the Certificates of Lawfulness were issued. Thus, any scheduled civilian night-flights will require planning permission. The shenanigans with the S106 is just another attempt to evade planning legislation. Having ruled that future expansion must be dealt with through the planning system it is easy to see how the court may take a dim view of the Council's position.
The terminal building may be able to be extended under permitted development if Infratil are a "relevant airport operator" which i have not had time to check yet.
Finally, we should not be discussing what a court may rule, the main element to consider is convincing TDC that they need to insist on a planning application and we should be doing this through the forthcoming consultation.
I have read the Brinkerhoff report and they have got it wrong on a number of counts. In large part this is due to the fact that they weren't provided with all of the relevant documentation by TDC. They do refer to this in the report. This should be looked at by the auditors because there is no point in spending £50,000 of our money on a report and then failing to give the consultant's all of the relevant papers needed to produce an accurate report.
For example, they refer to the issue of permitted development rights and you quote this in your posting. Permitted development rights are consequential upon the issue of an overall planning consent. Manston has never been given planning permission and so, it does not have permitted development rights. This point was conceded by the barrister acting on behalf of TDC in the court case ten years ago.
Another example of documentation which was not provided to Brinkerhoff-Parsons is the Section 52 Agreement, which was attached to the planning consent for the terminal and prohibited night-flights. This is now highly relevant because, in conjunction with the CAA records for that period, it illustrates that night-flights were not permitted and were not taking place in the period prior to privatisation. Parsons-Brinkerhoff say that this information is important but they weren't given the documentation to put forward an informed view.
I'm afraid that this is going to have to be resolved in court and the Council has a simple choice to make. Do they side with their residents and refer the matter to court themselves, or do they side with Infratil and fight their own electors? For the Labour group this presents a particularly thorny issue, because they were elected on a platform of opposing night-flights. If local residents now have to take them to court (for a second time) for failing to do this they will have lost all credibility.
http://in2thanet.blogspot.com/2012/01/night-flight-consultation-response.html
Everything that has taken place since the judicial review has been an attempt by the council to get their own way without recourse to the planning laws or the voters of Thanet.
There has been several piecemeal bits of development that has been allowed in order to further their ambitions for Manston, THIS SHOULD NOT BE ALLOWED TO CONTINUE ANY FURTHER.
Neither Wiggins or Infratil have any real interest in Thanet apart from what profit they could make from it, Wiggins lost lets hope Infratil go the same way.
You seem the perfect person to negotiate with Infratil, TDC and opposers as you seem to have it all. Are you a Wannabe lawyer?, sorry barrister. You probably don't even live near the flight path or interested in getting a so called job there so why do you insist on being negative?... You haven't got a brother in law in the council as well have you? The people who take the time to go to meetings and put their time in for the benefit of Thanet are the opinions that matter not those of a troll.