The Planning Inspectorate Appeal Decision 4/11 Eagle Wing Temple Quay House Inquiry held on 15-23 October and 2 The Square Temple Quay 11-12 December 2008 Bristol BS1 6PN Site visit made on 20 October 2008 0117 372 6372 email:[email protected] by Colin Tyrrell MA(Oxon) CEng MICE FIHT ov.uk Decision date: an Inspector appointed by the Secretary of State for Communities and Local Government 14 January 2009 Appeal Ref: APP/C2741/A/08/2069665 Elvington Aerodrome, Elvington, York YO41 4UA • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for planning permission. • The appeal is made by Elvington Park Ltd against City of York Council. • The application Ref 04/04316/FULM, is dated 7 December 2004. • The development proposed is the erection of aircraft hangars, together with the widening of taxiway, and the laying out of a parking area and apron. Decision 1. The appeal is dismissed. Procedural Matters Adjournments 2. Several requests for adjournments were received before and during the Inquiry. Natural England and others requested that the Inquiry should be adjourned to allow evidence to be gathered to enable an appropriate assessment to be carried out of the potential effects of the proposals on the Lower Derwent Valley Special Protection Area in accordance with the provisions of the Conservation (Natural Habitats &c) Regulations 1994. The Highways Agency requested an adjournment to allow the implications of the proposals on the trunk road network to be fully assessed. Various local residents and organisations requested that the Inquiry be adjourned to allow more time for publicity of the Inquiry and its proposals and for further local consultations. 3. The Inquiry was adjourned between 23 October and 11 December to allow the gathering of evidence to enable me to undertake an appropriate assessment. It proved possible, with the cooperation of the Highways Agency, to resolve the objection on highway grounds without the need for an adjournment. The City of York Council produced evidence (Docs CYC 7 & CYC 25) showing that the amount of publicity given to the Inquiry exceeded statutory requirements, including site notices, notices in the local paper, and letters sent to local organisations and individuals. The adjournment for the appropriate assessment also allowed additional time for local organisations and individuals to acquaint themselves with the proposals. I concluded that there was no requirement for further publicity or consultation and that an additional adjournment for these purposes was unnecessary. Appeal Decision APP/C2741/A/08/2069665 Amended Description 4. The description of the proposed development given on the planning application form is “erection of aircraft hangars”. The extended description shown above was proposed by the appellant at the Inquiry in conjunction with a larger scale drawing (Doc EPL 48) showing the layout of the proposed hangars and their immediate surroundings in more detail. The larger scale drawing also illustrates a slight repositioning of the hangars to allow for a narrow belt of landscaping on the boundary. The Council were content that this change should be considered as a minor alteration to the proposals, and I am satisfied that the amendments do not materially alter the nature of the application and that no one who would normally have been consulted would be prejudiced by the revised plan being considered. Arrangements for the Appropriate Assessment 5. Elvington aerodrome is situated about 3km north of the boundary of the Lower Derwent Valley Special Protection Area (SPA), Special Area of Conservation (SAC), and Ramsar Site. There are other associated Sites of Special Scientific Interest (SSSIs) in the locality. The main part of the SPA is essentially a linear north/south feature which follows the River Derwent over a length of some 14km from Sutton upon Derwent to Wressle. 6. The Habitats Regulations require that the impact of any new development upon an SPA and SAC should be considered at the planning stage. ODPM Circular 06/2005 extends this same consideration to Ramsar sites. I am now the decision-taker and competent authority within the terms of the Habitats Regulations, and I decided that the effect of the proposed development, by itself or in combination with other projects, was likely to be significant in terms of the internationally important interest features of the protected sites. I am required therefore to carry out an appropriate assessment of the implications of the development proposals on the conservation objectives for which the Lower Derwent Valley sites were classified, as laid down by the Regulations. 7. In carrying out my assessment, I have had regard to the information, analysis and assessment produced on behalf of the appellant, (Doc EPL 33). To assist me in this task, I decided to carry out a limited consultation of specialist bodies which I believe have a particular interest in the nature conservation value of the protected sites in the Lower Derwent Valley. I received responses from Carstairs Countryside Trust (Doc INQ 23/3), Natural England (Doc INQ 23/4), Yorkshire Wildlife Trust (Doc INQ 23/6), RSPB local branch (Doc INQ 23/7), RSPB Regional Conservation Officer (Doc INQ 23/8), and the Environment Agency (Doc INQ 23/9). Protected Sites Appropriate Assessment Activity at the Aerodrome 8. In the appellant’s view, the most-likely result of the proposed development would be an increase in air traffic movements at Elvington from about 1,550 per year at present (750 during the air show and 800 for the rest of the year) to about 10,000 in the medium-term future (Scenario 2 in Doc EPL 6 plus 750 for the air show, rounded to nearest thousand). The appellant recommends that with such an increase a “no-fly zone” should be imposed on all aircraft 2 Appeal Decision APP/C2741/A/08/2069665 flightpaths approaching or departing from the aerodrome to prevent them coming within 1km of the SPA and Ramsar site boundary. 9. Other specialist consultees have some detailed concerns about this approach, especially the level of survey upon which it is based. However, Natural England, to whose views I give substantial weight as the Government’s statutory advisor on nature conservation, accepts that, if a “no-fly zone” preventing all aircraft from approaching within 1km of the SPA site boundary could be implemented and enforced, together with the restricted approach and departure flightpaths proposed by the appellant, it would be reasonable to conclude that the integrity of the SPA would not be affected. 10. In my view, the primary test for the appropriate assessment is therefore whether the measures proposed by the appellant would result in implementation and enforcement of the “no-fly zone” to within 1km of the SPA boundary to a level that would ensure that the integrity of the SPA would not be affected. ODPM Circular 06/2005 gives some guidance as to the approach that I should follow in my appropriate assessment. It states in paragraph 21: In the Waddenzee judgment, the European Court of Justice ruled that a plan or project may be authorised only if a competent authority has made certain that the plan or project will not adversely affect the integrity of the site. “That is the case where no reasonable scientific doubt remains as to the absence of such effects”. Competent national authorities must be “convinced” that there will not be an adverse affect and where doubt remains as to the absence of adverse affects, the plan or project must not be authorised, subject to the procedure outlined in Article 6(4) of the EC Habitats Directive regarding imperative reasons of overriding public interest. 11. I must therefore be convinced that there will not be an adverse effect, and if any doubt remains I am required not to authorise the development unless it is justified by imperative reasons of overriding public interest. 12. The additional flying that the development would bring is assumed by the appellant to be made up of 18% business aviation, 24% aircraft R&D and maintenance, 43% flying club and training, and 15% private owners. I consider it reasonable to assume that the business aviation and most of the R&D/maintenance aviation would use the aerodrome as a starting point or destination for a specific journey and would not spend additional time in the local area. For the 58% of the additional flights associated with flying club, training and private aviation (5,090 per year or an average over the whole year of 14 flights per day), it seems to me very likely that some of the pilots would seek to spend some time in the local area and that not all of them would be engaged in the basic circuit flying to the north of the runway. 13. In order to achieve the implementation and enforcement of the “no-fly zone” and to avoid disturbance of the protected sites, the appellant has offered a s106 planning obligations unilateral undertaking and suggested a planning condition relating to aerobatics. 14. The s106undertaking includes an Elvington Aerodrome Flight Policy which would impose an obligation on all pilots flying to or from Elvington to follow air traffic routes away from the protected sites. The plan showing the restricted routes indicates that the restrictions on flightpaths would end some 6km 3 Appeal Decision APP/C2741/A/08/2069665 southwest of the aerodrome for approach/departure from the south, some 6km west of the aerodrome for approach/departure from the west, and some 6km to the north for approach/departure from the north or east.