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Housing Survey

The Dunsfold Parish Housing Needs Survey dated October 2013 commissioned by Dunsfold Parish Council can be downloaded by clicking on - HOUSING SURVEY


Search for locations in the village for new housing

From DUNSFOLD PARISH COUNCIL to DUNSFOLD RESIDENTS

THE RESULT OF THE DUNSFOLD HOUSING NEEDS SURVEY and
WAVERLEY'S PREPARATION FOR A NEW LOCAL PLAN

Both of these topics are likely to lead in due course to new housing across Waverley villages and Dunsfold will be no exception. The purpose of this note is to inform residents about the current state of play.

THE DUNSFOLD HOUSING NEEDS SURVEY showed that 30 local households are in need of affordable housing. There was a reasonable response from residents and 89% of those responding supported the concept of developing a Rural Exception Site close to the settlement boundaries to provide affordable housing to be retained in perpetuity for local people. The total number and location of the ultimate development, which is likely for viability to be for a smaller number of new dwellings, will require liaison between the Dunsfold Parish Council, the Rural Housing Enabler, Waverley Borough Council, and consultation with residents over the coming months. Site owners will be asked to put forward sites and in preparation for that process any site owner who anticipates having a suitable site for consideration is invited to notify the Parish Council Clerk Celeste Lawrence. The Parish Council has adopted the Survey Report and will make it available to download from the Village website.

Waverley'a Preparation for a New Local Plan - the call for sites

Waverley's withdrawal of the Core Strategy for the New Local Plan last year was due to the Inspector's concerns that Waverley had under-estimated the housing need for the period to 2030. The evidence of need is being re-assessed but may result in a doubling of the target of new homes required each year. In response to this pressure Waverley are seeking information on available sites in the borough to be considered for potential development, particularly housing development. As part of this work Waverley have asked all Town and Parish Councils if they are able to identify land that Waverley should be considering as having potential for housing, and which in the case of villages might qualify for inclusion in an enlargement of Village Settlement boundaries. It is also asking landowners to highlight any sites they feel could be considered for potential development. The link on Waverley's website relating to this Call for Sites is:

http://www.waverley.gov.uk/info/494/local_plan/247/the_new_local_plan_documents/7

The Effect on Villages

For villages there is a new Waverley focus on how they can contribute to the identification of sites for housing development. Under the current 2002 Local Plan, and the recently withdrawn Core Strategy, the contribution of villages to meeting housing needs was limited to providing affordable housing on small rural exception sites and to development and infilling within current village settlement boundaries. But the village settlement areas of Dunsfold, like those of other villages, have virtually no space for further development. Waverley have therefore suggested to all villages that they could reasonably make an increased contribution to delivering more homes by enlarging settlement boundaries to include new sites. The Parish Council are sympathetic to such enlargement provided it is carried out with full consultation with residents and the New Plan policies will continue to protect the large areas of important woodland and countryside outside the settlement boundaries in Dunsfold as the 2002 Plan has done and as the withdrawn Core Strategy was going to do.

We have as requested informed Waverley of one site which has been put forward by its owner for affordable housing. Attached is a copy of the Village map on which the site is marked together with the current village settlement boundaries and the areas of Common.

All of this is at a very preliminary stage. We have informed Waverley that the identification of suitable sites for possible inclusion within the settlement boundaries will require proper evaluation and assessment, and consultation with the village; and that notifying Waverley as requested of a known site put forward should not be construed as meaning that any decision has been made by the Parish Council on its suitability or preferred status either for affordable housing or for inclusion within the current settlement boundaries.

In due course a change in the settlement boundaries could either be accomplished in consultation with Waverley as part of the New Plan process or it could be part of a Neighbourhood Plan consultation. Whichever route is taken it will be for the village to decide, and it will be necessary at the same time for the village to be involved in updating the 2001 Village Design Statement.

Alan Ground
Chairman, Dunsfold Parish Council
16th January 2014


Dunsfold Community Volunteers

Dunsfold Community Volunteers (formerly Dunsfold Village Volunteers) was launched in 2010 to assist villagers needing support with such matters as essential medical requirements when they are unable to make their own arrangements.

Here is a summary of how the scheme works:

  • This is a non-emergency service. In emergency please dial 999.
  • Our volunteers will help with such matters as collections of prescriptions, visits to doctor/dentist, essential shopping, etc.
  • Villagers must contact the Village Shop (Tel: 01483 200246) if they require help with something they are unable to do themselves. During power cuts only the emergency number is 01483 200706.
  • At least twelve hours notice must be given (exceptions to this rule will only be considered if there is a valid reason).
  • Shop staff will locate the first available Dunsfold Community Volunteer who will be given your contact details.
  • The Community Volunteer will then contact you to make the necessary arrangements.
PLEASE NOTE that Shop Staff will make every effort to make the arrangements as soon as possible but please note that their first priority is shop duties such as serving customers and taking deliveries.

Larry Westland CBE
Westcote
Dunsfold
Surrey GU8 4LE
Tel: 01483 200289


Dunsfold Church of England School
Charity Tribunal allows Appeal against Charity Commission Scheme

The Charity Tribunal Decision dated 6th December 2011 allows the Appeal against the Charity Commission Scheme of 31st March 2011 brought by four village Appellants Alan Ground, Barrie Pople, Clare Lemieux and Celeste Lawrence, with the support of over eighty villagers. The Tribunal has used its powers to amend the Commission's Scheme. In explaining its decision the Tribunal thought it right to look beyond the terms of the 1957 Conveyance of the school to the Diocese and take account of the entire history of the Charity, including the 1839 foundation plaque, the Will of the benefactress Miss Woods, and the subsequent dealings with the property. From that history they saw a clear intention that the school should benefit the people of Dunsfold in particular, and considered that there should be a positive obligation on the Trustee to give preferential consideration to the provision of a school in Dunsfold before moving on to consider the wider permitted uses provided for in the Scheme.

The amended scheme incorporates the principal amendments sought by the Appellants, namely first that if the school is not used as a 'Church of England School for the education of children and adults or children only' it may, in preference to other charitable uses, be used 'as a school for the education of children who are resident or whose parents are resident in and around the parish of Dunsfold'. The alternative uses, as all parties agreed, must be consistent with the principles of the Church of England, and the Tribunal noted that it was accepted at the hearing that a standard school curriculum could be expected to fall within this provision.

Secondly the permitted term of a lease for such school purpose was extended by the Tribunal from 25 years in the Commission's scheme to 125 years, the Tribunal agreeing that a lease for school use should be long enough to enable the occupier to obtain loan finance towards the capital costs.

The Appellants will now begin work on a 'formal, viable and timely proposal for use of the property as a school for the village' (to use the Tribunal's words), such a proposal beginning with the formation of the proposed Dunsfold Village School Trust, and will consult with the village on the way forward.

Alan Ground
7th December 2011

See the full Charity Tribunal Decision.


Dunsfold Park New Town Planning Appeal Refused

On 24 September John Denham, the Secretary of State, issued his decision dismissing Dunsfold Park Ltd's appeal and refusing planning permission for a new town on Dunsfold Aerodrome.

Mr Denham's reasons included -

  • "the site is not in a sustainable location and little can be done to improve the existing infrastructure beyond minor alterations to road junctions"

  • "the additional vehicular movements ..would put severe and unacceptable pressure on an overstretched road network..."

  • "the proposal to site major housing and industrial development in a rural area would conflict with current national planning policy, ...the recently approved SEP [South East Plan] and Policy C2 of the WBLP [Waverley Borough Local Plan]

  • "to allow the Eco-Village to proceed at this stage, prior to the formulation of the Local Development Framework, would be premature and would effectively pre-empt the proper consideration of alternatives as part of the development planning process".
However Mr Denham also concluded that -
  • "there is scope for a considerable intensification of the existing use of the site without the need for further development"

  • "the appeal scheme would not cause material harm to the character or appearance of the countryside"

  • "the development would not affect the tranquility of the area"

  • ""the operational part of the aerodrome, including the runways and interstitial areas, is previously developed land".
For full copies of the Decision Letter and Inspector's Report click the following link to the
Full Documents.

The Secretary of State's decision is final unless it is quashed by the Courts on a successful application for judicial review made within six weeks of the date of the decision. Broadly the grounds are illegality (unlawfulness), irrationality (unreasonableness) and procedural impropriety (unfairness). For example if the Courts decide that the SoS has taken into account matters irrelevant to his decision or has failed to take into account relevant matters the Courts could set aside his decision.

If an application for judicial review succeeds it means that the SoS must reconsider the matter afresh. It doesn't mean that he can't reach the same conclusion for different (or more detailed) reasons.

Commenting on the decision SDPNT's chairman Professor Chris Marks said "The ratepayers of Waverley have paid for the huge costs of processing this planning application and of defending, at the subsequent planning inquiry, the Council's decision to refuse planning permission. This proposal has been hanging over the heads of the local population since it was first proposed seven years ago. By not allowing the planning appeal the Secretary of State has endorsed the views of the local residents and all the many public bodies - Parish, Borough and County Councils, SEERA and SEEDA - who have opposed the development".

Professor Marks added "I hope this will now be the end of the matter and the developer will focus its efforts on finding other eco friendly uses for Dunsfold Park of a suitable size and nature for a rural environment".


Dunsfold Aerodrome
Application for Certificate of Lawfulness - WA/2011/0520 - Refused

Dunsfold Park Ltd has lost its appeal against the refusal by Waverley Borough Council to grant a Certificate of Lawfulness under Section 191 of the Town and Country Planning Act 1990.

See the full Appeal Decision

The Application had requested Waverley to issue a Certificate confirming that Dunsfold Aerodrome can be lawfully used, without the need for a further planning permission, for -

"…use… as an aerodrome for aviation activities, including for the start up, taxiing, engine testing, ground running, take off and landing of aircraft, without condition, restriction or limitation as to:

  • Number of aircraft
  • Number of take offs and landings
  • Type of aircraft (whether fixed wing or rotary civil or military, commercial or private, training or non-training, and whatever the origin or destination of the flight)
  • Size of aircraft
  • Weight of aircraft
  • Number of crew and passengers
  • Type and amount of freight
  • Duration
  • Period of use (hours, days, nights, weeks, weekends etc)
  • Surface traffic generation
  • Number of employees employed on or off the application land or persons generally on or off the application land
  • Noise, air quality other emissions and environmental effects
  • Or otherwise."
Details of the application have been published on the Waverley BC website under reference WA/2011/0520 -

See the application


Complaints of noise from Dunsfold Park

Environmental Protection Act 1990

I wish to inform you of a new mechanism for communicating complaints about noise to the Council. You can do this electronically or by phone. Please note that this procedure only relates to noise issues and not planning.

[Note. Since this notice was supplied by Waverley the complaints form has been extended to cover complaints about alleged breaches of planning control.]

1. For electronic notification of noise problems, I attach a link that will take you to an on-line form:-

Link to Form.

You should complete this form and press the "submit" button at the end of page 2 each time you experience problems with noise from this site. It is important to provide as much detail as possible, particularly with regards to the type of noise you experience and the source of the noise. This helps us to properly investigate your concerns. Upon submission of the form, you will be provided with a reference number for your records.

2. For telephone notification of noise problems, please telephone 01483 523393. The officer answering your call will require the same details from you as are requested by the on-line notification form.

Regretfully we are now unable to accept complaints emailed directly to officer email addresses.

I thank you in advance for your assistance.

Suzanne Robinson
Senior Environmental Health Officer
Waverley Borough Council
Tel: (01483) 523437
Fax: (01483) 523303
email: suzanne.robinson@waverley.gov.uk


Fire Service Logo              Surrey County Council logo

Dunsfold Fire Station needs more On-Call Firefighters

Surrey Fire and Rescue Service is looking to recruit more firefighters for Dunsfold Fire Station in Binhams Meadow, specifically for cover at nights and weekends.

The crew at Dunsfold work to the Retained Duty System. They have other jobs but are available from either work or home to attend incidents when their pager goes off. They also educate people to prevent fires and reduce Road Traffic Collisions.

Candidates need to be reasonably fit and be available to attend the Fire Station within 4 mins from either their home or work whilst on call. Retained Duty System Firefighters receive the same hourly rate of pay as their wholetime colleagues. Crews at Dunsfold attended over 45 incidents last year and on average earned over £3,500 each.

To get more information about joining Surrey Fire and Rescue Service at Dunsfold and help Make Surrey Safer go to www.surrey-fire.gov.uk/retainedfirefighters or come down to the Fire Station in Binhams Meadow on Thursday evenings from 19:30 - 21:30 hrs and talk to the firefighters.

Surrey Fire and Rescue Service - with you, making Surrey Safer




Marilyn Bailey - Dunsfold Artist

VillagesOnline 
Link        UK VillagesOnline 
Link        UK VillagesOnline 
Link

For the past 6 years I have been studying at summer workshops at a school in Florence that teaches classical, realism and illusionistic drawing and painting at the very highest standards. In January 2010 I move to Florence to join the school's full time program, returning to my home and studio Dunsfold in the academic holidays.

For those of you who have seen my work in the time I have lived in Dunsfold, you will understand why I place such value on this priceless education. None of you will know my work before this time or my path through Experimental Filmmaking and Performance art as one of the Arts Council's first Filmmakers on Tour travelling extensively in England, the US, and Europe. Nor will you have seen my work exhibited variously including the Whitechapel Gallery or the National Theatre in London. You will have simply seen the development of this particular artistic phase in which I have found portraiture and figure painting to express my vision of the world and some people who I have encountered.

Mastering the laborious and seemingly alchemical techniques of the "old masters" and making them relevant to and for me is the reason I am embarking on yet another creative challenge and journey that will open horizons I can barely imagine

Please do look at my web site (www.marilynbailey.com) for past and current works and some ideas and lines of progress I am currently pursuing.

Marilyn Bailey Painting

The canvas reproduced here is part of a large series commissioned by René Gimpel, the head of the renowned art dealing family Gimpel Fils. At close to life size it creates an impressive and authoritative perspective on portraiture.

Marilyn Bailey
11 December 2009


LIZ GARDINER - REQUEST FOR HELP WITH HISTORICAL RESEARCH

Hello Fellow Villagers

My name is Liz Gardiner. I moved here in 2004 and married Martin Gardiner, whom many of you will know as one of your Parish Councilors - he lived at Elm Corner for 30+ years. I started an English Local History Degree at Surrey in 2005 and I am trying to combine research into our home (Chennells, formerly Chennells Farm) with learning more about the history of Dunsfold itself.

I know there are many of you who have undertaken research over the years and I would be extremely grateful if we could meet and discuss the 'inside story' of Dunsfold. I would like to learn about the area that is now my home. I would be very willing to offer any skills that I have that may be useful in exchange.

I look forward to hearing from anyone that is interested!

My email address is lizbg@lizbg.freeserve.co.uk

With many thanks in advance.

Liz Gardiner
9 March 2008


From The Archives


Badmnton Horse Trials Success for Dunsfold based rider

New Zealander Jonathan Paget has won the Badminton Horse Trial in 2013 at his first attempt. The only other rider to have won Badminton on his debut was fellow New Zealander Mark Todd. Success at Badminton follows Paget's bronze in the team three day event at the 2012 Olympics.

Jonathan Paget is based at stables in Hookhouse Lane, Dunsfold.


Peter Curry QC

Obituary

Peter Curry photographs

Photographs from Peter's Thanksgiving Service sheet.

Peter Curry: barrister, solicitor and athlete

Peter Curry was a prominent figure of the English Bar, counting John Lennon, Ringo Starr and George Harrison among his clients. An imposing man with an intimidating presence, he remains the only man to take silk twice, returning to the Bar after spending three years in private practice.

Thomas Peter Ellison Curry was born in 1921, in Muree, India - now part of Pakistan - where his father was serving with the Royal Artillery. He attended St Michael's Preparatory School in St Leonard's-on-Sea, showing even then the belligerence and bravery for which be became known, leading "a jolly nice gang" into "great fights with the local yobs".

In 1934 Curry won a scholarship to Tonbridge, where he excelled as both a student and sportsman, breaking the school cross-country record by more than a minute at the age of 16.

Curry joined the Army in October 1939 as an officer cadet. Commissioned at Deolali where he passed out third, he was assigned to the Indian Artillery, serving with first Indian Field and then 7th Indian Division.

During this time, Curry was one of 600 officers on board HMS Windsor Castle, sent across the Indian Ocean from Durban to Bombay without an escort, despite the threat of the pocket battleship Admiral Scheer. He also fought in the pivotal Battle of Kohima in 1944, during which Allied forces prevented the Japanese from entering India.

In Burma; retreating from the Japanese, Curry arrived at a crossroads. He chose to take the right turn and later discovered that left led towards certain capture. Thereafter, whenever he was lost, he would always turn right.

Later in 1944 Curry was assigned back to the war office and promoted to captain. Here he was involved in sending parachutists behind enemy lines. While still employed, he accepted a place at Oriel College, Oxford, to read English. He did not find his tutor a man with whom he could easily get on and applied to change to a science degree. When the university refused his request, law was agreed on as a compromise. He graduated at the end of his second year, as was usual in the immediate postwar period, taking a first and winning Middle Temple's Harmsworth Scholarship.

Curry was equally successful as a university sportsman. He won triple Blues in athletics, squash and cross-country, winning the 1947 varsity race against Cambridge. Oxford's Blues Committee had earlier announced that a full Blue would be awarded only to the first runner home, with the other competitors receiving half Blue's, so Curry and his teammates conspired to cross the line holding hands, ahead of any Cambridge runner. All four were awarded a full Blue.

Also while a student, Curry twice beat Roger Bannister, first in the freshmen's match - Bannister was at Exeter College - and the second time running for his local club, Hastings & St Leonard's Harriers, against the University of Oxford. Thus he was surprised to be omitted from the Great Britain team for the 1947 World Student Games. Querying the selection in characteristic style, he was told that there was not enough money to send him, so, equally characteristically, he paid for himself. He finished fourth in the three-mile race, won by training partner and future track legend, Emile Zatopek.

In the following year's AAA national championships, Curry won the 3000m steeplechase, running the event for only the second time. He was subsequently selected to represent Great Britain in that summer's Olympics in London, but unused to the event, did not make the final. This was effectively the end of Curry's athletics career; he blamed the anti-Oxbridge attitude of the other British athletes for putting him off competing.

After graduating, Curry went to work for the British Empire Cancer Campaign, leaving, once again, because he found it impossible to get along with his boss. He moved to work as secretary for a company that owned rubber plantations, leaving when the firm recruited partners younger than he. It was at this point that he decided upon a career at the Bar, called by Middle Temple in 1953 and joining John Arnold's formidable commercial set at 9 Old Square, which later moved to 24 Old Buildings.

Taking silk in 1966, Curry left a year later to join the City firm Freshfields as a solicitor; his elder daughter, Fleur, was unwell and he wanted to spend more time with her. His highest profile instruction while at Freshfields came from Leasco, a US company seeking to wrest control of Pergamon Press from Robert Maxwell. An Extraordinary General Meeting was convened in order to remove him from the board, during which Maxwell announced that proceedings were adjourned as he was awaiting legal advice. Curry promptly took the microphone and informed those present that this could not be done without their consent, and that he would now be administering the meeting. Maxwell soon returned but could not prevent Curry from ensuring that the motion for his dismissal was passed.

Although Curry appreciated the uplift in salary facilitated by private practice, he did not enjoy the work, so returned to the Bar in 1970. The earlier decision to walk away from the Bar had not been well received; those awarded the rank of junior silk were expected to progress to the highest office. Some former colleagues refused to speak to him when he returned, and he was refused tenancy by his old chambers. Instead, he joined 4 Stone Buildings and was became a QC for the second time in 1974.

Appointed to the bench by Middle Temple in 1979, Curry became head of chambers a year later, on the retirement of Viscount Bathurst. Under his powerful leadership, the set developed into a company law powerhouse, also acting in many overseas and trust-based cases. Scrupulously fair but exceedingly tough, he was a fearsome courtroom presence, his determined, logical and economical style exactly suitable for his chosen specialism.

In 1974 Curry acted for Ringo Starr, George Harrison and John Lennon in their dispute with Paul McCartney, who wanted to wind up the Beatles' Apple record label. Introduced to Lennon for the first time, he was typically laconic, welcoming him with the greeting "I understand you can sing". Lennon responded by spontaneously breaking into song. He later commented that he found Yoko Ono to be "incredibly clever".

Curry was also involved in two of the highest-profile cases of the 1980s. In 1982, he represented investors following the collapse of Banco Ambrosiano - at the time, the largest financial institution to fold since the Second World War, and whose president, Roberto Calvi, was found hanged under Blackfriars Bridge leading to many conspiracy theories. One way of trying to retrieve investors' money from the bankrupt bank was to contest the ownership of Sicilian Mafia money based in Nassau in the Bahamas, that had been laundered by the bank. Here he advised and represented the liquidator of the Bahamian subsidiary which held the assets.

Curry was not wholly successful, but as was his practice whenever he lost a case, he consoled himself with the purchase of a new pipe.

A new pipe was also in order in 1987 during the trials that followed the Guinness share-trading scandal. Acting for former director Thomas Ward, his client was ordered by the High Court to repay the company £5.2m that had been illegally transferred to him.

His wife Pamela survives him, along with two sons and two daughters.

Thomas Peter Ellison Curry, QC, barrister, solicitor and athlete, was born on July 22, 1921. He died on January 25, 2010, aged 88

Paul Jenkins wrote:

Peter Curry QC, was one of my faithful 8.00am 1662 Holy Communion flock here in Dunsfold, Surrey.

Visiting him in his last days was my privilege. As I entered his bedroom, observing a glass of whisky on his bed-side table his first words "And what, Rector, would you like to drink?" The following day he moved to champagne! Faith, courtesy and style are such rare virtues these days!

Canon Paul Jenkins
March 8, 2010

Extract from a tribute to J.F.Pollard ( Pembroke College, Oxford, 1947-50) who ran in the ‘Varsity Cross-Country Race of 1947 with Peter Curry.

In the first year, he was part of the controversial four-way tie for first place with Peter Curry, G.Ridding (both Oriel) and N.M.Green (Magdalen). In those days, cross-country was still, effectively, a Half-Blue sport, with the only concession offered by the respective Blues Committees that the first man home for each team could be awarded a Full Blue.

Peter Curry, who was leading the race, glanced back in the closing stages and saw that the other three Oxford runners were far enough ahead of the chasing Cambridge duo of Chris Brasher (St. John’s) and Max Jones (Clare) and so waited for them and they crossed the line together.

The following year, Pollard once again ran for Oxford and finished joint second, with Roger Bannister, behind team-mate Jim Scott-Wilson.

The 1947 result caused considerable controversy at the time and Sandy Duncan and Harold Abrahams argued whether such contrivance was honourable as ‘slacking-off’’ just was ‘not done’ in university crosscountry running. Thames Hare and Hounds, as organizers, incurred the wrath of the Blues Committees because the four-way tie necessitated the awarding of four Blues. However, Peter Curry’s actions were to have a long-lasting impact as his literal interpretation of the Blues ruling paved the way for cross-country to become a full Blue sport.

Peter Curry race photograph


Flying Officer Ray Grayston

Obituary - 28 April 2010

[This news item was supplied by Geoff Sweatman.]

Ray Grayston photograph

Flying Officer Ray Grayston, who has died aged 91, was one of the last survivors of the Dambusters' raid and was flight engineer of the Lancaster that breached the Eder Dam.

Grayston and his young Australian pilot, Les Knight, had teamed up to fly Lancaster bombers with No 50 Squadron, and remained together when they joined No 617 Squadron in March 1943. The flight engineer, who managed the Lancaster's engines and systems, was seated alongside the pilot, and their teamwork was crucial to the successful operation of the heavy bomber.

After a few weeks' concentrated training at very low level (on one occasion Knight flew under high tension cables near King's Lynn), Operation Chastise was ordered for the night of May 16/17 1943.

The primary aim was to breach the Mohne Dam, with those aircraft not required for that target heading eastwards to attack the Eder Dam. Knight and his crew took off from Scampton with the main force, but before they were due to drop their "Upkeep" bouncing bomb, the Mohne was breached. Led by Guy Gibson, the three Lancasters that still had their bombs headed for the Eder.

This dam was surrounded by steep hills and presented a more difficult target than the Mohne. Settling at the required height of 60ft proved very difficult, and the first two aircraft made numerous attempts before dropping their bombs. One was accurate, but failed to breach the dam; the second exploded on the dam's parapet.

This left Knight with the only remaining bomb. After two failed attempts, his third run was good and the weapon was dropped accurately. With Grayston applying full power, Knight hauled the Lancaster over the surrounding hills, allowing the rear gunner to have a perfect view as the bomb exploded and the dam wall crumbled.

Knight, who was awarded a DSO, and his crew arrived back at Scampton as dawn was breaking to find that eight of the 19 aircraft had failed to return.

Raymond Ernest Grayston was born on October 13 1918 at Dunsfold, Surrey. He was an automobile engineer when he volunteered for the RAF in February 1940. Initially he trained as an aircraft engineer, but in August 1942 he volunteered for the new aircrew trade of flight engineer. With a few hours' flying time, he joined No 50 Squadron and teamed up with Knight.

On the night of September 15/16 1943, eight crews of No 617 were sent to attack an embanked stretch of the Dortmund-Ems canal near Munster. The leader was shot down en route and the remainder encountered fog in the target area.

While searching for the canal, Knight's aircraft hit trees on a ridge, damaging the two port engines and tail unit. The 12,000lb bomb was jettisoned, and Knight and Grayston managed to coax the aircraft to 1,400ft to allow the crew to bail out.

With two dead engines and limited control, Knight had little chance of escaping. Grayston was the last to leave the aircraft, saying a final farewell to his captain. Knight attempted to crash-land, but was killed when the Lancaster exploded as it hit a bank. Only three Lancasters returned from the raid.

Grayston landed uninjured but was captured almost immediately. He was sent to Stalag Luft III, remaining there until January 1945 when the PoWs were forced to march westwards on what became known as the Long March. He reached Stalag IVA at Luckenwalde where, after three months, he was liberated and flown back to England.

After leaving the RAF he joined Hawker Siddeley at Dunsfold and worked on the Hunter, Harrier and Hawk aircraft as a quality inspector. He retired in 1984 as chief inspector at British Aerospace (Military Division), based at Kingston.

Grayston was always amazed at the "fuss" made about the Dams' raid, especially the difficulties encountered at the Eder Dam. In 2003, during filming for a television programme, he was able to fly in a restored Lancaster. The low-level flight was some 300ft higher than the Dams attack – and in daylight. For the first time in his life he exclaimed that he had "no idea how we did it", going on to say: "It was an adventure... we had a job to do and that was all there was to it."

A keen and successful amateur sportsman all his life, he played football and cricket – but golf was his greatest passion.

Ray Grayston, who died on April 15, is survived by his wife, Sylvia, and their son.


GEOFFREY NEWMARK

22nd May 1913 - 21st December 2003

PERSONAL REMINISCENCES BY STANLEY ROSS

This village will not seem the same without Geoffrey in it. He was a man of great charm, and boundless hospitality: a man of the most impeccable manners. He had already been at Common House about twenty years, when Jackie and I moved into Oak Tree Cottage in 1970.

Although we have always loved our own old house, Common House to me is absolutely superb, the most beautiful building in a village full of lovely buildings. I once said to Geoffrey, " if you ever decide you want to sell, please let me be the first to know ". His reply, which I was to hear many times over the years, was "Dear boy, I promise you this, I am not going to leave this house until they carry me out in a box". That is how he wanted it, and he did just that. Geoffrey died virtually fifty-three years, to the very day, after he moved in.

Common House became for us, and I suspect for others too, a home from home. In those good old days, when we were all over thirty years younger, Geoffrey (already married three times) used to say to Jackie, more than once, and somewhat speculatively I thought, " You know Jackie I have always fancied being married four times ". I somehow think there may be others who also heard those words.

For above all, being with Geoffrey was always fun. Common House was a place where we were always made to so welcome, where the dinner parties in that magnificent dining room were legendary, where the food was outstanding, and the wines from Geoffrey's amazing cellar inevitably superb. Where shall we ever enjoy the like of those dinners again?

Geoffrey in the old days was very active. He loved to hunt and he loved to ride and it was about twenty years ago that he had a riding accident and broke his neck. For months he lay in hospital with huge weights attached to his head to keep it straight. Quite a few of his friends (usually female) would smuggle whisky in to him hiding it under the covers.

Eventually he recovered and came out knowing not only that he would never ride again, but he would have to cope with walking and sight difficulties. This stopped his driving for ever and it meant that inevitably he became far more dependant on Jean. A proud man, this did not sit at all well with Geoffrey and, as the years progressed, their subsequent fights were often wondrous to behold. Some time ago I portrayed them in 'Under Dunsfold Wood' as follows:

Midmorning Mrs Newmark, in Common House,
Takes up an early whisky to Mr Newmark.
She whispers to herself on the stairs,
"Here's your arsenic dear,
and your nice weedkiller biscuit,
I've poured your best wines down the sink,
I've flooded your cellar,
I've dug up your precious roses
And I've put your house up for sale".

She enters the room and says, sweet as a razor
"Jiffree, Jiffree,
here's your nice whisky dear".
Geoffrey takes the whisky,
Smiles gently at his wife,
Puts his chin to his chest,
And longs for youth.

All that was ten years ago, ten years during which time Geoffrey gradually went further and further downhill; Jean, inevitably taking more and more of the burden. At the end of the day it was Jean, and Jean alone, who fought so long and so steadfastly to keep him alive. Geoffrey once confirmed to me he knew this was so.

He was a man of courage and of very simple faith and in the days before he died he said to us in his bedroom "I am going to see my sons on Thursday, and then I shall be ready to go". He did just that, for on the Sunday he died. Death is coming to us all and I hope when my time comes I can as bravely, as gradually, and as calmly settle into that oblivion as Geoffrey has now done.

He was an example to us all: a true gentleman.


Dunsfold Aerodrome
Judgement in the High Court Judicial Review case


CO/1907/2000

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

Royal Courts of Justice
Strand
London WC2

Thursday 7th December 2000

B e f o r e:

SIR RICHARD TUCKER
Sitting as a Deputy Judge

- - - - - -
THE QUEEN ON THE APPLICATION OF
BARKER
-v-
WAVERLEY BOROUGH COUNCIL
- - - - - -

(Computer Aided Transcript of Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

- - - - - -

MR C LOCKHART-MUMMERY QC and MR D KOLINSKEY (instructed by Messrs Leigh Day & Co., London EC1) appeared on behalf of the Claimants
MR N McCLEOD QC and MISS C PATRY (instructed by Messrs Rees & Freres, London SW1) appeared on behalf of the First Defendant
MR C KATKOWSKY QC and MR D FORSDICK (instructed by Messrs Sharpe Pritchard, London WC1) appeared on behalf of the Second Defendant

- - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - -

1. THE DEPUTY JUDGE: This application for judicial review relates to Dunsfold Aerodrome which is located within open countryside in Surrey and covers 528 acres. The land was formerly used for agricultural purposes. It became an aerodrome during the war when it was requisitioned and an emergency airfield was built by the Canadian Air Force. The claimants, who are a group of local residents of the villages of Dunsfold and Alfold, which are adjacent to the aerodrome, challenge the decision of the defendants, the local planning authority, to vary certain conditions of the planning permission governing the present use of the aerodrome. The claimants want to see the land restored to its original use, agriculture.

2. The site has a lengthy planning history. In 1951 Hawker Aircraft Limited were interested in acquiring the site and using it for the purpose of erection, repair and flight testing of aircraft. They applied for a temporary permission to do so, "say seven years". On 13th April 1951 approval was granted for that development. The approval made no mention of the proposed temporary nature of the development. However any doubts about that were removed when, on 17th November 1954, a second permission was granted for the development for the erection of jet pipe mufflers and extension of existing hangers, for a temporary period of 10 years, subject to the buildings being removed from the site on the expiration of this permission.

3. That permission was subsumed by a further permission granted on 13th June 1958 extending the period to 30th April 1965. There were other consents granted for further development within the same period but subject to the use thereby permitted being discontinued and the land being reinstated to its original use on the expiration of the permit.

4. In February 1965 there was another comprehensive permission. It had the effect of extending the temporary use for a further period, this time of 20 years, expiring on 30th April 1985. The primary permitted use remained the same, ie use for the erection, repair and flight testing of aircraft, but there was a restriction to not more than 650 personnel. This was subject to a condition that the use should be discontinued upon the expiration of the permitted period and that the land should be restored to agricultural use.

5. There were numerous other permissions between 1967 and 1980. They were all expressed as being temporary and contained conditions that the land was to be reinstated to its original use. During this period British Aerospace had become the occupiers and operators of the aerodrome instead of Hawkers and at some stage BAe became the freehold owners of the site. So it was that in October 1980 permission was granted to BAe to continue to use the aerodrome for the same purposes as before with an extension until 30th April 2000.

6. This permission was subject to a number of conditions, of which I need only mention the first and the second.

"SCHEDULE OF CONDITIONS

1. The permission hereby granted shall be for a temporary period only, expiring on 30th April 2000, by which date the use shall have been discontinued.

2. The permission shall subsist for the benefit of the applicant, British Aerospace, only and for no other organisation or body, and on the cessation of use of the aerodrome and associated buildings by them, this permission shall cease to have effect and all the buildings and installations including runways, taxiways etc, shall be demolished, equipment and materials removed and the site left in a clean and tidy condition to the reasonable satisfaction of the local planning authority. Within a period of two years from the cessation of the use hereby permitted, all the land shall be returned to agriculture and all footpaths and bridleways which crossed the aerodrome prior to the requisition of the land shall be reinstated to the satisfaction of the local planning authority."

7. Reasons were given for the imposition of these conditions. I need only mention the second:

"In order that the permission shall be for the benefit of British Aerospace only, in the national interest and for no other person or body and to ensure that the site shall revert to agriculture at the cessation of the temporary period or any additional period in the interests of proper planning control."

8. On 27th March 1997 condition 1 was varied so as to extend the period to what was described as a "limited period only" expiring on 30th April 2020, on or before which date the uses shall be discontinued and the site reinstated to its former condition unless a further planning permission is granted before the expiration of such a period.

9. The reason given for the imposition of conditions was:

1. To accord with the terms of the application and to ensure that the use of the land by the applicants can be reviewed by the Local Planning Authority at the appropriate time in the light of the circumstances then prevailing.

10. Finally, I come to the decision whereby on 13th November 1998 the defendants permitted the removal of condition 1 imposed in 1980 and granted permission to BAe for the use of the aerodrome for the same purpose as before but on a permanent basis. This permission too was subject to certain conditions, the first of which is as follows:

"The permission shall subsist for the benefit of the applicant, British Aerospace, only and for no other organisation or body, and on the cessation of use of the aerodrome and associated buildings by them, this permission shall cease to have effect and all the buildings and installations including runways, taxiways etc., shall be demolished, equipment and materials removed and the site left in a clean and tidy condition to the reasonable satisfaction of the Local Planning Authority. Within a period of two years from the cessation of the use hereby permitted, all the land shall be returned to agriculture and all footpaths and bridleways which crossed the aerodrome prior to the requisition of the land shall be reinstated to the satisfaction of the Local Planning Authority."

11. Therefore this condition contained three components.

12. First, the permission was personal only to BAe.

13. Second, on the cessation of use the permission would cease to have effect and all buildings and equipments were to be demolished and removed.

14. Third, within two years the land shall be returned to agriculture.

15. It is the decision to vary this condition which is under challenge. When BAe applied for removal of the 1980 condition their advisors stated that it was in order to plan for their future at Dunsfold on a permanent basis:

"The plan future of BAe has far reaching consequences not only to the future improvement and employment to Waverley but to Surrey and wider afield."

16. However within a few months of making that application on 24th June 1999, BAe announced the closure of the aerodrome at the end of the year 2000. Mr Lockhart Mummery QC, on behalf of the claimants, submits that there was a clear consistency, recognised by everyone at the time, between the grant of a permanent permission personal to BAe and restoration of the land to its former use. So if the exceptional user were to go then the land would be restored. The then chairman of the planning committee confirmed in his comments to the committee that the conditions were sustainable - by which I take it to mean that they were legally valid and effective. However it was submitted that BAe was seeking a permanent permission on a clear understanding, mutually with the local planning authority and the public, that restoration of the land was necessary, valid and appropriate.

17. On 11th November 1999 BAe applied for a lawful development certificate (LDC) in order that the land could be used by parties other than BAe without being subject to any of the conditions set out in the 1998 permission.

18. A week later BAe submitted an application to vary the conditions so as to enable the aerodrome to be occupied by other persons and companies than BAe. The defendants considered the position and took counsel's advice on the status of the various permissions to which I have referred, and the conditions attached thereto. According to a Briefing Note circulated on 25th November 1999, the defendants, in the light of counsel's opinion, took the view that the effect of the 1951 decision was to grant permission for the permanent use of the aerodrome for the stated purposes, that subsequently imposed conditions had no force, and that BAe or any subsequent owner was entitled to use the aerodrome for the permitted purposes.

19. Mr Lockhart Mummery describes this as a dramatic somersault by the defendants which was demonstrably wrong.

20. On 2nd February 2000 BAe withdraw their application for an LDC, so that was the end of that particular matter.

21. However, BAe had meanwhile applied for the discharge of the conditions contained in the 1998 permission. Their advisors informed the defendants in a letter dated 29th September 1999 that BAe were endeavouring to find a buyer for the airfield so that the manufacturing base and the employment it generated could be maintained, but that the terms of the conditions effectively prevented other manufactures operating from the aerodrome.

22. The letter referred to an opinion which had been obtained from leading counsel contending that condition 1 was invalid in law as being ultra vires. Reference was made to the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. I shall have to return to that case in due course. Mr Lockhart Mummery submits that it has no application to the present case.

23. The defendants commissioned an impact study of the closure of BAe Dunsfold. This examined alternative options for the re-use of the site. It was considered that agricultural use as a single use option was unlikely. I accept that these matters were considered by the defendants over many months and after full consultations with interested parties.

24. Officers reported to the appropriate committee and sub-committee. They said it should be assumed that the conditions were extant and controlled the activities on the aerodrome site. They noted that the defendants had in the past recognised that the planning circumstances were exceptional and that temporary planning permissions had been granted which would normally have been regarded as inappropriate development within the countryside. On the other hand they later stated that "the view may be taken that the grant of permanent permission (personal to BAe) is inconsistent with a requirement for the site to return to agriculture." Mr Lockhart Mummery justifiably submits that this is a baffling observation which is contrary to what was said years ago. The officers concluded that the retention of the conditions could not be sustained.

25. The sub-committee which considered the matter does not appear to have kept any minutes of its deliberations, though there is a reference to them in the report. The sub-committee considered that it was appropriate to allow the removal of the requirement to return the site to agriculture and the requirement that the use be personal to BAe.

26. At the heart of the claimants' challenge is the fact that the report failed to address the position that would arise if no aircraft testing use materialised, or if such a user bought the land and then closed down. The defendants would have released BAe from any restoration obligation and would have no recourse against BAe or their successors on the site. This is how the concern was expressed in a letter written by Dunsfold Parish Council to the defendants on 4th April 2000. The Parish Council had obtained an advice from Mr Lockhart Mummery which they forwarded to the defendants referring to the fact that "the abandonment of the long-held objective to revert to agriculture understandably causes widespread concern in local area. Since the matter appears not to have been considered, one can glean no reasons for the omission."

27. By this time the claimants had formed their own association and were corresponding with the defendants, having commenced the present proceedings for judicial review. They asked whether the defendants had any defence to their application. On 18th July 2000 the defendants wrote saying it was not possible to let the claimants know of any defence "until such time as detailed advice has been received."

28. I gave leave to the claimants to amend their form 86A and argue new grounds, without any objection from the other parties.

29. The claimants now make three submissions on the following matters:

30. 1. The legality or validity of the reinstatement condition.

31. 2. The absence of reasoning and rationality.

32. 3. The claimants' legitimate expectation.

33. Legality.

34. The claimants accept that in order to be a lawful condition it must pass the requirements set out in Newbury Borough Council to which I earlier referred, namely:

35. 1. It must be imposed for a planning purpose.

36. 2. It must be fairly and reasonably related to the development permitted.

37. 3. It must not be so unreasonable that no reasonable planning authority could have imposed it.

38. In Newbury the House of Lords considered that a condition imposed on a planning permission for a change of use of existing buildings which are themselves permanently permitted, requiring the removal of those buildings, could only be justified in exceptional circumstances. That is not the position in the present case where the buildings and structures have always been regarded as temporary and which since the 1950s have been subject to a reinstatement requirement.

39. In my opinion it is not necessary to look for exceptional circumstances in order to validate the condition in this case. However, if it were necessary to do so they could be found in abundance, having regard to the special circumstances in which this aerodrome was permitted to be operated in the heart of the countryside for reasons of national security.

40. Further, this question is not simply one of the weight to be attached to the existence of this condition, as appears to be the view of Mr Wyborn, the defendant's Area Planning Officer. The issue is a legal one - a matter of law - whether the condition is valid or not. Not whether the condition is of "dubious validity" but the stark issue whether it is valid or not.

41. Mr Forsdick on behalf of BAe refers me to passages in the second statement of Mr Wyborn which in turn refers to the reports to the sub-committee and committee which it is said "highlight the uncertainty of the legality of the condition and to the fact that it was thought that two QC's specialising in planning law had given conflicting opinions". One of these was Mr Lockhart Mummery and he assures me he was not then advising on the validity of condition 1. Mr Wyborn continues in these words:

"The planning analysis concludes that the conditions cannot be sustained from a planning point of view and goes on to recommend replacement conditions."

42. The expression "cannot be sustained" is one that crops up on several occasions during the discussions on this problem - see for example the notes of the sub-committee discussion on 5th April. Mr Wyborn is quoted as using this expression, or ones akin to it, at pages 1, 3, 6 and 7. I take the words "cannot be sustained" or "unsustainable" to mean in this context "cannot be supported on planning merits", or possibly invalid or illegal for that reason.

43. Mr McCleod QC for the defendants submits that factually there was uncertainty as to the validity of the condition and that there was good reason for this having regard to what were perceived to be conflicting opinions of leading counsel. The only means of resolving this would have been to seek a declaration from the court which would have resulted in further delay. Mr McCleod submits that there were clear planning reasons why the defendants could and did grant permission.

44. The argument against the claimants seems to be that circumstances now are very different to what they were in the 1950s: the use of this land has been permitted now for over half a century; that use has now become established; in 1998 BAe were granted permanent permission; it is no longer justifiable to impose removal restrictions; there is nothing which by 1998 made the situation an exceptional one, and there is clearly an argument that condition 1 was unlawful when it was imposed. That is the argument set against the claimants in summary.

45. With that argument I disagree. I can see nothing unlawful about the imposition of the condition. The condition was then, and has remained, lawful and, if I must use the word, sustainable. The condition was considered necessary between the 1950s and 1998 and there is in my view no justification for saying it is not necessary now. The only attempt to suggest that it is not appears to be based on commercial expediency. These buildings and this use of the land was permitted because of wartime emergency and no doubt because of the Cold War which followed. They would not have been permitted unless they were to be discontinued and removed when national security considerations no longer called for their continued use.

46. However, it is said that the defendants and BAe do not need to go so far as to argue that the condition is or was unlawful. It is submitted that in examining the legality of the condition I should not go beyond the reports to the committees and that those reports are clear - the officers thought that there were exceptional circumstances which rendered the condition unsustainable. As I have endeavoured to make clear, I disagree. There is nothing now and there was nothing in 1998 which renders the condition unsustainable.

47. In my judgment the requirements to remove buildings, clear the site and restore the land to agriculture were imposed for a planning purpose and continue to serve a planning purpose. They fairly and reasonably relate to a development both when imposed and for so long as the permitted use continues and they cannot be said to be Wednesbury unreasonable.

48. Rationality.

49. The claimants submission under this head is well set out at paragraph 41 of an amended form 86A. There is said to be an illogicality in the reasoning of the officers reports which reads as follows. Sub-paragraph (f):

"The granting of permission in 1998 acknowledged that if the activities were to continue by British Aerospace in a similar way to the past activities, then the continued use would be acceptable. If the grant of permanent consent for British Aerospace was acceptable in 1998 then it could be argued that the grant of permanent consent for the same activities by a different occupier, with the same or lesser impacts on the environment, is in itself no more harmful."

50. It then continues:

"Consequently, the view may be taken that the grant of planning permission (personal to BAe) is inconsistent with a requirement for the site to return to agriculture."

51. The claimants submit that the final sentence does not follow from the preceding two sentences. A permanent personal condition provides certainty to the operator of the aerodrome whilst the site is being used within the permitted use. The reversion to agriculture becomes particularly relevant if the permitted use is no longer required. The two conditions are thus compatible.

52. The claimants say that the view contained in this report is baffling and is contrary to what had been said a year ago. It is submitted that, subject to one caveat, no logical basis can be found for not retaining the requirement to reinstate as an option for controlling this site in the future. The caveat relates to the recognition that options for employment must be kept open. The claimants do not raise any attack as a matter of law on the release of the personal element of the condition.

53. The defendants submit that there was a clear and rational basis for not requiring the obligation to reinstate the land to agricultural use, which is clearly evident from the report and the debate. Thus it is said the site has been a substantial commercial site for the last 50 years and there were a variety of development plan policies which sought to encourage and maintain business activities in the area. There was difficulty in selling the site if subject to the present restraints. There was further difficulty in envisaging how, in the present state of agriculture, a suitable and viable agricultural use could be identified. The claimants acknowledge that actual reversion of the site to agriculture may not be appropriate, as there may not be local demand for agricultural use. However, they contend that the defendants could and should consider appropriate rural restraint uses for the site consistent with policies of the local plan applicable to countryside beyond the Green Belt. Woodland use is one example. This is a large area, only two or three per cent of which is covered by buildings. There are plainly many options for its use.

54. The defendants submit that there was no rationality void as suggested by the claimants and in any event the observations made at paragraph (f) of the report were only some of the large number of factors which the defendants took into account.

55. On behalf of BAe, Mr Forsdick submits that when read fairly and as a whole the report to which I have referred placed proper emphasis on the planning merits of the application and that the proposals were acceptable in planning terms. Mr Forsdick says that it was a question for the defendants whether it was necessary to impose a restoration condition and that they were justified in removing it as a matter of planning judgment to allow effective marketing for its existing acceptable use.

56. Mr Forsdick relies upon the test of irrationality adopted by the Court of Appeal in R v Ministry of Defence ex parte Smith (1996) 1 AER 257 and cites from the judgment of Sir Thomas Bingham MR (as he then was) at page 263 under the cross heading Irrationality - The Test:

"Mr David Pannick QC (who represented three of the appellants, and whose arguments were adopted by the fourth) submitted that the court should adopt the following approach to the issue of irrationality:

'The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.'

This submission is in my judgment an accurate distillation of the principles laid down in [the cases]."

57. Mr Forsdick asks whether the decision not to keep the agriculture reinstatement condition is beyond the range of decisions open to a reasonable decision maker, and submits that this decision is "miles away", as he puts it, from irrationality, given that the condition could only be imposed in certain circumstances.

58. I disagree. In my judgment having regard to the history of this site; to the circumstances in which it was first taken over; to the position which it occupies in open countryside, and to the many years during which the condition has been imposed, it is now unreasonable for it to be removed and so unreasonable as to amount to an irrational decision within Wednesbury principles.

59. Legitimate Expectation.

60. The claimants contend that they have a legitimate expectation that if the aerodrome is no longer used by BAe, or I think they would accept by any similar occupier, for the assembly, repair and flight testing of aircraft in the national interest, the buildings and installations will be removed, site cleared and the land returned to agriculture.

61. The defendants, or at least their reporting officers, appear to recognise that the claimants do have such expectations based on the control which has been exercised on the site, and the legitimate expectations that future control will allow for similar consideration to be given to the avoidance of adverse environmental impact. However, Mr McCleod does not accept that it is a legitimate expectation in the sense that that phrase has been properly understood by the courts. Mr McCleod submits that the only legitimate expectation that has been recognised is that the defendants will give similar consideration to controlling the future use of the aerodrome so as to avoid adverse environmental impact. However he submits that this is no more than the defendants are required to do as a planning authority, applying the relevant statutory provisions, and that it is not a freestanding and independent right to expect that the use of the aerodrome will not in any circumstances be intensified even if it causes detriment.

62. My attention has been invited to the decisions of the Court of Appeal in two cases: R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622 and R v Devon County Council ex parte Baker [1995] 1 AER 73, and the passages in the judgments of Lord Woolf MR (as he then was) and Lord Justice Simon Brown in each of those cases respectively. Without disrespect to the judgment of Lord Justice Simon Brown I think I need only cite the judgment of the Master of the Rolls as the more recent and in my judgment more authoritative. What Lord Woolf says is this at page 645:

"But what was their legitimate expectation? Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.

There are at least three possible outcomes [of which I need only examine the first and the last]. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. [I interpose to say that it is into this category, according to the defendants, that the claimants come] ...

(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. [I interpose to say that it is into this category that the claimants say they come].

... In the case of the first [category], the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise... In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised."

63. If it is necessary for me to decide into which category the claimants fall, in my judgment the claimants are right in submitting that their case falls within the third category identified by the learned Master of the Rolls. Accordingly it is for me to determine whether there is a sufficient overriding interest to justify departure from what has been previously promised.

64. Taking into account all considerations in this case my conclusion is No, there is no such overriding interest. What has been previously promised over many years should be adhered to. The claimants have been led to believe over the years that in due course this land will revert to its original use. That belief has to a large extent been induced by the defendants' attitude in response to the various planning applications submitted to them and on which they have granted conditional permissions.

65. I do not accede to or accept the argument of BAe that because in 1998 their use became permanent that meant any legitimate expectation of an ultimate return to agriculture became, for some reason, untenable or was thereupon abandoned.

66. Even if I am wrong about placing the claimants in the third category and they ought to be regarded as falling within the first category, I have already held that the defendants' decision was irrational: I find they have not given proper weight to the implications of not fulfilling the promise which they made, expressly or impliedly, by introducing the condition and by continuing it over many years.

67. It follows that I do not accept Mr Forsdick's argument that because in 1998 BAe's use became permanent and in his words "there was no reason to suppose they were about to leave" it was to be expected that the use of the aerodrome would continue for the foreseeable future. Mr Forsdick submits that the most the claimants could contend is that at some future time the defendants would have to enforce the condition for removal. He submits that the claimants' case cannot get off the ground and that the highest expectation they have is that their views would be taken into account, as he says has clearly taken place.

68. In my judgment that argument gives insufficient weight to the expectations of the claimants that legal, valid and long-standing conditions would be enforced and to the obligation upon the defendants of doing so. In the present case, in my judgment, it is so unfair to frustrate the expectations of the claimants that to take a new and different course such as the defendants propose will amount to an abuse of power. There is, in my view, no overriding interest relied upon sufficient to outweigh the requirements of fairness.

69. Accordingly this application succeeds. I grant judicial review of the defendant's decision.

70. Mr Kolinskey, what are you seeking from me?

71. MR KOLINSKEY: My Lord, in relation to the question of relief.

72. THE DEPUTY JUDGE: Is it as set out in your amended form 86A?

73. MR KOLINSKEY: My Lord, yes.

74. THE DEPUTY JUDGE: The relief there sought is four-fold. First, certiorari to quash the decision so far as it surrenders the requirements to demolish buildings etc. Are you seeking relief in those terms first of all?

75. MR KOLINSKEY: My Lord, yes. I would seek the order of certiorari that your Lordship has indicated and the order of mandamus set out in paragraph 2. My Lord as for the declaration to legitimate expectation my Lord dealt with that in my Lord's judgment and I do not seek----

76. THE DEPUTY JUDGE: I do not think I need give a formal declaration to that effect.

77. MR KOLINSKEY: My Lord, no. My Lord has indicated in my Lord's judgment in the clearest possible terms my Lord's view on the legality of the condition and my Lord I am sufficient to rely upon that rather than to seek additional relief in that respect.

78. THE DEPUTY JUDGE: So you seek relief in terms of the first two paragraphs, do you?

79. MR KOLINSKEY: My Lord, yes.

80. MISS PATRY: My Lord, I appear for the defendants and we would not be resisting that relief.

81. MR FORSDICK: That relief seems entirely appropriate, my Lord.

82. THE DEPUTY JUDGE: Very well, certiorari and mandamus will go in the terms set out in the amended form 86A.

83. MR KOLINSKEY: In relation to the question of costs, my Lord, the claimants would seek an order for detailed assessment of their costs to be paid by the defendants. My Lord because of the two day time estimate this matter is outside of the summary assessment regime. My Lord that is all I say as to the amount of costs. I would ask your Lordship to give some consideration to the question of the timing of costs. My Lord has power to grant an interim payment of costs----

84. THE DEPUTY JUDGE: What are you referring to?

85. MR KOLINSKEY: My Lord the question of costs will be assessed in due course by detailed assessment. That process may take some time. It is also possible - subject to matters that may be addressed either directly to your Lordship or to the Court of Appeal - that this matter may go further and my Lord in those circumstances in the light of your Lordship's judgment and in light of the fact that my clients are individuals who are in my submission taking a public interest challenge, not one which impacts on their financial interest, but one effectively which is one of concern on behalf of the residents of the locality, in those circumstances my Lord I would invite you to order detailed assessment but to order that costs be paid but in any event not to be stayed if the matter is appealed, and furthermore to order an appropriate payment on account----

86. THE DEPUTY JUDGE: How can I do that? I am not inviting any applications for leave, of course, but it is possible the matter may reach the Court of Appeal. I hold no grand views of my own infallibility and it is possible the Court of Appeal may disagree with me and in such an event any order for costs would be overturned and what would happen to any costs that have already been paid to your clients? It cannot possibly be made unconditional upon any leave to appeal, can it?

87. MR KOLINSKEY: My Lord, clearly I accept that if my clients were not to succeed in the Court of Appeal the question of costs would need to be revisited. However if I may briefly refer your Lordship to two provisions of Part 44 of the Civil Procedure Rules, my Lord.

88. THE DEPUTY JUDGE: Which volume of the white book?

89. MR KOLINSKY: It is in the first volume at page 631. My Lord, there are two brief provisions that I would ask your Lordship to bear in mind in relation to your Lordship's discretion. The first one is Part 44 sub-paragraph (8). My Lord the second one is over the page at page 637 in relation to the time for complying with an order for costs. That is rule 8 of Part 44, my Lord.

90. THE DEPUTY JUDGE: I see.

91. MR KOLINSKEY: In my submission my Lord has the power and I would invite my Lord effectively not to make an order at to the timing of costs because in my submission rule 8 provides for that, but to exercise my Lord's power under Part 44 rule 3(8) to indicate an appropriate amount to be payable within 14 days in any event. My Lords those are my submissions.

92. THE DEPUTY JUDGE: You are only seeking this order against the defendants, not against the interested party.

93. MR KOLINSKEY: My Lord, that is right. Any costs order I seek is simply against the defendants.

94. THE DEPUTY JUDGE: What do you say, Miss Patry?

95. MISS PATRY: As to the amount of costs we would not be resisting that and we are quite happy for it to go for detailed assessment.

96. THE DEPUTY JUDGE: You cannot resist an order for costs in general terms and you cannot resist an assessment of the costs. So far so good. What about these peculiar or special applications?

97. MISS PATRY: We would oppose the application for an interim payment for the reason that there has been no evidence presented as to any specific financial need on behalf of the applicants, and secondly as your Lordship has indicated this case may go on higher to the Court of Appeal and at that stage it may well be that the appeal is successful and as you have indicated repayment of costs would be an appropriate at that stage. As such we would simply ask you to -- the other point I wish to make is that in any event permission to appeal does not prevent the payment of costs and as such we would be opposing the application made by my learned friend this morning.

98. THE DEPUTY JUDGE: Do you want to reply?

99. MR KOLINSKEY: My Lord, no.

100. THE DEPUTY JUDGE: I order costs of the claimants to be paid by the defendants and those costs will be assessed. I do not make either of the special orders which counsel asks me to make. I have a discretion whether or not to do so and I refrain from doing so.

101. MR FORSDICK: Can I make an application? It probably is a formal one and possibly unnecessary but I wish to make it anyway. That is that BAe be added as a defendant. The reason for the application is that - I do not know what my learned friend on behalf of the counsel will say in relation to permission to appeal - but under the old rules, and this is a challenge under the old rules, the challenge could only be sustained on appeal to the Court of Appeal by a defendant. Now a defendant is a person directly affected under the old rules and we say clearly we are directly affected by this application and therefore it would be entirely for us to be joined as one used to be called as a second respondent.

102. THE DEPUTY JUDGE: Does anyone have any objection to that application?

103. MR KOLINSKEY: My Lord, no.

104. THE DEPUTY JUDGE: Yes, Mr Forsdick.

105. MR FORSDICK: In those circumstances my Lord I have an application for permission to appeal if I may.

106. THE DEPUTY JUDGE: I imagined that was coming. You have the springboard now from which to make your application.

107. MR FORSDICK: Yes. My Lord if I can I will be brief. My Lord has had the substantive submissions in my Lord's judgment. But if I can go again in reverse order. The legitimate expectation point: the way in which my Lord has put it is effectively, in my respectful submission, to result in exactly that situation which I submitted would be inappropriate, namely to override the statutory framework under which planning decisions are to be made. I understand the way in which my Lord has put it and there is no overriding reason why legitimate expectation should not be given effect but what I say in response to that is that legitimate expectation cannot, as a matter of law, override section 54A, material circumstances, up until circumstances of the development plan and so on. The reason I ask for permission is that when this goes back to the council at the moment they are facing a judgment which says that they have to recognise and give substantial weight to legitimate expectation irrespective - and this is the point - as to the countervailing planning merits and that, in my submission, is a substantive and important point of general principle which is worthy of consideration by the Court of Appeal. That is my first point.

108. The second basis upon which my Lord refused a grant of the application was in relation to the irrationality and then the legality of the condition and I can deal with both those points briefly. The substantive submission that was made was that in the year 2000 when the council was considering this application it had before it an application which it had to determine on the planning merits in accordance with the development plan and so on. My Lord, I started my submissions a week or so ago by highlighting what in my submission were the overwhelming predominance of planning reasons in the report committee and in the consideration the committee had given and my Lord what we say is the correct question and a question that remains open on your Lordship's analysis is that when one concludes as a matter of planning judgment on the facts then pertaining - so in the year 2000 the facts then pertaining - that a condition is unnecessary or does not fulfil the Newbury test, is not necessary in order to permit the development suggested to go ahead. If that is the judgment and the planning judgment of the decision maker - not of this court but the decision maker - then there is no basis in law and indeed no need in law for any condition to be imposed or to be continued to be imposed. I say that that is a really fundamental issue because what I respectfully submit is that my Lord has strayed into second guessing the decision maker's ability to decide the planning merits and with of course the greatest respect what I say is that it is a delicate balancing act to be done but I respectfully submit that my Lord has gone into the planning merits and has overruled the council on the planning merits in circumstances where it is not justified to have done so. Those are my submissions.

109. MISS PATRY: We would also like to apply for permission to appeal and we would adopt the reasoning of Mr Forsdick. In addition we would simply ask that you exercise your discretion under rule 52.4 which is to do with an extension of time for filing an appellant's notice if permission were to be granted.

110. THE DEPUTY JUDGE: An extension of time to do what?

111. MISS PATRY: To file the appellant's notice. This will only be decided by your Lordship should you grant permission.

112. THE DEPUTY JUDGE: You had better refer me to the rule.

113. MISS PATRY: It is rule 52.4.

114. THE DEPUTY JUDGE: Which page?

115. MISS PATRY: Page 762 of the white book.

116. THE DEPUTY JUDGE: Paragraph 1 refers to an appellant seeking permission from the appeal court.

117. MISS PATRY: If you were to refuse permission we would need that.

118. THE DEPUTY JUDGE: If you have permission, or even if you do not, why can you not file your notice within 14 days?

119. MISS PATRY: There are two reasons for this. The first reason is that the respondent is a local authority and local authorities have to go through a number of procedures before it can even be established that they wish to proceed with an appeal and these can be committees and subcommittees. The second reason would be that we are approaching the Christmas period which also would put them in difficulties to submit their application in time. I would ask you to exercise your discretion.

120. THE DEPUTY JUDGE: You say we are approaching Christmas but in 14 days from now the courts here will still be sitting and your clients will still be administering their local planning authority. They will still be at work in their offices in a fortnight's time, will they not?

121. MISS PATRY: I simply make the application because I must at this stage.

122. THE DEPUTY JUDGE: Mr Kolinskey, what do you say to the applications for permission to appeal?

123. MR KOLINSKEY: My Lord, I oppose the application for permission to appeal. In my submission in the light of your Lordship's judgment the application does not have a reasonable prospect of succeeding in the Court of Appeal. My Lord has given a clear and robust judgment on all three grounds. It is of course right that my clients----

124. THE DEPUTY JUDGE: I think Mr Forsdick is saying it is too robust and does not descend into the planning particulars. I think that is the nature of his application.

125. MR KOLINSKEY: My Lord, in my submission the right course now would be either for the respondents to apply to the Court of Appeal and for your Lordship to refuse permission or for them to take a good look at the judgment and effectively refer the matter back to the planning committee or planning committee to decide the planning merits in accordance with your Lordship's judgment. Of course it is for your Lordship to decide but I would invite your Lordship to refuse the application for permission, not least of which because in my submission even if it is right that your Lordship did go beyond what was necessary, it was only necessary to succeed on one ground for this matter to be rightly quashed and rightly referred back to the planning committee. Any other point is in my submission academic and the proper course is for this matter to be reconsidered on planning merits by the respondent in the light of your Lordship's judgment. I invite your Lordship to refuse permission.

126. THE DEPUTY JUDGE: I think this is a proper case for me to grant permission.

127. MR FORSDICK: I am grateful, my Lord. Could I then make an application as well along the same lines as my learned friend for the council, but on a slightly different reasoning, in relation to the time for service of the notice of appeal. My Lord gave a very detailed extempore judgment and we were all writing as fast as we could.

128. THE DEPUTY JUDGE: It was not an extempore judgment at all. It was a carefully prepared reserved judgment, considered over many days. If you thought it was extempore then you flatter my intellect.

129. MR FORSDICK: My Lord, what I meant was it has not been handed down.

130. THE DEPUTY JUDGE: The reason for that, Mr Forsdick, is what I would describe as a logistical one. I no longer have a clerk who can decipher my writing and therefore I am not able so easily now to have my judgments typed up and handed down, as I would have liked to have done. Therefore I have to write them myself and that means that I have to read them myself.

131. MR FORSDICK: My Lord of course.

132. THE DEPUTY JUDGE: I quite see it means that you do not----

133. MR FORSDICK: We do not get a transcript for 28 days, my Lord, and given that the QCs in the case are not here today it is a case that requires, as my Lord will have been aware, skeletons and submissions. It is very complex.

134. THE DEPUTY JUDGE: What time are you seeking?

135. MR FORSDICK: Apparently the normal procedure is that the shorthand writers get a finally approved transcript from my Lord within 21 days, as I understand it. I am not giving evidence here.

136. THE DEPUTY JUDGE: Unless I expedite the transcript.

137. MR KOLINSKY: My Lord, if it would assist my clients would not oppose your Lordship extending time if your Lordship was minded to do so.

138. THE DEPUTY JUDGE: I had not appreciated the difficulties occasioned by my having to read the judgment in the circumstances I have described and I can quite see that puts the parties to some further difficulties and delay.

139. MR FORSDICK: The difficulty only arises because of the complexity of the legal points here and we need to get exactly the words my Lord used before the Court of Appeal when taking up my Lord's permission. We do ask for an extension. I would imagine 28 days would be appropriate.

140. THE DEPUTY JUDGE: That is the time I had in mind. Does anyone object to an extension of time of 28 days?

141. MR KOLINSKY: My Lord, no.

142. THE DEPUTY JUDGE: Very well. I have to set out my reasons.

143. MR FORSDICK: The first is that there is a point of significant public importance in this area on all sides, if I can put it like that. The second is that it raises important points of general principle in this area.

144. THE DEPUTY JUDGE: You mean area of law rather than----

145. MR FORSDICK: I mean the Waverley Borough Council area. Secondly it raises points of general principle in relation to the interplay of legitimate expectation with statutory requirements. Thirdly, the role of the court in adjudicating upon merits of the imposition of conditions, if I can put it -- that is not very well phrased.

146. THE DEPUTY JUDGE: Adjudicating upon----

147. MR FORSDICK: The merits of the imposition of conditions. I hope I am not being bound by precise words used, but those are the significant points.

148. THE DEPUTY JUDGE: Yes, thank you.


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