Mr M Scott, Bagby Airfield, Bagby, Thirsk, North - Hambleton District ...

209. A further legal opinion was submitted on instruction from David Cooper by
Mr Lockhart-Mummery QC. This was received on 13 August 2010 and is at
Appendix 15.
210. A rebuttal to the opinions of Mr Lockhart-Mummery QC and David Cooper
was submitted by solicitors Walker Morris acting on instruction from the agents
for the applicant. This was received on 18 th August 2010 and is at Appendix 16.
211. A legal opinion was prepared by Martyn Richards – solicitor for Hambleton
District Council, this was received on 18 th August 2010 and is at Appendix 17.
212. Section 171A and B of the Town and Country Planning Act 1990 sets out
the time limits for enforcing a breach of planning control. In the case of the
developments at Bagby Airfield all of the alleged breaches relates to a breach of
planning control consisting of the carrying out of operational development and the
four year time period imposed by Section 171B(1) applies. As set out in Section
172 the Planning Authority have found it expedient to issue an enforcement
notice having had regard to the provisions of the development plan and other
material considerations.
213. Conclusions on the Lawful Use
214. I consider that the burden of proof in demonstrating a lawful use as a
fallback position is firmly with the Appellant. This is equivalent to the position if
an application was made under s.191 (Circular 10/97, Annex 8 paragraph 8.12).
The relevant test is the “balance of probability”, and Local Planning Authorities
are advised that if they have no evidence of their own to contradict or undermine
the Applicant’s version of events, there is no good reason to refuse the
application provided the Applicant’s evidence is sufficiently precise and
unambiguous to justify the grant of the certificate (paragraph 8.15). In this case,
the appellant's evidence contains considerable ambiguity lacks precision. It is
also contested by local residents.
215. The Lawful Use of much of the appeal site is as an airfield. The landing and
take-off of aircraft is known to have taken place from the Runway 06/24 (also
known as the east-west runway) and the storage and parking of aircraft on land
either side of the runway for a period in excess of ten years. (Appendix 8)
Hambleton District Council - Tim Wood – Proof of Evidence - 49 -