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Understanding aviation-related planning

Why is the planning system important for aviation?

National policy imposes very few meaningful environmental limits on airport operations or expansion, and successive governments have been reluctant to intervene. Consequently, it’s almost always at the local level, within the planning system, where the impacts of airport operations are consulted on with stakeholders, and where any controls or limits are negotiated.

There are exceptions, however. Since the 1980s, Heathrow, Stansted and Gatwick airports have been “designated” for noise regulation by the Government. This means that Government restrictions run alongside those laid down by local planning authorities through the planning process. The Department for Transport (DfT) periodically consults on its approach to noise controls at the designated airports, particularly in relation to night time aviation noise, which provides opportunities for members of the public to comment.

As the information and examples below will show, the planning system has always occupied an important place within the aviation industry. However, a 2018 statement made by the Civil Aviation Authority (CAA) during its Airspace Modernisation Strategy consultation reinforces the strategic importance of the planning system as the process for determining the appropriate scale of the industry’s impacts. Aviation growth, and its noise and other environmental impacts, the CAA said, should be managed not through the airspace change process, which it authorises, but through the planning system.

The CAA envisages, for example, that regional and local government policy and decision-makers can limit the number of new runways at an airport, or place restrictions on their use.
But, given the limited ability of the planning system to set appropriate controls in every situation, AEF argues that there is a case for the DfT and the CAA to retain the right to impose limits way of conditions on airspace use where this is the best or only means of providing environmental protection.

Some points to note

Throughout this briefing, AEF has provided links to websites and documents providing further information on the planning system and process. Though still very useful, some of the information is written with the applicant in mind, and some gives an impression of the planning system as being uniformly accessible to members of the public, and to public engagement.  
However, when AEF carried out a survey of members in 2016, some members expressed frustration with the planning system and its time-consuming complexities. In addition, carefully researched and evidenced submissions to local planning authorities had, they said, simply been ignored by what they saw as single-minded planning authorities.
Having said this, AEF has also heard more positive stories recently, including one where successful participation in local politics gained vital community influence in the planning system. Of course, the campaign required prolonged hard work and considerable determination, as well as a ready willingness to collaborate with others. You can read about the story here.

What is the planning system?

The planning system was put in place in the 1940s to facilitate a coordinated approach to land use in the UK. It introduced the requirement to obtain planning permissions from local authorities for building works, and for a change of land use.

With some exceptions (outlined below), the planning system controls what happens on the ground at airfields and airports. This includes, as examples, proposals to develop new hangars and terminals, extensions to existing runways, or the construction of new ones, such as the one currently planned for Heathrow Airport.

What is the relevant aviation-related planning legislation?

The planning system has evolved considerably since the first planning act in 1947, and is subject to several Acts of Parliament, and a very wide range of policies and guidance that are out of scope for this short guide. However, keep in mind that legislation, policy and guidance that applies to proposed developments will differ depending on the scale of the proposals put forward and their impacts.    

In this way, the planning system falls into two main legislative strands: (1) The Town and Country Planning Act (1990), and (2) the Planning Act (2008). In the context of aviation, The Town and Country Planning Act (TCPA) applies to smaller development consents, which are dealt with locally. The 2008 Planning Act (PA) applies development proposals that are considered to be of national significance, and it is discussed separately below.

Whether the TCPA or the PA applies, you are also likely to come across references to the Localism Act (2011), which amended both.

The Climate Change Act (2008) is also very relevant, as all planning policy and considerations must take into account the legally binding targets to reduce greenhouse gas emissions laid out in Section 1 of the Act (recently amended to reduce all greenhouse gas emissions to net zero by 2050).

For a full list of planning-related legislation, click here.

Please note that Scotland,Northern Ireland and Wales each have their own town and country planning systems. This guide is based on the systems and processes that apply in England, and while there are many similarities with other parts of the UK, some elements may vary.  If you are looking for information on the planning system in Scotland, Northern Ireland or Wales, please click on the links below:
Scotland
Northern Ireland
Wales

TCPA and policy for smaller developments 

The key policies are listed and briefly summarised below.

The National Planning Policy Framework (2019) is not aviation-specific (though it does include a short statement about what it regards as the significant contribution of General Aviation to the UK economy and to connectivity).  Nevertheless, it does lay down important policy regarding development in general, which will have a bearing on aviation-development proposals, and it begins by emphasising the importance of the principle of sustainability. It defines this as:

meeting the needs of the present without compromising the ability of future generations to meet their own needs.

However, the thread running through the NPPF is “the presumption in favour of sustainable development”, the expectation that planners and decision makers will adopt a positive approach to development proposals.

The Aviation Policy Framework (2013) is, as its name suggests, specific to aviation, and sets out “the Government’s objectives and principles to guide plans and decisions at the local and regional level, to the extent that it is relevant to that area”.

The Aviation Strategy Green Paper (2018) sets out the Government’s requirement for airports to make best use of existing runways within the planning system in order to maximise capacity. It is proposed (the Aviation Strategy White Paper isn’t due out until the end of 2019) that the planning system will also manage noise impacts through, for example, noise plans and caps. Its six main objectives are to:

  • help the aviation industry work for its customers
  • ensure a safe and secure way to travel
  • build a global and connected Britain
  • encourage competitive markets
  • support growth while tackling environmental impacts
  • develop innovation, technology and skills

Local Plans and Neighbourhood Plans (developed by local planning authorities, and town and parish councils) could also have a bearing on aviation-related planning issues. For example, development schemes in and around existing airports and airfields, or development of those that have fallen into disuse.  These plans may set out the local authority view on the role of a particular airfield and any relevant policies on managing noise, air quality and other issues.

Who are the key players for smaller applications?

For applications falling within the TCPA, most development proposals need the consent of a competent authority before they can go ahead: usually the local planning authorities in District Councils, but also in London Boroughs, Unitary and Single Tier Councils.

Do airport and airfield developments always require planning permission?

No, they don’t.

  • Permitted Development rights

Any qualifying airport (one that has that has the CAA’s permission to levy airport charges under the Airports Act 1986) can take advantage of permitted development rights (PDRs) to carry out some types of building works (such as adding a new apron, hangar, or terminal extension) and changes of use.

PDRs are general permissions granted by Parliament through the Town and Country Planning (General Permitted Development) (England) Order 2015. As such, there’s no need to apply for planning permission locally. However, PDRs are typically subject to conditions and limitations (for example, on height, size, or location) that control development impacts, and which must be met for the development to be lawful. (More information on PDRs is available from The Plain English Guide to the Planning System, The Planning Portal and UK.GOV).

There is a range of exclusions which apply to permitted development rights in England. For instance, there are protected areas such as:
-conservation areas
-Areas of Outstanding Natural Beauty
-National Parks
-the Broads
-World Heritage Sites
  • The 28-day rule

Some permitted development rights are also in place for a limited period of time; these are set out in the relevant Parts in Schedule 2 to the General Permitted Development Order referred to above.

Under the 28-day rule, helicopter and fixed wing aircraft can be operated from appropriate sites for not more than 28 days in total in any calendar year.

  • Ancillary Use

An aircraft for personal use can be operated from within a residential curtilage without planning permission, but only if it’s considered to be an ancillary use. Very broadly, curtilage land is an area attached to and containing a dwelling and any outbuildings. You can read some suggestions about what might constitute curtilage land here and here.

There would need to be certainty that the land from which the aircraft would operate actually lies within the residential curtilage. Also, its proposed use would have to be primarily of benefit to the individual (and his or her family).

  • “Established use” rights

In the context of the use of land, some older airfields have claimed that their former use was never abandoned and that they have established use rights, which means that planning permissions are not required.

A case study:
In the late 1950s, the Air Ministry sold Trevellas Airfield (a former military airfield in Cornwall). Afterwards, it came to have a dual use – for aircraft operations (mostly gliders) and for agriculture.
In the early 1990s, new owners took over the airfield. Agricultural tenancies, which had existed for over thirty years, came to an end, and planning permissions were obtained to refurbish the derelict control tower, meaning that aircraft use became dominant. Campaigners argued that an intensification of use by general aviation at the airfield amounted to a material change of use, as did new helicopter and microlite operations at the airfield. During a planning appeal, the planning inspector rejected this argument. He decided that, although the use of the land for aircraft operations had been limited previously, this did not break continuity of use. While he agreed that the numbers of aircraft operations at the airport had intensified, he was not persuaded that this amounted to a material change of use, and that helicopters and microlights were merely types of general aviation.

Conditions and planning agreements

To mitigate some of the potential adverse impacts of a development or activity, planning permissions sometimes come with planning conditions attached, and/or the developer can enter into a legally-binding planning agreement.

Planning conditions

These enable planning permissions that would otherwise be refused or delayed to be granted subject to certain details being agreed by the decision maker before work, or change of use, is completed. Expectations around the use of planning conditions are set out in the NPPF (paragraphs 54-57).

In the context of aviation, planning conditions can be a useful tool for reducing noise impacts around airports and airfields since they can impose time restrictions on flying, and the numbers of operations from airports.

If development, or a change of use of land, is completed without meeting planning conditions, or if it subsequently fails to adhere to the terms of a planning condition, it would be unlawful. If you think that a developer or land owner has breached a planning condition, you should inform the enforcement officers at your local planning authority who can order works or use to stop pending further investigation. For further information about local planning authority enforcement, click here.

There are very good examples of aviation-related planning conditions in Annex 4 of the defunct, but still very useful, PPG24

S.106 Agreements

Section 106 of the TCPA (commonly known as S.106 agreements) contains a planning mechanism which can make a development proposal acceptable in planning terms, that would otherwise be unacceptable. S.106 agreements differ from planning conditions in that the developer enters voluntarily into a legally-binding covenant with the local planning authority. They are usually agreed during the pre-application process in the planning system and amount to obligations to mitigate development impacts. They are often referred to as ‘developer contributions’.

A S.106 agreement can:

  • restrict the development or use of the land in any specified way
  • require specified operations or activities to be carried out in, on, under or over the land
  • require the land to be used in any specified way; or
  • require a sum or sums to be paid to the authority (or, to the Greater London Authority) on a specified date or dates or periodically.

If the s106 is not complied with, it is enforceable against the person that entered into the obligation, and any subsequent owner, and can be enforced by injunction. In case of a breach of the obligation the relevant local planning authority can take direct action and recover expenses.

Generally, while planning conditions can’t be imposed on flightpaths, there are examples of S.106 agreements that reference adherence to an agreed flightpath protocol. Also, some non-designated airports have entered into S.106 agreements over Noise Preferential Routes. For more information about S.106 agreements, see the Planning Advisory Service website.

At Henstridge Airfield, planning permission to replace an existing operational permission was granted subject to a S.106 agreement that stipulated that a flight protocol was established to avoid overflying neighbouring villages. Other examples include allotting “approved slots” for aerobatic manoeuvres, and restricting the number of aircraft operations at certain times of day and at weekends, and prohibiting circuit training for unqualified pilots.

How does the planning system work? 

There are several stages of the planning process that a developer must work through to gain planning permission, unless permitted development rights apply (see above).

Very broadly, the process starts with the pre-application stage, where the applicant discusses aspects of the proposals with the local planning authority. Next, the application is submitted with appropriate supporting documentation, including an environmental statement setting out the environmental impacts of the development, if those impacts are likely to be significant, and any proposed mitigation.

The consultation stage comes next, where the local authority gives the public notice of the application, and makes the documentation available for public scrutiny for a specified time. It’s during this period that you can either formally support or oppose an application.

After the consultation stage, the decision is made either to approve or reject the application, or to approve it with conditions attached (see conditions above).

If the application is refused, or approved with conditions attached, the applicant can either start a fresh application, or make an appeal to the Secretary of State through the Planning Inspectorate. A decision made by a Planning Inspector is final (but it can be challenged in the High Court via the judicial review process). The applicant can also appeal if the planning authority has not made its decision within eight weeks after the public consultation end date. A flowchart of the process can be viewed here, and more detail can be found here.

Note that, if the planning appeal raises issues that seem to justify intervention by a Government minister, a planning application can be “recovered” by the Secretary of State, who will make a decision taking into account recommendations from the Planning Inspectorate.

Also note that there’s no right of appeal for the public – only the applicant can appeal a local planning authority’s decision. However, anyone can request the Secretary of State to “call in” the application (effectively taking it over) prior to the local planning authority’s decision. The Secretary of State’s has discretion whether call in an application, though, and will normally do it only when the application is more than locally important. If an application is called in, the decision will closely follow the procedure for recovery. You can read more about appeals, recovery and call in here.

The 2008 Planning Act for larger developments

The Planning Act 2008 introduced a new development consent process for Nationally Significant Infrastructure Projects (NSIPs). NSIPs are usually large-scale developments (relating to energy, transport, water, waste water or waste), and the need for them is set out in a relevant national policy statement (NPS). The relevant NPS for a large-scale development project at an airport is the Airports National Policy Statement. This mainly sets out a case for a third runway at Heathrow Airport, but it also made a case for expansion in the aviation sector in general.

Any NSIP, including the third runway at Heathrow, requires a type of consent known as “development consent”.  A Development Consent Order (DCO) automatically removes the need to obtain several different consents, including local authority planning permission.

Part 3 of the 2008 Act sets out the thresholds which these projects have to meet in order to be considered as nationally significant and thus requiring development consent. For airports, S.23(5) stipulates that a DCO would be required if, as a result of the development, the effect would be:

(a) to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services, or

(b) to increase by at least 10,000 per year the number of air transport movements of cargo aircraft for which the airport is capable of providing air cargo transport services.

As outline above, a DCO application is normally determined in accordance with a National Policy Statement (NPS). However, under section 104 of the 2008 Planning Act, the Secretary of State must decide any DCO application in accordance with any relevant NPS unless s/he is satisfied that to do so would:
– Lead to the UK being in breach of its international obligations;
– Be unlawful; Lead to the Secretary of State being in breach of any duty imposed by or under any legislation;
– Result in adverse impacts of the development outweighing its benefits; or;
– Be contrary to legislation about how the decisions are to be taken.

Policy and legislation

The Aviation Policy Framework (see above). The Aviation Strategy White Paper will replace this once finalised.

The Airports National Policy Statement (2018) falls under the Planning Act, S 9 (8). It sets out the case for new runway capacity and infrastructure at airports in the South East of England, focusing on the proposed third runway at Heathrow Airport, but envisaging growth in passenger numbers at regional airports as well.

Who are the key players in the DCO process?

Responsibility for decisions on DCO applications rests with the relevant Secretary of State. The Secretary of State’s decision will be informed by recommendations made by planning inspectors (from the National Infrastructure Directorate of the Planning Inspectorate).

Local Planning Authorities are encouraged, but not required, to take part in the pre-application process to discuss, for example, mitigation requirements that the developer should include in the draft DCO application. If a DCO is given consent, the LPA will also be responsible for ensuring that the requirements are met, as well as any DCO terms. (See conditions and limitations below).

Are there planning conditions and limitations in relation to DCOs?

Yes, but they are referred to as “requirements” rather than “conditions”.  As discussed above, local planning authorities are encouraged to get involved at the pre-application stage in the DCO process to discuss requirements that could mitigate the impacts of a DCO. The LPA will also be tasked with ensuring that any requirements are met (“discharged”), and should discuss with the developer procedures, costs and schedules that would be involved in doing this.

The local authority can also discuss planning obligations with the developer at the pre-application stage, such as a S.106 agreement (S.106 agreements are outlines above). For further information, please click here.

The Development Consent process

There are six stages to the development consent process, starting with the pre-application stage where the applicant is required by law to consult with stakeholders, including members of the public. Note, however, that consultation with members of the public will be at events organised by the applicant, though it is possible to register as an Interested Party prior to this (see pre-examination stage below). Specific guidance on the pre-application stage, including on consultation and environmental assessment requirements can be found here.

Next, the applicant formally submits a DCO application to the Planning Inspectorate – the acceptance stage. After this, during the pre-examination stage, any member of the public wanting to make formal comment must register as an Interested Party with the Planning Inspectorate.Formal comment by Interested Parties must then be made during the examination stage that follows, in writing and at any hearings. In the recommendation and decision phase, the Planning Inspectorate writes a report on the DCO application and submits it to the Secretary of State who either grants or refuses development consent. Post decision, there is no right of appeal. The decision can be challenged only by judicial review.

The National Infrastructure Planning website is a useful resource. It has information on the six-stage application process, how and when to get involved, and on the role of local planning authorities. To view the page, click here. It also has a dedicated page for each project on its website for projects which have been accepted or are close to being accepted. This page provides links to all the documents associated with the project, the timetable and the latest developments. You can view the page here.  

There is limited experience of airport-related DCOs to date. Manston Airport, the first to submit a DCO, is still being considered by the Planning Inspectorate, and Heathrow Airport doesn’t anticipate submitting its DCO application for a third runway until 2020.
However, there is an interesting point to consider. In June 2019, the UK Government set a net zero emissions target for 2050, thereby amending S1(1) of the Climate Change Act (2008).
This significant change in circumstances could mean that the Secretary of State will have to review the ANPS. Currently, the ANPS states that expansion at Heathrow is “consistent with the UK’s climate change obligations” [see para 3.52]. This might no longer be the case, either for Heathrow or for expansion elsewhere. For an interesting and informative read on the amended CCA and the ANPS, click here. AEF’s briefing on the net zero target and the implications for aviation can be read here.