I have received two updates which I have set out below in respect of the breach of conditions enforcement which Planning were dealing with in relation to breaches last summer:
1.
Dear Councillor
For information on LBA Breach of Condition Notice – A letter to complainants has been issued today confirming the below:
In terms of the breach of night flights over the summer 2023 season, the Council has concluded its investigation and it confirms that LBA did exceed its permitted number of night time flights during the 2023 summer season (BST). The Breach of Condition Notice has therefore been breached. However, the Chief Planning Officer has determined that it is not in the public interest to bring a prosecution in relation to this breach on this occasion.
This is not a decision that has been taken lightly, as we recognised that planning issues related to the airport are often the subject to much local debate. However, it is important to note that, as set out by national legislation and guidance, local authorities should only bring a prosecution over a breach of planning law where they consider it is proportionate to do so.
All relevant matters have been assessed and it was considered that the public interest test to bring a prosecution was not met at the current time. All relevant factors were taken into account including the cost to the taxpayer of bringing a prosecution, the limited nature of the financial penalty that could be imposed on conviction as well as the impact that night-time flying has on residents living in the vicinity of the airport.
This decision does not prevent the council from bringing future prosecutions or taking other enforcement action in future and rigorous monitoring of night time flights will continue.
2.
Background
As you are aware, a Breach of Condition Notice (BCN) was issued on 6th June 2023 in respect of Leeds Bradford Airport (LBA). This was in relation to condition 7 (f) of the Permission not being complied with during the Summer Season (British Summer Time) 2022 in respect of number of night-time flights throughout this period.
The requirements of the BCN are:
Subject to Condition 8, Comply with Condition 7 (f) by:
(1) Ensure that the maximum number of aircraft movements in the night-time period by aircraft specified in Condition 6 (a) to (d) shall be limited to and not exceed 2800 for each summer season with effect from and including Summer season of 2023: and
(2) Immediately cease all activities, aircraft scheduling and all other acts or permissions that will result in the number of aircraft movements in the night-time period by aircraft specified in Condition 6 (a) to (d) exceeding 2800 for each Summer season.
The above requirements are subject to Condition 8 of the 07/02208/FU planning permission which permits that not more than 10% of the seasonal allocations defined by Condition 7 may be transferred between consecutive seasons.
Since serving the BCN, LBA has continued to work with Local Planning Authority (LPA) to address the issues set out in the BCN and has provided monthly data to facilitate regular monitoring.
Analysis of night-time aircraft movements
Data relating to night-time flights during the Summer 2023 period has been analysed. The conclusion of that analysis is that the LBA has not complied with paragraph 5(1) of the BCN as night-time aircraft movements have exceeded the permitted total by 577 movements during the Summer period 2023 ( BST). This means that night-time aircraft movements were 16% higher than permitted.
Consideration of Enforcement Action
In applying its planning enforcement powers the Council must have regard to planning law and national guidance. The National Planning Policy Framework (NPPF) and associated guidance makes it clear that Councils should not condone the wilful breach of planning law, but must apply discretion in applying their enforcement powers; taking formal action only where they consider it proportionate to do so.
Contrary to what many presume, planning enforcement action is not intended to function punitively. Enforcement action should not be taken to punish the perpetrator and instead, should only be taken to rectify any harmful elements arising from the unauthorised development or operations, which would not have been granted planning permission. In short, breaches of planning control are not automatically subject to enforcement action and this power should only be used proportionately when necessary and justified. Therefore, the LPA powers are discretionary.
Failure to comply with a BCN is a criminal offence and carries a maximum penalty of £2500. However, as set out above, the LPA must consider whether it is expedient, in all of the circumstances, to take enforcement action having regard to planning guidance but also the Evidential and Public Interest tests set out in Prosecution guidance.
Consideration has been given to all of the factors in the Public Interest test, including:
- the circumstances of the increased noise disturbance the breach has caused to residents living in the vicinity of the airport;
- the seriousness of the offence;
- the existing “live” CLEUD applications;
- whether a prosecution is an appropriate response to the breach;
- as well as the maximum penalty the offence attracts.
Having considered all of the relevant matters, given the specific circumstances of this case and at this specific point in time, it is not considered that the Public Interest test to bring a prosecution is met.
Conclusion
It is therefore concluded that it is not expedient or in the public interest to bring a prosecution at this time.
This decision does not prejudice or preclude future enforcement action should the BCN, which remains extant, be breached in the future. It is expected that all the CLEUD applications will be determined before the end of BST 2024 and as such the specific circumstances of the case now, which are important context in respect of this decision, will not be applicable then. In addition, the LPA will continue to monitor night-time movements and will continue to assess whether taking enforcement action in respect of this or other operations at the airport is expedient.
I understand that you may disagree with the above conclusions. However, the Council is entitled to reach its own decision on the matter having taken into account the relevant facts and considerations. Whilst your concerns in respect of this matter are appreciated, I hope you are able to understand why it is decided that it is not appropriate to commence formal enforcement action in this instance.
