Is there space for airspace?

23rd March 2023

Airspace Development Industry

How the mis-application of the definition of an “aerodrome” is having an impact on the airspace development industry and the delivery of much needed new homes in London.

Changes in 2020 to permitted development rights (PDR), allowing the addition of up to two extra storeys to existing buildings through a ‘fast-track approval process’, signalled a positive step for airspace development, reducing the pressure to build on greenfield sites and allowing the sustainable delivery of much needed homes with less red tape and no demolition of existing buildings.

Although such proposals from developers are not assessed against a local planning authority’s full development plan, they are assessed against a strict list of criteria. PDR can only be exercised following a successful application for ‘prior approval’ in the context of clear and limited matters prescribed by the general permitted development order (GPDO). For example, one consideration is the impact on neighbours in terms of overlooking, privacy and loss of light. However, the legislation also listed specific geographical areas where building upwards under PD is not allowed, such as sites of specific scientific interest (SSSI), listed buildings, scheduled ancient monuments and within a 3km radius of the perimeter of an aerodrome.

These are reasonable and sensible measures to be welcomed, particularly since the now expired office-to-residential PDR that led to inadequate quality housing. But recent interpretations by some local planning authorities are proving challenging for the nascent airspace development industry, raising the question – is there space for airspace?

Some LPAs are misapplying the definition of an ‘aerodrome’ when determining prior approval and thus preventing successful applications for airspace development. There are several definitions of an ‘aerodrome’ in the GPDO; being licensed under the Air Navigation Order (ANO); a government aerodrome; one at which the manufacture, repair or maintenance of aircraft is carried out; one used by aircraft engaged in the public transport of passengers or cargo or in aerial work; or one identified to the Civil Aviation Authority before 1st March 1986 for inclusion in the UK Aerodrome Index.

Within the M25, Heathrow Airport, City Airport, Battersea Helipad, RAF Northolt and Biggin Hill are clearly ‘aerodromes’ as defined by the Air Navigation Order and it is appropriate such sites are subject to a 3km radius of planning control for prior approval applications. Schemes implemented under the amended GPDO are height limited to a maximum of two storeys (and 7m) thus protecting air traffic/defence assets that do not fall within the ANO definition, which is also a reasonable measure.

However, some LPAs are including air ambulance helipads hosted by a hospital or trauma centre, as falling within the definition of an ‘aerodrome’ and are refusing prior approval applications on this basis. For example, the London Borough of Tower Hamlets recently refused an application to add two additional storeys onto a seven-storey mixed use building due to the site being located within a 3km radius of the perimeter of Royal London Hospital acting as an ‘aerodrome’ and hosting an air ambulance helipad, atop an 18-storey tower.

The London Borough of Merton also refused a Class AA application to add a single storey onto a three-storey residential building in Wimbledon due to the site being located within a 3km radius of the perimeter of St George’s Hospital acting as an ‘aerodrome’ and hosting an air ambulance helipad, atop an eight-storey building.

Hospital helipads are a vital and lifesaving resource for communities across London, but they do not support passenger or commercial freight air traffic. Conversely, they support the infrequent and unscheduled transfer of patients subject to an emergency medical response by helicopter only. As such, an air ambulance helipad is not an ‘aerodrome’ and does not fall within the Air Navigation Order definition or any of the other definitions. Accordingly, our view is that LPAs should not be refusing prior approval applications for upwards development due to proximity of the site to a hospital with an air ambulance helipad under the current rules – there should be another mechanism that considers these.

Why does this matter? Across London alone, if adopted routinely by LPAs, there would be a development exclusion zone within a 3km radius of not only Royal London Hospital (Whitechapel) and St George’s Hospital (Tooting) but also King’s College Hospital (Camberwell), St Mary’s Hospital (Paddington) and Charing Cross Hospital (Hammersmith). As the map above shows this would cover significant areas of inner London thus excluding any modest airspace development in the areas where housing demand is greatest. This would not just affect the capital – most UK cities have air ambulance helipads hosted at trauma centres. Large areas of urban brownfield land would be deemed ineligible for development under PDR thus undermining both government policy and measures introduced with the primary aim of delivering quality new homes in urban locations.

We fully agree that development in the vicinity of air traffic and defence assets requires proper planning consideration. Notwithstanding, the maximum height of upwards development under PDR is limited to a maximum of two storeys. Perversely, the current interpretation by some LPAs ensures that a modest three-storey building, surrounded by seven-storey structures is refused prior approval under PDR because it is located within a 3km radius of the perimeter of a hospital helipad. The amendments to the GPDO were not intended to create this barrier to housing supply, so does this mean some LPA are refusing schemes through a dislike of the very principle of PD?

With its ability to make use of unused space above exiting rooftops and its inherent sustainability credentials, airspace development could flourish and has the potential to unlock thousands of new homes across the capital. However, this will only be possible with the correct and intended interpretation of the criteria for ‘prior approval’ applications and, in our view, a minor amendment to the PD exclusions.

If a site is within 3km of an aerodrome, the proposed solution is that the applicant should be required to submit a ‘physical safeguarding assessment’ which is created in accordance with the International Civil Aviation Organisation (ICAO) guidance as part of the PD application submission. This would be supplied by the LPA to the aerodrome licence holder/operator at the start of the PD ruling period, thus the standard 21-day consultation period could easily be accommodated within the eight-week statutory determination period for the consent. This would remove the binary decision LPAs are currently faced with and would be a minor amend to the current legislation.

Without a resolution, we foresee having to revert to full planning applications which will slow down the delivery of new homes, add costs and complexity to the process. It would also adversely impact the finances of SME businesses, adding to what is already a difficult time economically.

Clarifying the guidance to LPAs, to make clear that air ambulance helipads do not fit within the definition of an ‘aerodrome’ and providing the option of a better mechanism are both urgently needed and will ensure that the development industry can continue to deliver much-needed new high-quality homes and airspace development is given the space it needs to grow.

This article first appeared in BE News.