(1) The Royal Society for the Protection of Birds (Claimant in Co/6059/2013) (2) Lydd Airport Action Group (Claimant in Co/6180/2013) v The Secretary of State for Communities and Local Government (First Defendant) Secretary of State for Transport (Second Defendant) London Ashford Airport Ltd (Fourth Defendant and First Interested Party) Shepway District Council (Third Defendant and Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 16 May 2014 |
| Neutral Citation | [2014] EWHC 1523 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2014 |
| Docket Number | Case No: (1) CO/6059/2013 |
[2014] EWHC 1523 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: (1) CO/6059/2013
(2) CO/6180/2013
(1) Mr Timothy Mould QC and Mr Richard Moules (instructed by The RSPB Solicitor for the Claimant in CO/6059/2013
(2) Mr Matthew Horton QC (instructed by LSR Solicitors and Planning Consultants) on behalf of Lydd Airport Action Group for the Claimant in CO/6180/2013
Mr Jonathan Swift QC and Ms Lisa Busch (instructed by Treasury Solicitors) for the First Two Defendants
Mr Peter Village QC and Mr James Strachan QC (instructed by Pinsent Masons Solicitors) for London Ashford Airport Limited
Shepway District Council did not appear
Hearing dates: 21 st, 22 nd, 23 rd & 24 th January 2014
There are two separate applications under s288 of the Town and Country Planning Act 1990, each challenging the decision of 10 April 2013 by the Secretary of State for Communities and Local Government and the Secretary of State for Transport to grant permission for the extension of the north/south runway at London Ashford Airport at Lydd, Kent, with a limit by condition on annual aeroplane movements of 40000, and for a passenger terminal with a capacity limited by condition to handling 500,000 passengers per annum. In doing so, the Secretaries of State accepted the recommendations of the Inspector who had held a 42 day Public Inquiry in 2011 at which the two Claimants before this Court had appeared. Both challenge the grant of permission for the runway extension. Their grounds are essentially unconnected.
As there is no real overlap between the two applications, I shall consider them separately after setting the scene.
Background
Lydd Airport has been operational since the 1950s. Its north/south runway can be used for landings and take-offs in each direction, though not by all aircraft. The 1954 terminal building accommodated over 250,000 passengers per annum, ppa, in the 1960s, and has the capacity to handle 300,000. It is licensed by the CAA, and can operate 7 days a week for 24 hours a day, although at present the actual operation involves few flights at or around dawn or dusk, limiting the need for on-site bird control activity. Flight numbers have fluctuated over time. The airport still operates a scheduled passenger service to Le Touquet, though the numbers of passengers had dropped to a few hundred by 2009. It is used by business jets, general aviation, helicopters and a flying school. There are now some 22000 aircraft movements a year, mostly general aviation; 99% were by aircraft lighter than 5,700kg. Fewer than 2 a day involve heavier aircraft, and many of those are empty positioning flights.
The Inspector described the site as in a sensitive location. It is the only airport in the UK within 5km of a nuclear power station, and within 2.5km of a military danger area. The relationship to the nuclear power stations and other hazards and to the Special Areas of Conservation and Special Protection Areas is set out in paragraphs 2.3 and 2.4 of his report, IR:
"Dungeness Nuclear Power Stations A and B lie some 5km to the south of the Airport. Dungeness A was closed in December 2006 and is being decommissioned whilst Dungeness B is scheduled to begin decommissioning in 2018. A restricted flying area, extending to a height of 2,000 feet (ft), restricts all aerial activities for a 2 nautical mile (nm) radius around the power stations. Traffic arriving and departing from the Airport has an exemption reducing the restricted area to a 1.5nm radius. In addition, Lydd military firing range danger area is located approximately 2.3km to the west, extending to a height of 4,000ft, and the Hythe military firing range danger area lies some 10km to the north, extending to a height of 3,200ft.
The Dungeness SAC lies to the east of the existing runway and the paved area of the proposed runway extension would include 0.23 hectare, some 0.007%, of the overall SAC. The Dungeness to Pett Level SPA is located approximately 750m east and 500m south of the existing runway. An extension to the SPA is proposed which would result in the boundary of the SPA being closer to the Airport but the proposals would not use any land within the SPA or the pSPA. Natural England (NE) is consulting on a proposed Ramsar site but again the applications would not use any land within the pRamsar. The Dungeness SSSI lies to the east of the existing runway and the proposed runway extension would include 1.62 hectares around 0.018%, of the whole SSSI. The Dungeness National Nature Reserve (NNR), including an RSPB Reserve that falls within the SPA, pSPA (in part), SAC, pRamsar, SSSI and NNR, lies around 2m from the south-eastern boundary of the Airport. The RSPB Reserve is in the region of 320m from the existing runway at its nearest point".
Planning permission had been granted in 1992, following an Inquiry in 1988, for a runway extension similar in direction and dimension to the one currently proposed, with a cap of 56000 on movements rather than the 40000 suggested in this application, and with generally slightly longer early morning operating hours than now proposed. The Inspector contrasted the position accepted in 1992 with that now proposed in paragraph 14.6.10:
"14.6.10 …Indeed, modern aircraft are quieter than those considered then. The exclusion zone around the power stations, with the exception of direct overflying at less than 2,000ft, was not introduced until 2001 and aircraft could take off and turn left over the Reserve, the pSPA and the pRamsar. Indeed, in 1992 6,000 movements by aircraft over 5,700kg could use FP D4 over the Reserve. This contrasts with the current proposals where only some 3,600 movements of larger aircraft are now contemplated and most would fly north over Lydd due to the Ranges being in use. Moreover, LAA is prepared to accept a condition preventing any jets taking off and flying south over the Reserve and designated sites even when the Range is closed if it is considered necessary".
At the time of that Inquiry, the airport had operated at higher levels than now: 38900 aircraft movements in 1978, 60900 in 1979, and 19400 in 1987. Passenger numbers had fallen away over the years as well.
The RSPB and Natural England, NE, had objected, pursuing what the Inspector described as an objection "similar to that made now"; IR 14.6.12. It was made on "scientific evidence not materially different to that relied on now"; IR 14.6.12. Bird scaring would have been then and would continue to be part of the operations at the airport; 14.6.13. The pRamsar site existed, the SPA was then a pSPA treated as if a designated SPA. The SSSI and RSPB Reserve existed in 1988.
In 1997, the permission was renewed. Neither NE nor the RSPB objected, a stance not adopted because the application was for a renewal of the earlier permission; London Ashford Airport Limited, LAA, in return did not pursue its safeguarding objection to the proposed SPA. The SAC, SPA, pSPA and pRamsar designations were in place by then.
The current proposal envisaged around 18 scheduled movements by larger aircraft, over 5700kg, a day, compared to one every three days experienced in 2009. Normal operating hours would be between 7am and 11pm.
The 274 page report by the Inspector indicates the range of issues covered during the Inquiry in 2011 to consider the application which was called-in for determination by the Secretaries of State, before Shepway District Council could grant the permissions, as it was minded to do.
The RSPB challenge
The Royal Society for the Protection of Birds, RSPB, a charity incorporated by Royal Charter, contends that the decision is unlawful because the evidence before the Inspector could not lawfully have satisfied him that no appropriate assessment was needed of the effect of the runway extension on various sites protected under the Habitats Directive; as the Inspector's conclusions were accepted by the Secretaries of State, their decision was flawed. Natural England, the statutory body with primary responsibility for giving advice to Government about these sites and species, and which gave evidence with the RSPB at the Inquiry in opposition to the proposals, is not party to the challenge.
The RSPB raised two issues at the Inquiry: disturbance to birds from aviation activity, that is essentially disturbance caused by the noise from aircraft flying over the areas protected for their significance for birds, and disturbance to birds off the airport from bird control measures to be undertaken both on and off the airport. The RSPB was unsuccessful in its arguments on both points. However, it is to the latter point, disturbance from bird control measures, that the challenge is directed, although the Inspector's conclusions on the former cannot be wholly ignored. The concern is not with the marginal extension of the runway into the SAC.
In judging whether or not to grant planning permission, the impact of the disturbance which bird control measures may have on the RSPB Reserve, the SSSI and the NNR, and on the birds that frequent them, is a material consideration. It...
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