Barbone v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Elias |
| Judgment Date | 18 June 2009 |
| Neutral Citation | [2009] EWCA Civ 1589 |
| Date | 18 June 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/0736 |
[2009] EWCA Civ 1589
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Sir Thayne Forbes Sitting as a High Court Judge)
Before: Lord Justice Keene
and
Lord Justice Elias
Case No: C1/2009/0736
Mr Stinchcombe & Ms Hannett (instructed by Leigh Day & Co) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
(As Approved)
Lord Justice Keene:
This is a renewed application for permission to appeal against a decision of Sir Thayne Forbes, permission having been refused on the papers by Laws LJ. By his decision, Sir Thayne rejected an application under Section 288 of the Town and Country Planning Act 1990 to quash a decision by the Secretaries of State for Transport and for Communities and Local Government allowing an appeal by, in effect, the British Airports Authority against a refusal of planning permission by the local planning authority for proposals to increase the capacity of Stansted Airport's existing runway.
The planning permission granted increases the permitted annual throughput of passengers at the airport from 25MPPA to 35 MPPA and air transport movements to a figure not exceeding 264,000 in any twelve months. Those limits, I stress, all relate to the existing single runway of Stansted and have nothing to do with any concept of or proposal for a second runway.
The appeal by the BAA was heard by an inspector who recommended that it be allowed and permission granted subject to conditions. The Secretaries of State accepted that recommendation and duly granted the permission sought. The Section 288 challenge before Sir Thayne Forbes was, fundamentally, that the Secretaries of State had failed to take into account certain relevant considerations, although that argument was formulated in a variety of different legal ways. It is unnecessary to go through each of those legal ways. This morning Mr Stinchcombe has focused in particular on three matters which, it is contended, were left out of account or improperly treated by the inspector and the Secretaries of State.
The first concerns the effect of the proposals on the United Kingdom balance of trade. The applicants relied on statements by ministers that the inspector would consider the economic effects of the proposals along with other relevant factors, and at the inquiry they had argued that the proposals would have an adverse effect on this country's balance of trade and balance of payments. This would be largely because the use of Stansted by United Kingdom residents going abroad as tourists would have an adverse impact on our balance of payments. The inspector took the view that what he called “the widening gap in the tourism balance of payments” had already been taken into account in the formulation of national policy on airports, as reflected in the air transport white paper (which I will call “the white paper”) of December 2003, and that the government had rejected any restrictions on aviation capacity deriving from this factor. He said at paragraph 14.237 of his report:
“In essence this matter raises broad considerations relating to the operation and management of the national economy, which is a question of Government policy that goes beyond the scope of the current appeal.”
The Secretaries of State can be taken to have endorsed that approach. That is criticised by Mr Stinchcombe on behalf of the applicants. He relies upon the ministerial statements to which I have referred. It is submitted that the tourism trade deficit was a material planning consideration which fell within the references by ministers to the scope of the inquiry, including a “rigorous economic assessment”; otherwise, it is argued, the assessment, which was in fact carried out, was incomplete. In addition, Mr Stinchcombe takes the point that the white paper was wrong in its assumption that the expansion of United Kingdom airports would narrow the tourism trade deficit. The evidence produced at the inquiry indicated the opposite.
For my part, I am not persuaded that there is any real mileage in this argument. The white paper was deliberately, and rightly, setting a strategic framework for the development of airport capacity in the United Kingdom. That framework covered, amongst other things, the issue of need for further airport capacity, certainly on a national basis and, to a degree, on a regional basis, and the government policy on need, including how far the demand for air travel should be met, clearly reflected various factors which were and are for determination by central government, including the balance between the advantages and disadvantages of increased air travel generally. As the judge below said, that balance took into account the gap in the tourism balance of payments, but nonetheless the policy...
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