Barbone v Secretary of State for Transport

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSir Thayne Forbes
Judgment Date13 Mar 2009
Neutral Citation[2009] EWHC 463 (Admin)
Docket NumberCase No: CO/10952/2008

[2009] EWHC 463 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Sir Thayne Forbes

Sitting as a Judge of the High Court

Case No: CO/10952/2008

Between
Carol Barbone and Brian Ross (on Behalf of Stop Stansted Expansion)
Claimants
and
(1) The Secretary of State for Transport
(2) The Secretary of State for Communities and Local Government
Defendant
and
(1) Baa Limited and Stansted Airport Limited
(2) Uttlesford District Council and Others
Interested Parties

Paul Stinchcombe and Sarah Hannett (instructed by Leigh Day & Co) for the Claimants

Timothy Mould QC and James Maurici

(instructed by the Treasury Solicitor) for the Defendants

Michael Humphries QC and James Pereira

(instructed by CMS Cameron McKenna) for the First Interested Party

Hearing dates: 24, 25, 26, and 27 February 2009

Sir Thayne Forbes

Sir Thayne Forbes :

Introduction

1

In these proceedings, the Claimants, who are representatives of “Stop Stansted Expansion” (“SSE”), apply under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash the decision made by the Defendants, the Secretary of State for Transport and the Secretary of State for Communities and Local Government (“the Secretaries of State”), given by letter dated 8 th October 2008 (“the DL”), whereby they allowed an appeal (“the appeal”) by the First Interested Parties, BAA Ltd and Stansted Airport Ltd (“BAA”), against the decision of Uttlesford District Council (“the LPA”) to refuse planning permission for BAA's proposals to increase the capacity of Stansted Airport by varying existing planning conditions that regulated the annual number of air traffic movements (“ATMs”) and the annual throughput of air passengers that the airport could lawfully accommodate under its existing planning permission.

2

The planning permission granted by the Secretaries of State, following BAA's successful appeal, has had the effect of lifting the permitted annual throughput of passengers at Stansted Airport from 25 million passengers per annum (“mppa”) to 35 mppa and of increasing the ATMs to a figure not exceeding 264,000 overall in any period of 12 calendar months.

3

The development project comprised by the application/appeal was identified throughout by all parties as the “G1” project/proposal. The G1 proposal was concerned with the existing single runway at Stansted Airport. A further proposal, known as “G2”, seeks the development of a second runway and is to be considered at a Planning Inquiry to be held in due course (having recently been postponed from a proposed hearing date of April 2009).

4

On behalf of the Claimants, Mr Stinchcombe accepted that the G1 proposal was supported as a matter of national policy by the Future of Air Transport White Paper (“the ATWP”), which was published by the Government on 16 th December 2003. However, Mr Stinchcombe pointed to a number of statements made by or on behalf of ministers (“the ministerial statements”) following publication of the ATWP (including during the course of legal proceedings: see next paragraph), to the effect that when making any decision on a project supported by the ATWP the decision-maker would be required to take into account all the environmental impacts and economic effects of the project (including, so far as the latter was concerned, a “rigorous economic assessment”), even if to do so might lead to a refusal of planning permission for the project in question, in frustration of the national policy support for it expressed within the ATWP. In effect, it was Mr Stinchcombe's submission (a submission that lay at the heart of the Claimants' case) that the Secretaries of State were bound to give proper effect and/or to observe those ministerial statements in their decision-making with regard to BAA's appeal.

5

On behalf of the Secretaries of State, Mr Mould QC (supported by Mr Humphries QC on behalf of BAA) made it clear that there was not and never has been any issue between the parties about this aspect of the matter. Thus, Mr Mould acknowledged that the general approach identified in paragraph 4 had been readily accepted as correct by the Secretary of State in R (Essex County Council and others) ~v~ Secretary of State for Transport (2005) EWHC 20 (Admin) (“ The Essex County CouncilCase”: proceedings brought to challenge the ATWP): see paragraphs 10 to 12 of the Secretary of State's Detailed Grounds of Defence in that case, which Mr Mould summarised in the following terms.

1

) The ATWP does not itself authorise any particular development.

2

) It would be legitimate for any interested party to make a case to a public inquiry into a planning application for airport development that the adverse environmental impacts of the proposed development were such that planning permission should, on balance, be refused – notwithstanding that such refusal would frustrate national policy.

3

) Having regard to his duties under planning legislation and the environmental impact assessment regime, the decision-maker would need to evaluate that case in order properly to determine the planning application, balancing the need for the development against its adverse effects as appropriate.

4

) The decision-maker's evaluation of these considerations would be undertaken in the context of the policy framework set by the ATWP, the development plan and other relevant policies.

6

Mr Mould was at pains to emphasise that this still remains the position of the Secretaries of State in the present case: see paragraph 12 of Mr Mould's written skeleton argument, which is in the following terms:

“12. The Defendants acknowledge that they were committed to reaching a decision on the G1 project which embraced a proper evaluation of all its environmental and economic effects, even if that process led them to refuse planning permission and so to frustrate the Government's published policy of support for making full use of the existing runway at Stansted Airport, i.e. in the White Paper “The Future of Air Transport”… They contend, however, that this was the approach which they took in reaching their decision. It was no more (and no less) than what was required of them in the proper exercise of their development control functions under the [1990 Act].”

The Legal Framework

7

Section 288 of the 1990 Act empowers the Court to quash the decision of the Secretaries of State if persuaded by the Claimants that the decision is invalid. There are two statutory bases for the grant of such relief: (i) that the decision is not within the powers bestowed by the 1990 Act; and (ii) that the Claimants have been substantially prejudiced by non-compliance with relevant requirements.

8

So far as material, regulations 2 and 3 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 EIA Regulations”) provide as follows:

“2. – Interpretation

(1) In these Regulations –

“environmental information” means the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;

3. – Prohibition on granting planning permission or subsequent consent without consideration of environmental information

This regulation applies –

(a) to every application for planning permission for EIA development received by the authority with whom it is lodged on or after the commencement of these Regulations;

(2) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

9

As Mr Humphries observed, no novel or controversial issues of law arise in this case. Accordingly, the following well-established propositions of law were common ground between the parties.

1

) The determination of an application for planning permission must be made having regard to the relevant provisions of the development plan and to all other material considerations: see section 70(2) of the 1990 Act. A national policy statement is a material consideration: see R (Essex CC and others) ~v~ Secretary of State for Transport (2005) EWHC 20 (Admin) at paragraph 48.

2

) Where a determination falls to be made with regard to the development plan, it is to be made in accordance with that plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). The ATWP is not part of any development plan. What constitutes the development plan for these purposes is prescribed by statute: see section 38 of the 2004 Act.

3

) What constitutes a material consideration is a question of law and it is for the decision-maker to assess the relative weight to be given to all the material considerations that bear upon his determination of an application for planning permission: see Tesco Stores Ltd ~v~ Secretary of State (1995) 1 WLR 759 (“Tesco”), where Lord Hoffman put the matter in this way at 780 F-H:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that...

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