Brown v Carlisle City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 19 May 2010 |
| Neutral Citation | [2010] EWCA Civ 523 |
| Docket Number | Case No: C1/2009/2304 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2010 |
[2010] EWCA Civ 523
[2009] EWHC 2519 (Admin)
Mr Justice Owen
Before: Lord Justice Jacob
Lord Justice Sullivan
and
Sir Mark Waller
Case No: C1/2009/2304
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones & Jeremy Pike (instructed by Dickinson Dees LLP) for the Claimant
Timothy Mould QC & James Pereira (instructed by The Assistant Director (Governance) Carlisle City Council) for the Defendant
Peter Village QC & James Strachan (instructed by Macfarlanes LLP) for the Interested Party
Hearing dates: Wednesday, 21 st April 2010
Lord Justice Sullivan:
Introduction
1. This is an appeal against the Order dated 16 th October 2009 of Owen J refusing the Claimant's application for permission to apply for judicial review of a planning permission dated 12 th March 2009 granted by the Defendant to the Interested Party. On consideration of the Notice of Appeal I granted permission to apply for judicial review and directed that the substantive application should be determined by this Court.
2. The Notice of Approval dated 12 th March 2009 granted permission for the following development at Carlisle Lake District Airport:
“ Erection Of A Freight Storage And Distribution Facility Including Chilled Cross Dock Facility (Use Class B8) With Associated Offices (Use Class B1), Gatehouse/Office/Canteen/Staff Welfare Facilities, Landscaping, New Vehicular Access, Car And Lorry Parking And Other Infrastructure Works.”
3. The “Summary of Reasons for the Decision” contained in the Notice of Approval was as follows:
“The City Council considers that the proposed development of the Freight Distribution Centre and its associated administrative offices, chilled cross-dock and ancillary buildings, whilst not in itself in accord with the provisions of Policy EC22 of the adopted Carlisle District Local Plan 2001-2016, would be integral to securing and facilitating essential investment in upgrading the aviation infrastructure at Carlisle Airport. The Council considers that the associated investment is necessary to both safeguard the Airport and to enable it to provide a vital economic stimulus to the local economy through the potential attraction of passenger and air freight services, better access to raw materials, services, suppliers and customer markets for businesses in Cumbria, South-West Scotland and the Borders and to encourage potential tourist growth.
The attainment of an operational, modern Airport suitable for regional air services is fully in accord with the objectives of national planning guidance, the North West of England Plan: Regional Spatial Strategy to 2021, the Regional Economic Strategy, Sub-Regional Planning Policy aspirations and the provisions of adopted Local Plan Policy DP3. The potential environmental impacts arising from the development proposals have been assessed within the accompanying Environmental Statement, and related documents that support the application including a Flood Risk Assessment, Transport Assessment, Economic Impact Statement and Design and Access Statement. In its overall scrutiny of the planning merits of the proposals the Council has subjected those supporting submissions to detailed scrutiny, including full assessment by specialist Consultants, prior to determining that the application, with appropriate safeguards including linkage to a S106 Agreement, is acceptable. The Council is satisfied that the achievement of the renewal of the principal runway and the provisions of passenger terminal facilities can be delivered through the mechanism of the S106 Agreement and that by providing those facilities, the development as a whole can be regarded as policy compliant.
In reaching that conclusion the Council is also mindful that the S106 Agreement makes proper provision for replacement of habitat lost from the County Wildlife Site to the proposed development, that the applicants will provide appropriate public transport to serve the development, and that they will ensure through the provision of a Noise Insulation Scheme that suitable protection from increased noise associated with overnight lorry movements is provided to receptive bedroom windows of properties on either side of the route that these vehicles will take to and from Junction 44 and the application site.
In granting this planning permission, the City Council has taken into account all relevant environmental information (including the supporting Environmental Statement) within the meaning of Regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.”
4. The Notice of Approval set out the relevant Development Plan policies, and included “Advisory Notes” which gave more details of the Section 106 Agreement referred to in the Summary Reasons:
“1. The planning permission is linked to a Section 106 Agreement which
covers the following matters:
• A specification and programme for the implementation of the upgrade to the main runway (07-25) to achieve a PCN [Pavement Classification Number] value that will facilitate restoration of commercial passenger services and has a life of about 20 years;
• The programme for the provision of passenger terminal facilities commensurate with a small regional airport, allowing for all essential requirements for check-in, arrival/departure, baggage handling, security, and general administration and the requirement that the Terminal will remain open for not less than 10 years provided it is commercially viable to do so.”
Other matters covered by the Section 106 Agreement included:
• Implementation of an Airport Surface Access Strategy (ASAS); and
• affirming the operation of the Carlisle Airport Forum.”
Factual Background
5. The factual background is set out in some detail in paragraphs 3-12 of the Judgment of Owen J [2009] EWHC 2519 (Admin). The Interested Party submitted two applications for the site. The first application in October 2007 sought permission for works to the Airport including the replacement and realignment of the main runway, and the construction of a new passenger terminal, offices and hangars (“the airport development”), and for the construction of a Freight Storage and Distribution Facility (“the Freight Distribution Centre”). The first application was accompanied by an Environmental Statement pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”). That Environmental Statement dealt with the likely significant effects on the environment of the proposed development, both the airport development and the Freight Distribution Centre. Following the Secretary of State's decision on 18 th June 2008 to call in the first application, it was withdrawn by the Interested Party in July 2008.
6. The Interested Party then submitted a second application for planning permission on 14 th October 2008. The application was considered by the Defendant's Planning Committee at a meeting on 19 th December 2008. The Planning Officer prepared a lengthy and detailed Report for that meeting (“the Report”). The Report (para 5.2) described the second application as: “ [A] much more “scaled-down” application omitting the intended re-aligned runway and related aprons and taxiways, the proposed new Terminal facilities, new air traffic control tower, Instrument Landing System and other navigational aids including approach lighting. The applicants have indicated that they intend, instead, to repair/resurface rather than replace the existing main runway (07-25) and are likely to utilise part of an existing recently constructed building, sited close to the original core of 1940's buildings adjacent to the northern boundary, as a passenger Terminal. The applicants rely on carrying out those works under the “Permitted Development” rights that apply to relevant airport operators under the Town and Country Planning (General Permitted Development) Order 1995.”
The proposed Freight Distribution Centre was smaller in scale than that proposed in the first application, although it contained a larger element of office floor space (Report, para 5.3).
7. The second application was accompanied by an Environmental Statement. On this occasion, the Environmental Statement dealt only with the likely significant effects on the environment of the Freight Distribution Centre proposed in the application. It did not address the environmental effects of the revised airport works.
8. In addition to considering the planning merits of the proposed Freight Distribution Centre, the Report dealt at some length with the benefits that would accrue from the airport being restored to operational use. The conclusions of two studies by consultants, EKOS with input from Avia Solutions, and Alan Stratford Associates (“ASA”) a specialist aviation consultancy instructed by the Defendant, are set out in detail in paragraphs 5.65—5.84 and 5.133—5.160 of the Report. A report from the Defendant's Head of Economy Tourism and Property assessing the economic benefits of developing the airport was appended to the Report.
9. One of the most significant issues considered in the Report was the extent to which the proposed development was, or was not, compliant with the relevant policies in the Development Plan. The Report said this in paragraph 5.162:
“ 5.162 In relation to the issue of compliance with Policy EC22, the improvements to the Airport,...
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