Griffin (Anne Marie) (R) v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Mr Justice Roderick Evans |
| Judgment Date | 20 January 2011 |
| Neutral Citation | [2011] EWHC 53 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11145/2009 |
| Date | 20 January 2011 |
[2011] EWHC 53 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Before:lord Justice Pill
and
Mr Justice Roderick Evans
Case No: CO/11145/2009
Ms N Lieven QC and Ms S Blackmore (instructed by Friends of the Earth Rights & Justice Centre) for the Claimant
Mr S Pickles and Mr R Turney (instructed by London Borough of Newham) for the Defendants
Mr N King QC and Mr J Pereira (instructed by SJ BerwinLLP) for the Interested Party
Hearing dates: 18 & 19 November 2010
Lord Justice Pill :
This is an application to quash the decision of Newham London Borough Council ("the Council") on 9 July 2009 to grant consent to vary the conditions on the planning permission for operations at London City Airport. The Airport is situated in the London Borough of Newham and is within the East End of London. It mainly serves business flights. The conditions were varied so as to allow up to 120,000 flights a year as compared with the existing 70–80,000. On particular days, the increase could be as much as 100%. The total movements in 2006 were recorded at 79,616.
Mrs Anne-Marie Griffin ("the claimant") chairs "Fight the Flights", an unincorporated association established locally in 2007 to express concerns of local residents about the impact of London City Airport on residents, and its effect on the wider climate. London City Airport Limited ("the interested party") have appeared before the court to support the Council's submissions seeking to uphold the variation.
Two submissions are made by Miss Lieven QC on behalf of the claimant. First, the Council erred in law in granting the application to vary without considering a change in government policy and, secondly, it failed to consult the Councils of two London Boroughs, Waltham Forest and Redbridge, or the residents of those Boroughs.
The application for permission was made on 6 August 2007. It came before the Council's Planning Committee on two occasions in 2008 on the second of which, on 8 October 2008, the Committee resolved that it was minded to grant planning permission subject to completion of an agreement under section 106 of the Town & Country Planning Act 1990 ("the 1990 Act").
On 14 January 2009, consideration was again deferred as a result of representations made by Fight the Flights. Detailed reports were submitted by Officers for the meetings of July 2008, January 2009 and July 2009. In July 2009, the Officers recommended that the Development Control Committee confirm a resolution of 8 October 2008 to approve the application to vary the conditions, subject to a section 106 agreement, in accordance with terms set out in an appendix to the report and subject to conditions set out in the report. That recommendation was accepted by the Committee, the variation of conditions approved and permission granted.
The recommendation was expressed in these terms in the last paragraph of section 6.1 of the report:
"Due regard has been given to the ATWP [Air Transport White Paper] which advocates the growth of existing airports, but recognises that this must be balanced against adverse environmental consequences. Having assessed the information submitted with the application, and the additional information to complete the Environmental Statement Addenda, it is concluded that on balance the adverse impacts of the proposal are not such as would justify withholding consent in light of the benefits and the relevant policy considerations. This is considered to be a finely balanced decision which can only be made subject to securing more effective monitoring and mitigation of the airport's impacts on the local environment than are currently achieved. It is recognised that this consent allows the opportunity to secure improvements in this regard. Furthermore the restrictions on the airport's night time and weekend operation are maintained while that in respect of the potential impacts from early morning operation is improved. Approval is therefore considered appropriate subject to accompanying stringent conditions and a S106 agreement to mitigate the development's impact."
An identical statement as to the fine balance had been made in the July 2008 report.
The White Paper referred to was issued by the Secretary of State for Transport in December 2003 and entitled "The Future of Air Transport" ("ATWP"). The White Paper was based on a belief (paragraph 1.6) that:
"a national strategic framework for the future development of airport capacity, looking forward over a 30-year time horizon, is needed in order [amongst other things] to:
Provide a clear policy framework against which airport operators, airlines, regional bodies and local authorities can plan ahead.
The lack of such a framework has been a serious hindrance to the efficient development of airports in this country, resulting in over-lengthy planning enquiries and unnecessary delay."
It was noted at paragraph 2.5, that "Britain's economy is in turn increasingly dependent on air travel". The need for periodic reviews of the strategic framework set out in the White Paper was also recognised.
When considering, in section 11, the South East of England, the White Paper referred to the high demand for air journeys in the area, principally because of the nature and strength of the economy within the South East, and in London in particular. The main conclusion, at paragraph 11.6, was that "our first priority is to make the best possible use of the existing runways at the major South East airports". It was concluded that "there is scope for other existing South East airports, including London City, Norwich, Southampton and some smaller airports, to help meet local demand, and their further development is supported in principle, subject to relevant environmental considerations".
The White Paper acknowledged that "at the global level, the growing contribution to climate change and greenhouse gas emissions from aircraft is a cause for concern. It is a problem that can only be tackled effectively on an international basis". A section of the White Paper dealt with climate change and the growing contribution of air transport to climate change was noted (3.35). It was stated that the aviation sector needs to take its share of responsibility for tackling this problem. The Government was said to be committed to a comprehensive approach. Reference was made to fuel efficiency gains arising from fleet replacement and technology improvements. It was stated that "the best way of ensuring that aviation contributes towards the goal of climate stabilisation would be through a well-designed emissions trading regime". It was added (3.42) that the Government recognises that such a regime "may not provide a total solution. In view of this, the Government will continue to explore and discuss options for the use of other economic instruments for tackling aviation's greenhouse gas emissions".
The White Paper was quoted at paragraph 10.5 of the July 2008 report:
"In policy terms, the national, regional and local planning policy framework support the principle of increasing the number of Total Aircraft Movements at LCA. The government Air Transport White Paper states that smaller airports in the South- East should be developed/enhanced to meet local demand subject to relevant environmental considerations. In particular, the White Paper, in relation to LCA, states 'London City provides services within the UK as well as to a wide range of key European destinations such as Paris, Amsterdam and Zurich. Our forecasts show that the airport is likely to grow steadily and that this growth would not be significantly affected by the addition of runway capacity at the major London airports. It is particularly well placed to serve a niche business market. Several of the surrounding local authorities supported growth to 5mppa'".
Paragraph 2.19 of the July 2009 report dealt with a submission, summarised at its paragraph 2.17 that, because of uncertainties raised by the Committee on Climate Change ("CCC"), "the planning assessment under climate change for these proposals should be reconsidered".
It was stated:
"Climate change was considered in Section 10.12 of the original Committee report (Appendix 10) and officers are of the view that the Government has not made any material change in either climate change policy or to policy on aviation/airport capacity. Indeed recent statements and publications from the Government indicate that its approach to the future of aviation remains unchanged. In considering this issue, particular consideration has been given to Planning Policy Statement 1 Supplement on Climate Change, which sets out that in the determination of planning applications, planning authorities should consider the likely impact on the vulnerability to climate change. The points made by FOEJC [Friends of the Earth Rights & Justice Centre] are noted, but it is considered that the key consideration in terms of the decision before the Committee is that Government policy on climate change and aviation remain unchanged. The conclusions of previous reports to Committee on the issue of climate change and Government policy therefore remain valid and the matters raised by FOEJC do not alter the previous conclusion reached on that issue. By way of an update new Government regulations, which came into effect from the end of May 2009, now adjust the government target for reducing greenhouse gas emissions...
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