R Stop Bristol Airport Expansion Ltd v North Somerset Council Bristol Airport Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMR JUSTICE COLLINS
Judgment Date26 October 2011
Neutral Citation[2011] EWHC 3356 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date26 October 2011
Docket NumberCO/4160/2011

[2011] EWHC 3356 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

The Strand London WC2A 2LL

Before:

Mr Justice Collins

CO/4160/2011

The Queen on the application of Stop Bristol Airport Expansion Limited
Claimant
and
North Somerset Council
Defendant

and

Bristol Airport Limited
Interested Party

Miss Nathalie Lieven QC (instructed by Harrison Grant, London WC1X UE) appeared on behalf of the Claimant

Mr Neil King QC and Mr Richard Moules (instructed by the legal department of North Somerset Council) appeared on behalf of the First Defendant

Mr James Pereira (instructed by Osborne Clarke, London EC2Y 5EB) appeared on behalf of the Second Defendant

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Wednesday 26 October 2011

MR JUSTICE COLLINS
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1. This is a renewed application for permission to seek judicial review of the decision of the North Somerset Council to grant planning permission to the owners of Bristol Airport Limited (the interested party) to carry out works to the airport, the effect of which would be to increase their capacity from their present four million passengers per annum to ten million passengers per annum.

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2. The claim has generated a considerable amount of paper. Lengthy and detailed skeleton arguments have been put before me, together with substantial submissions made on behalf of the claimant, on behalf of the defendant, and in writing by the interested party. That in itself does not mean that the claim is in the end to be regarded as arguable.

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3. There are essentially two issues that arise, the second of which is divided into two. The first, which is relied on in particular by Miss Lieven QC and has given rise to the most extensive argument, is that the government policy which stems from the Air Transport White Paper (“ATWP”) of 2003 is out of date, does not properly consider, as is indicated in subsequent observations of the Secretary of State, or deal properly with greenhouse gas emissions and the effect on the climate of such emissions from aircraft and in addition from the extension of airports. This case is concerned with the effect from aircraft.

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4. It is said that the error into which the defendant Council fell was in the advice given by the officers in their lengthy reports to the relevant committees which was in these terms:

“Climate change and aviation's contribution to it is clearly an important issue, but it is a global problem that requires a global response. Thus, as has been seen in recent planning appeals, it is not the role of local planning controls to managing emissions from aircraft. However, a local planning authority can influence the emission arising from ground operations and many planning authorities have resolved to condition the expansion plans submitted by airports for the delivery of carbon management plans.

Taking the above into account, together with the comments made in the Stansted appeal and the House of Commons Report in December 2009, there is no basis to refuse this application on the effects of the development on climate change.”

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It is said that that is an error and that the Committee was not only entitled to have regard to the effect on climate change and to ask itself whether the policy which stemmed from the 2003 ATWP was one which could override such concerns and evidence which was put before it of the effects of the expansion and more particular the difficulties that would result in maintaining what had by then become the government policy, namely that there must be a reduction by 2050 to levels of emissions which antedated 2005.

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5. I have read and taken into account the detailed skeleton arguments and oral submissions. As this is a permission application it is not only unnecessary but it is undesirable that I should go into enormous detail in this judgment and I do not propose to do so. What is important is that I make clear my views on the important aspects which have led me to the decision which in due course I reach.

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6. The reference by the officers to recent planning appeals included R(Barbone) v Secretary of State for Transport [2009] EWHC 463 (Admin) (the Stansted appeal) decided on 13 March 2009 by Sir Thayne Forbes. The application was under section 288 of the Town and Country Planning Act 1990 to quash the decision made by the Secretary of State allowing an appeal against the decision of the district council to refuse planning permission for BAA's proposals to increase the capacity of Stansted Airport. Of importance Sir Thayne said this:

“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 December 2003. However, Mr Stinchcombe pointed to a number of statements made by or on behalf of ministers…. following publication of the ATWP…. 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 Wandsworth case]….: 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.

….”

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The ATWP at that time (in 2009) indicated that expansion both at Heathrow and at Stansted was appropriate, although it could not itself give permission for expansion, and so it was properly to be regarded as government policy. However, it is important to note that the observations in Barbone and the reflection of Mr Mould's concession (if that be the right word) does not in any way indicate that the issue of the global effect (the effect resulting from the aircraft flights) on the environment were matters that could be taken into account by local planning authorities. It is also worth bearing in mind that Barbone was an appeal against a decision of the Secretary of State, not against a decision of a local planning authority. I do not think that Barbone helps one way or another on this particular issue.

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7. The next case in point of time is R(Borough of Hillingdon and others) v Secretary of state for Transport [2010] EWHC 626 (Admin), which concerned a challenge to the policy in relation to a third runway at Heathrow Airport. That case did not involve an application for planning permission for such a runway. The observations of Carnwath LJ which are relied on are these:

“60.…. Whilst I have no reason to question the decision in Barbone, I do not see it as laying down any general principle, beyond the particular aspect of the ATWP with which it was concerned. Furthermore, the decision was made without reference to the new legal framework introduced by the 2008 [Planning] Act.….

61. More generally, I do not accept that Bushell [the House of Lords case where observations of Lord Diplock are material] can be read as laying down any general rule that government ‘policy’ is automatically outside the scope of debate at a local planning inquiry [or, by analogy, council decision-making].”

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Earlier in his judgment Carnwath LJ observed:

“51.…. Consistency of policy is of course a legitimate objective. Having adopted a favourable approach to the third runway proposal in 2003, the government was entitled to maintain that general approach unless and until circumstances demanded a change of view. However, it could not be regarded as immutable. It is a trite proposition in administrative law that no policy can be set in stone. It must be open to reconsideration in the light of changing circumstances. This position has been acknowledged in the 2003 ATWP itself, which had recognised the need for periodical review and consultation to take account of changing circumstances.

52. Further, common sense demanded that a policy established in 2003, before the important developments in climate change policy, symbolised by the Climate Change Act 2008, should be subject to review in the light of those developments. Even if the immediate purpose of the 2007 consultation was limited to the three specific conditions identified in 2003, that did not remove the need for a general reappraisal of the policy in the light of other material changes since that time.

….

63. I do not find it necessary to consider how a planning inspector or the IPC might deal with...

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