Thomas Gordon Brown v Carlisle City Council Stobart Air Ltd (Interested party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 21 March 2014 |
| Neutral Citation | [2014] EWHC 707 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4248/2013 |
| Date | 21 March 2014 |
[2014] EWHC 707 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/4248/2013
and
Mr Gregory Jones, Q.C. & Mr Jeremy Pike (instructed by Messrs Bond Dickinson) for the Claimant
Mr Richard Humphreys, Q.C., Mr Denis Edwards & Mr David Graham (instructed by the City Council Solicitors) for the Defendant
Mr Richard Drabble, Q.C. & Mr Richard Moules (instructed by the Group Legal Director) for the Interested party
Hearing dates: 18 – 20 February 2014
This claim seeks to quash a planning permission granted by the Defendant to the interested party (IP) on 6 February 2013. It enabled the IP to erect a Freight Distribution Centre (FDC) over some 28.6 hectares of land at Carlisle Airport. The permission included the raising and re-profiling of the main runway. The construction of the FDC was contrary to the relevant plan but the planning committee of the defendant was persuaded to grant permission because the work to the airport runway, part of the development applied for, would enable commercial flights to operate from the airport and would keep the airport, which was making a loss, open and so preserve the jobs of the number of persons working there. Essentially, the runway works involved raising and strengthening it so that it could be used by passenger aircraft which needed a runway with a capacity to accommodate aircraft weighing more than its existing capacity. The grant of permission was subject to a legal agreement. This agreement to be made pursuant to s.106 of the Town & Country Planning Act 1990 was to ensure that the IP would maintain the airport for commercial flights in the short to medium term and would only be able to close it down if its non-commercial use was not economically viable. It was recognised that the airport could not operate at a profit, whether for commercial or non-commercial use, but income derived from the FDC would be used to cover the losses until they became too great.
The claimant is the managing partner of his family farming business. His father is tenant of agricultural land including that which would be taken for the FDC development. The loss would have a serious financial impact and would be, he has said, particularly ruinous for the farm having regard to the nature and position of the land in question.
This claim is by no means straightforward and there is a substantial history which needs to be considered. However, it has generated enormous amounts of paper. Including bundles of authorities, there have been more than 4,709 pages put before me. To those have been added lengthy skeleton arguments and some additional documentation so that the total exceeds 4,900 pages. This is excessive. Most of the authorities have not been necessary and efforts should have been made to agree core bundles. Much of the correspondence placed in the bundles has also been unnecessary.
In October 2007 the IP made an application for permission to carry out works at the airport which extended beyond those now proposed and to construct an FDC. The Secretary of State decided to call this in and the IP withdrew it. In October 2008 the IP submitted an application for development of a FDC on a somewhat smaller scale. This did not include an application for development of the airport since the IP indicated that the work it would carry out did not in its view require permission since it would be permitted development. The application was accompanied by an Environmental Statement (ES) which dealt with the likely significant effects of the FDC. It did not consider the effect of the proposed works to the airport.
The Defendant granted permission. This was challenged by the Claimant. It was quashed by the Court of Appeal on the ground that the ES should have dealt with the effects of the work to the airport. The court records in paragraph 19 of the judgment of Sullivan LJ ( R(Brown) v Carlisle City Council [2011] Env LR 5):-
" The defendant and the IP submitted that it was legitimate and reasonable not to treat the airport works as part of the cumulative effects of the FDC because there was no, or no significant functional link between the airport works and the FDC."
Sullivan LJ cited the Planning officer's report to the Committee which observed that the argument was that it was "essentially a financial (rather than a functional or operational) imperative for the FDC to be developed" at the site to enable the airport's improvements to be achieved so that it could continue in being. Sullivan LJ observed (paragraph 20):-
"It is far from certain that there will be no functional link between the upgraded airport facilities and the FDC."
He referred to the IP's chairman's statement to shareholders that the acquisition of the airport (which it occupies under a lease from the defendant) offered an opportunity to provide air freight solutions as well as the potential to develop passenger aviation.
The IP applied for the present permission on 16 December 2010. The officers' report to the planning committee on 15 July 2011 recommended refusal. The FDC was considered to be primarily for road haulage as opposed to air freight and so could not be regarded as airport related development. Only if it could be regarded as airport related would it have been in accordance with the local or development plan. While it was recognised that the IP could seek to close the airport if it was "not capable of economic operation as a commercial airport", it had not been demonstrated that, were permission to be granted, the income generated by the FDC would both cover the current significant annual losses and pay for the substantial cost of the airport related development. The report continued:-
"Further, specialist advice received by the Council casts significant doubt on the realistic potential for either air freight or passenger flights given the market, competition elsewhere, coupled with the relative shortness of the landing distance available of the runway and the lack of provision of an instrument landing system."
Thus the officers' view was that the likely benefits of the proposal did not outweigh the harm. There was in addition a defect in the ES since it failed to assess how the additional passenger throughput would be managed.
The licence issued by the CAA restricts use to aircraft with a maximum take off weight of 12.5 tonnes. There were a total of some 21 persons working full time and 14 part time at the airport. The majority of movements were by private light aircraft, for flight training or by helicopter including air ambulance. There were and are no passenger or cargo movements. The airport itself was established in 1941 as a wartime training base for pilots. Its southern boundary abuts the A689 which provides a link via the A69 to the M6 at Kingstown on the northern fringe of Carlisle some 9 kilometres or so away. The main runway is 1837 metres long and the development is not intended to extend its length. This means there is a limit to the size of aircraft which could use it even if it were upgraded as proposed. The suggested capital costs of the runway and taxiway works ultimately ranged from £5.1m (IP) to £7.5m (defendant's adviser) to £11.8m (claimant). In addition, there would be a need to improve the facilities to enable passengers to use the airport.
The report considered what it described as the socio-economic impact. The defendant had instructed a specialist adviser Alan Stratford Associates (ASA) to give advice on this issue. All smaller regional airports were facing increased costs and reduced demand. The IP had purchased Southend Airport and had a 42% interest in an airline, Aer Arran. This, it is said, would create the possibility of a link to Southend and to Ireland at Dublin or Waterford. The figures provided to the defendant for the total cost of upgrading work needed to enable commercial use of the airport would be in the region of £11.8 million or more. A report had been submitted on the claimant's behalf by York Aviation which indicated that there was no market for freight at Carlisle airport. The majority of travellers for which there was the highest demand from those travelling from Cumbria would not be able to be served from the airport and those who wanted to travel from London to Carlisle would be highly unlikely to travel to Southend to catch a plane rather than take a train from Euston.
In the result, the officers' report stated:-
"6.66 When assessing this issue in the light of the available information it is concluded that no convincing evidence that includes a breakdown of all costs, has been presented by the applicant regarding the effectiveness of the proposed FDC in enabling development in the light of the disputed costs regarding the runway works. No convincing evidence has been given showing that the forecast passenger flights and air freight movements are either realistic or achievable. The figures given by the applicant lack detailed supporting evidence and analysis. No evidence in the form of extensive market research nor a business/master plan has been presented to substantiate these claims. Thus even if the Council were to impose a condition requiring the runway works to be carried out in advancement of commencement of the proposed FDC, there is no guarantee that flights will actually take place, nor that further building to raise sufficient revenue will not be required.
6.67 Based on the work of ASA, the...
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