Brown, R (on the application of) v Stobart Air Ltd

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.

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. ”

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.”

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.”

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.

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 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.

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.

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, which could be secured, would accord with the development plan. It is open to debate whether the development as a whole would accord with the development plan as a whole. It is probably more appropriate to regard the development for which planning permission is sought as not in accordance with the development plan as a whole but to regard the development as financially enabling development for improvements to the airport which would be a considerable benefit and which could override harm. In this regard, the Economic Benefits have to be weighed against the possible harm arising from the policy tension with Policy EC22, especially when these are matched with the regeneration opportunities the application brings to Carlisle Airport, as proffered through a Section 106 Agreement.”

Having referred to the proposed Heads of Terms for the intended Section 106 Agreement, Circular 05/2005 on the use of Planning Obligations, The Town and Country Planning (Development Plans and Consultations) (Departures) Directions 1999 (“the Departures Direction”), and an Opinion from Leading Counsel, the Report’s conclusions in paragraphs 5.170 - 5.172 were as follows:

“ 5.170 In evaluating the application proposals, and the provisions that the Heads of Terms contain, it is open to Members to come to a view that, with a combination of appropriate planning conditions and S106 obligations, the proposals in their entirety would be “in accordance” with the Development Plan. The situation differs from that of the previous application in that the Council has commitments to matters that the applicant had not previously committed to deliver e.g. public transport, replacement for habitat loss, specification for the runway works.

5.171

Essentially, therefore, whilst the application has been properly advertised as a “Departure” (since there was throughout much of the period since the application was lodged insufficient detail attached to the Heads of Terms that had been promulgated) it is open to Members to take the view that, with the provision of the matters identified in para 5.163, the Heads of Terms, as now firmed up and fleshed out by the applicants, is:

•

sufficient to secure the City Council’s support for the development; and

•

achieve “accordance” of the proposal, in planning terms, with the Development Plan.

In short if it is accepted that, by linkage with the intended S106 Agreement, approval of the development will be the facilitator of the Airport investment and thus might realise its potential economic benefits (which are widely supported by key stakeholders, Agencies, Authorities and the business community) the application would become policy compliant in its full sense and would not require to be referred to the Secretary of State.

The Committee resolved to give authority to the Head of Planning and

Housing Services to issue an approval for the proposed development

subject to the completion of a Section 106 Agreement, the key points

of which were to include (inter alia):

The EIA Regulations give effect to Council Directive 85/337 EEC (as
amended) on the effect of certain public and private projects on the
environment (“the Directive”). Article 1(2) of the Directive states that for the
purposes of the Directive “project” means:

“ – the execution of construction works or of other installations or schemes,
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.”

The European Court of Justice has said that

“The wording of the Directive indicates that it has a wide scope and a broad purpose”

see para 31 of Case C – 72/95 Kraaijeveld and Others, and para 46 of Case C – 227/01 Commission v Spain.

There is no dispute that regulation 3(2) of the EIA Regulations applied not merely to the first, but also to the second planning application in issue in these proceedings:

“ (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.”

“Environmental information” is defined in regulation 2(1) as meaning, inter alia the “environmental statement” and any representations made in response thereto; and “environmental statement” means a statement:

“(a)

that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

that includes at least the information referred to in Part II of Schedule 4;”

The Defendant and the Interested Party submitted that it was legitimate and reasonable not to treat the airport works as part of the cumulative effects of the Freight Distribution Centre because there was no, or no significant functional link between the airport works and the Freight Distribution Centre. In paragraph 5.58 of the Report the Planning Officer advised the Committee that:

“5.58

In short, the argument is that it is essentially a financial (rather than a functional or operational) imperative for the Freight Warehouse and Distribution Centre to be developed at this site but, by doing so, the applicants maintain that this will deliver the only realistic capital stream to enable the investment that is required to upgrade the Airport infrastructure and allow it to survive, let alone grow.”

No authority was cited for the proposition that the connection between two developments must be an operational or functional one for the environmental effects of one of the developments to be part of the cumulative effects of the other. The answer to the question – what are the cumulative effects of a particular development – will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link. I have set out the Committee’s Summary Reasons for granting planning permission and the relevant passages in the Report (paras 3 and 10 above). It is plain that the Committee did not consider the planning merits of the Freight Distribution Centre in isolation without regard to any of its cumulative effects. Considered in isolation the Freight Distribution Centre was not in accordance with the Development Plan. The “development as a whole” was (rightly or wrongly, see paras 22 and 23 below) regarded by the Committee as “policy compliant” only because one of the cumulative effects of the development would be the “delivery” of the airport works through the mechanism of the Section 106 Agreement. The Section 106 Agreement did not permit the airport works, nor did it compel the Interested Party to carry them out, but it did ensure that the Freight Distribution Centre could not lawfully be developed (built and occupied) in isolation, it could be developed only if its cumulative effects included the carrying out of the airport works.

The response of the Interested Party’s Solicitor was that a repeat application was “out of the question it would be called in and they would run out of time.” The Defendant was told that the new application would be significantly different from the earlier application. After recording discussion of a number of matters, the note says that:

“Following discussion it was agreed that an environmental assessment would be submitted as part of the application”

Although the issue had been flagged up by the Defendant prior to the application, it was not addressed in the Interested Party’s Environmental Statement, and for whatever reason the Defendant thereafter failed to consider the implications for the purposes of regulation 3(2) of the EIA Regulations of its insistence on a Section 106 Agreement which would ensure that the freight distribution centre could lawfully be developed only if it was developed in conjunction with the airport works.

Mr Village QC submitted that it was unnecessary to include information as to
the environmental effects of the airport works in the Environmental Statement
because these works were “inchoate”. In the absence of sufficient detail of the
airport works it was not reasonable (see the definition of environmental
statement in reg 2(1), para. 15 above) to require an assessment of their
environmental effect as one of the cumulative effects of the development. He
referred to the provisions of the agreement which require substantial completion
of a terminal building with a floor space of no less than 400 square metres,
while leaving open the possibility of a planning application for a terminal with a
floor space in excess of 500 square metres (para. 12 above).

This submission is not well founded for two reasons. First, there is no evidence
that this was the basis on which the Defendant considered whether the
environmental effects of the airport works should be assessed as part of the
cumulative effects of the development and concluded that they should not.
Second, any lack of detail about the airport works was not such as to prevent the
Defendant from assessing, with the assistance of advice from EKOS and ASA,
the economic, transportation and tourism advantages of securing their
implementation through the mechanism of the proposed Section 106
Agreement. Thus, EKOS was able to assess the market potential for both
commercial passenger and air cargo operations (Report, paras. 5.65 – 5.75), and
ASA was able to describe what was likely to be provided by way of passenger
terminal facilities and to provide a specification for the repair/renewal of the
existing main runway (Report, paras. 5.141 – 5.150). ASA was also able to
advise by reference to the likely number of Air Traffic Movements (ATMs) on
the “safety issues” arising out of the use of the new facilities at the airport
(Report, para. 5.152).

Mr Village submitted that the assessments by EKOS and ASA were based on
the “minimum case”: the airport works required by the Section 106 Agreement
and no more. On a fair reading of the Report that submission puts the cart
before the horse: it was the earlier assessments by EKOS and ASA that
informed the content of the Section 106 Agreement. To the extent that they
described a minimum, rather than, as would appear from the report, the likely
case in respect of the airport works, there is no reason why this could not have
been reflected in any assessment of the environmental effects of those works as
part of the cumulative effects of the development.

For these reasons there is no doubt, in my judgment, that the grant of planning
permission was unlawful because there was a failure to comply with regulation
3(2) of the EIA Regulations. In the light of this conclusion it is unnecessary to
consider the further basis on which Mr Jones advanced the Claimant’s EIA
challenge: that there was also a breach of the Directive because
the project for the purposes of the Directive included the airport works.

Owen J considered that the EIA challenge was arguable (para. 27, judgment), but
he refused to grant permission to apply for judicial review because he was
satisfied that the court would exercise its discretion to refuse to grant relief even
if it was satisfied that the decision to grant permission was flawed (para. 30
judgment). Owen J concluded that “no purpose would …. be served by
permitting the claimant to pursue his claim on this ground” for two reasons:-

(1) If the airport works were likely to have a significant environmental effect
an environmental statement assessing their cumulative effects, which would
include the effects of the Freight Distribution Centre would be required.

When deciding how to exercise the court’s discretion Owen J did not refer to

the decision of the House of Lords in Berkeley v. Secretary of State for the

Environment (2001) 2 AC 603. Whether or not the grant of permission was also

in breach of the Directive, there was a breach of regulation 3(2), and

“It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires…” per Lord Hoffmann at page 616 F-G.

Mr Village invited us to uphold Owen J’s exercise of the Court’s discretion on
the basis of both reasons (1) and (2) (above). Mr Mould did not rely on reason
(2). In my judgment, he was right not to do so for the following reasons. The
second application was, as the Interested Party’s solicitor had told the
Defendant it would be (para 27 above), significantly different from the first
application. The airport works were different and reduced in scale, and
although the Freight Distribution Centre was reduced in scale it contained a
larger amount of office floor space (para 6 above). The first application was
considered by the Defendant to be a departure from the development plan, the
second application was not.

Even if the two applications had not been materially different, the fact remains
that the Defendant did not consider the “environmental information” which had
been provided in respect of the first application when it came to consider the
second application. Owen J referred to the fact that the Environmental
Statement accompanying the first application had not identified any
environmental effects (para 29 judgment), but the obligation under regulation
3(2) is to take into account the “environmental information”, which includes not
merely the Environmental Statement but, most importantly, any representations
made in response thereto: see regulation 2(1), and Berkeley at pp 615D-616D.
The totality of the information in respect of the first application had persuaded
the Defendant that it was a departure from the development plan and the
Secretary of State that it should be called in.

Both the Defendant and the Interested Party submitted that Owen J’s reason (1)
for not quashing the permission was sound. They submitted that the
environmental effects of the Freight Distribution Centre would inevitably be
considered as part of the cumulative effects of the airport works. The section
106 agreement ensured that the former could not proceed unless the latter were
commenced, and the latter could not commence if they involved development
until the requisite planning permission was available, either for permitted
development under the Town and Country Planning (General Permitted
Development) Order 1995 (the GDPO), or following an application for
permission. Even if the Interested Party proposed to carry out the airport works
as permitted development, the EIA Regulations would still apply so as to ensure
that the works did not proceed without an Environmental Statement if the
Defendant considered that they would be likely to have a significant
environmental effect: see articles 3(10) and (11) of the GPDO.

The confident assertion before this Court that there will be consideration of the
cumulative environmental effects of both the Freight Distribution Centre and
the airport works sits uneasily with the Defendant’s deliberately non-committal
responses in its letter dated 6^th January 2009. In answer to the question whether
the airport works would require planning consent the Head of Planning and
Housing Services replied:

“Paragraph 5.2 of the Committee Report states:

“The applicants rely on carrying out these works under the “Permitted Development” rights..

It does not state that the Council accepts this position. Furthermore, nor have we come to a view as to whether, in the event that the works are permitted development, an EIA will be required thus requiring a formal application for planning permission.”

It will be noted that the section 106 agreement does not prevent the
commencement of the Freight Distribution Centre until a planning permission
has been obtained (see para 12 above). Mr Village submitted that if it involved
development this was inherent in the obligation to submit and obtain the
Defendant’s written approval of a construction programme. It may well be the
case that for commercial reasons the Interested Party would be unlikely to
submit such a programme until it had the requisite planning permission, and the
Defendant might well be unwilling to approve such a programme unless it was
satisfied that the requisite permission was available. The fact remains that the
construction of the Freight Distribution Centre is not tied to a permission for the
airport works. The occupation of the Freight Distribution Centre is effectively
tied to such a permission because the airport works could not lawfully be
commenced without a planning permission, either an express permission or one
granted under the GPDO.

Mr Jones submitted that there was a fundamental objection to the course which
commended itself to Owen J. The underlying purpose of the Directive is that
the environmental effects of a development, including any cumulative effects,
are considered at the earliest possible stage in the decision making process: see
R (Barker) v. London Borough of Bromley [2006] UK HL 52 (2007) 1AC 470
per Lord Hope at para 22. If a decision is taken to permit a development on the
basis that any cumulative environmental effects of carrying it out will be
considered at some future stage there is the danger that the developer will have
obtained a “foot in the door”. Even if the later assessment of the cumulative
effects might otherwise lead to a conclusion that those effects were
unacceptable, the local planning authority would be committed to the
development for which permission had been obtained, and that commitment
would be a relevant factor in deciding whether cumulative environmental
effects which might have been regarded as unacceptable if they had been
considered at the outset, must be accepted at the later stage given the prior
commitment.

In the present case, the section 106 agreement leaves open the possibility of a
completed but unoccupied Freight Distribution Centre. That possibility might
well be an unlikely outcome for commercial reasons, but the fact that
permission had been granted for the Freight Distribution Centre would be a
relevant factor when deciding whether the cumulative environmental effects of
the airport works, including the effects of the Freight Distribution Centre, were
such as to justify a refusal of permission. Since the object of both the Directive
and the Regulations is to ensure that any cumulative environmental effects are
considered before any decision is taken as to whether permission should be
granted, an assurance that they will be assessed at a later stage when a decision
is taken as to whether further development should be permitted will not, save
perhaps in very exceptional circumstances, be a sufficient justification for
declining to quash a permission granted in breach of regulation 3(2) and/or the
Directive.

There are no exceptional circumstances in the present case. We were told by
Mr Village that works to implement the planning permission dated 12^th March
2009 have not been commenced, and no construction programme in respect of
the airport works has been submitted. In these circumstances, there is no good
reason why the permission should not be quashed.

Mr Village told us that if we concluded, contrary to his submissions, that the
grant of permission was unlawful, the Interested Party was prepared to give an
undertaking to the Court, to be incorporated into a section 106 planning
obligation so as to bind the land, that it would not commence development of
the Freight Distribution Centre until screening of both it and the airport works
had been undertaken by the Defendant under the EIA Regulations. It is difficult
to see what purpose would be served by the court’s acceptance of such an
undertaking that would not equally well be served by the quashing of the
permission. A planning permission is a public document. Third party rights,
e.g. the rights of agricultural tenants on the land, may be affected by the
existence, or otherwise of a planning permission. There would have to be some
very good reason to persuade the court that acceptance of an undertaking that an
unlawful permission would not be implemented, or would be implemented only
on certain terms, would be a more appropriate course than a decision to quash
an unlawful permission. No such reason has been identified in this case. It
follows that the EIA challenge to the permission succeeds and the permission
must be quashed.

The complaint in ground 4 of the challenge – that the Defendant failed to

give any reasons for its decision not to refer the application to the Secretary

of State – is academic because it is clear that the Secretary of State, in

response to representations from the Claimant’s Solicitor, carefully

considered whether to call in the second application and decided not to do

so. In these circumstances it is unnecessary to consider whether there was

any duty to give reasons for such a decision, and if there was, whether

sufficient reasons were given.

Ground 5 of the challenge, in which the Claimant submitted in the

alternative that the section 106 agreement, properly construed, did not

secure the carrying out of the airport works, provoked the intended response

from the Defendant and the Interested Party: that the section 106 agreement

did secure the airport works. In doing so, it ensured that the environmental

effects of those works were part of the cumulative environmental effects of

the Freight Distribution Centre ( see above).

Conclusion